17224 Federal Register / Vol. 60, No. 65 / Wednesday, April 5, 1995 / Rules and Regulations

§ 3.45–30 Milwaukee Marine Inspection

Zone and Captain of the Port Zone.

* * * * *

(b) The boundary of the Milwaukee

Marine Inspection Zone and the

Milwaukee Captain of the Port Zone

starts at the Illinois-Wisconsin boundary

at longitude 90° W.; thence due east to

longitude 87° W.; thence due north to

latitude 44°15′ N.; thence northeasterly

to latitude 44°43′ N., longitude 86°40′

W.; thence due north to latitude 45°27′

N.; thence due west to longitude 88°30′

W.; thence due north to latitude 46°20′

N.; thence due west to longitude 90° W.;

thence due south to the starting point.

§ 3.45–35 [Removed]

4. Section 3.45–35 is removed.

5. Section 3.45–45 is revised to read

as follows:

§ 3.45–45 Sault Ste. Marie Marine

Inspection Zone and Captain of the Port

Zone.

(a) The Sault Ste. Marie Marine

Inspection Office and the Sault Ste.

Marie Captain of the Port Office are

located in Sault Ste. Marie, Michigan.

(b) The boundary of the Sault Ste.

Marie Marine Inspection Zone and the

Sault Ste. Marie Captain of the Port

Zone starts at the international

boundary at latitude 44°43′ N.; thence

due west to longitude 86°40′ W.; thence

due north to latitude 45°27′ N.; thence

due west to longitude 88°30′ W.; thence

due north to latitude 46°20′ N.; thence

northeasterly to the shore of Lake

Superior at longitude 87°45′ W.; thence

northerly to Manitou Island Light,

located at latitude 47°25′ N., longitude

87°35′ W.; thence due north to the

international boundary at longitude

87°35′ W.; thence southeasterly along

the international boundary to the

starting point.

§ 3.45–60 [Removed]

6. Section 3.45–60 is removed.

§ 3.45–80 [Removed]

7. Section 3.45–80 is removed.

Dated: February 8, 1995.

J.C. Card,

Rear Admiral, U.S. Coast Guard, Chief, Office

of Marine Safety, Security and Environmental

Protection.

[FR Doc. 95–8387 Filed 4–4–95; 8:45 am]

BILLING CODE 4910–14–M

POSTAL SERVICE

39 CFR Part 265

Demands for Testimony or Records in

Certain Legal Proceedings

AGENCY: Postal Service.

ACTION: Final rule.

SUMMARY: This rule establishes 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.

EFFECTIVE DATE: April 5, 1995.

FOR FURTHER INFORMATION CONTACT: Julie

A. Holvik, Attorney, (312) 765–5230.

SUPPLEMENTARY INFORMATION: The 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.

On February 17, 1995, the Postal

Service published a notice of proposed

rulemaking (60 FR 8610–8612) with a

30-day comment period. No comments

were received during the comment

period. Accordingly, the rule is adopted

as proposed.

List of Subjects in 39 CFR Part 265

Administrative practice and

procedure, Freedom of information,

Government employees.

For the reasons set out above, 39 CFR

part 265 is amended as follows.

PART 265—RELEASE OF

INFORMATION

1. The authority citation for part 265

is revised to read as follows:

Authority: 5 U.S.C. 552; 5 U.S.C. App. 3;

39 U.S.C. 401, 403, 410, 1001, 2601.

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;

(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;

(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 in § 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,

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
Federal Register / Vol. 60, No. 65 / Wednesday, April 5, 1995 / Rules and Regulations 17225

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. 552a 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; and

(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 (c)(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

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
17226 Federal Register / Vol. 60, No. 65 / Wednesday, April 5, 1995 / Rules and Regulations

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 (28 U.S.C.

Appendix) regarding service of process.

Stanley F. Mires,

Chief Counsel, Legislative.

[FR Doc. 95–8226 Filed 4–4–95; 8:45 am]

BILLING CODE 7710–12–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[MA–31–01–6845a; A–1–FRL–5177–1]

Approval and Promulgation of Air

Quality Implementation Plans;

Massachusetts; U Restricted Emission

Status

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Direct final rule.

