Rules and Regulations. Proposed rule with request for comments
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BILLING CODE 6560-50-P CORPORATION FOR NATIONAL AND COMMUNITY SERVICE 45 CFR Part 2554 RIN 3045-AA42 Program Fraud Civil Remedies Act AGENCY: Corporation for National and Community Service. ACTION: Proposed rule with request for comments. SUMMARY: The Corporation for National and Community Service (Corporation) proposes regulations to implement the Program Fraud Civil Remedies Act of 1986 (Act). The Act authorizes certain Federal agencies, including the Corporation, to impose, through administrative adjudication, civil penalties and assessments against any person who makes, submits, or presents a false, fictitious, or fraudulent claim or written statement to the agency.
The proposed regulations establish the procedures the Corporation will follow in implementing the provisions of the Act and specifies the hearing and appeal rights of persons subject to penalties and assessments under the Act. They also designate the Corporation's Chief Financial Officer to act on behalf of the Chief Executive Officer in carrying out certain duties and responsibilities under the regulations. DATES: The comment period expires on April 3, 2006. Comments received after this date will be considered to the extent practicable.
ADDRESSES: Send written comments to the Office of the General Counsel, Corporation for National and Community Service, 1201 New York Ave., NW., Washington, DC 20525. Comments may also be delivered to the Corporation for National and Community Service, Office of the General Counsel, 1201 New York Ave., NW., Room 10600, Washington, DC 20525 between 9 a.m. and 4:15 p.m. Federal workdays. Copies of any comments received may be examined and copied for a fee upon request to Irshad Abdal-Haqq, Office of the General Counsel, Corporation for National and Community Service, 1201 New York Ave., NW., Washington, DC 20525;
Telephone 202-606-6675. You also may send comments by facsimile transmission to
(202)606-3467, or send them electronically to *programfraudrule@cns.gov* or through the Federal Government's one-stop rulemaking Web site at *http://www.regulations.gov.* Members of the public may review copies of all comments received on this rulemaking at the above address between 9 a.m. and 4:15 p.m. during Federal workdays. FOR FURTHER INFORMATION CONTACT: Irshad Abdal-Haqq, Office of the General Counsel, Corporation for National and Community Service, 1201 New York Ave., NW., Room 10600, Washington, DC 20525, Telephone: 202-606-6675. [Persons with visual impairments may request this proposed rule in an alternative format. The TDD/TTY number is 202-606-3472.] SUPPLEMENTARY INFORMATION: Background In October 1986, Congress enacted the Program Fraud Civil Remedies Act, Public Law 99-509 (codified at 31 U.S.C. 3801-3812), to establish an administrative remedy against any person who makes a false claim or written statement to any of certain Federal agencies. In brief, it requires the affected Federal agencies to follow certain procedures in recovering penalties (up to $5,000 per claim) and assessments (up to double the amount falsely claimed) against persons who file false claims or statements for which the liability is $150,000 or less. When the Act was enacted, the Corporation for National and Community Service did not exist, and the Act did not apply to the Corporation's predecessor agency, ACTION. However, that Act has since become applicable to the Corporation as a result of amendments to the Inspector General Act, Public Law 103-82, September 21, 1993. Those amendments, inter alia, added the Corporation for National and Community Service as an “establishment” under the Inspector General Act and, by doing so, operated to bring the Corporation within the provisions of the Program Fraud Civil Remedies Act. The Act requires each affected agency to promulgate rules and regulations necessary to implement its provisions. Following the Act's enactment, at the request of the President's Council on Integrity and Efficiency
(PCIE)an interagency task force was established under the leadership of the Department of Health and Human Services to develop model regulations for implementation of the Act by all affected agencies. This action was in keeping with the stated desire of the Senate Governmental Affairs Committee that “the regulations would be substantially uniform throughout the government” (S. Rep. No. 99-212, 99th Cong., 1st Sess. 12 (1985). Upon their completion, the PCIE recommended adoption of the model rules by all affected agencies. It is the policy of the Corporation to use a plain language style when proposing regulations, and we have done so in this document without making substantive changes to the PCIE model regulations. For the sake of consistency, we relied, to the extent practicable, on plain language regulations issued by the Small Business Administration in 1996. See 61 FR 2691, January 29, 1996 A more detailed discussion of the PCIE's model regulations is found in the promulgations of several of the agencies that adopted them earlier, including those of the Departments of Justice (53 FR 4034; February 11, 1988 and 53 FR 11645; April 8, 1988); Health and Human Services (52 FR 27423; July 21, 1987 and 53 FR 11656, April 8, 1988); and Transportation (52 FR 36968; October 2, 1987 and 53 FR 880, January 14, 1988). Anyone desiring further explanation of the model rules is referred to the cited references. The proposed regulations incorporate, where appropriate, definitions to fit the Corporation's organization. They prescribe the procedure under which false claims and statements subject to the Act will be investigated and reviewed, and the rules under which any ensuing hearing will be conducted. Statutory and Regulatory Analysis Under the Act, false claims and statements subject to its provisions are to be investigated by an agency's investigating official. The results of the investigation are then reviewed by an agency reviewing official who determines whether there is adequate evidence to believe that the person named in the report is liable under the Act. Upon an affirmative finding of adequate evidence, the reviewing official sends to the Attorney General a written notice of the official's intent to refer the matter to a presiding officer for an administrative hearing. The agency institutes administrative proceedings against the person only if the Attorney General or the Attorney General's designee approves. Any penalty or assessment imposed under the Act may be collected by the Attorney General through the filing of a civil action, or by offsetting amounts, other than tax refunds, owed the particular party by the Federal government. The proposed regulations designate the Inspector General or his or her designee as the agency's investigating official. They also designate the General Counsel as the reviewing official. Any administrative adjudication under the Act will be presided over by an Administrative Law Judge and any appeals from the Administrative Law Judge's decision will be decided by the Corporation's Chief Executive Officer or Chief Financial Officer. The proposed regulations designate the Corporation's Chief Financial Officer to act on behalf of the Chief Executive Officer in carrying out the duties and responsibilities of the “authority head” under the regulations. Paperwork Reduction Act This proposed rule contains no information collection requirements and therefore is not subject to the requirements of the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 *et seq.* ). Executive Order 12866 The Corporation has determined that the proposed rule is not an “economically significant” rule within the meaning of E.O. 12866 because it is not likely to result in:
(1)An annual effect on the economy of $100 million or more, or an adverse and material effect on a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal government or communities;
(2)the creation of a serious inconsistency or interference with an action taken or planned by another agency;
(3)a material alteration in the budgetary impacts of entitlement, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4)the raising of novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in E.O. 12866. However, it is a significant regulation and has been reviewed by the Office of Management and Budget. Regulatory Flexibility Act As required by the Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b)), the Corporation certifies that this rule, if adopted, will not have a significant economic impact on a substantial number of small entities. This regulatory action will not result in
(1)An annual effect on the economy of $100 million or more;
(2)a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; or
(3)significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets. The proposed rule establishes the procedural mechanism for investigating and adjudicating allegations of false claims or statements made against affected agencies. The proposed rule, by itself, does not impose any obligations on entities including any entities that may fall within the definition of “small entities” as set forth in section 601(3) of the Regulatory Flexibility Act, or within the definition of “small business” as found in Section 3 of the Small Business Act, 15 U.S.C. 632, or within the Small Business Size Standards found in 13 CFR part 121. These obligations would not be created until an order is issued, at which time the person subject to the order would have a right to a hearing in accordance with the regulations. Therefore, the Corporation has not performed the initial regulatory flexibility analysis that is required under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ) for major rules that are expected to have such results. Unfunded Mandates For purposes of Title II of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531-1538, as well as Executive Order 12875, this regulatory action does not contain any Federal mandate that may result in increased expenditures in either Federal, State, local, or tribal governments in the aggregate, or impose an annual burden exceeding $100 million on the private sector. List of Subjects in 45 CFR Part 2554 Claims, Fraud, Organization and function (government agencies), Penalties. For the reasons stated in the preamble, the Corporation for National and Community Service proposes to add a new Part 2554 to Chapter XXV of Title 45 of the Code of Federal Regulation to read as follows: PART 2554—PROGRAM FRAUD CIVIL REMEDIES ACT REGULATIONS Overview and Definitions Sec. 2554.1 Overview of regulations. 2554.2 What kind of conduct will result in program fraud enforcement? 2554.3 What is a claim? 2554.4 What is a statement? 2554.5 What is a false claim or statement? 2554.6 What does the phrase “know or have reason to know” mean? Procedures Leading to Issuance of a Complaint 2554.7 Who investigates program fraud? 2554.8 What happens if program fraud is suspected? 2554.9 Who is the Corporation's authority head? 2554.10 When will the Corporation issue a complaint? 2554.11 What is contained in a complaint? 2554.12 How will the complaint be served? Procedures Following Service of a Complaint 2554.13 How does a defendant respond to the complaint? 2554.14 What happens if a defendant fails to file an answer? 2554.15 What happens once an answer is filed? Hearing Provisions 2554.16 What kind of hearing is contemplated? 2554.17 At the hearing, what rights do the parties have? 2554.18 What is the role of the ALJ? 2554.19 Can the reviewing official or ALJ be disqualified? 2554.20 How are issues brought to the attention of the ALJ? 2554.21 How are papers served? 2554.22 How is time computed? 2554.23 What happens during a prehearing conference? 2554.24 What rights are there to review documents? 2554.25 What type of discovery is authorized and how is it conducted? 2554.26 Are there limits on disclosure of documents or discovery? 2554.27 Are witness lists exchanged before the hearing? 2554.28 Can witnesses be subpoenaed? 2554.29 Who pays the costs for a subpoena? 2554.30 Are protective orders available? 2554.31 Where is the hearing held? 2554.32 How will the hearing be conducted and who has the burden of proof? 2554.33 How is evidence presented at the hearing? 2554.34 How is witness testimony presented? 2554.35 Will the hearing proceedings be recorded? 2554.36 Can a party informally discuss the case with the ALJ? 2554.37 Are there sanctions for misconduct? 2554.38 Are post-hearing briefs required? Decisions and Appeals 2554.39 How is the case decided? 2554.40 How are penalty and assessment amounts determined? 2554.41 Can a party request reconsideration of the initial decision? 2554.42 When does the initial decision of the ALJ become final? 2554.43 What are the procedures for appealing the ALJ decision? 2554.44 What happens if an initial decision is appealed? 2554.45 Are there any limitations on the right to appeal to the authority head? 2554.46 How does the authority head dispose of an appeal? 2554.47 What judicial review is available? 2554.48 Can the administrative complaint be settled voluntarily? 2554.49 How are civil penalties and assessments collected? 2554.50 What happens to collections? 2554.51 What if the investigation indicates criminal misconduct? 2554.52 How does the Corporation protect the rights of defendants? Authority: Pub. L. 99-509, Secs. 6101-6104, 100 Stat. 1874 (31 U.S.C. 3801-3812); 42 U.S.C. 12651c-12651d. Overview and Definitions § 2554.1 Overview of regulations.
(a)Statutory basis. This part implements the Program Fraud Civil Remedies Act of 1986, 31 U.S.C. 3801-3812 (“the Act”). The Act provides the Corporation and other Federal agencies with an administrative remedy to impose civil penalties and assessments against persons making false claims and statements. The Act also provides due process protections to all persons who are subject to administrative proceedings under this part.
(b)Possible remedies for program fraud. In addition to any other penalties that may be prescribed by law, a person who submits, or causes to be submitted, a false claim or a false statement to the Corporation is subject to a civil penalty of not more than $5,000 for each statement or claim, regardless of whether property, services, or money is actually delivered or paid by the Corporation. If the Corporation has made any payment, transferred property, or provided services in reliance on a false claim, the person submitting it also is subject to an assessment of not more than twice the amount of the false claim. This assessment is in lieu of damages sustained by the Corporation because of the false claim. § 2554.2 What kind of conduct will result in program fraud enforcement?
(a)Any person who makes, or causes to be made, a false, fictitious, or fraudulent claim or written statement to the Corporation is subject to program fraud enforcement. A “person” means any individual, partnership, corporation, association, or other legal entity.
(b)If more than one person makes a false claim or statement, each person is liable for a civil penalty. If more than one person makes a false claim which has induced the Corporation to make payment, an assessment is imposed against each person. The liability of each such person to pay the assessment is joint and several, that is, each is responsible for the entire amount.
(c)No proof of specific intent to defraud is required to establish liability under this part. § 2554.3 What is a claim?
(a)Claim means any request, demand, or submission:
(1)Made to the Corporation for property, services, or money;
(2)Made to a recipient of property, services, or money from the Corporation or to a party to a contract with the Corporation for property or services, or for the payment of money. This provision applies only when the claim is related to property, services or money from the Corporation or to a contract with the Corporation; or
(3)Made to the Corporation which decreases an obligation to pay or account for property, services, or money.
(b)A claim can relate to grants, loans, insurance, or other benefits, and includes the Corporation guaranteed loans made by participating lenders. A claim is made when it is received by the Corporation, an agent, fiscal intermediary, or other entity acting for the Corporation, or when it is received by the recipient of property, services, or money, or the party to a contract.
(c)Each voucher, invoice, claim form, or individual request or demand for property, services, or money constitutes a separate claim. § 2554.4 What is a statement? A “statement” means any written representation, certification, affirmation, document, record, or accounting or bookkeeping entry made with respect to a claim or with respect to a contract, bid or proposal for a contract, grant, loan or other benefit from the Corporation. “From the Corporation” means that the Corporation provides some portion of the money or property in connection with the contract, bid, grant, loan, or benefit, or is potentially liable to another party for some portion of the money or property under such contract, bid, grant, loan, or benefit. A statement is made, presented, or submitted to the Corporation when it is received by the Corporation or an agent, fiscal intermediary, or other entity acting for the Corporation. § 2554.5 What is a false claim or statement?
