29806 Federal Register / Vol. 60, No. 108 / Tuesday, June 6, 1995 / Proposed Rules

Dated: May 23, 1995.

J.W. Lockwood,

Rear Admiral, U.S. Coast Guard, Commander,

13th Coast Guard District.

[FR Doc. 95–13774 Filed 6–5–95; 8:45 am]

BILLING CODE 4910–14–M

POSTAL SERVICE

39 CFR Part 265

Compliance With Subpoenas,

Summonses, and Court Orders by

Postal Employees Within the

Inspection Service Where the Postal

Service or the United States Is Not a

Party

AGENCY: Postal Service.

ACTION: Proposed rule.

SUMMARY: The Postal Service proposes

to establish procedures for Postal

Service employees within the Postal

Inspection Service to respond to

subpoenas, summonses, and court

orders to produce records or give

testimony in cases where the Postal

Service is not a party. The purpose of

this proposed rule is to minimize

disruption of normal Postal Inspection

Service functions caused by compliance

with those demands, maintain control

over release of public information,

prevent the disclosure of information

that should not legally be disclosed,

prevent the Postal Service from being

misused for private purposes, and

otherwise protect the interests of the

United States. These procedures would

prohibit postal employees within or

assigned to the Postal Inspection Service

from complying with subpoenas,

summonses, and other court orders in

cases where the Postal Service is not a

party unless authorized by certain

authorizing officials.

DATES: Comments must be submitted on

or before July 6, 1995. Comments will be

available for public inspection until July

21, 1995.

ADDRESSES: Written comments should

be mailed or delivered to James M.

Parrott, Associate Counsel, Postal

Inspection Service, United States Postal

Service, 475 L’Enfant Plaza SW, Room

3411, Washington, DC 20260–2181.

Comments may be delivered to room

3411 at the above address between 8:15

a.m. and 4:45 p.m., Monday through

Friday. Copies of all written comments

will be available for inspection and

photocopying during these hours in

room 3411.

FOR FURTHER INFORMATION CONTACT:

James M. Parrott, Associate Counsel,

Office of the Chief Postal Inspector,

(202) 268–4417.

SUPPLEMENTARY INFORMATION: The

proposed rule provides that postal

employees within or assigned to the

Postal Inspection Service must follow

certain rules for the release of

information in the form of documents or

testimony. Giving testimony or releasing

a document in legal proceedings where

the Postal Service or the United States

is not a party must be authorized

beforehand. Employees within or

assigned to the Inspection Service may

comply with subpoenas, summonses,

and court orders where the Postal

Service or the United States is not a

party, with the authorization of

specified authorizing officials after

consulting Inspection Service legal

counsel. The release of the information

must be in compliance with applicable

laws and regulations and not be against

the interests of the United States.

Several federal agencies have enacted

regulations that give them the authority

to control the release of documents and

testimony in legal proceedings where

the agency is not a party. Courts have

recognized that federal agencies may

limit compliance in these situations. See

United States ex rel. Touhy v. Ragen,

340 U.S. 462 (1951). Additionally,

subpoenas, summonses, and orders

issued by state courts, legislatures, or

legislative committees that attempt to

assert jurisdiction over federal agencies

are inconsistent with the Supremacy

Clause of the U.S. Constitution. A

federal regulation regarding compliance

with those subpoenas reinforces this

principle. McCulloch v. Maryland, 17

U.S. (4 Wheat.) 316 (1819); United

States v. McLeod, 385 F.2d 734 (5th Cir.

1967).

This proposed rule does not apply to

situations in which the United States,

the Postal Service, or any federal agency

is a party in action; Congressional

requests, summonses, or subpoenas;

consultative services and technical

assistance rendered by the Inspection

Service in the course of its normal

functions; employees serving as expert

witnesses; employees making

appearances in their private capacity;

and when it has been determined by an

authorizing official that it is in the

public interest.