SUMMARY: The EPA is approving a State

Implementation Plan (SIP) revision

submitted by the Commonwealth of

Massachusetts. This revision approves

310 CMR 7.02(12), entitled ‘‘U

Restricted Emission Status,’’ into the

Massachusetts SIP. The intended effect

of this action is to approve a SIP

revision by the Commonwealth of

Massachusetts to incorporate

regulations for the issuance of federally

enforceable operating permits which

restrict sources’ potential to emit criteria

pollutants such that sources can avoid

reasonably available control technology

(RACT), title V operating permit

requirements, or otherwise applicable

requirements. This also extends federal

enforceability of hazardous air

pollutants (HAPs). This action is being

taken in accordance with the

Implementation Plans Section and the

State Programs Section of the Clean Air

Act.

DATES: This action will become effective

June 5, 1995, unless notice is received

May 5, 1995 that adverse or critical

comments will be submitted. If the

effective date is delayed, timely notice

will be published in the Federal

Register.

ADDRESSES: Comments may be mailed to

Linda M. Murphy, Director, Air,

Pesticides and Toxics Management

Division, U.S. Environmental Protection

Agency, Region I, JFK Federal Building,

Boston, MA 02203. Copies of the

documents relevant to this action 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; Air and Radiation

Docket and Information Center, U.S.

Environmental Protection Agency, 401

M Street, SW., (LE–131), Washington,

DC 20460; and Division of Air Quality

Control, Department of Environmental

Protection, One Winter Street, 8th Floor,

Boston, MA 02108.

FOR FURTHER INFORMATION CONTACT: Ida

E. Walker, for criteria pollutants (617)

565–9168 or Janet Beloin, for HAPs

(617) 565–2734.

SUPPLEMENTARY INFORMATION: On June 6,

1994, the Commonwealth of

Massachusetts submitted a formal

revision to its State Implementation

Plan (SIP) to incorporate regulations for

the issuance of federally enforceable

operating permits. The revision consists

of the addition of 310 CMR 7.02(12),

entitled ‘‘U Restricted Emission Status.’’

The Commonwealth of Massachusetts

adopted these regulations in order to

have the authority to issue federally

enforceable operating permits under its

SIP. In order to extend the federal

enforceability of state operating permits

to hazardous air pollutants (HAPs), EPA

is also approving this regulation

pursuant to section 112(l) of the Act.

Summary of SIP Revision

The Commonwealth of Massachusetts’

principal purpose for adopting the

operating permit regulations of 310

CMR 7.02(12) is to have a federally

enforceable means of expeditiously

restricting potential emissions such that

sources can avoid RACT, title V

operating permit requirements, or

otherwise applicable requirements, as

well as reduce annual compliance fees.

The operating permit provisions in title

V of the Clean Air Act Amendments of

1990 have created additional interest in

mechanisms for limiting sources’

potential to emit, thereby allowing the

sources to avoid being defined as

‘‘major’’ with respect to title V operating

permit programs. A key mechanism for

such limitations is the use of federally

enforceable state operating permits

(FESOPs). The EPA issued general

guidance on FESOPs in the Federal

Register on June 28, 1989 [54 FR 27274].

This rulemaking evaluates whether

Massachusetts has satisfied the

requirements for this type of federally

enforceable limitation on potential to

emit. Each of the five criteria, as

specified in the Federal Register of June

28, 1989, for approval of a state’s

program for the issuance of FESOPs

under its SIP and how the state’s

submittal satisfies those criteria are

presented below:

Criterion 1. The state’s operating

permit program (i.e. the regulations or

other administrative framework

describing how such permits are issued)

must be submitted to and approved by

EPA as a SIP revision: On June 6, 1994,

the Commonwealth of Massachusetts

submitted an administratively and

technically complete SIP revision

request to EPA consisting of 310 CMR

7.02(12) ‘‘U Restricted Emission Status.’’