FMC Votes to Adopt Touhy Regulations

The Federal Maritime Commission (FMC) held a public meeting on February 26, 2014, during which it voted to adopt the recommendation of staff that the Commission adopt Touhy regulations. These regulations, which derive from the Supreme Court’s decision in United States ex rel. Touhy v. Regan, 340 U.S. 462 (1951), govern the production of agency testimony or documents in response to a third party subpoena served upon the Commission or one of its employees. Commission staff indicated that the regulations will facilitate predictability in responding to such requests, and help conserve scarce Commission resources. Practitioners should keep in mind that that these new procedural requirements will provide the agency with an additional layer of defense in responding to discovery. Following brief discussion, the Commission determined to publish the action for notice and comment under the Administrative Procedure Act.