Proposed new § 265.13 of title 39 of

the Code of Federal Regulations will be

the Postal Service regulation concerning

the compliance with subpoenas,

summonses, and court orders by postal

employees within the Inspection

Service where the Postal Service or the

United States is not a party. This section

has also been written to reflect the

changes in organization that the

Inspection Service has undergone. As an

example, the position of Regional Chief

Inspector no longer exists within the

Inspection Service. Current regulations

identify that official as responsible for

authorizing testimony or the production

of documents pursuant to a subpoena,

summons, or court order where the

Postal Service, the United States, or

another federal agency is not a party.

Now, the authorizing official, in most

cases, is the Postal Inspector in Charge

of the affected field Division.

List of Subjects in 39 CFR Part 265

Administrative practice and

procedure, Government employees,

Release of information.

Accordingly, 39 CFR part 265 is

proposed to be amended as set forth

below.

PART 265—RELEASE OF

INFORMATION

1. The authority citation for part 265

continues to read as follows:

Authority: 39 U.S.C. 401; 5 U.S.C. 552;

Inspector General Act of 1978, as amended

(Pub. L. 95–452, as amended), 5 U.S.C.

App. 3.

2. The heading of § 265.11 is revised

to read as follows:

§ 265.11 Compliance with subpoena duces

tecum, court orders, and summonses.

3. Paragraphs (b) and (c) of § 265.11

are removed and paragraph (b) is

reserved. A new § 265.13 is added to

read as follows:

§ 265.13 Compliance with subpoenas,

summonses, and court orders by postal

employees within the Inspection Service

where the Postal Service, the United States,

or any other federal agency is not a party.

(a) Applicability of this section. These

rules apply to all federal, state, and local

court proceedings, as well as

administrative and legislative

proceedings, other than:

(1) Proceedings where the United

States, the Postal Service, or any other

federal agency is a party;

(2) Congressional requests or

subpoenas for testimony or documents;

(3) Consultative services and

technical assistance rendered by the

Inspection Service in executing its

normal functions;

(4) Employees serving as expert

witnesses in connection with

professional and consultative services

under § 447.23 of this chapter and under

title 5, Code of Federal Regulations, part

7001, provided that employees acting in

this capacity must state for the record

that their testimony reflects their

personal opinions and should not be

viewed as the official position of the

Postal Service;
Federal Register / Vol. 60, No. 108 / Tuesday, June 6, 1995 / Proposed Rules 29807

(5) Employees making appearances in

their private capacities in proceedings

that do not relate to the Postal Service

(e.g., cases arising from traffic accidents,

domestic relations) and do not involve

professional or consultative services;

and

(6) When in the opinion of the

Counsel or the Counsel’s designee,

Office of the Chief Postal Inspector, it

has been determined that it is in the best

interest of the Inspection Service or in

the public interest.

(b) Purpose and scope. These

provisions limit the participation of

postal employees within or assigned to

the Inspection Service, in private

litigation, and other proceedings in

which the Postal Service, the United

States, or any other federal agency is not

a party. The rules are intended to

promote the careful supervision of

Inspection Service resources and to

reduce the risk of inappropriate

disclosures that might affect postal

operations.

(c) Definitions. For the purposes of

this section:

(1) Authorizing official is the person

responsible for giving the authorization

for release of documents or permission

to testify.

(2) Case or matter means any civil

proceeding before a court of law,

administrative board, hearing officer, or

other body conducting a judicial or

administrative proceeding in which the

United States, the Postal Service, or

another federal agency is not a named

party.

(3) Demand includes any request,

order, or subpoena for testimony or the

production of documents.

(4) Document means all records,

papers, or official files, including, but

not limited to, official letters, telegrams,

memoranda, reports, studies, calendar

and diary entries, graphs, notes, charts,

tabulations, data analyses, statistical or

information accumulations, records of

meetings and conversations, film

impressions, magnetic tapes, computer

discs, and sound or mechanical

reproductions;

(5) Employee or Inspection Service

employee, for the purpose of this

regulation only, refers to a Postal

Service employee currently or formerly

assigned to the Postal Inspection

Service, student interns, contractors and

employees of contractors who have

access to Inspection Service information

and records.