(a)A claim submitted to the Corporation is a “false” claim if the person making the claim, or causing the claim to be made, knows or has reason to know that the claim:
(1)Is false, fictitious or fraudulent;
(2)Includes or is supported by a written statement which asserts or contains a material fact which is false, fictitious, or fraudulent;
(3)Includes or is supported by a written statement which is false, fictitious or fraudulent because it omits a material fact that the person making the statement has a duty to include in the statement; or
(4)Is for payment for the provision of property or services which the person has not provided as claimed.
(b)A statement submitted to the Corporation is a false statement if the person making the statement, or causing the statement to be made, knows or has reason to know that the statement:
(1)Asserts a material fact which is false, fictitious, or fraudulent; or
(2)Is false, fictitious, or fraudulent because it omits a material fact that the person making the statement has a duty to include in the statement. In addition, the statement must contain or be accompanied by an express certification or affirmation of the truthfulness and accuracy of the contents of the statement. § 2554.6 What does the phrase “know or have reason to know” mean? A person knows or has reason to know (that a claim or statement is false) if the person:
(a)Has actual knowledge that the claim or statement is false, fictitious, or fraudulent; or
(b)Acts in deliberate ignorance of the truth or falsity of the claim or statement; or
(c)Acts in reckless disregard of the truth or falsity of the claim or statement. Procedures Leading to Issuance of a Complaint § 2554.7 Who investigates program fraud? The Inspector General, or his designee, is the investigating official responsible for investigating allegations that a false claim or statement has been made. In this regard, the Inspector General has authority under the Program Fraud Civil Remedies Act and the Inspector General Act of 1978 (5 U.S.C. App. 3), as amended, to issue administrative subpoenas for the production of records and documents. § 2554.8 What happens if program fraud is suspected?
(a)If the investigating official concludes that an action under this Part is warranted, the investigating official submits a report containing the findings and conclusions of the investigation to a reviewing official. The reviewing official is the General Counsel or his or her designee. If the reviewing official determines that the report provides adequate evidence that a person submitted a false claim or statement, the reviewing official transmits to the Attorney General written notice of an intention to refer the matter for adjudication, with a request for approval of such referral. This notice will include the reviewing official's statements concerning:
(1)The reasons for the referral;
(2)The claims or statements upon which liability would be based;
(3)The evidence that supports liability;
(4)An estimate of the amount of money or the value of property, services, or other benefits requested or demanded in the false claim or statement;
(5)Any exculpatory or mitigating circumstances that may relate to the claims or statements known by the reviewing official or the investigating official; and
(6)A statement that there is a reasonable prospect of collecting an appropriate amount of penalties and assessments.
(b)If at any time, the Attorney General or his or her designee requests in writing that this administrative process be stayed, the authority head, as identified in § 2554.9 of this Part, must stay the process immediately. The authority head may order the process resumed only upon receipt of the written authorization of the Attorney General. § 2554.9 Who is the Corporation's authority head? The Corporation's “authority head” is the Chief Executive Officer or his or her designee. For purposes of this Part, the Corporation's Chief Financial Officer is designated to act on behalf of the Chief Executive Officer. § 2554.10 When will the Corporation issue a complaint? The Corporation will issue a complaint:
(a)If the Attorney General (or designee) approves the referral of the allegations for adjudication; and
(b)In a case of submission of false claims, if the amount of money or the value of property or services demanded or requested in a false claim, or a group of related claims submitted at the same time, does not exceed $150,000. “A group of related claims submitted at the same time” includes only those claims arising from the same transaction (such as a grant, loan, application, or contract) which are submitted together as part of a single request, demand, or submission. § 2554.11 What is contained in a complaint?
(a)A complaint is a written statement giving notice to the person alleged to be liable under 31 U.S.C. 3802 of the specific allegations being referred for adjudication and of the person's right to request a hearing with respect to those allegations. The person alleged to have made false statements or to have submitted false claims to the Corporation is referred to as the “defendant.”
(b)The reviewing official may join in a single complaint, false claims or statements that are unrelated, or that were not submitted simultaneously, regardless of the amount of money or the value of property or services demanded or requested.
(c)The complaint will state that the Corporation seeks to impose civil penalties, assessments, or both, against each defendant and will include:
(1)The allegations of liability against each defendant, including the statutory basis for liability, identification of the claims or statements involved, and the reasons liability allegedly arises from such claims or statements;
(2)The maximum amount of penalties and assessments for which each defendant may be held liable;
(3)A statement that each defendant may request a hearing by filing an answer and may be represented by a representative;
(4)Instructions for filing such an answer;
(5)A warning that failure to file an answer within 30 days of service of the complaint will result in imposition of the maximum amount of penalties and assessments.
(d)The reviewing official must serve any complaint on the defendant and, if a hearing is requested by the defendant, provide a copy to the Administrative Law Judge
(ALJ)assigned to the case. § 2554.12 How will the complaint be served?
(a)The complaint must be served on individual defendants directly, a partnership through a general partner, and on corporations or on unincorporated associations through an executive officer or a director, except that service also may be made on any person authorized by appointment or by law to receive process for the defendant.
(b)The complaint may be served either by:
(1)Registered or certified mail (return receipt requested) addressed to the defendant at his or her residence, usual dwelling place, principal office or place of business; or by
(2)Personal delivery by anyone 18 years of age or older.
(c)The date of service is the date of personal delivery or, in the case of service by registered or certified mail, the date of postmark.
(d)Proof of service—
(1)When service is made by registered or certified mail, the return postal receipt will serve as proof of service.
(2)When service is made by personal delivery, an affidavit of the individual serving the complaint, or written acknowledgment of receipt by the defendant or a representative, will serve as proof of service.
(e)When served with the complaint, the defendant also should be served with a copy of this Part 2554 and 31 U.S.C. 3801-3812. Procedures Following Service of a Complaint § 2554.13 How does a defendant respond to the complaint?
(a)A defendant may file an answer with the reviewing official within 30 days of service of the complaint. An answer will be considered a request for an oral hearing.
(b)In the answer, a defendant—
(1)Must admit or deny each of the allegations of liability contained in the complaint (a failure to deny an allegation is considered an admission);
(2)Must state any defense on which the defendant intends to rely;
(3)May state any reasons why he or she believes the penalties, assessments, or both should be less than the statutory maximum; and
(4)Must state the name, address, and telephone number of the person authorized by the defendant to act as defendant's representative, if any.
(c)If the defendant is unable to file an answer which meets the requirements set forth in paragraph
(b)of this section, the defendant may file with the reviewing official a general answer denying liability, requesting a hearing, and requesting an extension of time in which to file a complete answer. A general answer must be filed within 30 days of service of the complaint.
(d)If the defendant initially files a general answer requesting an extension of time, the reviewing official must promptly file with the ALJ the complaint, the general answer, and the request for an extension of time.
(e)For good cause shown, the ALJ may grant the defendant up to 30 additional days within which to file an answer meeting the requirements of paragraph
(b)of this section. Such answer must be filed with the ALJ and a copy must be served on the reviewing official. § 2554.14 What happens if a defendant fails to file an answer?
(a)If a defendant does not file any answer within 30 days after service of the complaint, the reviewing official will refer the complaint to the ALJ.
(b)Once the complaint is referred, the ALJ will promptly serve on the defendant a notice that an initial decision will be issued.
(c)The ALJ will assume the facts alleged in the complaint to be true and, if such facts establish liability under the statute, the ALJ will issue an initial decision imposing the maximum amount of penalties and assessments allowed under the statute.
(d)Except as otherwise provided in this section, when a defendant fails to file a timely answer, the defendant waives any right to further review of the penalties and assessments imposed in the initial decision.
(e)The initial decision becomes final 30 days after it is issued.
(f)If, at any time before an initial decision becomes final, a defendant files a motion with the ALJ asking that the case be reopened and describing the extraordinary circumstances that prevented the defendant from filing an answer, the initial decision will be stayed until the ALJ makes a decision on the motion. The reviewing official may respond to the motion.
(g)If, in his motion to reopen, a defendant demonstrates extraordinary circumstances excusing his failure to file a timely answer, the ALJ will withdraw the initial decision, and grant the defendant an opportunity to answer the complaint.
(h)A decision by the ALJ to deny a defendant's motion to reopen a case is not subject to review or reconsideration.
(i)The defendant may appeal to the authority head the decision denying a motion to reopen by filing a notice of appeal with the authority head within 15 days after the ALJ denies the motion. The timely filing of a notice of appeal shall stay the initial decision until the authority head decides the issue.
(j)If the defendant files a timely notice of appeal with the authority head, the ALJ shall forward the record of the proceeding to the authority head.
(k)The authority head shall decide expeditiously whether extraordinary circumstances excuse the defendant's failure to file a timely answer based solely on the record before the ALJ.
(l)If the authority head decides that extraordinary circumstances excused the defendant's failure to file a timely answer, the authority head shall remand the case to the ALJ with instructions to grant the defendant an opportunity to answer.
(m)If the authority head decides that the defendant's failure to file a timely answer is not excused, the authority head shall reinstate the initial decision of the ALJ, which shall become final and binding upon the parties 30 days after the authority head issues such decision. § 2554.15 What happens once an answer is filed?
(a)When the reviewing official receives an answer, he must file concurrently, the complaint and the answer with the ALJ, along with a designation of a Corporation representative.
(b)When the ALJ receives the complaint and the answer, the ALJ will promptly serve a notice of oral hearing upon the defendant and the representative for the Corporation, in the same manner as the complaint, service of which is described in § 2554.12. The notice of oral hearing must be served within six years of the date on which the claim or statement is made.
(c)The notice must include:
(1)The tentative time, place and nature of the hearing;
(2)The legal authority and jurisdiction under which the hearing is to be held;
(3)The matters of fact and law to be asserted;
(4)A description of the procedures for the conduct of the hearing;
(5)The name, address, and telephone number of the defendant's representative and the representative for the Corporation; and
(6)Such other matters as the ALJ deems appropriate.
(d)The six year statute of limitation may be extended by agreement of the parties. Hearing Provisions § 2554.16 What kind of hearing is contemplated? The hearing is a formal proceeding conducted by the ALJ during which a defendant will have the opportunity to cross-examine witnesses, present testimony, and dispute liability. § 2554.17 At the hearing, what rights do the parties have?
(a)The parties to the hearing shall be the defendant and the Corporation. Pursuant to 31 U.S.C. 3730(c)(5), a private plaintiff in an action under the False Claims Act may participate in the hearing to the extent authorized by the provisions of that Act.
(b)Each party has the right to:
(1)Be represented by a representative;
(2)Request a pre-hearing conference and participate in any conference held by the ALJ;
(3)Conduct discovery;
(4)Agree to stipulations of fact or law which will be made a part of the record;
(5)Present evidence relevant to the issues at the hearing;
(6)Present and cross-examine witnesses;
(7)Present arguments at the hearing as permitted by the ALJ; and
(8)Submit written briefs and proposed findings of fact and conclusions of law after the hearing, as permitted by the ALJ. § 2554.18 What is the role of the ALJ? An ALJ retained by the Corporation serves as the presiding officer at all hearings.
(a)The ALJ shall conduct a fair and impartial hearing, avoid delay, maintain order, and assure that a record of the proceeding is made.
(b)The ALJ has the authority to—
(1)Set and change the date, time, and place of the hearing upon reasonable notice to the parties;
(2)Continue or recess the hearing in whole or in part for a reasonable period of time;
(3)Hold conferences to identify or simplify the issues, or to consider other matters that may aid in the expeditious disposition of the proceeding;
(4)Administer oaths and affirmations;
(5)Issue subpoenas requiring the attendance of witnesses and the production of documents at depositions or at hearings;
(6)Rule on motions and other procedural matters;
(7)Regulate the scope and timing of discovery;
(8)Regulate the course of the hearing and the conduct of representatives and parties;
(9)Examine witnesses;
(10)Receive, rule on, exclude, or limit evidence;
(11)Upon motion of a party, take official notice of facts;
(12)Upon motion of a party, decide cases, in whole or in part, by summary judgment where there is no disputed issue of material fact;
(13)Conduct any conference, argument, or hearing on motions in person or by telephone; and
(14)Exercise such other authority as is necessary to carry out the responsibilities of the ALJ under this part.
(c)The ALJ does not have the authority to find Federal statutes or regulations invalid. § 2554.19 Can the reviewing official or ALJ be disqualified?
(a)A reviewing official or an ALJ may disqualify himself or herself at any time.
(b)Upon motion of any party, the reviewing official or ALJ may be disqualified as follows:
(1)The motion must be supported by an affidavit containing specific facts establishing that personal bias or other reason for disqualification exists, including the time and circumstances of the discovery of such facts;
(2)The motion must be filed promptly after discovery of the grounds for disqualification, or the objection will be deemed waived; and
(3)The party, or representative of record, must certify in writing that the motion is made in good faith.
(c)Once a motion has been filed to disqualify the reviewing official, the ALJ will halt the proceedings until resolving the matter of disqualification. If the ALJ determines that the reviewing official is disqualified, the ALJ will dismiss the complaint without prejudice. If the ALJ disqualifies himself or herself, the case will be promptly reassigned to another ALJ. § 2554.20 How are issues brought to the attention of the ALJ?
(a)All applications to the ALJ for an order or ruling shall be by motion. Motions shall state the relief sought, the authority relied upon, and the facts alleged, and shall be filed with the ALJ and served on all other parties.
