8610 Federal Register / Vol. 60, No. 31 / Wednesday, February 15, 1995 / Proposed Rules

ADDRESSES: Address written comments

and requests to present oral testimony to

the Commissioner of Patents and

Trademarks, Washington, DC 20231.

Attention: Stephen G. Kunin, Deputy

Assistant Commissioner for Patent

Policy and Projects, Crystal Park 2, Suite

910, or by fax to (703) 305–8825.

FOR FURTHER INFORMATION CONTACT:

Magdalen Y. Greenlief or John F.

Gonzales, Special Program Examiners,

Office of the Deputy Assistant

Commissioner for Patent Policy and

Projects, at (703) 305–9285, or by mail

marked to their attention and addressed

to the Commissioner of Patents and

Trademarks, Washington, DC 20231.

Dated: February 9, 1995.

Bruce A. Lehman,

Assistant Secretary of Commerce and

Commissioner of Patents and Trademarks.

[FR Doc. 95–3742 Filed 2–14–95; 8:45 am]

BILLING CODE 3510–16–M

POSTAL SERVICE

39 CFR Part 265

Demands for Testimony or Records in

Certain Legal Proceedings

AGENCY: Postal Service.

ACTION: Proposed rule.

SUMMARY: The Postal Service proposes

establishing a procedure for Postal

Service response to subpoenas or other

demands for Postal Service employees

to testify about, or produce records

concerning, Postal Service matters in

private litigation or other proceedings in

which the United States is not a party.

This proposed rule should minimize the

disruption of official duties caused by

compliance with those demands,

maintain Postal Service control over the

release of official information, and

otherwise protect the interests of the

United States. This proposed rule would

prohibit Postal Service employees from

complying with those demands without

the General Counsel’s permission.

DATES: Comments must be received on

or before March 17, 1995.

ADDRESSES: Written comments should

be mailed or delivered to: Library,

Attention Federal Register Comments,

U.S. Postal Service, 475 L’Enfant Plaza,

SW, Room 11800, Washington, DC

20260–1540. Copies of all written

comments will be available for public

inspection and photocopying between

8:15 a.m. and 4:45 p.m., Monday

through Friday, in Room 11800 at the

above address.

FOR FURTHER INFORMATION CONTACT: Julie

A. Holvik, Attorney, (312) 765–5230.

SUPPLEMENTARY INFORMATION: The

proposed rule provides that, in response

to subpoenas or other demands for

testimony or records concerning Postal

Service matters in private litigation or

other proceedings in which the United

States is not a party, Postal Service

employees may testify or produce

records only if the General Counsel or

the General Counsel’s delegate

authorizes compliance with the

demand. In making this determination,

the General Counsel or his or her

delegate will consider whether

compliance is in accordance with

applicable laws, privileges, rules,

authority, and regulations and would

not be contrary to the interests of the

United States.

Several federal agencies have enacted

this type of regulation, including the

Department of Justice, the Department

of Transportation, and the Department

of Veterans Affairs. The courts have

recognized the authority of federal

agencies to limit compliance with

demands in this manner. See, United

States ex. rel. Touhy v. Ragen, 340 U.S.

462 (1951). Moreover, subpoenas 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, and a federal

regulation regarding compliance with

those subpoenas reinforces this

principle. See, McCulloch v. Maryland,

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

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

1967).

This proposed rule would not apply

to situations in which the United States

is a party in a lawsuit. It also would not

apply to instances in which an

employee is requested to appear in legal

proceedings unrelated to federal

activities or the employee’s duties at the

Postal Service. Finally, the proposed

rule would not apply to subpoenas or

requests for information submitted by

either House of Congress or by a

congressional committee or

subcommittee with jurisdiction over the

matter for which the testimony or

information is requested.

List of Subjects in 39 CFR Part 265

Administrative practice and

procedure, Government employees,

Release of information.

For the reasons set out in this notice,

39 CFR part 265 is proposed to be

amended as follows.

PART 265—RELEASE OF

INFORMATION

1. The authority citation for part 265

is revised to read as follows:

Authority: 39 U.S.C. 401, 403, 410, 1001,

2601; 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. Section 265.12 is added to read as

follows:

§ 265.12 Demands for testimony or

records in certain legal proceedings.

(a) Scope and applicability of this

section. (1) This section establishes

procedures to be followed if the Postal

Service or any Postal Service employee

receives a demand for testimony

concerning or disclosure of:

(i) Records contained in the files of

the Postal Service; or

(ii) Information relating to records

contained in the files of the Postal

Service; or

(iii) Information or records acquired

or produced by the employee in the

course of his or her official duties or

because of the employee’s official status.