(6) Inspection Service means the

organizational unit within the Postal

Service as outlined in § 224.3 of this

chapter.

(7) Inspection Service Legal Counsel is

an attorney authorized by the Chief

Postal Inspector to give legal advice to

members of the Inspection Service.

(8) Inspection Service Manual is the

directive containing the standard

operating procedures for Postal

Inspectors and certain Inspection

Service employees.

(9) Nonpublic includes any material

or information not subject to mandatory

public disclosure under § 265.6(b).

(10) Official case file means official

documents that relate to a particular

case or investigation. These documents

may be kept at any location and do not

necessarily have to be in the same

location in order to constitute the file.

(11) Postal Inspector reports include

all written reports, letters, recordings, or

other memorializations made in

conjunction with the duties of a Postal

Inspector.

(12) Testify or testimony includes

both in-person oral statements before

any body conducting a judicial or

administrative proceeding and

statements made in depositions,

answers to interrogatories, declarations,

affidavits, or other similar documents.

(13) Third-party action means an

action, judicial or administrative, in

which the United States, the Postal

Service, or any other federal agency is

not a named party.

(d) Policy. No current or former

employee within the Inspection Service

may testify or produce documents

concerning information acquired in the

course of employment or as a result of

his or her relationship with the Postal

Service in any proceeding to which this

subsection applies (see paragraph (a) of

this section), unless authorized to do so.

Authorization will be provided by:

(1) The Postal Inspector in Charge of

the affected field Division, or designee,

for Division personnel and records, after

that official has determined through

consultation with Inspection Service

legal counsel that no legal objection,

privilege, or exemption applies to such

testimony or production of documents.

(2) The Chief Postal Inspector or

designee for Headquarters employees

and records, after that official has

determined through consultation with

Inspection Service legal counsel, that no

legal objection, privilege, or exemption

applies to such testimony or production

of documents.

(3) Consideration shall be given to:

(i) Statutory restrictions, as well as

any legal objection, exemption, or

privilege that may apply;

(ii) Relevant legal standards for

disclosure of nonpublic information and

documents;

(iii) Inspection Service rules and

regulations and the public interest;

(iv) Conservation of employee time;

and

(v) Prevention of the expenditure of

Postal Service resources for private

purposes.

(4) If additional information is

necessary before a determination can be

made, the authorizing official may, in

coordination with Inspection Service

legal counsel, request assistance from

the Department of Justice.

(e) Compliance with subpoena duces

tecum. (1) Except as required by part

262 of this chapter, produce any other

record of the Postal Service only in

compliance with a subpoena duces

tecum or appropriate court order.

(2) Do not release any record

containing information relating to an

employee’s security or loyalty.

(3) Honor subpoenas and court orders

only when disclosure is authorized.

(4) When authorized to comply with

a subpoena duces tecum or court order,

do not leave the originals with the court.

(5) Postal Inspector reports are

considered to be confidential internal

documents and shall not be released

unless there is specific authorization by

the Chief Postal Inspector or the

Inspector in Charge of the affected field

Division, after consulting with

Inspection Service legal counsel.

(6) The Inspection Service Manual

and other operating instructions issued

to Inspection Service employees are

considered to be confidential and shall

not be released unless there is specific

authorization, after consultation with

Inspection Service legal counsel. If the

requested information relates to

confidential investigative techniques, or

release of the information would

adversely affect the law enforcement

mission of the Inspection Service, the

subpoenaed official, through Inspection

Service legal counsel, may request an in

camera, ex parte conference to

determine the necessity for the release

of the information. The entire Manual

should not be given to any party.

(7) Notes, memoranda, reports,

transcriptions, whether written or

recorded and made pursuant to an

official investigation conducted by a

member of the Inspection Service, are

the property of the Inspection Service

and are part of the official case file,

whether stored with the official file.

