[Federal Register Volume 79, Number 83 (Wednesday, April 30, 2014)]
[Rules and Regulations]
[Pages 24350-24353]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-09837]


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FEDERAL MARITIME COMMISSION

46 CFR Parts 501 and 503

RIN 3072-ZA03
[Docket No. 14-03]


Requests for Testimony by Employees Relating to Official 
Information and Production of Official Records in Litigation

AGENCY: Federal Maritime Commission.

ACTION: Direct final rule.

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SUMMARY: This regulation amends the Commission's provisions for release 
of public information and related delegation of authority by issuing 
procedures for requests for testimony by Federal Maritime Commission 
employees and production of official Commission records in litigation, 
and delegating responsibility for determinations relating to such 
procedures to the General Counsel. It generally provides that 
Commission employees may not appear as witnesses in connection with 
information acquired in the course of performing official duties, or 
produce Commission records in litigation, without the consent of the 
Commission. The intended effect of this regulation is to clarify the 
Commission's procedures, conserve the ability of the Commission to 
conduct official business, preserve its employee resources, minimize 
involvement in matters unrelated to its mission and programs, and 
maintain its impartiality. This regulation does not apply to 
Congressional inquiries, Federal court civil proceedings in which the 
United States is a party, or Freedom of Information Act and Privacy Act 
requests.

DATES: This rule is effective July 31, 2014 without further action, 
unless significant adverse comment is received by June 2, 2014. If 
significant adverse comment is received, the Federal Maritime 
Commission will publish a timely withdrawal of the rule in the Federal 
Register.

ADDRESSES: Submit comments to: Karen V. Gregory, Secretary, Federal 
Maritime Commission, 800 North Capitol Street NW., Washington, DC 
20573-0001 or email non-confidential comments to: Secretary@fmc.gov 
(email comments as attachments preferably in Microsoft Word or PDF).

FOR FURTHER INFORMATION CONTACT: 

Karen V. Gregory, Secretary, Federal Maritime Commission, 800 N. 
Capitol Street NW., Washington, DC 20573-0001, (202) 523-5725, Fax 
(202) 523-0014, Email: Secretary@fmc.gov.
Tyler J. Wood, Deputy General Counsel, Federal Maritime Commission, 800 
N. Capitol Street NW., Washington, DC 20573-0001, (202) 523-5740, Fax 
(202) 523-5738, Email: GeneralCounsel@fmc.gov.

SUPPLEMENTARY INFORMATION: At present, Commission regulations do not 
specify procedures for its employees to respond to subpoenas or produce 
Commission records in private litigation. In the absence of such 
procedures, an employee could give testimony or provide records, 
diverting such employee from performing his/her duties, and potentially 
creating the appearance that the Commission is taking sides in private 
litigation. This regulation is intended to address this situation by 
generally prohibiting both appearances and compliance with subpoenas 
unless authorized by the Commission, and setting forth procedures for 
handling such requests. The courts have recognized the authority of 
Federal agencies set procedures for dealing with such subpoenas. United 
States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951); see also Truex v. 
Allstate Ins. Co., 233 F.R.D. 188, 190 (D.D.C. 2006); Bobreski v. EPA, 
284 F. Supp. 2d 67, 73 (D.D.C. 2003).
    This regulation describes procedures by which the Commission will 
make its employees and records available in response to subpoenas in 
Federal court civil proceedings in which the United States is not a 
party. The regulation does not apply to Congressional proceedings, or 
to Federal court civil proceedings in which the United States is a 
party. This regulation likewise does not apply to either Freedom of 
Information Act or Privacy Act requests. This regulation does not 
restrict the ability of its employees to appear as private citizens on 
their own time or while in an approved leave status, in proceedings 
that do not relate to Commission policies and programs.
    This rule relates to internal agency management. Therefore, 
pursuant to 5 U.S.C. 553, notice and comment are not required and this 
rule may become

[[Page 24351]]

effective after publication in the Federal Register. In a direct final 
rulemaking, an agency publishes a direct final rule in the Federal 
Register along with a statement that the rule will become effective 
unless the agency receives significant adverse comment within a 
specified period. The Commission is using a direct final rule for this 
rulemaking because it expects this regulation to be noncontroversial 
and because it clarifies the Commission's internal procedures. The 
Commission recognizes that parties may have information that could 
impact the Commission's views and intentions with respect to the 
proposed internal procedures, and the Commission intends to consider 
any comments filed. The Commission will withdraw the rule if it 
receives significant adverse comment. Filed comments that are not 
adverse may be considered for modifications to parts 501 and 503 at a 
future date. If no significant adverse comment is received, the rule 
will become effective without additional action.
    This direct final rule is not a ``major rule'' under 5 U.S.C. 
804(2). Because no notice of proposed rulemaking is required, the 
provisions of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., do 
not apply.
    Further, in accordance with Executive Order 12988 on Civil Justice 
Reform, the Federal Maritime Commission has determined that this 
regulation does not unduly burden the judicial system, under Touhy v. 
Ragen, 340 U.S. 462, and meets the requirements of sections 3(a) and 
3(b)(2) of the Executive Order.
    Finally, the Commission has determined that this regulation imposes 
no new recordkeeping, reporting, or disclosure requirements on members 
of the public, which would constitute collections of information 
requiring approval by the Office of Management and Budget under the 
Paperwork Reduction Act, 44 U.S.C. 3501, et seq.