(b)Except for motions made during a prehearing conference or at the hearing, all motions shall be in writing. The ALJ may require that oral motions be reduced to writing.
(c)Within 15 days after a written motion is served, or such other time as may be fixed by the ALJ, any party may file a response to such motion.
(d)The ALJ may not grant a written motion before the time for filing responses thereto has expired, except upon consent of the parties or following a hearing on the motion, but may overrule or deny such motion without awaiting a response.
(e)The ALJ shall make a reasonable effort to dispose of all outstanding motions prior to the beginning of the hearing. § 2554.21 How are papers served?
(a)Form.
(1)Documents filed with the ALJ shall include an original and two copies.
(2)Every pleading and paper filed in the proceeding shall contain a caption setting forth the title of the action, the case number assigned by the ALJ, and a designation of the paper ( *e.g.* , motion to quash subpoena).
(3)Every pleading and paper shall be signed by, and shall contain the address and telephone number of the party or the person on whose behalf the paper was filed, or his or her representative.
(4)Papers are considered filed when they are mailed. Date of mailing may be established by a certificate from the party or its representative or by proof that the document was sent by certified or registered mail.
(b)Service. A party filing a document with the ALJ shall at the time of filing, serve a copy of such document on every other party. Service upon any party of any document other than those required to be served as prescribed in § 2554.12 shall be made by delivering a copy or by placing a copy of the document in the United States mail, postage prepaid and addressed, to the party's last known address. When a party is represented by a representative, service shall be made upon such representative in lieu of the actual party.
(c)Proof of service. A certificate of the individual serving the document by personal delivery or by mail, setting forth the manner of service, shall be proof of service. § 2554.22 How is time computed?
(a)In computing any period of time under this part or in an order issued thereunder, the time begins with the day following the act, event, or default, and includes the last day of the period, unless it is a Saturday, Sunday, or legal holiday observed by the Federal government, in which event it includes the next business day.
(b)When the period of time allowed is less than seven days, intermediate Saturdays, Sundays, and legal holidays observed by the Federal government shall be excluded from the computation.
(c)Where a document has been served or issued by placing it in the mail, an additional five days will be added to the time permitted for any response. § 2554.23 What happens during a prehearing conference?
(a)The ALJ may schedule prehearing conferences as appropriate.
(b)Upon the motion of any party, the ALJ shall schedule at least one prehearing conference at a reasonable time in advance of the hearing.
(c)The ALJ may use prehearing conferences to discuss the following:
(1)Simplification of the issues;
(2)The necessity or desirability of amendments to the pleadings, including the need for a more definite statement;
(3)Stipulations and admissions of fact or as to the contents and authenticity of documents;
(4)Whether the parties can agree to submission of the case on a stipulated record;
(5)Whether a party chooses to waive appearances at an oral hearing and to submit only documentary evidence (subject to the objection of other parties) and written argument;
(6)Limitation of the number of witnesses;
(7)Scheduling dates for the exchange of witness lists and of proposed exhibits;
(8)Discovery;
(9)The time and place for the hearing; and
(10)Such other matters as may tend to expedite the fair and just disposition of the proceedings.
(d)The ALJ may issue an order containing all matters agreed upon by the parties or ordered by the ALJ at a prehearing conference. § 2554.24 What rights are there to review documents?
(a)Upon written request to the reviewing official, the defendant may review any relevant and material documents, transcripts, records, and other materials that relate to the allegations set out in the complaint and upon which the findings and conclusions of the investigating official under § 2554.8 are based, unless such documents are subject to a privilege under Federal law. Upon payment of fees for duplication, the defendant may obtain copies of such documents.
(b)Upon written request to the reviewing official, the defendant also may obtain a copy of all exculpatory information in the possession of the reviewing official or investigating official relating to the allegations in the complaint, even if it is contained in a document that would otherwise be privileged. If the document would otherwise be privileged, only that portion containing exculpatory information must be disclosed.
(c)The notice sent to the Attorney General from the reviewing official as described in § 2554.8 is not discoverable under any circumstances.
(d)The defendant may file a motion to compel disclosure of the documents subject to the provisions of this section. Such a motion may only be filed with the ALJ following the filing of an answer pursuant to § 2554.13. § 2554.25 What type of discovery is authorized and how is it conducted?
(a)The following types of discovery are authorized:
(1)Requests for production of documents for inspection and copying;
(2)Requests for admissions of the authenticity of any relevant document or of the truth of any relevant fact;
(3)Written interrogatories; and
(4)Depositions.
(b)For the purpose of this section and §§ 2554.27 and 2554.28, the term “documents” includes information, documents, reports, answers, records, accounts, papers, and other data and documentary evidence. Nothing contained herein shall be interpreted to require the creation of a document.
(c)Unless mutually agreed to by the parties, discovery is available only as ordered by the ALJ. The ALJ shall regulate the timing of discovery.
(d)Motions for discovery.
(1)A party seeking discovery may file a motion with the ALJ. Such a motion shall be accompanied by a copy of the requested discovery, or in the case of depositions, a summary of the scope of the proposed deposition.
(2)Within ten days of service, a party may file an opposition to the motion and/or a motion for protective order as provided in § 2554.30.
(3)The ALJ may grant a motion for discovery only if he or she finds that the discovery sought—
(i)Is necessary for the expeditious, fair, and reasonable consideration of the issues;
(ii)Is not unduly costly or burdensome;
(iii)Will not unduly delay the proceeding; and
(iv)Does not seek privileged information.
(4)The burden of showing that discovery should be allowed is on the party seeking discovery.
(5)The ALJ may grant discovery subject to a protective order under § 2554.30.
(e)Depositions.
(1)If a motion for deposition is granted, the ALJ shall issue a subpoena for the deponent, which may require the deponent to produce documents. The subpoena shall specify the time and place at which the deposition will be held.
(2)The party seeking to depose shall serve the subpoena in the manner prescribed in § 2554.12.
(3)The deponent may file with the ALJ a motion to quash the subpoena or a motion for a protective order within ten days of service.
(4)The party seeking to depose shall provide for the taking of a verbatim transcript of the deposition, which it shall make available to all other parties for inspection and copying.
(f)Each party shall bear its own costs of discovery. § 2554.26 Are there limits on disclosure of documents or discovery?
(a)Upon written request to the reviewing official, the defendant may review all non-privileged, relevant and material documents, records and other material related to the allegations contained in the complaint. After paying the Corporation a reasonable fee for duplication, the defendant may obtain a copy of the records described.
(b)Upon written request to the reviewing official, the defendant may obtain a copy of all exculpatory information in the possession of the reviewing official or investigating official relating to the allegations in the complaint. If the document would otherwise be privileged, only the portion of the document containing exculpatory information must be disclosed. As used in this section, the term “information” does not include legal materials such as statutes or case law obtained through legal research.
(c)The notice sent to the Attorney General from the reviewing official is not discoverable under any circumstances.
(d)Other discovery is available only as ordered by the ALJ and includes only those methods of discovery allowed by § 2554.25. § 2554.27 Are witness lists exchanged before the hearing?
(a)At least 15 days before the hearing or at such other time as ordered by the ALJ, the parties must exchange witness lists and copies of proposed hearing exhibits, including copies of any written statements or transcripts of deposition testimony that the party intends to offer in lieu of live testimony.
(b)If a party objects, the ALJ will not admit into evidence the testimony of any witness whose name does not appear on the witness list or any exhibit not provided to an opposing party unless the ALJ finds good cause for the omission or concludes that there is no prejudice to the objecting party.
(c)Unless a party objects within the time set by the ALJ, documents exchanged in accordance with this section are deemed to be authentic for the purpose of admissibility at the hearing. § 2554.28 Can witnesses be subpoenaed?
(a)A party wishing to procure the appearance and testimony of any individual at the hearing may request that the ALJ issue a subpoena.
(b)A subpoena requiring the attendance and testimony of an individual may also require the individual to produce documents at the hearing.
(c)A party seeking a subpoena shall file a written request therefor not less than 15 days before the date fixed for the hearing unless otherwise allowed by the ALJ for good cause shown. Such request shall specify any documents to be produced and shall designate the witnesses and describe the address and location thereof with sufficient particularity to permit such witnesses to be found.
(d)The subpoena shall specify the time and place at which the witness is to appear and any documents the witness is to produce.
(e)The party seeking the subpoena shall serve it in the manner prescribed in § 2554.12. A subpoena on a party or upon an individual under the control of a party may be served by first class mail.
(f)A party or the individual to whom the subpoena is directed may file with the ALJ a motion to quash the subpoena within ten days after service or on or before the time specified in the subpoena for compliance if it is less than ten days after service. § 2554.29 Who pays the costs for a subpoena? The party requesting a subpoena shall pay the cost of the fees and mileage of any witness subpoenaed in the amounts that would be payable to a witness in a proceeding in United States District Court. A check for witness fees and mileage shall accompany the subpoena when served, except that when a subpoena is issued on behalf of the authority, a check for witness fees and mileage need not accompany the subpoena. § 2554.30 Are protective orders available?
(a)A party or a prospective witness or deponent may file a motion for a protective order with respect to discovery sought by an opposing party or with respect to the hearing, seeking to limit the availability or disclosure of evidence.
(b)In issuing a protective order, the ALJ may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:
(1)That the discovery not be had;
(2)That the discovery may be had only on specified terms and conditions, including a designation of the time or place;
(3)That the discovery may be had only through a method of discovery other than that requested;
(4)That certain matters not be inquired into, or that the scope of discovery be limited to certain matters;
(5)That discovery be conducted with no one present except persons designated by the ALJ;
(6)That the contents of discovery or evidence be sealed;
(7)That a deposition after being sealed be opened only by order of the ALJ;
(8)That a trade secret or other confidential research, development, commercial information, or facts pertaining to any criminal investigation, proceeding, or other administrative investigation not be disclosed or be disclosed only in a designated way; or
(9)That the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the ALJ. § 2554.31 Where is the hearing held? The ALJ will hold the hearing in any judicial district of the United States:
(a)In which the defendant resides or transacts business; or
(b)In which the claim or statement on which liability is based was made, presented or submitted to the Corporation; or
(c)As agreed upon by the defendant and the ALJ. § 2554.32 How will the hearing be conducted and who has the burden of proof?
(a)The ALJ conducts a hearing in order to determine whether a defendant is liable for a civil penalty, assessment, or both and, if so, the appropriate amount of the civil penalty and/or assessment. The hearing will be recorded and transcribed, and the transcript of testimony, exhibits admitted at the hearing, and all papers and requests filed in the proceeding constitute the record for a decision by the ALJ.
(b)The Corporation must prove a defendant's liability and any aggravating factors by a preponderance of the evidence.
(c)A defendant must prove any affirmative defenses and any mitigating factors by a preponderance of the evidence.
(d)The hearing will be open to the public unless otherwise ordered by the ALJ for good cause shown. § 2554.33 How is evidence presented at the hearing?
(a)The ALJ shall determine the admissibility of evidence.
(b)Except as provided in this part, the ALJ shall not be bound by the Federal Rules of Evidence. However, the ALJ may apply the Federal Rules of Evidence where appropriate, *e.g.* , to exclude unreliable evidence.
(c)The ALJ shall exclude irrelevant and immaterial evidence.
(d)Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or by considerations of undue delay or needless presentation of cumulative evidence.
(e)Although relevant, evidence may be excluded if it is privileged under Federal law.
(f)Evidence concerning offers of compromise or settlement shall be inadmissible to the extent provided in Rule 408 of the Federal Rules of Evidence.
(g)The ALJ shall permit the parties to introduce rebuttal witnesses and evidence. § 2554.34 How is witness testimony presented?
(a)Except as provided in paragraph
(b)of this section, testimony at the hearing shall be given orally by witnesses under oath or affirmation.
(b)At the discretion of the ALJ, testimony may be admitted in the form of a written statement or deposition. Any such written statement must be provided to all other parties along with the last known address of such witness, in a manner which allows sufficient time for other parties to subpoena such witness for cross-examination at the hearing. Prior written statements of witnesses proposed to testify at the hearing and deposition transcripts shall be exchanged as provided in § 2554.27(a).
(c)The ALJ shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to:
(1)Make the interrogation and presentation effective for the ascertainment of the truth;
(2)Avoid needless consumption of time; and
(3)Protect witnesses from harassment or undue embarrassment.
(d)The ALJ shall permit the parties to conduct such cross-examination as may be required for a full and true disclosure of the facts.
(e)At the discretion of the ALJ, a witness may be cross-examined on matters relevant to the proceeding without regard to the scope of his or her direct examination. To the extent permitted by the ALJ, cross-examination on matters outside the scope of direct examination shall be conducted in the manner of direct examination and may proceed by leading questions only if the witness is a hostile witness, an adverse party, or a witness identified with an adverse party.
(f)Upon motion of any party, the ALJ shall order witnesses excluded so that they cannot hear the testimony of other witnesses. This rule does not authorize exclusion of—
(1)A party who is an individual;
(2)In the case of a party that is not an individual, an officer or employee of the party appearing for the entity pro se or designated by the party's representative; or
(3)An individual whose presence is shown by a party to be essential to the presentation of its case, including an individual employed by the Government engaged in assisting the representative for the Government. § 2554.35 Will the hearing proceedings be recorded? The hearing will be recorded and transcribed. Transcripts may be obtained following the hearing from the ALJ at a cost not to exceed the actual cost of duplication. The transcript of testimony, exhibits and other evidence admitted at the hearing, and all papers and requests filed in the proceeding constitute the record for the decision by the ALJ and the authority head. The record may be inspected and copied (upon payment of a reasonable fee) by anyone, unless otherwise ordered by the ALJ pursuant to § 2554.30. § 2554.36 Can a party informally discuss the case with the ALJ? No. Such discussions are forbidden as “ex parte communications” with the ALJ. No party or person (except employees of the ALJ's office) shall communicate in any way with the ALJ on any matter at issue in a case, unless on notice and opportunity for all parties to participate. This does not prohibit a person or party from inquiring about the status of a case or asking routine questions concerning administrative functions or procedures. § 2554.37 Are there sanctions for misconduct?