(f) Compliance with summonses and

subpoenas ad testificandum. (1) If an

Inspection Service employee is served

with a third-party summons or a

subpoena requiring an appearance in

court, contact should be made with

Inspection Service legal counsel to

determine whether and which

exemptions or restrictions apply to

proposed testimony. Inspection Service
29808 Federal Register / Vol. 60, No. 108 / Tuesday, June 6, 1995 / Proposed Rules

employees are directed to comply with

summonses, subpoenas, and court

orders, as to appearance, but may not

testify without authorization.

(2) Postal Inspector reports or records

will not be presented during testimony,

in either state or federal courts in which

the United States, the Postal Service, or

another federal agency is not a party in

interest, unless authorized by the Chief

Postal Inspector or the Postal Inspector

in Charge of the affected field Division,

who will make the decision after

consulting with Inspection Service legal

counsel. If an attempt is made to compel

production, through testimony, the

employee is directed to decline to

produce the information or matter and

to state that it may be exempted and

may not be disclosed or produced

without the specific approval of the

Chief Postal Inspector or the Postal

Inspector in Charge of the affected field

Division. The Postal Service will offer

all possible assistance to the courts, but

the question of disclosing information

for which an exemption may be claimed

is a matter of discretion that rests with

the appropriate official. Paragraph (e) of

this section covers the release of

Inspection Service documents in cases

where the Postal Service or the United

States is not a party.

(g) General procedures for obtaining

Inspection Service documents and

testimony from Inspection Service

employees. (1) To facilitate the orderly

response to demands for the testimony

of Inspection Service employees and

production of documents in cases where

the United States, the Postal Service, or

another federal agency is not a party, all

demands for the production of

nonpublic documents or testimony of

Inspection Service employees

concerning matters relating to their

official duties and not subject to the

exemptions set forth in paragraph (a) of

this section shall be in writing and

conform to the requirements outlined in

paragraphs (g)(2) and (g)(3) of this

section.

(2) Before or simultaneously with

service of a demand described in

paragraph (g)(1) of this section, the

requesting party shall serve on the

Counsel, Office of the Chief Postal

Inspector, 475 L’Enfant Plaza SW,

Washington, DC 20260–2181, an

affidavit or declaration containing the

following information:

(i) The title of the case and the forum

where it will be heard;

(ii) The party’s interest in the case;

(iii) The reasons for the demand;

(iv) A showing that the requested

information is available, by law, to a

party outside the Postal Service;

(v) If testimony is sought, a summary

of the anticipated testimony;

(vi) If testimony is sought, a showing

that Inspection Service records could

not be provided and used in place of the

requested testimony;

(vii) The intended use of the

documents or testimony; and

(viii) An affirmative statement that the

documents or testimony is necessary for

defending or prosecuting the case at

issue.

(3) The Counsel, Office of the Chief

Postal Inspector, shall act as agent for

the receipt of legal process for demands

for production of records or testimony

of Inspection Service employees where

the United States, the Postal Service, or

any other federal agency is not a party.

A subpoena for testimony or for the

production of documents from an

Inspection Service employee concerning

official matters shall be served in

accordance with the applicable rules of

civil procedure. A copy of the subpoena

and affidavit or declaration, if not

previously furnished, shall also be sent

to the Chief Postal Inspector or the

appropriate Postal Inspector in Charge.

(4) Any Inspection Service employee

who is served with a demand shall

promptly inform the Chief Postal

Inspector, or the appropriate Postal

Inspector in Charge, of the nature of the

documents or testimony sought and all

relevant facts and circumstances.

(h) Authorization of testimony or

production of documents. (1) The Chief

Postal Inspector or the Postal Inspector

in Charge of the affected field Division,

after consulting with Inspection Service

legal counsel, shall determine whether

testimony or the production of

documents will be authorized.

(2) Before authorizing the requested

testimony or the production of

documents, the Chief Postal Inspector or

the Postal Inspector in Charge of the

affected field Division shall consider the

following factors:

(i) Statutory restrictions, as well as

any legal objection, exemption, or

privilege that may apply;

(ii) Relevant legal standards for

disclosure of nonpublic information and

documents;

(iii) Inspection Service rules and

regulations and the public interest;

(iv) Conservation of employee time;

and

(v) Prevention of expenditures of

government time and resources solely

for private purposes.

