[Federal Register Volume 85, Number 79 (Thursday, April 23, 2020)]
[Rules and Regulations]
[Pages 22581-22584]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-08756]



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 Rules and Regulations
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  Federal Register / Vol. 85, No. 79 / Thursday, April 23, 2020 / Rules 
and Regulations  

[[Page 22581]]



DEPARTMENT OF HOMELAND SECURITY

6 CFR Part 5


Disclosure of Information in Litigation

AGENCY: Office of the General Counsel, DHS.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Department of Homeland Security (DHS) is revising 
procedural requirements in regulations related to service of process of 
summonses, complaints, and subpoenas.

DATES: This final rule is effective on April 23, 2020.

FOR FURTHER INFORMATION CONTACT: For information about this document, 
contact Leo (Chip) Boucher, Assistant General Counsel for 
Administrative Law, (202) 282-9822.

SUPPLEMENTARY INFORMATION: 

I. Discussion of the Rule

    The Department of Homeland Security (``DHS'') is revising its 
regulations at 6 CFR part 5, subpart C, Disclosure of Information in 
Litigation. DHS is making two changes.
    First, historically, under these regulations, DHS's Office of the 
General Counsel has accepted service of process of summonses and 
complaints in person or by mail, at ``Office of the General Counsel, 
United States Department of Homeland Security, Washington, DC 20528.'' 
See 6 CFR 5.42(a). The mailing address in the applicable regulations is 
unclear and does not include information about service of process with 
respect to DHS's operational components. In addition, currently, 
appropriate employees of the Office of the General Counsel are not 
consistently available to accept in-person service at the relevant 
address, due to DHS's response to the current national emergency 
relating to the Coronavirus Disease 2019 (COVID-19) pandemic.
    To address these issues, and consistent with rule 4(i)(2) of the 
Federal Rules of Civil Procedure, DHS is revising its procedures to 
provide for service of process of summonses and complaints by 
registered or certified mail to a specific address identified in the 
regulations. See revised 6 CFR 5.42(a); see also new appendix A to 
subpart C of 6 CFR part 5. The rule provides that DHS may also in its 
discretion accept service of process in person or by other means, as 
announced on the DHS website. See revised 6 CFR 5.42(a). The Office of 
the General Counsel currently does not accept service of process in 
person or by such other means. See DHS, Office of the General Counsel, 
Contact, https://www.dhs.gov/office-general-counsel (last visited Apr. 
13, 2020).
    Second, this rule also revises applicable procedures to clarify the 
appropriate address for service of subpoenas. See revised 6 CFR 
5.43(a); new 6 CFR 5.43(g); see also new appendix A to subpart C of 6 
CFR part 5. Like the changes described in the preceding paragraph, this 
rule provides DHS may in its discretion specify alternative means of 
service of subpoenas on the DHS website. See revised 6 CFR 5.43(a); new 
6 CFR 5.43(g). Otherwise, the personal service requirement of rule 
45(b) of the Federal Rules of Civil Procedure will continue to apply. 
This change supports DHS's response to the current national emergency; 
the Office of the General Counsel, for instance, is currently waiving 
personal service and accepting subpoenas by email, as announced on 
https://www.dhs.gov/office-general-counsel.
    The aforementioned provisions are intended to be severable from the 
others, such that if any one provision is stayed, enjoined, or vacated 
by a court of competent jurisdiction, the others will remain in effect.

II. Regulatory History

    DHS did not publish a notice of proposed rulemaking for this rule. 
Under 5 U.S.C. 553(b)(A), this rule is exempt from notice and public 
comment rulemaking requirements because the change involves rules of 
agency organization, procedure, or practice. In addition, under 5 
U.S.C. 553(b)(B), an agency may waive the notice and comment 
requirements if it finds, for good cause, that notice and comment is 
impracticable, unnecessary, or contrary to the public interest. DHS 
finds that notice and comment is unnecessary under 5 U.S.C. 553(b)(B) 
because the changes herein are procedural in nature and will have no 
substantive effect on the public. In addition, to whatever extent 
existing regulations at 6 CFR 5.42 and 5.43 could be said to require 
DHS to accept in-person service of process during the current national 
emergency, DHS has good cause to remove any such requirement to avoid 
the unnecessary spread of COVID-19. For the same reasons, DHS finds 
that the delayed effective date provision of 5 U.S.C. 553 does not 
apply because this rule is not ``substantive,'' and that even if the 
provision did apply, good cause exists under 5 U.S.C. 553(d)(3) for 
making this final rule effective immediately upon publication.

III. Regulatory Analyses

    DHS considered numerous statutes and Executive orders related to 
rulemaking when developing this rule. Below are summarized analyses 
based on these statutes and Executive orders.