(a)The ALJ may sanction a person, including any party or representative for—
(1)Failing to comply with an order, rule, or procedure governing the proceeding;
(2)Failing to prosecute or defend an action; or
(3)Engaging in other misconduct that interferes with the speedy, orderly, or fair conduct of the hearing.
(b)Any such sanction, including but not limited to those listed in paragraphs (c), (d), and
(e)of this section, shall reasonably relate to the severity and nature of the failure or misconduct.
(c)When a party fails to comply with an order, including an order for taking a deposition, the production of evidence within the party's control, or a request for admission, the ALJ may—
(1)Draw an inference in favor of the requesting party with regard to the information sought;
(2)In the case of requests for admission, deem each matter of which an admission is requested to be admitted;
(3)Prohibit the party failing to comply with such order from introducing evidence concerning, or otherwise relying upon testimony relating to the information sought; and
(4)Strike any part of the pleadings or other submissions of the party failing to comply with such request.
(d)If a party fails to prosecute or defend an action under this part commenced by service of a notice of hearing, the ALJ may dismiss the action or may issue an initial decision imposing penalties and assessments.
(e)The ALJ may refuse to consider any motion, request, response, brief or other document which is not filed in a timely fashion. § 2554.38 Are post-hearing briefs required? The ALJ may require the parties to file post-hearing briefs. In any event, any party may file a post-hearing brief. The ALJ shall fix the time for filing such briefs, not to exceed 60 days from the date the parties receive the transcript of the hearing or, if applicable, the stipulated record. Such briefs may be accompanied by proposed findings of fact and conclusions of law. The ALJ may permit the parties to file reply briefs. Decisions and Appeals § 2554.39 How is the case decided?
(a)The ALJ will issue an initial decision based only on the record. It will contain findings of fact, conclusions of law, and the amount of any penalties and assessments imposed.
(b)The ALJ will serve the initial decision on all parties within 90 days after close of the hearing or expiration of any allowed time for submission of post-hearing briefs. If the ALJ fails to meet this deadline, he or she shall promptly notify the parties of the reason for the delay and set a new deadline.
(c)The findings of fact must include a finding on each of the following issues:
(1)Whether any one or more of the claims or statements identified in the complaint violate this part; and
(2)If the defendant is liable for penalties or assessments, the appropriate amount of any such penalties or assessments, considering any mitigating or aggravating factors.
(d)The initial decision will include a description of the right of a defendant found liable for a civil penalty or assessment to file a motion for reconsideration with the ALJ or a notice of appeal with the authority head. § 2554.40 How are penalty and assessment amounts determined?
(a)In determining an appropriate amount of civil penalties and assessments, the ALJ and the authority head, upon appeal, should evaluate any circumstances that mitigate or aggravate the violation and should articulate in their opinions the reasons that support the penalties and assessments they impose. Because of the intangible costs of fraud, the expense of investigating such conduct, and the need to deter others who might be similarly tempted, ordinarily double damages and a significant civil penalty should be imposed.
(b)Although not exhaustive, the following factors are among those that may influence that ALJ and the authority head in determining the amount of penalties and assessments to impose with respect to the misconduct ( *i.e.* , the false, fictitious, or fraudulent claims or statements) charged in the complaint:
(1)The number of false, fictitious, or fraudulent claims or statements;
(2)The time period over which such claims or statements were made;
(3)The degree of the defendant's culpability with respect to the misconduct;
(4)The amount of money or the value of the property, services, or benefit falsely claimed;
(5)The value of the Government's actual loss as a result of the misconduct, including foreseeable consequential damages and the costs of investigation;
(6)The relationship of the amount imposed as civil penalties to the amount of the Government's loss;
(7)The potential or actual impact of the misconduct upon national defense, public health or safety, or public confidence in the management of Government programs and operations, including particularly the impact on the intended beneficiaries of such programs;
(8)Whether the defendant has engaged in a pattern of the same or similar misconduct;
(9)Whether the defendant attempted to conceal the misconduct;
(10)The degree to which the defendant has involved others in the misconduct or in concealing it;
(11)Where the misconduct of employees or agents is imputed to the defendant, the extent to which the defendant's practices fostered or attempted to preclude such misconduct;
(12)Whether the defendant cooperated in or obstructed an investigation of the misconduct;
(13)Whether the defendant assisted in identifying and prosecuting other wrongdoers;
(14)The complexity of the program or transaction, and the degree of the defendant's sophistication with respect to it, including the extent of the defendant's prior participation in the program or in similar transactions;
(15)Whether the defendant has been found, in any criminal, civil, or administrative proceeding to have engaged in similar misconduct or to have dealt dishonestly with the Government of the United States or of a State, directly or indirectly; and
(16)The need to deter the defendant and others from engaging in the same or similar misconduct.
(c)Nothing in this section shall be construed to limit the ALJ or the authority head from considering any other factors that in any given case may mitigate or aggravate the offense for which penalties and assessments are imposed. § 2554.41 Can a party request reconsideration of the initial decision?
(a)Any party may file a motion for reconsideration of the initial decision with the ALJ within 20 days of receipt of the initial decision. If the initial decision was served by mail, there is a rebuttable presumption that the initial decision was received by the party 5 days from the date of mailing.
(b)A motion for reconsideration must be accompanied by a supporting brief and must describe specifically each allegedly erroneous decision.
(c)Any response to a motion for reconsideration will only be allowed if it is requested by the ALJ.
(d)The ALJ will dispose of a motion for reconsideration by denying it or by issuing a revised initial decision.
(e)If the ALJ issues a revised initial decision upon motion of a party, that party may not file another motion for reconsideration. § 2554.42 When does the initial decision of the ALJ become final?
(a)The initial decision of the ALJ becomes the final decision of the Corporation, and shall be binding on all parties 30 days after it is issued, unless any party timely files a motion for reconsideration or any defendant adjudged to have submitted a false claim or statement timely appeals to the Corporation's authority head, as set forth in § 2554.43.
(b)If the ALJ disposes of a motion for reconsideration by denying it or by issuing a revised initial decision, the ALJ's order on the motion for reconsideration becomes the final decision of the Corporation 30 days after the order is issued, unless a defendant adjudged to have submitted a false claim or statement timely appeals to the authority head, within 30 days of the ALJ's order, as set forth in § 2554.43. § 2554.43 What are the procedures for appealing the ALJ decision?
(a)Any defendant who submits a timely answer and is found liable for a civil penalty or assessment in an initial decision may appeal the decision.
(b)The defendant may file a notice of appeal with the authority head within 30 days following issuance of the initial decision, serving a copy of the notice of appeal on all parties and the ALJ. The authority head may extend this deadline for up to an additional 30 days if an extension request is filed within the initial 30 day period and shows good cause.
(c)The defendant's appeal will not be considered until all timely motions for reconsideration have been resolved.
(d)If a timely motion for reconsideration is denied, a notice of appeal may be filed within 30 days following such denial or issuance of a revised initial decision, whichever applies.
(e)A notice of appeal must be supported by a written brief specifying why the initial decision should be reversed or modified.
(f)The Corporation's representative may file a brief in opposition to the notice of appeal within 30 days of receiving the defendant's notice of appeal and supporting brief.
(g)If a defendant timely files a notice of appeal, and the time for filing motions for reconsideration has expired, the ALJ will forward the record of the proceeding to the authority head. § 2554.44 What happens if an initial decision is appealed?
(a)An initial decision is stayed automatically pending disposition of a motion for reconsideration or of an appeal to the authority head.
(b)No administrative stay is available following a final decision of the authority head. § 2554.45 Are there any limitations on the right to appeal to the authority head?
(a)A defendant has no right to appear personally, or through a representative, before the authority head.
(b)There is no right to appeal any interlocutory ruling.
(c)The authority head will not consider any objection or evidence that was not raised before the ALJ unless the defendant demonstrates that the failure to object was caused by extraordinary circumstances. If the appealing defendant demonstrates to the satisfaction of the authority head that extraordinary circumstances prevented the presentation of evidence at the hearing, and that the additional evidence is material, the authority head may remand the matter to the ALJ for consideration of the additional evidence. § 2554.46 How does the authority head dispose of an appeal?
(a)The authority head may affirm, reduce, reverse, compromise, remand, or settle any penalty or assessment imposed by the ALJ in the initial decision or reconsideration decision.
(b)The authority head will promptly serve each party to the appeal and the ALJ with a copy of his or her decision. This decision must contain a statement describing the right of any person, against whom a penalty or assessment has been made, to seek judicial review. § 2554.47 What judicial review is available? 31 U.S.C. 3805 authorizes judicial review by the appropriate United States District Court of any final Corporation decision imposing penalties or assessments, and specifies the procedures for such review. To obtain judicial review, a defendant must file a petition with the appropriate court in a timely manner. § 2554.48 Can the administrative complaint be settled voluntarily?
(a)Parties may make offers of compromise or settlement at any time. Any compromise or settlement must be in writing.
(b)The reviewing official has the exclusive authority to compromise or settle the case from the date on which the reviewing official is permitted to issue a complaint until the ALJ issues an initial decision.
(c)The authority head has exclusive authority to compromise or settle the case from the date of the ALJ's initial decision until initiation of any judicial review or any action to collect the penalties and assessments.
(d)The Attorney General has exclusive authority to compromise or settle the case while any judicial review or any action to recover penalties and assessments is pending.
(e)The investigating official may recommend settlement terms to the reviewing official, the authority head, or the Attorney General, as appropriate. The reviewing official may recommend settlement terms to the authority head or the Attorney General, as appropriate. § 2554.49 How are civil penalties and assessments collected? Section 3806 and 3808(b) of title 31, United States Code, authorize actions for collection of civil penalties and assessments imposed under this Part and specify the procedures for such actions. § 2554.50 What happens to collections? All amounts collected pursuant to this part shall be deposited as miscellaneous receipts in the Treasury of the United States, except as provided in 31 U.S.C. 3806(g). § 2554.51 What if the investigation indicates criminal misconduct?
(a)Any investigating official may:
(1)Refer allegations of criminal misconduct directly to the Department of Justice for prosecution or for suit under the False Claims Act or other civil proceeding;
(2)Defer or postpone a report or referral to the reviewing official to avoid interference with a criminal investigation or prosecution; or
(3)Issue subpoenas under other statutory authority.