(2) This section does not create any

right or benefit, substantive or

procedural, enforceable by any person

against the Postal Service.

(3) This section does not apply to any

of the following:

(i) Any legal proceeding in which the

United States is a party;

(ii) A demand for testimony or records

made by either House of Congress or, to

the extent of matter within its

jurisdiction, any committee or

subcommittee of Congress; or

(iii) An appearance by an employee in

his or her private capacity in a legal

proceeding in which the employee’s

testimony does not relate to the

employee’s official duties or the

functions of the Postal Service; or

(iv) A demand for testimony or

records submitted to the Postal

Inspection Service (a demand for

Inspection Service records or testimony

will be handled in accordance with

rules published at § 265.11).

(4) This section does not exempt a

request from applicable confidentiality

requirements, including the

requirements of the Privacy Act. 5

U.S.C. 552a.

(b) Definitions. The following

definitions apply to this section:

(1) Adjudicative authority includes,

but is not limited to, the following:

(i) A court of law or other judicial

forums, whether local, state, or federal;

and

(ii) Mediation, arbitration, or other

forums for dispute resolution.

(2) Demand includes a subpoena,

subpoena duces tecum, request, order,
Federal Register / Vol. 60, No. 31 / Wednesday, February 15, 1995 / Proposed Rules 8611

or other notice for testimony or records

arising in a legal proceeding.

(3) Employee means a current

employee or official of the Postal

Service.

(4) General Counsel means the

General Counsel of the United States

Postal Service, the Chief Field Counsels,

or an employee of the Postal Service

acting for the General Counsel under a

delegation of authority.

(5) Legal proceeding means:

(i) A proceeding before an

adjudicative authority;

(ii) A legislative proceeding, except

for a proceeding before either House of

Congress or before any committee or

subcommittee of Congress; or

(iii) An administrative proceeding.

(6) Private litigation means a legal

proceeding to which the United States

is not a party.

(7) Records custodian means the

employee who maintains a requested

record. For assistance in identifying the

custodian of a specific record, contact

the Records Officer, United States Postal

Service, 475 L’Enfant Plaza, SW,

Washington, DC 20260–5240.

(8) Testimony means statements made

in connection with a legal proceeding,

including but not limited to statements

in court or other forums, depositions,

declarations, affidavits, or responses to

interrogatories.

(9) United States means the federal

government of the United States and

any of its agencies, establishments, or

instrumentalities, including the United

States Postal Service.

(c) Requirements for submitting a

demand for testimony or records. (1)

Ordinarily, a party seeking to obtain

records from the Postal Service should

submit a request in accordance with the

provisions of the Freedom of

Information Act (FOIA), 5 U.S.C. 552,

and the Postal Service’s regulations

implementing the FOIA at 39 CFR 265.1

through 265.9 or the Privacy Act, 5

U.S.C. 266 and the Postal Service’s

regulations implementing the Privacy

Act at 39 CFR 266.1 through 266.9.

(2) A demand for testimony or records

issued pursuant to the rules governing

the legal proceeding in which the

demand arises must:

(i) Be in writing;

(ii) Identify the requested record and/

or state the nature of the requested

testimony, describe the relevance of the

record or testimony to the proceeding,

and why the information sought is

unavailable by any other means.

(iii) If testimony is requested, contain

a summary of the requested testimony

and a showing that no document could

be provided and used in lieu of

testimony.

(3) Procedures for service of demand

are made as follows:

(i) Service of a demand for testimony

or records (including, but not limited to,

personnel or payroll information)

relating to a current or former employee

must be made in accordance with the

applicable rules of civil procedure on

the employee whose testimony is

requested or the records custodian. The

requester also shall deliver a copy of the

demand to the District Manager,

Customer Services and Sales, for all

current employees whose work location

is within the geographic boundaries of

the manager’s district, and any former

employee whose last position was

within the geographic boundaries of the

manager’s district. A demand for

testimony or records must be received

by the employee whose testimony is

requested and the appropriate District

Manager, Customer Services and Sales,

at least ten (10) working days before the

date the testimony or records are

needed.

(ii) Service of a demand for testimony

or records other than those described in

paragraph (3)(i) of this section must be

made in accordance with the applicable

rules of civil procedure on the employee

whose testimony is requested or the

records custodian. The requester also

shall deliver a copy of the demand to

the General Counsel, United States

Postal Service, 475 L’Enfant Plaza, SW,

Washington DC 20260–1100, or the

Chief Field Counsel. A demand for

testimony or records must be received

by the employee and the General

Counsel or Chief Field Counsel at least

ten (10) working days before the date

testimony or records are needed.

