Interpretation Response #PI-16-0005 ([King-Murray Company Operating LLC] [Mr. Frank M. Murray])

Below is the interpretation response detail and a list of regulations sections applicable to this response.

Interpretation Response Details

Response Publish Date: 09/09/2016

Company Name: King-Murray Company Operating LLC

Individual Name: Mr. Frank M. Murray

Location State: MI Country: US

View the Interpretation Document

Response text:

Mr. Frank M. Murray General Manager
King-Murray Company Operating LLC 29760 Hillbrook Street
Livonia, MI  48152

Dear Mr. Murray:

In an April  1, 2016, letter to the Pipeline and Hazardous Materials Safety Administration, (PHMSA), you requested an interpretation of PHMSA regulations to be used in ongoing litigation.  You stated King-Murray Operating Company, LLC ("King-Murray") is the defendant in a lawsuit brought by Florida Power and Light Company ("FPL") in the U.S. District Court for the Southern District of Florida.  You further stated FPL is seeking an order to require King­ Murray to tum over training records and that King-Murray has brought counterclaims. In addition, you stated King-Murray believes that under PHMSA regulations and the rules of the Florida Public Services Commission King-Murray is required to retain these records.  You asked for a "written or verbal opinion from PHMSA upon which King-Murray can rely upon for clarification of the regulations in the Case."

On April 12, 2016, PHMSA received a letter from Charles L. Schlumberger, counsel for FPL and NextEra Energy Pipeline Services, LLC ("NEPS").   Mr. Schlumberger requested that PHMSA refrain from providing the opinion you requested.  Alternatively, he requested he be able to respond on behalf of FPL and NEPS should PHMSA decide to "move forward" on your request.

PHMSA interprets your request for a "written or verbal opinion from PHMSA upon which King­ Murray can rely upon for clarification of the regulations in the Case" as a request for a PHMSA employee to provide expert testimony in the ongoing litigation between King-Murray and FPL. However, 49 C.F.R. § 9.9(c) prohibits any DOT employee from testifying in legal proceedings between private litigants "as an expert or opinion witness with regard to any matter arising out of the employee's official duties or functions of the Department." See also 49 C.F.R. § 9.3 (defining "testimony" as "any written or oral statement by a witness"). Accordingly, PHMSA cannot grant your request at this time.
 

Should you have any questions, please contact Aaron Glaser, an Attorney-Advisor in my office, at (202) 366-6318 or aaron.glaser@dot.gov.

Sincerely,

Teresa A. Gonsalves Chief Counsel

cc: Charles L. Schlumberger, Senior Litigation Counsel, Florida Power & Light Company, 700 Universe Boulevard, Juno Beach, Florida, 33408-0420

Regulation Sections