List of Subjects

46 CFR Part 501

    Administrative practice and procedure, Authority delegations 
(Government agencies).

46 CFR Part 503

    Administrative practice and procedure, Courts, Government 
employees.

    Accordingly, the Federal Maritime Commission amends 46 CFR parts 
501 and 503 to read as follows:

PART 501--THE FEDERAL MARITIME COMMISSION--GENERAL

0
1. The authority citation for part 501 continues to read as follows:

    Authority: 5 U.S.C. 551-557, 701-706, 2903 and 6304; 31 U.S.C. 
3721; 41 U.S.C. 414 and 418; 44 U.S.C. 501-520 and 3501-3520; 46 
U.S.C. 301-307, 40101-41309, 42101-42109, 44101-44106; Pub. L. 89-
56, 70 Stat. 195; 5 CFR Part 2638; Pub. L. 104-320, 110 Stat. 3870.


0
2. Amend Sec.  501.5 as follows:
0
a. Remove paragraph (c)(1)(iii)(C) and redesignate paragraphs 
(c)(1)(iii)(D) through (F) as paragraphs (c)(1)(iii)(C) through (E), 
respectively.
0
b. Revise paragraph (d)(9) to read as follows:


Sec.  501.5  Functions of the organizational components of the Federal 
Maritime Commission.

* * * * *
    (d) * * *
    (9) Reviews for legal sufficiency all adverse personnel actions, 
procurement activities, Freedom of Information Act, Privacy Act 
matters, requests for testimony by employees and production of official 
records in litigation and other administrative actions.
* * * * *

0
3. Revise Sec.  501.23 to read as follows:


Sec.  501.23  Delegation to the General Counsel.

    The authority listed in this section is delegated to the General 
Counsel: authority to classify carriers within the meaning of section 
3(8) of the Shipping Act of 1984 (46 U.S.C. 40102(8)), except where a 
carrier submits a rebuttal statement pursuant to Sec.  565.3(b) of this 
chapter; and authority to review for legal sufficiency all adverse 
personnel actions, procurement activities, Freedom of Information Act, 
Privacy Act matters, requests for testimony by employees and production 
of official records in litigation and other administrative actions, 
pursuant to part 503 subpart E--Requests for Testimony by Employees 
Relating to Official Information and Production of Official Records in 
Litigation.

PART 503--PUBLIC INFORMATION

0
4. Revise the authority citation for part 503 to read as follows:

    Authority: 5 U.S.C. 301, 552, 552a, 552b, 553; 31 U.S.C. 9701; 
46 U.S.C. 301, 304; E.O. 13526 of January 5, 2010 (75 FR 707), 
sections 5.1(a) and (b).

0
5. Redesignate subparts E through H as subparts F through I 
respectively.

0
6. In newly redesignated subpart F, redesignate Sec. Sec.  503.41 
through 503.43 as Sec. Sec.  503.48 through 503.50, respectively.

0
7. Add a new subpart E to read as follows:
Subpart E--Requests for Testimony by Employees Relating to Official 
Information and Production of Official Records in Litigation
Sec.
503.37 Purpose and scope; definitions.
503.38 General prohibition.
503.39 Factors to be considered in response to demands or requests.
503.40 Service of process and filing requirements.
503.41 Procedure when testimony or production of documents is 
sought.
503.42 Fees.

Subpart E--Requests for Testimony by Employees Relating to Official 
Information and Production of Official Records in Litigation


Sec.  503.37  Purpose and scope; definitions.