(d) Procedures followed in response to

a demand for testimony or records. (1)

After an employee receives a demand

for testimony or records, the employee

shall immediately notify the General

Counsel or Chief Field Counsel and

request instructions.

(2) An employee may not give

testimony or produce records without

the prior authorization of the General

Counsel.

(3)(i) The General Counsel may allow

an employee to testify or produce

records if the General Counsel

determines that granting permission:

(A) Would be appropriate under the

rules of procedure governing the matter

in which the demand arises and other

applicable laws, privileges, rules,

authority, and regulations; and

(B) Would not be contrary to the

interest of the United States. The

interest of the United States includes,

but is not limited to, furthering a public

interest of the Postal Service and

protecting the human and financial

resources of the United States.

(ii) An employee’s testimony shall be

limited to the information set forth in

the statement described at paragraph

(c)(2) of this section or to such portions

thereof as the General Counsel

determines are not subject to objection.

An employee’s testimony shall be

limited to facts within the personal

knowledge of the employee. A Postal

Service employee authorized to give

testimony under this rule is prohibited

from giving expert or opinion testimony,

answering hypothetical or speculative

questions, or giving testimony with

respect to privileged subject matter. The

General Counsel may waive the

prohibition of expert testimony under

this paragraph only upon application

and showing of exceptional

circumstances and the request

substantially meets the requirements of

this section.

(4) The General Counsel may establish

conditions under which the employee

may testify. If the General Counsel

authorizes the testimony of an

employee, the party seeking testimony

shall make arrangements for the taking

of testimony by those methods that, in

the General Counsel’s view, will least

disrupt the employee’s official duties.

For example, at the General Counsel’s

discretion, testimony may be provided

by affidavits, answers to interrogatories,

written depositions, or depositions

transcribed, recorded, or preserved by

any other means allowable by law.

(5) If a response to a demand for

testimony or records is required before

the General Counsel determines

whether to allow an employee to testify,

the employee or counsel for the

employee shall do the following:

(i) Inform the court or other authority

of the regulations in this section; and

(ii) Request that the demand be stayed

pending the employee’s receipt of the

General Counsel’s instructions.

(6) If the court or other authority

declines the request for a stay, or rules

that the employee must comply with the

demand regardless of the General

Counsel’s instructions, the employee or

counsel for the employee shall

respectfully decline to comply with the

demand, citing United States ex rel.

Touhy v. Ragen, 340 U.S. 462 (1951),

and the regulations in this section.

(7) The General Counsel may request

the assistance of the Department of

Justice or a U.S. Attorney where

necessary to represent the interests of

the Postal Service and the employee.

(8) At his or her discretion, the

General Counsel may grant a waiver of

any procedure described by this section,

where waiver is considered necessary to
8612 Federal Register / Vol. 60, No. 31 / Wednesday, February 15, 1995 / Proposed Rules

promote a significant interest of the

United States or for other good cause.

(9) If it otherwise is permissible, the

records custodian may authenticate,

upon the request of the party seeking

disclosure, copies of the records. No

employee of the Postal Service shall

respond in strict compliance with the

terms of a subpoena duces tecum unless

specifically authorized by the General

Counsel.

(e) Postal Service employees as expert

witnesses. No Postal Service employee

may testify as an expert or opinion

witness, with regard to any matter

arising out of the employee’s official

duties or the functions of the Postal

Service, for any party other than the

United States, except that in

extraordinary circumstances, the

General Counsel may approve such

expert testimony in private litigation. A

Postal Service employee may not testify

as such an expert witness without the

express authorization of the General

Counsel. A litigant must obtain

authorization of the General Counsel

before designating a Postal Service

employee as an expert witness.

(f) Substitution of Postal Service

employees. Although a demand for

testimony may be directed to a named

Postal Service employee, the General

Counsel, where appropriate, may

designate another Postal Service

employee to give testimony. Upon

request and for good cause shown (for

example, when a particular Postal

Service employee has direct knowledge

of a material fact not known to the

substitute employee designated by the

Postal Service), the General Counsel

may permit testimony by a named

Postal Service employee.

