Requests for Testimony by Employees Relating to Official Information and Production of Official Records in Litigation, 24350-24353 [2014-09837]
Download as PDF
<![CDATA[
24350
Federal Register / Vol. 79, No. 83 / Wednesday, April 30, 2014 / Rules and Regulations
under the provisions of FIFRA section
17(a).
(b) This subpart applies to all export
pesticide products and export pesticide
devices that are exported for any
purpose, including research.
(c) Export pesticide products and
export pesticide devices are also subject
to requirements for pesticide production
reporting, recordkeeping and inspection
and purchaser acknowledgement
provisions that can be found in the
following parts:
(1) Pesticide production reporting
requirements under FIFRA section 7 are
located in part 167 of this chapter (as
referenced in § 168.85(b)).
(2) Recordkeeping and inspection
requirements under FIFRA section 8 are
located in part 169 of this chapter (as
referenced in § 168.85(a)).
(3) Purchaser acknowledgement
statement provisions under FIFRA
section 17(a) are located in § 168.75.
■ 4. Revise § 168.66 to read as follows:
■
§ 168.66 Labeling of pesticide products
and devices for export.
AGENCY:
Any label and labeling information
requirements in §§ 168.69, 168.70, and
168.71 that are not met fully on the
product label attached to the immediate
product container may be met by
collateral labeling that is either:
(a) Attached to the immediate product
(container label); or
(b) Attached to or accompanies the
shipping container of the export
pesticide or export device at all times
when it is shipped or held for shipment
in the United States.
§ 168.68
[Removed and Reserved]
5. Remove and reserve § 168.68.
6. Revise § 168.69(a) to read as
follows:
■
■
§ 168.69 Registered export pesticide
products.
(a) Each export pesticide product that
is registered under FIFRA section 3 or
FIFRA section 24(c) must bear labeling
approved by EPA for its registration or
collateral labeling in compliance with
§ 168.66.
*
*
*
*
*
■ 7. Revise § 168.70(b) to read as
follows:
mstockstill on DSK4VPTVN1PROD with RULES
§ 168.70 Unregistered export pesticide
products.
*
*
*
*
*
(b) Each unregistered export pesticide
product must bear labeling that
complies with all requirements of this
section or collateral labeling in
compliance with § 168.66.
*
*
*
*
*
VerDate Mar<15>2010
16:04 Apr 29, 2014
Jkt 232001
8. Revise § 168.71(a) to read as
follows:
§ 168.71
Export pesticide devices.
(a) Each export pesticide device sold
or distributed anywhere in the United
States must bear labeling that complies
with all requirements of this section or
collateral labeling in compliance with
§ 168.66.
*
*
*
*
*
[FR Doc. 2014–09843 Filed 4–25–14; 4:15 pm]
BILLING CODE 6560–50–P
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
ACTION:
Federal Maritime Commission.
Direct final rule.
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.
SUMMARY:
PO 00000
Frm 00040
Fmt 4700
Sfmt 4700
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
ADDRESSES:
E:\FR\FM\30APR1.SGM
30APR1
Federal Register / Vol. 79, No. 83 / Wednesday, April 30, 2014 / Rules and Regulations
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
mstockstill on DSK4VPTVN1PROD with RULES
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.
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.
2. Amend § 501.5 as follows:
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.
■ b. Revise paragraph (d)(9) to read as
follows:
■
■
§ 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.
*
*
*
*
*
■ 3. Revise § 501.23 to read as follows:
§ 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 § 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.
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).
Jkt 232001
5. Redesignate subparts E through H
as subparts F through I respectively.
■ 6. In newly redesignated subpart F,
redesignate §§ 503.41 through 503.43 as
§§ 503.48 through 503.50, respectively.
■
Accordingly, the Federal Maritime
Commission amends 46 CFR parts 501
and 503 to read as follows:
16:04 Apr 29, 2014
1. The authority citation for part 501
continues to read as follows:
■
4. Revise the authority citation for part
503 to read as follows:
Administrative practice and
procedure, Courts, Government
employees.
VerDate Mar<15>2010
■
■
46 CFR Part 503
7. Add a new subpart E to read as
follows:
PART 501—THE FEDERAL MARITIME
COMMISSION—GENERAL
PART 503—PUBLIC INFORMATION
Administrative practice and
procedure, Authority delegations
(Government agencies).