(3) If, in the opinion of the

authorizing official, the documents

should not be released or testimony

should not be furnished, that official’s

decision is final.

(4) Inspection Service legal counsel

may consult or negotiate with the party

or the party’s counsel seeking testimony

or documents to refine and limit the

demand, so that compliance is less

burdensome, or obtain information

necessary to make the determination

whether the documents or testimony

will be authorized. If the party or party’s

counsel seeking the documents or

testimony fails to cooperate in good

faith, preventing Inspection Service

legal counsel from making an informed

recommendation to the authorizing

official, that failure may be presented to

the court or other body conducting the

proceeding as a basis for objection.

(5) Permission to testify or to release

documents in all cases will be limited

to matters outlined in the affidavit or

declaration described in paragraph (g)(2)

of this section or to such parts as

deemed appropriate by the authorizing

official.

(6) If the authorizing official 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 least disruptive methods 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.

(i) While giving a deposition, the

employee may, at the option of the

authorizing official, be represented by

Inspection Service legal counsel.

(ii) While completing affidavits, or

other written reports or at any time

during the process of preparing for

testimony or releasing documents, the

employee may seek the assistance of

Inspection Service legal counsel.

(7) Absent written authorization from

the authorizing official, the employee

shall respectfully decline to produce the

requested documents, testify, or,

otherwise, disclose the requested

information.

(8) If the authorization is denied or

not received by the return date, the

employee, together with counsel, where

appropriate, shall appear at the stated

time and place, produce a copy of this

section, and respectfully decline to

testify or produce any document on the

basis of these regulations.

(9) The employee shall appear as

ordered by the subpoena, summons, or

other appropriate court order, unless:

(i) Legal counsel has advised the

employee that an appearance is

inappropriate, as in cases where the

subpoena, summons, or other court

order was not properly issued or served,
Federal Register / Vol. 60, No. 108 / Tuesday, June 6, 1995 / Proposed Rules 29809

has been withdrawn, discovery has been

stayed; or

(ii) Where the Postal Service will

present a legal objection to furnishing

the requested information or testimony.

(i) Inspection Service employees as

expert or opinion witnesses. No

Inspection Service employee may testify

as an expert or opinion witness, with

regard to any matter arising out of the

employee’s duties or functions at the

Postal Service, for any party other than

the United States, except that in

extraordinary circumstances, the

Counsel, Office of the Chief Postal

Inspector, may approve such testimony

in private litigation. An Inspection

Service employee may not testify as

such an expert or opinion witness

without the express authorization of the

Counsel, Office of the Chief Postal

Inspector. A litigant must first obtain

authorization of the Counsel, Office of

the Chief Postal Inspector, before

designating an Inspection Service

employee as an expert or opinion

witness.

(j) Postal liability. This section is

intended to provide instructions to

Inspection Service employees and does

not create any right or benefit,

substantive or procedural, enforceable

by any party against the Postal Service.

(k) Fees. (1) Unless determined by 28

U.S.C. 1821 or other applicable statute,

the costs of providing testimony,

including transcripts, shall be borne by

the requesting party.

(2) Unless limited by statute, such

costs shall also include reimbursement

to the Postal Service for the usual and

ordinary expenses attendant upon the

employee’s absence from his or her

official duties in connection with the

case or matter, including the employee’s

salary and applicable overhead charges,

and any necessary travel expenses as

follows:

(i) The Inspection Service is

authorized to charge reasonable fees to

parties demanding documents or

information. Such fees, calculated to

reimburse the Postal Service for the cost

of responding to a demand, may include

the costs of time expended by

Inspection Service employees, including

attorneys, to process and respond to the

demand; attorney time for reviewing the

demand and for legal work in

connection with the demand; expenses

generated by equipment used to search

for, produce, and copy the requested

information; travel costs of the

employee and the agency attorney,

including lodging and per diem where

appropriate. Such fees shall be assessed

at the rates and in the manner specified

in § 265.9.