(b)Nothing in this part limits the requirement that the Corporation employees report suspected violations of criminal law to the Corporation's Office of Inspector General or to the Attorney General. § 2554.52 How does the Corporation protect the rights of defendants? These procedures separate the functions of the investigating official, reviewing official, and the ALJ, each of whom report to a separate organizational authority in accordance with 31 U.S.C. 3801. Except for purposes of settlement, or as a witness or a representative in public proceedings, no investigating official, reviewing official, or Corporation employee or agent who helps investigate, prepare, or present a case may (in such case, or a factually related case) participate in the initial decision or the review of the initial decision by the authority head. This separation of functions and organization is designed to assure the independence and impartiality of each government official during every stage of the proceeding. The representative for the Corporation may be employed in the offices of either the investigating official or the reviewing official. Dated: January 26, 2006. David Eisner, Chief Executive Officer. [FR Doc. E6-1220 Filed 1-31-06; 8:45 am] BILLING CODE 6050-28-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 64 [CG Docket No. 03-123; FCC 05-196] Telecommunications Relay Services and Speech-to-Speech Services for Individuals With Hearing and Speech Disabilities; Access to Emergency Services AGENCY: Federal Communications Commission. ACTION: Proposed rule. SUMMARY: In this document, the Commission seeks comment on whether it should adopt rules requiring Video Relay Service
(VRS)and Internet-Protocol
(IP)Relay providers to adopt a means to ensure that, when the provider receives emergency calls made via these services, the provider can make an outbound call to the appropriate Public Safety Answering Point (PSAP). More specifically, the Commission seeks comment on whether it should adopt a registration process whereby VRS and IP Relay service providers are required to establish, in advance, the primary location from which the VRS and IP Relay service providers will be making calls, so the provider can identify the appropriate PSAP to contact. DATES: Comments are due on or before February 22, 2006. Reply comments are due on or before March 8, 2006. Written comments on the Paperwork Reduction Act
(PRA)proposed information collection requirements must be submitted by the general public, Office of Management and Budget (OMB), and other interested parties on or before April 3, 2006. ADDRESSES: You may submit comments, identified by [CG Docket number 03-123 and/or FCC Number 05-196], by any of the following methods: • Federal eRulemaking Portal: *http://www.regulations.gov.* Follow the instructions for submitting comments. • Federal Communications Commission's Web site: *http://www.fcc.gov/cgb/ecfs/.* Follow the instructions for submitting comments. • People with Disabilities: Contact the FCC to request reasonable accommodations (accessible format documents, sign language interpreters, CART, etc.) by e-mail: *FCC504@fcc.gov* or phone
(202)418-0539 or TTY:
(202)418-0432. For detailed instructions for submitting comments and additional information on the rulemaking process, see the SUPPLEMENTARY INFORMATION section of this document. In addition, a copy of any comments on the PRA information collection requirements contained herein should be submitted to Leslie Smith, Federal Communications Commission, Room 1-A804, 445 12th Street, SW., Washington, DC 20554, or via the Internet to *Leslie.Smith@fcc.gov* , and to Kristy L. LaLonde, OMB Desk Officer, Room 10234 NEOB, 725 17th Street, NW., Washington, DC 20503, or via the Internet to *Kristy_L._LaLonde@omb.eop.gov* , or via fax at
(202)395-5167. FOR FURTHER INFORMATION CONTACT: Thomas Chandler, Consumer & Governmental Affairs Bureau, Disability Rights Office at
(202)418-1475 (voice),
(202)418-0597 (TTY), or e-mail at *Thomas.Chandler@fcc.gov.* For additional information concerning the Paperwork Reduction Act information collection requirements contained in this document, contact Leslie Smith at
(202)418-0217, or via the Internet at *Leslie.Smith@fcc.gov.* SUPPLEMENTARY INFORMATION: The Notice of Proposed Rulemaking ( *NPRM* ), *Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities, Access to Emergency Services* ; CG Docket No. 03-123, FCC 05-196, contains proposed information collection requirements subject to the PRA of 1995, Public Law 104-13. It will be submitted to the Office of Management and Budget
(OMB)for review under section 3507 of the PRA. OMB, the general public, and other Federal agencies are invited to comment on the proposed information collection requirements contained in this document. This is a summary of the Commission's *NPRM* , FCC 05-196, adopted November 18, 2005, and released November 30, 2005, in CG Docket No. 03-123. Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415 and 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using:
(1)the Commission's Electronic Comment Filing System (ECFS),
(2)the Federal Government's eRulemaking Portal, or
(3)by filing paper copies. *See Electronic Filing of Documents in Rulemaking Proceedings* , 63 FR 24121, May 1, 1998. • Electronic Filers: Comments may be filed electronically using the Internet by accessing the ECFS: *http://www.fcc.gov/cgb/ecfs/* or the Federal eRulemaking Portal: *http://www.regulations.gov.* Filers should follow the instructions provided on the Web site for submitting comments. • For ECFS filers, if multiple docket or rulemaking numbers appear in the caption of this proceeding, filers must transmit one electronic copy of the comments for each docket or rulemaking number referenced in the caption. In completing the transmittal screen, filers should include their full name, U.S. Postal Service mailing address, and the applicable docket or rulemaking number, which in this instance is CG Docket No. 03-123. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions, filers should send an e-mail to *ecfs@fcc.gov* , and include the following words in the body of the message, “get form <your e-mail address>.” A sample form and directions will be sent in response. • Paper Filers: Parties who choose to file by paper must file an original and four copies of each filing. If more than one docket or rulemaking number appears in the caption in this proceeding, filers must submit two additional copies of each additional docket or rulemaking number. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although the Commission continues to experience delays in receiving U.S. Postal Service mail). All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission. • The Commission's contractor will receive hand-delivered or messenger-delivered paper filings for the Commission's Secretary at 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of *before* entering the building. • Commercial mail sent by overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743. • U.S. Postal Service first-class, Express, and Priority mail should be addressed to 445 12th Street, SW., Washington, DC 20554. Pursuant to § 1.1200 of the Commission's rules, 47 CFR 1.1200, this matter shall be treated as a “permit-but-disclose” proceeding in which *ex parte* communications are subject to disclosure. Persons making oral *ex parte* presentations are reminded that memoranda summarizing the presentations must contain summaries of the substance of the presentation and not merely a listing of the subjects discussed. More than a one or two sentence description of the views and arguments presented is generally required. Other requirements pertaining to oral and written presentations are set forth in § 1.1206(b) of the Commission's rules. *People with Disabilities:* To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an e-mail to *fcc504@fcc.gov* or call the Consumer & Governmental Affairs Bureau at
(202)418-0530 (voice),
(202)418-0432 (TTY). Initial Paperwork Reduction Act of 1995 Analysis The *NPRM* contains proposed information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of Management and Budget
(OMB)to comment on the information collection requirements contained in this document, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. Public and agency comment are due April 3, 2006. Comments should address:
(a)Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility;
(b)the accuracy of the Commission's burden estimates;
(c)ways to enhance the quality, utility, and clarity of the information collected; and
(d)ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, *see* 44 U.S.C. 3506 (c)(4), the Commission seeks specific comment on how it may “further reduce the information collection burden for small business concerns with fewer than 25 employees.” *OMB Control Number:* 3060-XXXX. *Title:* Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities; Access to Emergency Services. *Form No.:* N/A. *Type of Review:* New collection. *Number of Respondents:* 8—(6 of which provides VRS and IP Relay service; 2 of which provides VRS). *Number of Responses:* 5,001,022. *Respondents:* Business and other for-profit entities; State, Local or Tribal Government. *Estimated Time per Response:* 4 to 1,000 hours. *Frequency of Response:* Annual and on occasion reporting requirement; Recordkeeping; Third party disclosure. *Total Annual Burden:* 21,504 hours. *Total Annual Costs:* $0. *Privacy Act Impact Assessment:* No impact(s). *Needs and Uses:* On November 30, 2005, the Commission released a Notice of Proposed Rulemaking ( *NPRM* ), CG Docket No. 03-123, which addresses the issue of access to emergency services for Internet-based forms of Telecommunications Relay Services (TRS), namely Video Relay Service
(VRS)and Internet-Protocol
(IP)Relay Service. The Commission seeks to adopt a means to ensure that such calls promptly reach the appropriate emergency service provider. By doing so, the *NPRM* seeks comment on various issues:
(1)Whether the Commission should require VRS and IP Relay service providers to establish a registration process in which VRS and IP Relay service users provide, in advance, the primary location from which they will be making VRS or IP Relay service calls (the Registered Location), so that a communication assistant
(CA)can identify the appropriate Public Safety Answering Point
(PSAP)to contact;
(2)Should VRS and IP Relay providers be required to register their customers and obtain a Registered Location from their customers so that they will be able to make the outbound call to the appropriate PSAP;
(3)whether there are other means by which VRS and IP Relay service providers may obtain Registered Location information, for example, by linking the serial number of the customer VRS or IP Relay service terminal or equipment to their registered location;
(4)any privacy considerations that might be raised by requiring VRS and IP Relay service users to provide location information as a prerequisite to using these services;
(5)whether, assuming some type of location registration requirement is adopted, the Commission should require specific information or place limits on the scope of information that providers should be able to obtain;
(6)whether the Commission should require VRS and IP Relay providers to provide appropriate warning labels for installation on customer premises equipment
(CPE)used in connection with VRS and IP Relay services;
(7)whether the Commission should require VRS and IP Relay providers to obtain and keep a record of affirmative acknowledgement by every subscriber of having received and understood the advisory that E911 service may not be available through VRS and IP Relay or may be in some way limited by comparison to traditional E911 service; and
(8)how the Commission may ensure that providers have updated location information, and the respective obligations of the providers and the consumers in this regard. Synopsis In the *NPRM* , the Commission addresses the issue of access to emergency services for VRS and IP Relay services. TRS, created by Title IV of the Americans with Disabilities Act of 1990 (ADA), enables an individual with a hearing or speech disability to communicate by telephone or other device through the telephone system with a person without such a disability. *See* 47 U.S.C. 225(a)(3) (defining TRS); 47 CFR 64.601(14). As the Commission has often recognized, 911 service is critical to our nation's ability to respond to a host of crises. *See* , *e.g.* , *Revision of the Commission's Rules to Ensure Compatibility with Enhanced 911 Emergency Calling Systems* , CC Docket No. 94-102, RM-8143, FCC 96-264, First Report and Order, 11 FCC Rcd 18676, 18679, paragraph 5 (July 26, 1996); published at 61 FR 40348 (August 2, 1996), ( *E911 First Report and Order* ); *IP-Enabled Service, E911 Requirements for IP-Enabled Service Providers* , WC Docket Nos. 04-36, 05-196, FCC 05-116, First Report and Order and Notice of Proposed Rulemaking, 20 FCC Rcd 10245, at 10247-10248, paragraph 4 (June 3, 2005) ( *VoIP E911 Order* ); published at 70 FR 43323 (July 27, 2005). In the four decades since 911 service was established, Americans largely take for granted, that in the event of an emergency, they can use the telephone to quickly reach the proper authorities and that the first responders will be able to accurately locate them. *See VoIP E911 Order* , 20 FCC Rcd at 10248-10249, paragraph 6. Because wireline telephones are generally linked to a particular address, emergency calls placed over the traditional Public Switched Telephone Network (PSTN), including direct TTY calls, can usually be routed to the proper PSAP where location information is automatically displayed. When a user dials 911 with a TTY to contact a PSAP, it is not a TRS call and therefore a relay provider is not involved. Such a call is automatically routed to the appropriate PSAP in the same manner as any other 911 PSTN call, and contains the same location and callback information as a voice call to 911. Under Title II of the ADA, PSAPs must be capable of directly receiving TTY calls. *See* 28 CFR 35.162 (United States Department of Justice regulations implementing Title II of the ADA and requiring telephone emergency services, including 911 services, to provide “direct access to individuals who use [TTY's]”). This is the most reliable way for persons with hearing or speech disabilities to reach emergency services. *VoIP E911 Order* , 20 FCC Rcd at 10250-10254, paragraphs 12-18. Such direct, automatic access to emergency services through VRS and IP Relay services, however, does not currently exist and, accordingly, solutions must be developed. Emergency calls made via TRS, rather than by directly calling 911, present unique challenges, because they are connected through a communications assistant (CA), rather than routed directly and automatically to the appropriate PSAP over a network, and the CA must make an outbound voice telephone call to the appropriate PSAP. The CA, therefore, must have a means of determining both
(1)where the relay caller is physically located, and
(2)the appropriate PSAP that corresponds to that geographic location so the CA can make the outbound telephone call to the PSAP. Because Internet-based calls do not originate on the PSTN, location and callback information is not transmitting and CAs must use other methods to ascertain the callers' location. The Commission accordingly seeks comment on ways in which we may ensure that the CA will be able to call the appropriate PSAP when a VRS or IP Relay service user calls the relay provider and asks the CA to call emergency services. The Commission also seeks comment on whether, and if so, how, requirements ensuring that persons using VRS and IP Relay service will have access to emergency services might affect the TRS funding mechanism. *See generally Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities* , CC Docket Nos. 90-571 and 98-67, CG Docket No. 03-123, Report and Order, Order on Reconsideration, and Further Notice of Proposed Rulemaking, 19 FCC Rcd 12475, at 12482-12483, paragraphs 7-8 (June 30, 2004) ( *2004 TRS Report and Order* ); published at 69 FR 53346 (September 1, 2004) and 69 FR 53382 (September 1, 2004) (overview of TRS funding mechanism). Background Telecommunications Relay Service Title IV of the Americans with Disabilities Act of 1990 (ADA), adding Section 225 to the Communications Act of 1934, requires the Commission to ensure that TRS is available, to the extent possible and in the most efficient manner, to persons with hearing or speech disabilities in the United States. 47 U.S.C. 225(b)(1). The statute requires that TRS offer persons with hearing and speech disabilities telephone transmission services that are “functionally equivalent” to voice telephone services. 47 U.S.C. 225(a)(3). Initially, TRS was provided via a TTY (text telephone) and the PSTN. In such a “traditional” TRS call, a person with a hearing or speech disability initiates the call by dialing ( *i.e.* , typing) a telephone number for a TRS facility using a TTY, and then types the number of the party he or she desires to call. The CA, in turn, places an outbound voice call to the called party. The CA serves as the “link” in the conversation, converting all typed TTY messages from the caller into voice messages for the called party, and all voice messages from the called party into typed messages for the TTY user. *See generally 2004 TRS Report and Order* , 19 FCC Rcd at 12480, paragraph 3, note 18. In March 2000, the Commission recognized VRS as a form of TRS. *See Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities* , CC Docket No. 98-67, Report and Order and Further Notice of Proposed Rulemaking, 15 FCC Rcd 5140, 5152-5154, paragraphs 21-27 (March 6, 2000); published at 65 FR 38432 (June 21, 2000) and 65 FR 38490 (June 21, 2000) (Improved TRS Order and FNPRM) (recognizing VRS as a form of TRS); 47 CFR 64.601(17) (defining VRS). VRS requires the use of a broadband Internet connection between the VRS user and the CA, which allows them to communicate in sign language via a video link. The CA, in turn, places an outbound telephone call to a hearing person. During the call, the CA communicates in American Sign Language
