If the authority to compel testimony and offer immunity is necessary at all to the Railroad Retirement Board, it would be better for the Board to have such authority with respect to both the Railroad Retirement Act and the Railroad Unemployment Insurance Act. Now, the Board clearly has such authority only with respect to the Railroad Unemployment Insurance Act. In actual fact, however, the Board has never used this authority to compel testimony or production of other evidence for any purpose under the Railroad Unemployment Insurance Act, and it is not expected that the situation will be different in this respect in the future. Therefore, the Board does not have any recommendation to offer with respect to this bill. In order to comply with your request that this report be submitted within twenty days from May 12, 1969, we will not await clearance from the Bureau of the Budget. However, we are sending the Bureau of the Budget copies of this report, together with a request for its comments, and will inform you of the Bureau's views as soon as they become available to us.. Sincerely yours, HOWARD W. HABERMEYER, Chairman. FEDERAL MARITIME COMMISSION, Hon. JAMES O. EASTLAND, Chairman, Committee on the Judiciary, Washington, D.C. DEAR MR. CHAIRMAN: This refers to your letter of May 12, 1969, requesting the views of the Federal Maritime Commission with respect to S. 2122, a bill to amend title 18, United States Code, to prescribe the manner in which a witness in a Federal proceeding may be ordered to provide information after asserting his privilege against self-incrimination and to define the scope of the immunity to be provided such witness with respect to information provided under an order. The bill would establish a uniform procedure for compelling testimony of a witness in all Federal proceedings and prescribe the scope of immunity to be granted in such instances. It is part of the effort to reform Federal criminal laws and was drafted as a result of the submission to the President of the second interim report of the National Commission on Reform of Criminal Laws. As noted in that report, there are presently upwards of fifty different statutes now dealing with the granting of immunity in Federal proceedings. S. 2122 would repeal those statutes and establish in their place a single statute delineating the procedures for compelling testimony and the scope of immunity granted therefor which would be applicable in all Federal proceedings. The procedures would apply to (1) a court or grand jury of the United States. (2) an agency of the United States, and (3) either House of Congress, a joint committee of the two Houses or a committee of either House. As defined in the bill, "agency" specifically includes the Federal Maritime Commission. The provisions of the shipping statutes dealing with immunity for witnesses are expressly repealed. The general immunity section provides that when a witness asserts his privilege against self-incrimination in a proceeding before such bodies, and the person presiding communicates to the witness an order, the witness may not refuse to comply with the order on such grounds, but the testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may not be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order. The Commission favors the substitution of a single standardized immunity provision for the numerous statutes now applicable with respect to the granting of immunity. We concur with the criteria set forth for invoking the privilege: i.e., it must be specifically claimed by the witness and the testimony must be given in response to an order which has been communicated to the witness. The constitutionality of statutes compelling testimony otherwise privileged by the Fifth Amendment as self-incriminating has been challenged and upheld. (e.g. Twinging v. New Jersey, 211 U.S. 78 (1908); Ullman v. United States, 350 U.S. 422 (1956)). The principal condition imposed on such statutes is that they must offer immunity which is coextensive with the constitutional pri waived by the witness. Glickstein v. United States, 222 U.S. 139 (1911); / v. United States, 359 U.S. 41 (1959). The current immunity provision of the Shipping Act meets this conditi has been upheld. (United States v. Onassis, 125 F. Supp. 190 (D.D.C.. United States v. Niarchos, 125 F. Supp. 214 (D.D.C. 1954). Section 28 states: "That no person shall be excused on the ground that it may tend to inate him or subject him to a penalty or forfeiture, from attending and test or producing books, papers, documents, and other evidence, in obedience subpoena of the board or of any court in any proceeding based upon or g out of any alleged violation of this Act; but no natural person shall be pros or subjected to any penalty or forfeiture for or on account of any tran matter, or thing as to which, in obedience to a subpoena and under may so testify or produce evidence, except that no person shall be exem prosecution and punishment for perjury committed in so testifying." The immunity in this section specifically applies to prosecution or sul to any penalty or forfeiture resulting from the testimony given. The pr immunity in S. 2122 extends only to prohibiting the use of the testimony o information compelled under the order (properly including other infor directly or indirectly