    (a) This subpart sets forth the procedures to be followed with 
respect to:
    (1) Service of summonses and complaints or other requests or 
demands directed to the Federal Maritime Commission (Commission) or to 
any Commission employee or former employee in connection with 
litigation arising out of or involving the performance of official 
activities of the Commission; and
    (2) The oral or written disclosure, in response to subpoenas, 
orders, or other requests or demands of judicial or quasi-judicial 
authority (collectively ``demands''), whether civil or criminal in 
nature, or in response to requests for depositions, affidavits, 
admissions, responses to interrogatories, document production, or other 
litigation-related matters, pursuant to the Federal Rules of Civil 
Procedure, the Federal Rules of Criminal Procedure, or applicable state 
rules (collectively ``requests''), of any material contained in the 
files of the Commission, any information relating to material contained 
in the files of the Commission, or any information acquired while the 
subject of the demand or request is or was an employee of the 
Commission, as part of the performance of that person's duties or by 
virtue of that person's official status.
    (b) This subpart applies in all litigation in which the United 
States is not a party.
    (c) For purposes of this subpart, the term employee includes:
    (1) any current or former Commissioner or employee of the 
Commission;
    (2) any other individual hired through contractual agreement or on 
behalf of the Commission or who has performed

[[Page 24352]]

or is performing services under such agreement for the Commission;
    (3) Any individual who served or is serving in any consulting or 
advisory capacity to the Commission, whether informal or formal.
    (d) The Commission authorizes the General Counsel or the General 
Counsel's designee to make determinations under this section.
    (e) For purposes of this subpart, the term litigation encompasses 
all pre-trial, trial, and post-trial stages of all judicial or 
administrative actions, hearings, investigations, or similar 
proceedings before courts, commissions, grand juries, or other judicial 
or quasi-judicial bodies or tribunals, whether criminal, civil, or 
administrative in nature. This subpart governs, inter alia, responses 
to requests for discovery, depositions, and other litigation 
proceedings, as well as responses to informal requests by attorneys or 
others in situations involving litigation. However, this subpart shall 
not apply to any claims against the Commission by Federal Maritime 
Commission employees (present or former), or applicants for Commission 
employment, for which jurisdiction resides with the U.S. Equal 
Employment Opportunity Commission; the U.S. Merit Systems Protection 
Board; the Office of Special Counsel; the Federal Labor Relations 
Authority; or a labor arbitrator operating under a collective 
bargaining agreement between the Commission and a labor organization 
representing Commission employees; or their successor agencies or 
entities.
    (f) For purposes of this subpart, official information means all 
information of any kind, however stored, that is:
    (1) In the custody and control of the Commission;
    (2) Relates to information in the custody and control of the 
Commission; or
    (3) Was acquired by Commission contractors, employees, former 
employees or former contractors as part of their official duties or 
because of their official status within the Commission while such 
individuals were employed by or served on behalf of the Commission.
    (g) Nothing in this subpart affects disclosure of information under 
the Freedom of Information Act (FOIA), 5 U.S.C. 552, the Privacy Act, 5 
U.S.C. 552a, the Government in the Sunshine Act, 5 U.S.C. 552b, the 
Commission's implementing regulations, or pursuant to congressional 
subpoena.
    (h) Nothing in this subpart affects the disclosure of official 
information to other federal agencies or Department of Justice 
attorneys in connection with:
    (1) Litigation conducted on behalf or in defense of the United 
States, its agencies, officers, and employees; or
    (2) Litigation in which the United States has an interest.
    (i) This subpart is intended only to provide guidance for the 
internal operations of the Commission, and is not intended to, and does 
not, and may not be relied upon to create any right or benefit, 
substantive or procedural, enforceable at law by a party against the 
United States.


Sec.  503.38  General prohibition.

    (a) No employee or former employee of the Commission shall, in 
response to a demand or request, produce any material contained in the 
files of the Commission, or disclose any information relating to or 
based upon material contained in the files of the Commission, or 
disclose any information or produce any material acquired as part of 
the performance of that person's official duties or because of that 
person's official status, without prior approval of the Commission in 
accordance with Sec. Sec.  503.39 and 503.40.


Sec.  503.39  Factors to be considered in response to demands or 
requests.

    (a) The Commission will determine whether testimony or the 
production of documents will be authorized according to the following 
criteria:
    (1) Statutory restrictions, as well as any legal objection, 
exemption, or privilege that may apply;
    (2) Relevant legal standards for disclosure of nonpublic 
information and documents;
    (3) Commission rules and regulations;
    (4) The public interest;
    (5) Minimizing or preventing expenditures of Commission time and 
resources solely for private purposes.
    (6) Minimizing the appearance of improperly favoring one litigant 
over another;
    (7) Minimizing the possibility that the public will misconstrue 
variances between personal opinions of Commission employees and 
Commission policy; and
    (8) Preserving the integrity of the administrative process.
    (b) [Reserved]


Sec.  503.40  Service of process and filing requirements.