24351
PO 00000
Frm 00041
Fmt 4700
Sfmt 4700
Subpart E—Requests for Testimony by
Employees Relating to Official
Information and Production of Official
Records in Litigation
§ 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 quasijudicial 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
E:\FR\FM\30APR1.SGM
30APR1
mstockstill on DSK4VPTVN1PROD with RULES
24352
Federal Register / Vol. 79, No. 83 / Wednesday, April 30, 2014 / Rules and Regulations
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
VerDate Mar<15>2010
16:04 Apr 29, 2014
Jkt 232001
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.
§ 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 §§ 503.39 and 503.40.
§ 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]
§ 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
PO 00000
Frm 00042
Fmt 4700
Sfmt 4700
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 nonperformance 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]
§ 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
E:\FR\FM\30APR1.SGM
30APR1
Federal Register / Vol. 79, No. 83 / Wednesday, April 30, 2014 / Rules and Regulations
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 § 503.41(a) and
(b), or to such matters as deemed
appropriate by the Commission. If the
Commission, in considering the factors
in § 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.
mstockstill on DSK4VPTVN1PROD with RULES
§ 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.
VerDate Mar<15>2010
16:04 Apr 29, 2014
Jkt 232001
(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
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 622
[Docket No. 120717247–3029–02]
RIN 0648–XD231
Reef Fish Fishery of the Gulf of
Mexico; 2014 Recreational
Accountability Measures for Red
Grouper in the Gulf of Mexico
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Temporary rule; accountability
measures.
AGENCY:
NMFS implements
accountability measures (AMs) for the
recreational sector for red grouper in the
Gulf of Mexico (Gulf) reef fish fishery
for the 2014 fishing year through this
temporary rule. Based on the 2013
SUMMARY:
PO 00000
Frm 00043
Fmt 4700
Sfmt 4700
24353
recreational annual catch limit (ACL)
overage, this rule reduces the red
grouper bag limit in the Gulf exclusive
economic zone (EEZ) from four to three
fish (within the current four-fish
grouper aggregate bag limit) and reduces
the length of the red grouper
recreational fishing season in the Gulf
EEZ by the amount necessary to ensure
landings do not exceed the recreational
annual catch target (ACT) for the 2014
fishing year. Therefore, NMFS
implements recreational post-season
AMs by reducing the bag limit for red
grouper in the Gulf EEZ from four to
three fish effective at 12:01 a.m., local
time, on May 5, 2014, until the
recreational sector is projected to meet
the recreational ACT. NMFS projects the
recreational sector will reach the
recreational ACT under the three fish
bag limit by September 16, 2014.
Therefore, the recreational sector for red
grouper in the Gulf EEZ will close at
12:01 a.m., local time, September 16,
2014, through the end of the fishing
year, December 31, 2014, unless further
notification is published in the Federal
Register. These actions are necessary to
protect the Gulf red grouper resource.
DATES: The bag limit reduction for red
grouper in the Gulf EEZ is effective at
12:01 a.m., local time, May 5, 2014,
through December 31, 2014. The
recreational sector closure for red
grouper in the Gulf EEZ is effective at
12:01 a.m., local time, September 16,
2014, until January 1, 2015, unless
further notification is published in the
Federal Register.
FOR FURTHER INFORMATION CONTACT: Rich
Malinowski, Southeast Regional Office,
telephone 727–824–5305, email
rich.malinowski@noaa.gov.
SUPPLEMENTARY INFORMATION: The reef
fish fishery of the Gulf, which includes
red grouper, is managed under the
Fishery Management Plan for the Reef
Fish Resources of the Gulf of Mexico
(FMP). The FMP was prepared by the
Gulf of Mexico Fishery Management
Council (Council) and is implemented
through regulations at 50 CFR part 622
under the authority of the MagnusonStevens Fishery Conservation and
Management Act (Magnuson-Stevens
Act). All weights specified in this rule
are gutted weight.
The Gulf red grouper recreational
ACL is 1,900,000 lb (861,826 kg), and
the recreational ACT is 1,730,000 lb
(784,715 kg), as specified in 50 CFR
622.41(e)(2)(iv). Red grouper are not
overfished, based on the most recent
Status of U.S. Fisheries Report to
Congress.
In accordance with regulations at 50
CFR 622.41(e)(2)(ii), without regard to
E:\FR\FM\30APR1.SGM
30APR1
]]>Agencies
[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]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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