A. Regulatory Planning and Review

    Executive Orders 12866 (Regulatory Planning and Review) and 13563 
(Improving Regulation and Regulatory Review) direct agencies to assess 
the costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. Executive Order 13771 (Reducing Regulation and Controlling 
Regulatory Costs) directs agencies to reduce regulation and control 
regulatory costs and provides that ``for every one new regulation 
issued, at least two prior regulations be identified for elimination, 
and that the cost of planned regulations be prudently managed and 
controlled through a budgeting process.''
    The Office of Management and Budget (OMB) has not designated this 
rule a significant regulatory action under section 3(f) of Executive 
Order 12866. Accordingly, OMB has not reviewed it. Because this rule is 
not a significant

[[Page 22582]]

regulatory action, this rule is exempt from the requirements of 
Executive Order 13771. See the OMB Memorandum titled ``Guidance 
Implementing Executive Order 13771, titled `Reducing Regulation and 
Controlling Regulatory Costs''' (April 5, 2017). This rule involves 
non-substantive procedural changes; it will not impose any additional 
costs on the public. The benefit of the non-substantive change that 
updates internal agency procedures is increased clarity and accuracy of 
regulations for the public.

B. Small Entities

    This rule is not preceded by a notice of proposed rulemaking. 
Therefore, it is exempt from the requirements of the Regulatory 
Flexibility Act (5 U.S.C. 601-612). The Regulatory Flexibility Act does 
not apply when notice and comment rulemaking is not required.

C. Collection of Information

    This rule calls for no new collection of information under the 
Paperwork Reduction Act of 1995, 44 U.S.C. 3501-3520.

D. Environment

    DHS reviews proposed actions to determine whether the National 
Environmental Policy Act (NEPA) applies to them and if so what degree 
of analysis is required. DHS Directive 023-01 Rev. 01 (Directive) and 
Instruction Manual 023-01-001-01 Rev. 01 (Instruction Manual) establish 
the procedures that DHS and its components use to comply with NEPA and 
the Council on Environmental Quality (CEQ) regulations for implementing 
NEPA, 40 CFR parts 1500 through 1508.
    The CEQ regulations allow federal agencies to establish, with CEQ 
review and concurrence, categories of actions (``categorical 
exclusions'') which experience has shown do not individually or 
cumulatively have a significant effect on the human environment and, 
therefore, do not require an Environmental Assessment (EA) or 
Environmental Impact Statement (EIS). 40 CFR 1507.3(b)(2)(ii), 1508.4. 
For an action to be categorically excluded, it must satisfy each of the 
following three conditions: (1) The entire action clearly fits within 
one or more of the categorical exclusions; (2) the action is not a 
piece of a larger action; and (3) no extraordinary circumstances exist 
that create the potential for a significant environmental effect. 
Instruction Manual section V.B(2)(a)-(c).
    This rule is a technical amendment that updates internal agency 
procedures. Specifically, the amendment updates the address and 
procedures for service of summonses and complaints, and for service of 
subpoenas, court orders, and other demands or requests for official 
information from the Department. Therefore, it clearly fits within 
categorical exclusion A3(a) ``Promulgation of rules . . . of a strictly 
administrative or procedural nature.'' Instruction Manual, Appendix A, 
Table 1. Furthermore, the rule is not part of a larger action and 
presents no extraordinary circumstances creating the potential for 
significant environmental impacts. Therefore, the amendment is 
categorically excluded from further NEPA review.

E. Signature

    The Acting Secretary of Homeland Security, Chad F. Wolf, having 
reviewed and approved this document, is delegating the authority to 
electronically sign this document to Chad R. Mizelle, who is the Senior 
Official Performing the Duties of the General Counsel for DHS, for 
purposes of publication in the Federal Register.

List of Subjects in 6 CFR Part 5

    Classified information, Courts, Freedom of information, Government 
employees, Privacy.

    For the reason stated in the preamble, DHS amends 6 CFR part 5 as 
follows:

PART 5--DISCLOSURE OF RECORDS AND INFORMATION

0
1. The authority citation for part 5 continues to read as follows:

    Authority: 6 U.S.C. 101 et seq.; Pub. L. 107-296, 116 Stat. 
2135; 5 U.S.C. 301.
    Subpart A also issued under 5 U.S.C. 552
    Subpart B also issued under 5 U.S.C. 552a.


0
2. In Sec.  5.42, revise the paragraph (a) to read as follows:


Sec.  5.42  Service of summonses and complaints.