derived from such evidence) against the witness criminal case (except perjury). In light of some provisions of the shipping statutes calling for civil p and forfeitures, it is not clear that this proposed statutory immunity extensive with the privilege required to be waived. In most instance penalty proceedings have been termed criminal cases because of their Castro v. United States, 23 F. 2d 263 (1st. Cir. 1927); Bowles v. Trou 60 F. Supp. 48 (D.C. Cal. 1945); but see also United States v. Three Ton 28 F. Cas. 149 (No. 16,515) (D.C.E.D. Wis. 1875); Bowles v. Seitz, 62 F 773 (D.C. Tenn. 1945). To avoid possible misunderstanding and/or misin tations, it is suggested that penalty and forefeiture proceedings be spec included within the immunity contemplated by this bill. We are in accord with the objectives of S. 2122 and favor its enactme! appropriate revision to specifically include penalty and forfeiture proce The Bureau of the Budget has advised that there would be no objec the submission of this letter from the standpoint of the Administration gram and that enactment of legislation along the lines of S. 2122 woul accord with the program of the President. Sincerely yours, JOHN HARLLEP Rear Admiral, U.S. Navy (Retired), Chair NATIONAL LABOR RELATIONS BOARD Hon. JOHN L. MCCLELLAN, Chairman, Committee on the Judiciary, Subcommittee on Criminal La Procedures, U.S. Senate, Washington, D.C. DEAR MR. CHAIRMAN: This is in rpely to your request of June 30, 15 the comments and suggestions of the National Labor Relations Board on a bill entitled "Federal Immunity of Witnesses Act." We regret that w been unable to meet your July 14 deadline for this report, but we hav advised by Mr. Holloman that a reply the end of this week would be aces Since Section 224 of the proposed bill would repeal paragraph (3) of > 11 of the National Labor Relations Act which presently provides for in to witnesses who, after claiming the privilege against self-incriminati compelled to testify or produce evidence, we appreciate your invitation to on S. 2122. We contacted our top agency officials who would most likely be aware situations involving a claim of the privilege against self-incrimination, the best of their knowledge and recollection there have been relatively few cases involving the question of immunity. In addition, as claims of pr 146 U.S.C. 827. A similar provision is included in the Merchant Marine Act. : U.S.C. 1124 (c). 2 See for example sections 15 and 21, Shipping Act, 1916. must offer immunity which is coextensive with the constitutional privilege waived by the witness. Glickstein v. United States, 222 U.S. 139 (1911); Brown v. United States, 359 U.S. 41 (1959). The current immunity provision of the Shipping Act meets this condition and has been upheld. (United States v. Onassis, 125 F. Supp. 190 (D.D.C. 1954); United States v. Niarchos, 125 F. Supp. 214 (D.D.C. 1954). Section 28 states: "That no person shall be excused on the ground that it may tend to incriminate him or subject him to a penalty or forfeiture, from attending and testifying, or producing books, papers, documents, and other evidence, in obedience to the subpoena of the board or of any court in any proceeding based upon or growing out of any alleged violation of this Act; but no natural person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing as to which, in obedience to a subpoena and under oath, he may so testify or produce evidence, except that no person shall be exempt from prosecution and punishment for perjury committed in so testifying."1 The immunity in this section specifically applies to prosecution or subjection to any penalty or forfeiture resulting from the testimony given. The proposed immunity in S. 2122 extends only to prohibiting the use of the testimony or other information compelled under the order (properly including other information directly or indirectly derived from such evidence) against the witness in any criminal case (except perjury). In light of some provisions of the shipping statutes calling for civil penalties and forfeitures, it is not clear that this proposed statutory immunity is coextensive with the privilege required to be waived. In most instances, such penalty proceedings have been termed criminal cases because of their nature. Castro v. United States, 23 F. 2d 263 (1st. Cir. 1927); Bowles v. Trowbridge, 60 F. Supp. 48 (D.C. Cal. 1945); but see also United States v. Three Tons Coal, 28 F. Cas. 149 (No. 16,515) (D.C.E.D. Wis. 1875); Bowles v. Seitz, 62 F. Supp. 773 (D.C. Tenn. 1945). To avoid possible misunderstanding and/or misinterpretations, it is suggested that penalty and forefeiture proceedings be specifically included within the immunity contemplated by this bill. We are in accord with the objectives of S. 2122 and favor its enactment with appropriate revision to specifically include penalty and forfeiture proceedings. The Bureau of the Budget has advised that there would be no objection to the submission of this letter from the standpoint of the Administration's program and that enactment of legislation along the lines of S. 2122 would be in accord with the program of the President. Sincerely yours, JOHN HARLLEE, Rear Admiral, U.S. Navy (Retired), Chairman. NATIONAL LABOR RELATIONS BOARD, Hon. JOHN L. MCCLELLAN, Chairman, Committee on the