(g) Fees and costs. (1) The Postal

Service may charge fees, not to exceed

actual costs, to private litigants seeking

testimony or records by request or

demand. The fees, which are to be

calculated to reimburse fully the Postal

Service for processing the demand and

providing the witness or records, may

include, among others:

(i) Costs of time spent by employees,

including attorneys, of the Postal

Service to process and respond to the

demand;

(ii) Costs of attendance of the

employee and agency attorney at any

deposition, hearing, or trial;

(iii) Travel costs of the employee and

agency attorney;

(iv) Costs of materials and equipment

used to search for, process, and make

available information.

(2) All costs for employee time shall

be calculated on the hourly pay of the

employee (including all pay, allowance,

and benefits) and shall include the

hourly fee for each hour, or portion of

each hour, when the employee is in

travel, in attendance at a deposition,

hearing, or trial, or is processing or

responding to a request or demand.

(3) At the discretion of the Postal

Service, where appropriate, costs may

be estimated and collected before

testimony is given.

(h) Acceptance of service. This

section does not in any way abrogate or

modify the requirements of the Federal

Rules of Civil Procedure regarding

service of process.

An appropriate amendment to 39 CFR

265.1 to reflect these changes will be

published if the proposal is adopted.

Stanley F. Mires,

Chief Counsel, Legislative.

[FR Doc. 95–3702 Filed 2–14–95; 8:45 am]

BILLING CODE 7710–12–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[PA37–1–6370b; FRL–5144–3]

Approval and Promulgation of Air

Quality Implementation Plans;

Pennsylvania; SO2: Conewango

Township, Warren County

Implementation Plan

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed rule.

SUMMARY: EPA proposes to approve the

State Implementation Plan (SIP)

revision submitted by the

Commonwealth of Pennsylvania. This

revision provides for, and demonstrates,

the attainment of the national ambient

air quality standards (NAAQS) for sulfur

oxides in the Conewango Township,

Warren County nonattainment area. In

the final rules section of this Federal

Register, EPA is approving the

Commonwealth’s SIP revision as a

direct final rule without prior proposal

because the Agency views this as a

noncontroversial SIP revision and

anticipates no adverse comments. A

detailed rationale for the approval is set

forth in the direct final rule. If no

adverse comments are received in

response to this proposed rule, no

further activity is contemplated in

relation to this rule. If EPA receives

adverse comments, the direct final rule

will be withdrawn and all public

comments received will be addressed in

a subsequent final rule based on this

proposed rule. EPA will not institute a

second comment period on this action.

Any parties interested in commenting

on this action should do so at this time.

DATES: Comments must be received in

writing by March 17, 1995.

ADDRESSES: Written comments on this

action should be addressed to Thomas

J. Maslany, Director, Air, Radiation, and

Toxics Division (3AT00), U.S.

Environmental Protection Agency,

Region III, 841 Chestnut Building,

Philadelphia, Pennsylvania 19107.

Copies of the documents relevant to this

action are available for public

inspection during normal business

hours at the Air, Radiation, and Toxics

Division, U.S. Environmental Protection

Agency, Region III, 841 Chestnut

Building, Philadelphia, Pennsylvania

19107; the Air and Radiation Docket

and Information Center, U.S.

Environmental Protection Agency, 401

M Street SW., Washington, DC 20460;

and, Pennsylvania Department of

Environmental Resources Bureau of Air

Quality Control, P.O. Box 8468, 400

Market Street, Harrisburg, Pennsylvania

17105.

FOR FURTHER INFORMATION CONTACT:

David J. Campbell, Air & Radiation

Programs Branch (3AT11), U.S.

Environmental Protection Agency,

Region III, 841 Chestnut Building,

Philadelphia, Pennsylvania 19107,

phone: 215 597–9781.

SUPPLEMENTARY INFORMATION: See the

information provided in the direct final

action of the same title which is located

in the Rules and Regulations Section of

this Federal Register.

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Reporting and

recordkeeping requirements, Sulfur

oxides.

Authority: 42 U.S.C. 7401–7671q.

Dated: November 18, 1994.

Stanley L. Laskowski,

Acting Regional Administrator, Region III.

[FR Doc. 95–3681 Filed 2–14–95; 8:45 am]

BILLING CODE 6560–50–P

40 CFR Part 180

[PP 0E3882 and PP 4E4286/P598; FRL–

4932–3]

RIN 2070–AC18

Pesticide Tolerances for Metolachlor

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed rule.

SUMMARY: EPA proposes to establish

tolerances for the combined residues of

the herbicide metolachlor and its

metabolites in or on the raw agricultural

commodities celery and dry bulb onion.