(ASL)with the deaf person and by voice with the hearing person. Presently, all VRS and IP Relay service calls are compensated from the Interstate TRS Fund. The question of whether the Commission should adopt a mechanism for the jurisdictional separation of costs for these services is pending before the Commission. *2004 TRS Report and Order* , 19 FCC Rcd at 12561-12564, paragraphs 221-230 (IP Relay), at 12567, paragraphs 241-242 (VRS). Although the Commission has not made VRS a mandatory service, it has encouraged its development. In the past few years use of VRS has grown tremendously. In January 2002, the first month VRS was generally offered, there were 7,215 minutes of use; in January 2003, there were 128,114 minutes of use; in January 2004, there were 477,538 minutes of use; and in January 2005, there were 1,634,316 minutes of use. There were over 2.2 million minutes of use of VRS in July 2005. In April 2002, the Commission recognized a second Internet-based form of TRS—IP Relay service. *See Provision of Improved Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities* , CC Docket No. 98-67, Declaratory Ruling and Second Further Notice of Proposed Rulemaking, 17 FCC Rcd 7779 (April 22, 2002); published at 67 FR 39863 (June 11, 2002) and 67 FR 39929 (June 11, 2002) ( *IP Relay Declaratory Ruling and FNPRM* ). IP Relay service calls are text-based calls, but the user connects to the TRS facility via a computer (or other similar device) and the Internet, rather than via a TTY and the PSTN. A user establishes a local connection to an Internet service provider using a computer, web phone, personal digital assistant, or other IP-enabled device, selects the Internet address of an IP Relay service provider, and is connected to a CA who handles the call in the same way that TTY-based calls are handled. *See generally Provision of Improved Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities* , CC Docket No. 98-67, Order on Reconsideration, 18 FCC Rcd 4761, at 4762, paragraph 3, note 11 (March 14, 2003). IP Relay service, like VRS, has become very popular, because the user can make a relay call with any computer (or similar device) connected to the Internet, rather than only with a dedicated TTY. 911/E911 Service Basic 911 service is a forwarding arrangement in which 911 calls are transmitted, based on the caller's location, to a geographically appropriate PSAP. *See VoIP E911 Order* , 20 FCC Rcd at 10250-10251, paragraph 12. These calls are therefore routed based on the calling party's number, not the called number. *See VoIP E911 Order* , 20 FCC Rcd at 10251, paragraph 13, note 32. The service does not provide the PSAP, however, with the caller's location information. E911 systems do provide the call taker with the caller's call back number, referred to as Automatic Numbering Information (ANI), and, in many cases, the caller's location information, a capability referred to as Automatic Location Identification (ALI). *VoIP E911 Order* , 20 FCC Rcd at 10251, paragraph 13. Virtually all wireline local exchange carriers
(LECs)and Commercial Mobile Radio Services
(CMRS)carriers now provide at least basic 911 service, and in many localities E911 service. *VoIP E911 Order* , 20 FCC Rcd at 10249-10251, paragraphs 8, 13. New communications technologies have posed technical and operational challenges to the 911 system. *VoIP E911 Order* , 20 FCC Rcd at 10249, paragraph 8. For example, the mobility of wireless telephones renders the use of permanent street addresses as a location indicator useless. The person using the telephone could be anywhere in the country, notwithstanding that the wireless telephone number is associated with a particular physical address. Under the Commission's rules, wireless telephone service providers must employ a means of providing real-time location updates to the PSAP. *VoIP E911 Order* , 20 FCC Rcd at 10252-10253, paragraph 17. Thus, wireless carriers have developed various techniques to provide ANI and ALI to the PSAPs that involve enhancements to the existing wireless E911 network. *See generally VoIP E911 Order* , 20 FCC Rcd at 10252-10254, paragraphs 16-18 (addressing wireless E911 technical and operational issues). TRS and Emergency Call Handling In 1991, the Commission, pursuant to Congress's direction in Section 225 of the Communications Act, adopted the TRS regulations. *See Telecommunication Services for Individuals with Hearing and Speech Disabilities, and the Americans with Disabilities Act of 1990* , CC Docket No. 90-571, FCC 91-213, Report and Order and Request for Comments, 6 FCC Rcd 4657 (July 26, 1991); published at 56 FR 36729 (August 1, 1991) ( *TRS I* ). These regulations include mandatory minimum standards that govern the provision of TRS. *See* 47 CFR 64.604. The purpose of these standards is to ensure that TRS users have the ability to access the telephone system in a manner that approximates, as closely as possible, the experience of a voice telephone user consistent with the functional equivalency mandate. One of the mandatory minimum standards requires TRS CAs to handle emergency calls. *See* 47 CFR 64.604(a)(4); *see also, TRS I* , 6 FCC Rcd at 4659, paragraph 10. The Commission requires CAs to handle emergency calls like any other TRS calls. *See* 47 CFR 64.604(a)(4); *see also, TRS I* , 6 FCC Rcd at 4659, paragraph 10. At the same time, the Commission has “strongly encourage[d] * * * TRS users to access emergency 911 services directly.” *See* 47 CFR 64.604(a)(4) of the Commission's rules; *see also, TRS I* , 6 FCC Rcd at 4659, paragraph 10. In other words, the Commission recognized that although TRS users should call 911 on their TTY in the event of an emergency, so that they would be directly connected to a PSAP, TRS providers also were required to handle emergency calls if a person chose to make an emergency call through the TRS center. The final rule provided: “CAs shall handle emergency calls in the same manner as they handle any other TRS calls.” 47 CFR 64.604(a)(3) (1993). In 1998, the Commission proposed amendments to the TRS mandatory minimum standards and sought comment on various issues to enhance the quality of TRS and broaden the potential universe of TRS users. *Telecommunications Services for Hearing-Impaired and Speech Impaired Individuals, and the Americans with Disabilities Act of 1990* , CC Docket No. 90-571, FCC 98-90, Notice of Proposed Rulemaking, 13 FCC Rcd 14187 (May 20, 1998) ( *1998 TRS NPRM* ). One of the issues the Commission addressed was access to emergency services. *1998 TRS NPRM* , 13 FCC Rcd at 14203, paragraphs 40-41. The Commission noted that despite regulations requiring state and local governments to make emergency services directly accessible to TTY users (for direct TTY to TTY calls), many individuals with hearing and speech disabilities use TRS to contact emergency services. *1998 TRS NPRM* , 13 FCC Rcd at 14203, paragraph 41. The Commission also expressed concern that there was “inconsistency and confusion among the states and TRS providers as to how such calls should be handled.” *1998 TRS NPRM* , 13 FCC Rcd at 14203, paragraph 40. Accordingly, the Commission sought comment on how TRS providers were handling emergency calls and, more specifically, whether TRS providers should be required to pass a caller's ANI to an emergency services operator. *1998 TRS NPRM* , 13 FCC Rcd at 14203, para. 41. In the *Improved TRS Order* , the Commission recognized that because some persons continue to make emergency calls via TRS (rather than directly TTY to TTY), it had an “obligation to make relay calls to 911 functionally equivalent to a direct call to 911.” *Improved TRS Order and FNPRM* , 15 FCC Rcd at 5182-5183, paragraphs 99-100. The Commission modified the TRS emergency call handling rule in two respects. First, the Commission required providers to be able to match the incoming caller's telephone number with the appropriate PSAP electronically, so that the CA can quickly make the outbound call to the PSAP. *Improved TRS Order and FNPRM* , 15 FCC Rcd at 5182-5184, paragraphs 99-102. Second, the Commission required CAs to pass along the caller's telephone number to the PSAP orally when the caller disconnects before being connected to emergency services. *Improved TRS Order and FNPRM* , 15 FCC Rcd at 5183-5184, paragraph 101. As a result of these additional requirements, TRS service providers found it necessary to develop new databases of all PSAPs in the country. *See Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities* , CC Docket No. 98-67, Order, 16 FCC Rcd 4662, 4666, paragraph 12 (February 23, 2001) ( *TRS 911 Waiver Order* ). In June 2003, the Commission again addressed TRS access to emergency services. *Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities* , CC Docket No. 98-67, CG Docket No. 03-123, FCC 03-112, Second Report and Order, Order on Reconsideration, and Notice of Proposed Rulemaking, 18 FCC Rcd 12379, at 12407, paragraph 42 (June 17, 2003); published at 68 FR 50973 (August 25, 2003) and 68 FR 50993 (August 25, 2004) ( *TRS Second Improved Report and Order* ). The Commission clarified that TRS providers must route emergency TRS calls to the “appropriate” PSAP and required TRS providers to adjust their databases accordingly. *TRS Second Improved Report and Order* 18 FCC Rcd at 12406-12408, paragraphs 40-42. Because of jurisdictional boundaries, the “appropriate” PSAP is not always the geographically closest PSAP to the calling party. The Commission also addressed handling of wireless emergency TRS calls, noting the difficulty in tracing the location of the wireless caller, and sought comment on how to make such calls functionally equivalent to wireless voice calls. *TRS Second Improved Report and Order* 18 FCC Rcd at 12408, paragraphs 43-46, and 12433-12434, paragraphs 108-109. In a subsequent order, the Commission further clarified that the “appropriate” PSAP is “either a PSAP that the caller would have reached if he had dialed 911 directly, or a PSAP that is capable of enabling the dispatch of emergency services to the caller in an expeditious manner.” *2004 TRS Report and Order* , 19 FCC Rcd at 12559, paragraph 216. The Commission also revisited the issue of routing wireless emergency TRS calls. The Commission determined that implementation of rules in this context would be premature and that it would reconsider the issue at a later time once other E911 requirements had been implemented. *2004 TRS Report and Order* , 19 FCC Rcd at 12501-12502, paragraphs 52-54. Waiver of Emergency Call Handling for VRS and IP Relay As noted above, in March 2000 the Commission recognized VRS as a form of TRS. In December 2001, the Commission granted a two-year waiver of emergency call handling requirements for VRS providers. *Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities* , CC Docket No. 98-67, Order, 17 FCC Rcd 157, at 161-162, paragraphs 11-14 (December 31, 2001) ( *VRS Waiver Order* ). The Commission recognized that VRS providers needed additional time to establish PSAP databases, and to adjust new and developing VRS technologies to effectively handle emergency calls made via VRS. *VRS Waiver Order* , 17 FCC Rcd at 162, paragraph 13. At the same time, VRS providers were required to clearly explain in their promotional materials and on their Web sites the shortcomings of using VRS to place an emergency call. *VRS Waiver Order* , 17 FCC Rcd at 162, paragraph 14. Subsequently, the Commission has twice extended this waiver, which presently expires on January 1, 2006. *See Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities* , CC Docket No. 98-67, DA 03-4029, Order, 18 FCC Rcd 26309 (December 19, 2003) (extending waiver until June 30, 2004); * 2004 TRS Report and Order * , 19 FCC Rcd at 12520-12521, paragraphs 111-112 (extending waiver until January 1, 2006). Most recently, the Commission emphasized that because VRS users gain access to VRS via the Internet, rather than a telephone, VRS providers do not receive the automatic number identification
(ANI)of the calling party. As a result, VRS providers cannot identify the caller's location to relay that information to the PSAP. *2004 TRS Report and Order* , 19 FCC Rcd at 12522, paragraph 117. The initial order recognizing IP Relay service as a form of TRS also waived the emergency call handling requirement. *IP Relay Declaratory Ruling and FNPRM* , 17 FCC Rcd at 7789, paragraph 30. The Commission noted that IP Relay service providers do not receive the ANI of the calling party (because the call is via the Internet), and therefore do not have that information to pass on to a PSAP. *IP Relay Declaratory Ruling and FNPRM* , 17 FCC Rcd at 7789, paragraph 30. The Commission encouraged providers to work on developing a method to rapidly obtain location information from emergency callers and pass that information on to the appropriate PSAP emergency response center. *IP Relay Declaratory Ruling and FNPRM* , 17 FCC Rcd at 7789, paragraph 30. In March 2003, the Commission extended this waiver until January 1, 2008, again noting that the technology was not currently available to accurately relay emergency IP Relay service calls to emergency service providers, and to automatically provide the emergency services providers with location information. *See generally Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities* , CC Docket No. 98-67, FCC 03-46, Order on Reconsideration, 18 FCC Rcd. 4761, at 4766, paragraph 12, and 4770-4771, paragraph 28 (March 14, 2003); published at 68 FR 18826 (April 16, 2003) ( *IP Relay Reconsideration Order* ). The VoIP E911 Order On June 3, 2005, the Commission required interconnected VoIP providers, by November 28, 2005, to “transmit all 911 calls, as well as a call back number and the caller's ‘Registered Location' for each call, to the PSAP, designated statewide default answering point, or appropriate local emergency authority that serves the caller's Registered Location.” *VoIP E911 Order* , 20 FCC Rcd at 10266, paragraph 37; *see also OMB Grants Emergency Approval of New VoIP E911 Rules Adopted in IP-Enabled Services First Report and Order; Effective Date is July 29, 2005* , WC Docket No. 04-36, Public Notice (July 12, 2005). The Commission also required that all E911 calls be routed through the existing “Wireline E911 Network,” and not to 10-digit NPA-NXX numbers (administrative numbers), and that location or call back information be provided only to the extent that the PSAP, designated statewide default answering point, or appropriate local emergency authority designated to serve a Registered Location is capable of receiving and utilizing the data (such as ALI or ANI). *See VoIP E911 Order* , 20 FCC Rcd at 10269-10270, paragraph 42 and note 142. Even in those areas where the PSAP is not capable of receiving or processing location or call back information, the Commission concluded that interconnected VoIP providers must transmit all 911 calls to the appropriate PSAP via the Wireline E911 Network. *See VoIP E911 Order* , 20 FCC Rcd at 10269-10270, paragraph 42. The “Wireline E911 Network” is defined as a “dedicated wireline network that
(1)is interconnected with but largely separate from the public switched telephone network,
(2)includes a selective router, and