Judiciary, Subcommittee on Criminal Laws and Procedures, U.S. Senate, Washington, D.C. DEAR MR. CHAIRMAN: This is in rpely to your request of June 30, 1969, for the comments and suggestions of the National Labor Relations Board on S. 2122, a bill entitled "Federal Immunity of Witnesses Act." We regret that we have been unable to meet your July 14 deadline for this report, but we have been advised by Mr. Holloman that a reply the end of this week would be acceptable. Since Section 224 of the proposed bill would repeal paragraph (3) of Section 11 of the National Labor Relations Act which presently provides for immunity to witnesses who, after claiming the privilege against self-incrimination, are compelled to testify or produce evidence, we appreciate your invitation to report on S. 2122. We contacted our top agency officials who would most likely be aware of the situations involving a claim of the privilege against self-incrimination, and to the best of their knowledge and recollection there have been relatively few Board cases involving the question of immunity. In addition, as claims of privilege 146 U.S.C. 827. A similar provision is included in the Merchant Marine Act, 1936, 46 U.S.C. 1124 (c). 2 See for example sections 15 and 21, Shipping Act, 1916. would most likely arise in our unfair labor practice proceedings, we have also requested the office of the Chief of Trial Examiners informally to contact the Board's Trial Examiners who hear and adjudicate such cases. A large majority of the current Trial Examiners were covered by the survey, which indicated that in only 27 cases, most of them in the past 10 years, is it now recalled that there were questions of immunity arising under Section 11 (3) of our Act. Of these, only 4 cases clearly concerned situations where, after claims of privilege were made and testimony was compelled, immunity could have been vested in the testifying claimants. Since our Trial Examiners now hear about 1,200 unfair labor practice cases a year, and since the Trial Examiners may have handled almost 10,000 cases during the past 10 years, when most of the above 27 proceedings arose, these relatively few cases of compelled testimony after claim of privilege would appear to have had little, if any, impact upon the administration of the cirminal laws, and no adverse consequences on the administration of our Act. In the event that S. 2122 is enacted into law, we also wish to comment on the provision requiring that an order compelling testimony or production of evidence after such a claim of privilege at a proceeding, be issued by the agency no earlier than 10 days after notice thereof is given the Attorney General. Such notice, of course, would require an adjournment and thus necessarily delay the hearing and adjudication of the proceeding. However, in view of the insignificant number of proceedings involving self-incrimination claims out of the thousands of unfair labor practice cases conducted by our agency, we believe that the minimal delay entailed in these few proceedings would not be a substantial impediment to the administration of the Act and would be more than overbalanced by the desirability of cooperation, and our willingness to cooperate, with the Department of Justice in its fight against crime. Accordingly, we have no objection to S. 2122. The Bureau of the Budget advises that there would be no objection to the presentation of this report and that enactment of legislation along the lines of S. 2122 would be in accord with the program of the President. Sincerely yours, FRANK W. MCCULLOCH, Chairman. FEDERAL COMMUNICATIONS COMMISSION, Hon. JAMES O. EASTLAND, Chairman, Committee on the Judiciary, DEAR SENATOR EASTLAND: This is in reply to your request seeking this Commission's comments on S. 2122, a bill to amend title 18, United States Code, to prescribe the manner in which a witness in a Federal proceeding may be ordered to provide information after asserting his privilege against self-incrimination and to define the scope of the immunity to be provided such witness with respect to information provided under an order. Enclosed please find copies of our comments on this bill. We are advised by the Bureau of the Budget that enactment of legislation along the lines of S. 2122 would be in accord with the program of the President. Sincerely yours, ROSEL H. HYDE, Chairman. COMMENTS OF THE FEDERAL COMMUNICATIONS COMMISSION ON S. 2122, A BILL TO AMEND TITLE 18, UNITED STATES CODE, TO PRESCRIBE THE MANNER IN WHICH A WITNESS IN A FEDERAL PROCEEDING MAY BE ORDERED TO PROVIDE INFORMATION AFTER ASSERTING HIS PRIVILEGE AGAINST SELF-INCRIMINATION AND TO DEFINE THE SCOPE OF THE IMMUNITY TO BE PROVIDED SUCH WITNESS WITH RESPECT TO INFORMATION PROVIDED UNDER AN ORDER S. 2122 is a general immunity statute applicable in proceedings before a court or a grand jury of the United States: an agency of the United States; either House of Congress, a joint committee of the two Houses, or a committee of either House. The Federal Communications Commission is specifically included in the definition of "agency" to whose proceedings the statute would apply. (§ 6005 (1) ) The proposal is a general substitute for many existing separate immunity provisions and would repeal 47 U.S.C. § 409(1), the provision of the Communications 30-902 0-69—34 |