Deposit Insurance Act would undermine to some extent the concept of examination and supervision by consent and would seriously impede the examination process. For the foregoing reasons, the Corporation recommends that section 204 of the bill be deleted. In order to conform other provisions of the bill to our suggested amendment, the proposed section 6005 (1) of title 18, United States Code, should be redrafted so as to delete the words "the Federal Deposit Insurance Corporation,". During hearings on the proposed "Financial Institutions Act of 1957," the Corporation recommended repeal of the specific grant of immunity contained in the fourth sentence of section 10 (d) of the Federal Deposit Insurance Act. A review of that recommendation in the light of more recent experience, however, suggests that retention of the specific grant of immunity contained in that sentence is desirable as a useful supervisory tool. In support of its request for retention of the specific grant of immunity contained in the fourth sentence of section 10(d) of the Federal Deposit Insurance Act, the Corporation notes that the general thrust of S. 2122 is directed at organized crime. Whenever, during the course of an examination of an insured State nonmember bank, the Corporation's examiners discover possible criminal violations, it submits reports concerning those viloations to the United States Attorney. Subsequent investigations of those violations are handled by the Department of Justice and the general immunity provision proposed by S. 2122 would apply to those investigations. We have been unable to obtain the views of the Bureau of the Budget with respect to this report in time to meet your schedule. Sincerely, K. A. RANDALL, Chairman. UNITED STATES OF AMERICA, Hon. JAMES O. EASTLAND, Chairman, Committee on the Judiciary, U.S. Senate, DEAR MR. CHAIRMAN: The Bureau of the Budget has informed the Railroad Retirement Board that there is no objection to the Board's proposed report on S. 2122, dated May 28, 1969, and enactment of legislation along the lines of S. 2122 would be in accord with the program of the President. Sincerely yours, HOWARD W. HABERMEYER, Chairman. Hon. JAMES O. EASTLAND, UNITED STATES OF AMERICA, Chairman, Committee on the Judiciary, U.S. Senate, DEAR MR. CHAIRMAN: This is the report of the Railroad Retirement Board on S. 2122 which was introduced May 12, 1969, by Senator McClellan (for himself, Senator Ervin, and Senator Hruska). The bill adds a new part, part V, entitled "Immunity of Witnesses", to title 18 of United States Code and also modifies other provisions of the Federal law to conform to the new part added to title 18. Part V of title 18 of the United States Code would contain five sections. Under section 6001, a witness would not be permitted to refuse to testify on the grounds of self-incrimination in a proceeding before a court, grand jury, or agency of the United States, either House of Congress, a committee of either House, or a joint committee, if the person presiding over the proceeding communicates an order issued under this law. But no testimony or other information (or any information directly or indirectly derived from it) so compelled could be used against the witness in any criminal case except for perjury, false statement, or refusal to testify. Section 6002 indicates how the procedure would be invoked in connection with a proceeding before the United States court or grand jury. Section 6003 relates to "Certain Administrative Proceedings". If, with respect to any proceeding, an agency (as defined in section 6005) believes that testimony or other information is necessary to the public interest and that an individual has or is likely to refuse to testify or provide such information on the basis of his privilege against self-incrimination, the agency may issue an order 10 days after the day on which it served the Attorney General notice of its intention to do so requiring the individual who has been or may be called to give any testimony or provide any information which he refuses to give or provide on the basis of his privilege against self-incrimination. Section 6004 relates to "Congressonal Proceedings". Section 6005 is a "Definition" section. "Agency of the United States" includes the Railroad Retirement Board, which is specifically listed along with other qualifying agencies. The term "proceeding before any agency of the United States" means any proceeding before any agency with respect to which it is authorized to issue subpoenas and to take testimony of witnesses under oath. Section 228 of the bill (page 11) repeals subsection 12(c) (45 U.S.C. § 362 (c)) of the Railroad Unemployment Insurance Act. In this connection, the succeeding subsections of Section 12 should be redesignated and a conforming change made in the references to subsections of Section 12 which appear in Section 10(b) (6) of the Railroad Retirement Act. It is not clear what authority, if any, the Board has under Section 10 of the Railroad Retirement Act to compel testimony when a witness refuses to answer on the basis of the privilege against self-incrimination. Section 12 of the Railroad Unemployment Insurance Act permits the Board to compel testimony or the production of documentary information with respect to that Act, and the witness may not refuse since he is offered immunity from prosecution by Section 12(c) for any testimony he gives or other information he provides. Under the proposed legislation, the Board could compel testimony, and the immunity prescribed would be granted to the witness, with respect to both Acts administered by the Board. At present, under subsections (a), (b), and (c) of Section 12 of the Railroad Unemployment Insurance Act, the Board may solicit testimony and the witness is automatically precluded from refusing to answer. Section 12 (c) grants immunity, and the Board is not required to take any positive steps beyond issuing the subpoenas and soliciting the desired information to compel testimony through use of the immunity provision. If the witness does not offer to answer or produce the required evidence, the Board may then request an order from the district court to compel testimony under threat of contempt. Under the proposed new law, the immunity provision is not automatic. If a witness has refused or is likely to refuse to give testimony or provide other information, the Board must make a judgment that the information is necessary to the public interest, and the Board must also notify the Attorney General at least 10 days in advance of its intention to issue an order to compel testimony. The Board may then issue an order to compel the testimony. Immunity is extended and the witness must answer when the order is communicated to him. Until the Board does issue the order, apparently, the witness could stand upon his refusal to testify on the basis of the privilege against self-incrimination and immunity cannot be extended to him. The scope of the information which may properly be elicited under the proposed law is slightly different than under Section 12 of the Railroad Unemployment Insurance Act. Under Section 12, the investigation or proceeding at which information is sought must be relative to a determination of a right to benefits, or relative to any other matter within the jurisdiction of the Board under the Railroad Unemployment Insurance Act; and, the information must relate to the matter under investigation or in question before the Board. Under the proposed new law, the test for information or other material which may be sought is testimony or other information which "may be necessary to the public interest". This language seems to be somewhat less relevant to the function of the Railroad Retirement Board, although there would probably be no difficulty in establishing that the information necessary to a determination of benefit rights of one or two people is in the public interest. The scope of immunity is much narrower under the proposed law than under Section 12 of the Railroad Unemployment Insurance Act. Under Section 12, the immunity is from prosecution or subjection to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which the witness is compelled to testify. Under the proposed new law, the immunity would be from use of the information (or any information directly or indirectly derived from the testimony or other information) against the witness in any criminal case. 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 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 |