(3)is utilized to route emergency calls and related information to PSAPS, designated statewide default answering points, appropriate local emergency authorities or other emergency answering points.” 47 CFR 9.3. Recognizing that “it currently is not always technologically feasible for providers of interconnected VoIP services to automatically determine the location of their end users without end users' active cooperation,” *VoIP E911 Order* , 20 FCC Rcd at 10271, paragraph 46, the Commission stated that interconnected VoIP providers must obtain from each customer, prior to the initiation of service, the physical location at which the service will first be utilized. *VoIP E911 Order* , 20 FCC Rcd at 10271, paragraph 46. The Commission ordered interconnected VoIP providers to obtain from each existing customer, by November 28, 2005, the physical location at which the customer is using the service. *VoIP E911 Order* , 20 FCC Rcd at 10271, at paragraph 46, note 147. The Commission also required providers of interconnected VoIP services that can be utilized from more than one physical location to provide their end users with a method of updating information regarding the user's physical location. *VoIP E911 Order* , 20 FCC Rcd at 10271, paragraph 46. The most recent location provided to an interconnected VoIP provider by a customer is the “Registered Location.” *VoIP E911 Order* , 20 FCC Rcd at 10271, paragraph 46. The Commission expected that customers of interconnected VoIP service providers would, in almost all cases, be able to provide their Registered Location in the form of a valid street address. *VoIP E911 Order* , 20 FCC Rcd at 10271, paragraph 46, note 148. The Commission also emphasized that although it was not requiring interconnected VoIP providers to automatically determine the location of their end users, nothing in the *VoIP E911 Order* prevents an interconnected VoIP provider from automatically obtaining an accurate location if it is capable of doing so. *VoIP E911 Order* , 20 FCC Rcd at 10271, at paragraph 46, note 146. The Commission further found that allowing customers of interconnected VoIP providers to opt in or opt out of E911 service is inconsistent with its obligation to “encourage and support efforts by States to deploy comprehensive end-to-end emergency communications infrastructure and programs.” *See VoIP E911 Order* , 20 FCC Rcd at 10271-10272, paragraph 47 (quoting Wireless Communications and Public Safety Act of 1999, Public Law Number 106-81, 113 Statute 1286, § 3(b) (1999)). In addition, in order to ensure that customers of interconnected VoIP services are aware of their interconnected VoIP service's actual E911 capabilities, the Commission required that all providers of interconnected VoIP service specifically advise every subscriber, both new and existing, of the circumstances under which E911 service may *not* be available through the interconnected VoIP service, or may in some way be limited in comparison to traditional E911 service. *See VoIP E911 Order* , 20 FCC Rcd at 10272-10273, paragraph 48. The Commission also required VoIP providers to obtain and keep a record of affirmative acknowledgement by every subscriber of having received and understood this advisory. *See VoIP E911 Order* , 20 FCC Rcd at 10272-10273, paragraph 48. Finally, in order to ensure that the advisory is available to all potential users of an interconnected VoIP service, the Commission required interconnected VoIP service providers to distribute to their subscribers stickers or labels warning if E911 service may be limited or unavailable, and to instruct subscribers to place them on or near the equipment used in conjunction with the interconnected VoIP service. *See VoIP E911 Order* , 20 FCC Rcd at 10272-10273, paragraph 48. Discussion The *NPRM* seeks comment on the means by which providers of VRS and IP Relay services may determine the appropriate PSAP to contact when they receive an emergency call. As noted above, the Commission has waived the TRS emergency call handling mandatory minimum standard for VRS until January 1, 2006, and for IP Relay service until January 1, 2008. These waivers reflect the recognition that it is not currently technologically feasible for VRS or IP Relay service providers to automatically determine the location of the calling party because the Internet address associated with the incoming “call” to the relay center does not contain identifying information. Because VRS calls can be answered by a CA located in another city or state, if the CA simply dials 911, the CA would reach a PSAP for the area in which the CA (the VRS center) is located, not a PSAP for the area in which the caller is located. Currently the most reliable way for persons with hearing or speech disabilities to reach emergency services is through the use of TTY directly, rather than through a relay service. Because PSAPs are required to be able to receive direct TTY calls, and such calls contain ANI, the PSAP can determine the location of the caller, even if the caller is unable to communicate after establishing the connection with the PSAP. At the same time, the Commission recognizes that many TRS users now solely rely on VRS, or IP Relay services, which require a broadband Internet connection, or and therefore such users may not have access to a telephone line or a TTY. Such users cannot make a direct call to a PSAP in the event of an emergency. The Commission recognizes that VRS and IP Relay service users, may need to make emergency calls through those services, and will rely on the VRS and IP Relay service providers to relay their calls ( *i.e.* , make an outbound call) to a PSAP that can respond to the emergency. The Commission seeks to adopt a means of ensuring that such calls promptly reach the appropriate emergency service provider. *User Registration.* As noted above, under the new rules for interconnected VoIP services, providers must obtain the primary location from which calls will be placed prior to initiating a customer's service. VoIP providers must also provide a way for users to update that location information. The Commission seeks comment on whether VRS and IP Relay service providers should be required to similarly register their customers—and obtain a Registered Location—so that they will be able to make the outbound call to the appropriate PSAP. The Commission also seeks comment on how such a registration requirement might work for first time users of a particular provider's VRS or IP Relay service. Further, the Commission seeks comment on whether there are other means by which VRS and IP Relay service providers may obtain Registered Location information, for example, by linking the serial number of the customer's VRS or IP Relay service terminal or equipment to that customer's registered location. Because each terminal has a unique identifying number, known as a Media Access Control
(MAC)address, this could be used to identify or verify a user profile which contains the registered address. Finally, the Commission seeks comment on whether the same rules should apply to both VRS providers and IP Relay service providers, or whether the different natures of these services warrant different solutions. The Commission recognizes that, in the past, some TRS users have expressed opposition to registration, noting that because voice telephone users did not have to “register” to obtain telephone service, and any such requirement would impose an additional burden on relay users alone. The *VoIP E911 Order* should allay that concern, since it imposes a similar registration requirement on voice telephone subscribers. The Commission also notes that many VRS and IP Relay service users currently create profiles to assist providers in handling and expediting their calls. *See, e.g., http://www.hamiltonrelay.com/internet/ip/profile.html* (an example of an IP Relay service provider's profile page that allows users to indicate their preferences concerning matters such as speed dialing and greetings). Accordingly, making similar profiles mandatory through registration, as a condition of using VRS and IP Relay service, may not be unduly intrusive or burdensome. The Commission seeks comment on whether the use of a registration system for VRS and IP Relay service is appropriate and consistent with Section 225's functional equivalency mandate. 47 U.S.C. 225(a)(3). The Commission seeks comment, generally, on any privacy considerations that might be raised by requiring VRS and IP Relay service users to provide location information as a prerequisite to using these services. The Commission also seeks comment on whether the Commission's TRS confidentiality rules are sufficient to address potential concerns related to providing personal information through the Internet. *See* 47 CFR 64.604(a)(2). The Commission seeks further comment on what measures providers have taken to ensure the privacy and security of relay calls. *See, e.g., 2004 TRS Report and Order* , 19 FCC Rcd at 12522, paragraph 51; *IP Relay Declaratory Ruling and FNPRM* , 17 FCC Rcd at 7791, paragraph 38. The Commission also seeks comment on whether, assuming some type of location registration requirement is adopted, the Commission should require specific information or place limits on the scope of the information that providers should be able to obtain. VRS equipment, because it requires a video screen or television monitor, tends to remain at the same location, while IP Relay service may be accessed through any laptop computer or similar device that connects to the Internet, including handheld wireless devices. The Commission therefore seeks comment on how we might ensure that IP Relay service providers have current location information, *i.e.* , that the Registered Location is the actual location of the user when making a particular call. In the *VoIP E911 Order* , the Commission required providers to offer their customers a method of updating their location information. *VoIP E911 Order* , 20 FCC Rcd at 10271, paragraph 46. The Commission seeks comment on how it may ensure that VRS and IP Relay service providers have updated location information and the respective obligations of the providers and the customers in this regard. Should, for example, users be required to affirmatively acknowledge whether they are at their Registered Location each time they initiate a call, and if they are not at their Registered Location, be prompted or required to provide their present location? The Commission currently requires TRS providers to include “a clear and bold written statement on their Web sites and any VRS promotional materials explaining the shortcomings and potential dangers of using VRS to place an emergency call using 911,” *see* Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities, CC Docket No. 98-67, Order, 17 FCC Rcd 157, at 162, paragraph 14 (December 31, 2001) (temporarily waiving mandatory minimum standards); *see also 2004 TRS Report and Order* , 19 FCC Rcd at 12522-3, paragraphs 116-118 (extending waivers and confirming warning requirement), so that those making a 911 call over TRS facilities understand the implications of placing such a call, particularly in the context of the Commission's encouragement to TRS users to access emergency services directly. As discussed above, the Commission imposed obligations on interconnected VoIP service providers to advise customers of the limitations on E911 service, obtain customer's acknowledgements of such advice, and distribute warning labels to be placed on equipment used in conjunction with interconnected VoIP service. *VoIP E911 Order* , 20 FCC Rcd at 10272-10273, paragraph 48. In light of these requirements, the Commission seeks comment on whether, and if so, how the Commission's current requirements for VRS and IP Relay service providers should be revised. Should the Commission, for example, require that VRS and IP Relay service providers specifically advise new and existing subscribers of the circumstances under which E911 service may not be available through VRS and IP Relay service or may be in some way limited by comparison to traditional E911 service? Should VRS and IP Relay service providers be required to obtain and keep a record of affirmative acknowledgement by every subscriber of having received and understood this advisory? Should the Commission require VRS and IP Relay service providers to provide appropriate warning labels for installation on CPE used in connection with VRS and IP Relay services? Should receipt of compensation from the interstate TRS Fund be conditioned on compliance with such requirements? What, if any, other requirements should be imposed on VRS and IP Relay service providers in this regard? In the *VoIP E911 Order* , the Commission made clear that interconnected VoIP providers must use the Wireline E911 Network in transmitting E911 calls to the appropriate PSAP, and may not use a 10-digit number (so called “administrative numbers”). The Commission seeks comment on whether the same rule should apply to VRS and IP Relay service providers handling emergency calls. Finally, the Commission seeks comment on whether, VRS and IP Relay service calls could be routed in such a way that they necessarily include a VoIP call, therefore allowing registration for interconnected VoIP calls to satisfy the registration requirement for users of VRS and IP Relay service. Because outbound VRS, IP Relay service, and VoIP calls all use the Internet, the Commission seeks comment on whether, if VRS and IP Relay service users were also VoIP subscribers, their emergency VRS or IP Relay service calls could simultaneously be directed to both the VRS or IP Relay service provider and the emergency service tied to their Registered Location with the VoIP provider. The Commission also seeks comment on any other ways in which the requirements of the *VoIP E911 Order* may be applied to the use of VRS and IP Relay service to ensure access to emergency services. *PSAP Database.* The Commission requires TRS providers to use PSAP databases to determine the appropriate PSAP to call in relaying an emergency call, and in the *2004 TRS Report and Order* , the Commission continued to require providers to maintain and update these databases. *TRS Second Improved Report and Order* , 18 FCC Rcd at 12407-12408, paragraph 42; *2004 TRS Report and Order* , 19 FCC Rcd at 12559-12560, paragraph 217. The Commission declined, however, to mandate a single national PSAP database that would be available to all TRS providers, noting that no national database exists for routing 911 calls. *2004 TRS Report and Order* , 19 FCC Rcd at 12560, paragraph 218. Are these existing requirements concerning the use of PSAP databases sufficient for VRS and IP Relay service providers handling emergency calls, or should they be modified? The Commission also seeks comment on whether a national database is feasible and appropriate for VRS and IP Relay service providers handling emergency calls. If so, how could such a database be implemented and maintained? Priority Access to Emergency Calls. During busy periods, the CA may not be immediately available to handle an incoming VRS or IP Relay service call and, as a result, the caller may be put in a queue to wait for the next available CA. Because the “85/10” speed of answer rule applies to IP Relay service, such delays are less of a concern for IP Relay service. *See* 47 CFR 64.604(b)(2); *2005 VRS Order* , 20 FCC Rcd at 10254-10258, paragraphs 19-24. The Commission seeks comment on whether and how VRS and IP Relay service providers may identify incoming calls as emergency calls so that such calls can promptly be directed to a CA without waiting in a queue. The Commission also seeks comment on whether equipment can be modified to permit users to make an emergency call that will be promptly recognized as such by the providers, so that a VRS or IP Relay service user has the ability to make a call that is the equivalent of a 911 voice telephone call. *Multiple Providers.* Several VRS and IP Relay service providers currently offer service, giving customers a choice of providers. In contrast, traditional TRS consumers must make intrastate TRS calls through the provider(s) selected by the state as part of the certified state TRS program. The Commission seeks comment on whether VRS and IP Relay service users should be required to register with each provider that they use, or whether a shared database could be established that could be accessed by all providers. The Commission also seeks comment on the advantages or disadvantages of using such a shared database. *Registration and Jurisdictional Separation of Costs.* As a general matter, Section 225 of the Communications Act provides that states are responsible for compensating providers for the costs of intrastate TRS, and the Interstate TRS Fund is responsible for compensating providers for the costs of interstate TRS. *See* 47 U.S.C. 225(d)(3)(B). For traditional TRS calls made via the PSTN, providers can automatically determine if a particular call is interstate or intrastate, and bill either the appropriate state or the Interstate TRS Fund accordingly. For VRS and IP Relay service calls, however, because one leg of the call is via the Internet, it is presently not possible for a provider to determine if a particular call is interstate or intrastate. As a result, presently all VRS and IP Relay service calls are compensated from the Interstate TRS Fund. In the *FNPRM* of the *2004 TRS Report and Order* , the Commission sought comment on possible means for applying jurisdictional separation of costs to VRS and IP Relay service calls. *See 2004 TRS Report and Order* , 19 FCC Rcd at 12561-12564, paragraphs 221-230 (IP Relay), 12567, paragraphs 241-242 (VRS). The Commission now seeks comment on whether a registration requirement for emergency call handling could also be used as a mechanism to allocate TRS costs between the interstate and intrastate jurisdictions. *See 2004 TRS Report and Order* , 19 FCC Rcd at 12567, paragraph 242. The Commission also seeks comment on whether, assuming all VRS and IP Relay service calls continue to be compensated from the Interstate TRS Fund, an exception should be made for emergency VRS and IP Relay service calls, so that they are paid for by the states or the Interstate TRS Fund, depending on the jurisdictional nature of the call. Further, the Commission seeks comment on any other alternatives for funding emergency VRS and IP Relay service calls. *Timelines.* The Commission seeks comment on how much time it may reasonably take for providers to implement the solutions proposed in this *NPRM.* The Commission also seeks comment on whether there continues to be any reason to have separate deadlines for complying with waived mandatory minimum standards for emergency call handling for VRS and IP Relay services. Finally, the Commission asks parties to provide any further information that may illuminate the issues raised in this *NPRM* . Initial Regulatory Flexibility Analysis As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission has prepared this Initial Regulatory Flexibility Analysis