(ii) At the discretion of the Inspection

Service where appropriate, fees and

costs may be estimated and collected

before testimony is given.

(iii) These provisions do not affect

rights and procedures governing public

access to official documents pursuant to

the Freedom of Information Act, 5 U.S.C

552a.

(k) Acceptance of Service. These rules

in no way modify the requirements of

the Federal Rules of Civil Procedure (28

U.S.C. Appendix) regarding service of

process.

Stanley F. Mires,

Chief Counsel, Legislative.

[FR Doc. 95–13252 Filed 6–5–95; 8:45 am]

BILLING CODE 7710–12–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[A–1–FRL–5217–1]

Determination of Attainment of Ozone

Standard for Lewiston-Auburn and

Knox and Lincoln Counties, Maine

Ozone Nonattainment Areas and

Determination Regarding Applicability

of Certain Reasonable Further

Progress and Attainment

Demonstration Requirements

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed rule.

SUMMARY: The EPA proposes to

determine that the Lewiston-Auburn,

Maine and the Knox and Lincoln

Counties, Maine ozone nonattainment

areas have attained the National

Ambient Air Quality Standard (NAAQS)

for ozone and that certain reasonable

further progress and attainment

demonstration requirements, along with

certain related requirements, of Part D of

Title I of the Clean Air Act are not

applicable for so long as the areas

continue to attain the ozone standard. In

the Final Rules section of this Federal

Register, EPA is making these

determinations without prior proposal.

A detailed rationale for the action is set

forth in the direct final rule. If no

adverse comments are received in

response to that direct final rule, no

further activity is contemplated in

relation to this proposed rule. If EPA

receives adverse comments, EPA will

withdraw the direct final rule and

address the comments in a subsequent

final rule based on this proposed rule.

EPA will not institute a second

comment period on this notice. Any

parties interested in commenting on this

notice should do so at this time.

DATES: Comments on this action must be

received by July 6, 1995.

ADDRESSES: Written comments should

be mailed to Susan Studlien, Director,

Air, Pesticides and Toxics Management

Division, U.S. Environmental Protection

Agency, Region I, JFK Federal Bldg.,

Boston, MA 02203. Copies of the

relevant material for this notice are

available for public inspection during

normal business hours, by appointment

at the Air, Pesticides and Toxics

Management Division, U.S.

Environmental Protection Agency,

Region I, One Congress Street, 10th

floor, Boston, MA and the Bureau of Air

Quality Control, Department of

Environmental Protection, 71 Hospital

Street, Augusta, ME 04333.

FOR FURTHER INFORMATION CONTACT:

Richard P. Burkhart, Air, Pesticides and

Toxics Management Division, U.S.

Environmental Protection Agency,

Region I, JFK Federal Bldg., Boston, MA

02203. Phone: 617–565–3244.

SUPPLEMENTARY INFORMATION: For

additional information, see the direct

final rule published in the Final Rules

section of this Federal Register.

Dated: May 22, 1995.

John P. DeVillars,

Regional Administrator, Region I.

[FR Doc. 95–13813 Filed 6–5–95; 8:45 am]

BILLING CODE 6560–50–P

40 CFR Part 70

[AD–FRL–5216–8]

Clean Air Act Proposed Interim

Approval of Operating Permits

Program; Sacramento Metropolitan Air

Quality Management District

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed interim approval.

SUMMARY: The EPA proposes interim

approval of the Operating Permits

Program submitted by the Sacramento

Metropolitan Air Quality Management

District (‘‘Sacramento’’ or ‘‘District’’) for

the purpose of complying with Federal

requirements for an approvable State

program to issue operating permits to all

major stationary sources, and to certain

other sources.

DATES: Comments on this proposed

action must be received in writing by

July 6, 1995.

ADDRESSES: Comments should be

addressed to Ed Pike at the Region IX

address. Copies of the State’s submittal

and other supporting information used

in developing the proposed interim

approval are available for inspection