    (a) Service of summonses and complaints. (1) Except in cases in 
which the Commission is represented by legal counsel who have entered 
an appearance or otherwise given notice of their representation, only 
the General Counsel is authorized to receive and accept subpoenas, or 
other demands or requests directed to the Commission, or any component 
thereof, or its employees, or former employees, whether civil or 
criminal nature, for:
    (i) Material, including documents, contained in the files of the 
Commission;
    (ii) Information, including testimony, affidavits, declarations, 
admissions, responses to interrogatories, or informal statements, 
relating to material contained in the files of the Commission or which 
any Commission employee acquired in the course and scope of the 
performance of his official duties;
    (iii) Garnishment or attachment of compensation of current or 
former employees; or
    (iv) The performance or non-performance of any official Commission 
duty.
    (2) All such documents should be delivered or addressed to the 
General Counsel, Office of the General Counsel, Federal Maritime 
Commission, 800 North Capitol Street NW., Washington, DC 20573.
    (3) In the event that any subpoena, demand, or request is sought to 
be delivered to a Commission employee (including former employees) 
other than in the manner prescribed in paragraphs (a)(1) and (2) of 
this section, such attempted service shall be ineffective. Such 
employee shall, after consultation with the General Counsel:
    (i) Decline to accept the subpoena, demand, or request; or
    (ii) Return them to the server under cover of a written 
communication referring to the procedures prescribed in this part.
    (4) Acceptance of such documents by the Office of the General 
Counsel does not constitute a waiver of any defenses that might 
otherwise exist with respect to service under the Federal Rules of 
Civil or Criminal Procedure, or other applicable laws, rules, or 
regulations.
    (b) [Reserved]


Sec.  503.41  Procedure when testimony or production of documents is 
sought.

    The Commission shall follow the procedures set forth in this part.
    (a) If oral testimony is sought by a demand in any case or matter 
in which the United States is not a party, an affidavit, or, if that is 
not feasible, a statement by the party seeking the testimony or by his 
attorney, setting forth a summary of the testimony sought and its 
relevance to the proceeding, must be furnished to the Commission. Any 
authorization for testimony by a present or former employee of the 
Commission shall be limited to the

[[Page 24353]]

scope of the demand as summarized in such statement.
    (b) When information other than oral testimony is sought by a 
demand, the Commission shall request a summary of the information 
sought and its relevance to the proceeding.
    (c) Permission to testify or to release documents in all cases will 
be limited to matters outlined in the affidavit or declaration 
described in Sec.  503.41(a) and (b), or to such matters as deemed 
appropriate by the Commission. If the Commission, in considering the 
factors in Sec.  503.39, allows the release of documents or testimony 
to be given by an employee, arrangements shall be made for the taking 
of testimony or receipt of documents by the method least disruptive to 
the employee's official duties. Testimony may, for example, be provided 
by affidavits, answers to interrogatories, written depositions, or 
depositions transcribed, recorded, or preserved by any other means 
allowable by law.
    (d) Upon issuance of a final determination to not authorize 
testimony or release of Commission information by the Commission, the 
party or the party's counsel seeking testimony or documents may consult 
or negotiate with the Commission to refine and limit the demand.


Sec.  503.42  Fees.

    (a) Generally. The Commission may condition the production of 
records or appearance for testimony upon advance payment of a 
reasonable estimate of the costs to the Commission.
    (b) Fees for records. Fees for producing records will include fees 
for searching, reviewing, and duplicating records, costs of attorney 
time spent in reviewing the demand or request, and expenses generated 
by materials and equipment used to search for, produce, and copy the 
responsive information. Costs for employee time will be calculated on 
the basis of the hourly pay of the employee (including all pay, 
allowance, and benefits). Fees for duplication will be the same as 
those charged by the Commission in its regulations at subpart F of this 
part.
    (c) Witness fees. Fees for attendance by a witness will include 
fees, expenses, and allowances prescribed by the court's rules. If no 
such fees are prescribed, witness fees will be determined based upon 
the rule of the Federal district court closest to the location where 
the witness will appear. Such fees will include cost of time spent by 
the witness to prepare for testimony, in travel, and for attendance at 
the legal proceeding.
    (d) Payment of fees. The seeking party must pay witness fees for 
current Commission employees and any records certification fees by 
submitting to the General Counsel a check or money order for the 
appropriate amount made payable to the Treasury of the United States. 
In the case of testimony by former Commission employees, applicable 
fees must be paid directly to the former employee in accordance with 28 
U.S.C. 1821, per diem and mileage, or other applicable statutes.
    (e) Certification (authentication) of copies of records. The 
Commission may certify that records are true copies in order to 
facilitate their use as evidence. If certified records are sought, the 
request for certified copies shall be made at least 45 days before the 
date they will be needed. The request should be sent to the General 
Counsel. Fees for certification will be the same as those charged by 
the Commission in its regulations at subpart F of this part.
    (f) Waiver or reduction of fees. The Commission may, upon a showing 
of reasonable cause, waive or reduce any fees in connection with 
testimony, production, or certification of records.
    (g) De minimis fees. Fees will not be assessed if the total charge 
would be $10.00 or less.

    By the Commission.
Karen V. Gregory,
Secretary.
[FR Doc. 2014-09837 Filed 4-29-14; 8:45 am]
BILLING CODE 6730-01-P