(IRFA)of the possible significant economic impact on a substantial number of small entities by the policies and rules proposed in this Notice of Proposed Rulemaking ( *NPRM* ). *See* 5 U.S.C. 603. The RFA, *see* 5 U.S.C. 601-612, has been amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), Public Law Number 104-121, 110 Statute 857 (1996). Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments on the *NPRM* . The Commission will send a copy of the *NPRM* , including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA). *See* 5 U.S.C. 603(a). Need for, and Objectives of, the Proposed Rules Under the Commission's regulations, providers of telecommunications relay services (TRS), mandated by Title IV of the Americans with Disabilities Act of 1990, *see* 47 U.S.C. 225, are required to handle emergency calls from service their customers. 47 CFR 64.604(a)(4). To do so, TRS providers must know the appropriate PSAP to call based on the location of the calling party. Because VRS and IP Relay service use the Internet rather than the PSTN for the leg of the call coming into the relay center, the relay center does not have a means of automatically detecting the location of the calling party. As a result, the emergency call handling requirement is presently waived for VRS and IP Relay service providers. Because of the importance of being able to call emergency services, the *NPRM* seeks comment on rules the Commission should adopt to ensure that VRS and IP Relay service providers can handle calls seeking access to emergency services and make an outbound call to an appropriate PSAP. More specifically, the *NPRM* seeks comment on whether the Commission should adopt a registration process whereby VRS and IP Relay service providers would be required to establish, in advance, the primary location from which the VRS and IP Relay service users will be making calls, so the provider can identify the appropriate PSAP to contact. The *NPRM* addresses a number of issues concerning how a registration process for VRS and IP Relay service users might be implemented and whether imposing such a requirement would be consistent with Section 225 of the Communications Act. In addition, the *NPRM* addresses several related issues, including:
(1)Whether VRS and IP Relay service calls could be structured in such a way that they necessarily include a VoIP call, so that the registration that is required by the *VoIP E911 Order* for users of interconnected VoIP service would satisfy the registration requirement for users of VRS and IP Relay service;
(2)whether the Commission should adopt new requirements for providers to warn their customers of the limitations of using VRS and IP Relay service to make emergency calls and/or provide warning labels to be placed on equipment;
(3)whether the Commission should adopt requirements that establish a national PSAP database;
(4)whether it is possible for VRS and IP Relay service providers to recognize incoming calls as emergency calls so that such calls do not have to wait in a queue to be handled;
(5)whether customer registration could be accomplished through a shared database, rather than individually databases for each provider;
(6)whether the registration requirement could be used to determine whether calls are intrastate or interstate for purposes of jurisdictional separation of costs; and
(7)how long it might take for providers to implement a registration process. Legal Basis The authority for the actions proposed in this *NPRM* may be found in Sections 1, 4(i) and (j), 201-205, 218 and 225 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i) and (j), 201-205, 218 and 225, and §§ 64.601-64.608, 47 CFR 64.601-64.608 of the Commission's rules. Description and Estimate of the Number of Small Entities To Which the Proposed Rules Will Apply The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. 5 U.S.C. 603(b)(3). The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” 5 U.S.C. 601(6). In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. 5 U.S.C. 601(3). The statutory definition of a small business applies “unless an agency, after consultation with the Office of Advocacy of the Small Business Administration and after opportunity for public comment, establishes one or more definitions of such term which are appropriate to the activities of the agency and publishes such definition(s) in the **Federal Register** .” 5 U.S.C. 601(3). A small business concern is one which:
(1)Is independently owned and operated;
(2)is not dominant in its field of operation; and
(3)satisfies any additional criteria established by the SBA. 15 U.S.C. 632. As noted above, the TRS rule requiring providers to handle emergency calls ( *i.e.* , to be able to make the outbound call to an appropriate PSAP) is presently waived for VRS and IP Relay service providers. The *NPRM* seeks comment on whether the Commission should adopt a registration process, or some other means, by which VRS and IP Relay service providers can ensure that can be routed to the appropriate PSAP. The Commission believes that the entities that may be affected by the proposed rules are only those TRS providers that offer IP Relay service and VRS. Neither the Commission nor the SBA has developed a definition of “small entity” specifically directed toward TRS providers. The closest applicable size standard under the SBA rules is for Wired Telecommunications Carriers, for which the small business size standard is all such firms having 1,500 or fewer employees. 13 CFR 121.201 of the Commission's rules, NAICS Code 517110. Currently, there are eight TRS providers that offer VRS and/or IP Relay service, which consist of interexchange carriers, local exchange carriers, other common carriers, and non-profit organizations. Approximately five or fewer of these entities are small businesses under the SBA size standard. *See* National Association for State Relay Administration (NASRA) Statistics. These numbers are estimates because of recent and pending mergers and partnerships in the telecommunications industry. Description of Projected Reporting, Recordkeeping and Other Compliance Requirements The *NPRM* 's proposed registration requirement, if adopted, would require VRS and IP Relay service providers to obtain from each customer, prior to the initiation of service, the physical location at which the service will first be utilized ( *i.e.* , the “Registered Location”), and to provide customers a way to update this information. The *NPRM* also asks whether VRS and IP Relay service calls could be routed in such a way that they necessarily include a VoIP call so that the registration that is required by the *VoIP E911 Order* for users of interconnected VoIP service would satisfy the registration requirement for users of VRS and IP Relay service. Third, the *NPRM* asks whether the Commission should impose new or additional requirements on providers to warn their customers of the limitations of using VRS and IP Relay service to make emergency calls, and to provide warning labels to be placed on equipment. Fourth, the *NPRM* asks whether the Commission should adopt new or additions for PSAP databases and/or require a national PSAP database. Fifth, the *NPRM* asks whether customer registration can be accomplished through a shared database, rather than individual database for each provider. Finally, the *NPRM* asks whether registration requirement could be used to determine whether calls are intrastate or interstate for purposes of jurisdictional separation of costs. Steps Taken To Minimize Significant Economic Impact on Small Entities, and Significant Alternatives Considered The RFA requires an agency to describe any significant, specifically small business, alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): “(1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities;
(2)the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities;
(3)the use of performance rather than design standards; and
(4)an exemption from coverage of the rule, or any part thereof, for small entities.” 5 U.S.C. 603(c)(1) through (4). This *NPRM* seeks comment on whether the Commission should adopt a registration process, or some other means, by which VRS and IP Relay service providers can ensure that emergency calls can be routed to the appropriate PSAP to contact. The *NPRM* , however, contemplates alternative means by which the Commission might ensure that VRS and IP Relay service providers can handle emergency calls. As noted, the Commission seeks comment on what ways VRS and IP Relay service providers currently seek to provide emergency services to their customers. Thus, there may be alternatives to direct regulation to achieve the Commission's public policy goals of ensuring the availability of 911 and E911 capability for VRS and IP Relay service users. Accordingly, the Commission seeks comment on such alternatives. The *NPRM* asks whether VRS and IP Relay service calls could be routed in such a way that they necessarily include a VoIP call, so that the registration that is required by the *VoIP E911 Order* for interconnected VoIP users would satisfy the registration requirement for users of VRS and IP Relay service. Because outbound VRS, IP Relay service, and VoIP calls all use the Internet, if VRS and IP Relay service users that were also VoIP subscribers their emergency VRS or IP Relay service calls could simultaneously be directed to both the VRS or IP Relay service provider and the emergency service tied to their Registered Location with the VoIP provider. This alternative approach to ensuring access to emergency services could mitigate any burdens the proposed registration requirement might have on small businesses. Third, the *NPRM* asks whether the Commission should impose new or different requirements on providers to warn their customers of the limitations of using VRS and IP Relay service to make emergency calls and/or provide warning labels to be placed on equipment. As noted in the *NPRM* , TRS providers already are required to advise user to make a direct call to a PSAP in the event of an emergency, rather than use VRS or IP Relay service. Because VRS or IP Relay service may sometimes be the only way for a user to make emergency calls, VRS or IP Relay service providers must be prepare to handle such calls (unless the emergency call handling requirement is waived). There may be a number of alternative ways providers can ensure that VRS and IP Relay service users are informed about the limitations of using these services for emergency calls, and the *NPRM* broadly seeks comment about such alternatives. Fourth, the *NPRM* asks whether the Commission should require a national PSAP database. A single, national PSAP database might be preferable to multiple provider-maintained databases. One alternative under consideration is the creation of voluntary agreements among public safety trade associations, VRS and IP Relay service stakeholders, customers, and state and local E911 coordinators and administrators for VRS and IP Relay service to received enhanced 911 functionality. Promulgation of best practices or technical guidelines ensure that providers could determine an appropriate PSAP for a particular VRS or IP Relay service emergency call. The Commission therefore requests comment on the viability of such alternatives, especially with regard to the impact of each alternative on small businesses. Fifth, the *NPRM* asks whether it is possible for providers to recognize incoming calls as emergency calls so that such calls do not have to wait in a queue. Providing such priority access to emergency calls would ensure that VRS and IP Relay service users would promptly reach a CA able to handle their emergency call. The Commission requests comment on alternative options for accomplishing this goal. Sixth, because VRS and IP Relay service customers can choose from among several VRS and IP Relay service providers, and often use more than one, the *NPRM* seeks comment on whether any customer registration could be accomplished through a shared database, rather than individual databases for each provider. A shared database would likely be less onerous for providers because every provider would not have to register every customer. Seventh, the *NPRM* asks whether registration could be used to determine whether calls are intrastate or interstate for purposes of jurisdictional separation of costs. If so, registration would solve the current compensation problem, the inability to determine if a VRS or IP Relay service call is intrastate or interstate, without putting additional burdens on the providers. Finally, the *NPRM* asks how long it might take for providers to implement registration and whether registration could or should be implemented at the same time for VRS and IP Relay service. This question is asked to ensure that providers are not unduly burdened by having to comply with new rules for both services at the same time. Federal Rules That May Duplicate, Overlap, or Conflict With the Proposed Rules None. Ordering Clauses Pursuant to Sections 1, 4(i) and (o), 225, 255, 303(r), 403, 624(g), and 706 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i) and (o), 225, 255, 303(r), 403, 554(g), and 606, this Notice of Proposed Rulemaking *is adopted* . *It is further ordered* that the Commission's Consumer & Governmental Affairs Bureau, Reference Information Center, *shall send* a copy of this Notice of Proposed Rulemaking, including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration. Federal Communications Commission. Marlene H. Dortch, Secretary. [FR Doc. E6-1368 Filed 1-31-06; 8:45 am] BILLING CODE 6712-01-P 71 21 Wednesday, February 1, 2006 Notices DEPARTMENT OF AGRICULTURE Forest Service Notice of Southwest Idaho Resource Advisory Committee Meeting AGENCY: Forest Service, USDA. ACTION: Notice of meeting. SUMMARY: Pursuant to the authorities in the Federal Advisory Committee Act (Pub. L. 92-463) and under the Secure Rural Schools and Community Self-Determination Act of 2000 (Pub. L. 106-393), the Boise and Payette National Forests' Southwest Idaho Resource Advisory Committee will conduct a business meeting, which is open to the public. DATES: Wednesday, January 31, 2006, beginning at 10:30 a.m. ADDRESSES: Idaho Counties Risk Management Program Building, 3100 South Vista Avenue, Boise, Idaho. SUPPLEMENTARY INFORMATION: Agenda topics will include review and approval of project proposals, and is an open public forum. FOR FURTHER INFORMATION CONTACT: Doug Gochnour, Designated Federal Officer, at 208-392-6681 or e-mail *dgochnour@fs.fed.us* . Dated: January 25, 2006. Richard A. Smith, Forest Supervisor, Boise National Forest. [FR Doc. 06-922 Filed 1-31-06; 8:45 am]
Connectionstraces to 17
Traces to 17 documents
U.S. Code
- Purposes§ 3501
- Avoidance of duplicative or unnecessary analyses§ 605
- Definitions§ 632
- Definitions§ 601
- False claims and statements; liability§ 3802
- Civil actions for false claims§ 3730
- Judicial review§ 3805
- Collection of civil penalties and assessments§ 3806
- Definitions§ 3801
- Federal agency responsibilities§ 3506
- Telecommunications services for hearing-impaired and speech-impaired individuals§ 225
- Initial regulatory flexibility analysis§ 603
- Purposes of chapter; Federal Communications Commission created§ 151
25 references not yet in our index
- 45 CFR 2554
- Pub. L. 99-509
- 31 USC 3801-3812
- Pub. L. 103-82
- 13 CFR 121
- 2 USC 1531-1538
- 100 Stat. 1874
- 42 USC 12651c-12651d
- 47 CFR 64
- Pub. L. 104-13
- 47 CFR 1.415
- 47 CFR 1.1200
- Pub. L. 107-198
- 47 CFR 64.601(14)
- 47 CFR 64.601(17)
- 47 CFR 64.604
- 47 CFR 64.604(a)(4)
- 47 CFR 64.604(a)(3)
- 47 CFR 9.3
- 47 CFR 64.604(a)(2)
- 47 CFR 64.604(b)(2)
- 5 USC 601-612
- 47 CFR 64.601-64
- Pub. L. 92-463
- Pub. L. 106-393
Citation graph
cites case law
Rules and Regulations
Proposed rule with request for comments
Cite45 CFR 2554
Pub. L.Pub. L. 99-509
Cite31 USC 3801-3812
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