    (a) Only the Office of the General Counsel is authorized to receive 
and accept on behalf of the Department summonses or complaints sought 
to be served upon the Department, the Secretary, or Department 
employees. All such documents must be sent by registered or certified 
mail, to the appropriate address as indicated in appendix A to this 
subpart. The Office of the General Counsel may also in its discretion 
accept service of process in person or by registered or certified mail 
to other addresses, as announced on the DHS website as indicated in 
appendix A to this subpart. The authorization for receipt shall in no 
way affect the requirements of service elsewhere provided in applicable 
rules and regulations.
* * * * *

0
3. In Sec.  5.43, revise paragraph (a) introductory text and add 
paragraph (g) to read as follows:


Sec.  5.43  Service of subpoenas, court orders, and other demands or 
requests for official information or action.

    (a) Except in cases in which the Department is represented by legal 
counsel who have entered an appearance or otherwise given notice of 
their representation, only the Office of the General Counsel is 
authorized to receive and accept subpoenas (consistent with paragraph 
(g) of this section) or other demands or requests directed to the 
Secretary, the Department, or any component thereof, or its employees, 
whether civil or criminal in nature, for:
* * * * *
    (g) Subpoenas must be delivered by personal service at the 
appropriate address as indicated in appendix A to this subpart, 
consistent with the Federal Rules of Civil Procedure, unless DHS has 
specified alternative means of service, in its discretion, on the DHS 
website as indicated in appendix A to this subpart. This paragraph (g) 
does not apply to other demands or requests for information under 
paragraph (a) of this section.

0
4. Add appendix A to subpart C to read as follows:

Appendix A to Subpart C of Part 5--Service of Process of Summonses, 
Complaints, and Subpoenas

1. Office of the General Counsel--Headquarters

    (a) In general. Pursuant to Sec.  5.42, the Office of the 
General Counsel Headquarters may accept service of process on behalf 
of the Department, including each of its components, regardless of 
whether such components are otherwise listed in this appendix.
    (b) Service of Process of Summonses and Complaints. Pursuant to 
Sec.  5.42, unless an alternative means of service is specified at 
https://www.dhs.gov/office-general-counsel, mail summonses and 
complaints against the Department or its personnel in their official 
capacity by registered or certified mail to Office of the General 
Counsel, U.S. Department of Homeland Security, 2707 Martin Luther 
King Jr. Ave SE, Washington, DC 20528-0485. To aid in prompt 
handling of any summons and complaint, parties are encouraged to 
also email a copy to [email protected].
    (c) Service of Process for Subpoenas. Pursuant to Sec.  5.43, 
unless an alternative means of service is specified at https://www.dhs.gov/office-general-counsel, deliver

[[Page 22583]]

service of process to the following address: Office of the General 
Counsel, U.S. Department of Homeland Security, 2707 Martin Luther 
King Jr. Ave SE, Gate 1, Washington, DC 20016.

2. U.S. Customs & Border Protection (CBP)

    (a) Service of Process of Summonses and Complaints. Pursuant to 
Sec.  5.42, unless an alternative means of service is specified at 
https://www.cbp.gov/service-of-process, mail summonses and 
complaints against CBP or its personnel in their official capacity 
by registered or certified mail to the following address: Office of 
Chief Counsel, U.S. Customs and Border Protection, 1300 Pennsylvania 
Avenue, Suite 4.4-B, Washington, DC 20229. To aid in prompt handling 
of any summons and complaint, parties are encouraged to also email a 
copy to [email protected].
    (b) Service of Process for Subpoenas. Pursuant to Sec.  5.43, 
unless an alternative means of service is specified at https://www.cbp.gov/service-of-process, deliver service of process to the 
following address: Office of Chief Counsel, U.S. Customs and Border 
Protection, 1300 Pennsylvania Avenue, Suite 4.4-B, Washington, DC 
20229. To aid in prompt handling of any subpoena, parties are 
encouraged to also email a copy to [email protected].
    (c) Field Counsel. CBP field counsel may also accept service of 
process at their normal duty station, in their discretion.

3. Cybersecurity and Infrastructure Security Agency (CISA)

    (a) Service of Process of Summonses and Complaints. Pursuant to 
Sec.  5.42, unless an alternative means of service is specified at 
https://www.cisa.gov/contact-us, mail summonses and complaints 
against CISA or its personnel in their official capacity by 
registered or certified mail to the following address: Office of the 
Chief Counsel, Cybersecurity and Infrastructure Security Agency, 
1616 Fort Myer Drive, Arlington, VA 22209. To aid in prompt 
handling, parties are encouraged to also email a copy to 
[email protected].
    (b) Service of Process for Subpoenas. Pursuant to Sec.  5.43, 
unless an alternative means of service is specified at https://www.cisa.gov/contact-us, deliver service of process to the following 
address: Office of the Chief Counsel, Cybersecurity and 
Infrastructure Security Agency, 1616 Fort Myer Drive, Arlington, VA 
22209. To aid in prompt handling, parties are encouraged to also 
email a copy to [email protected].

4. Federal Emergency Management Agency (FEMA)

    (a) Service of Process of Summonses and Complaints. Pursuant to 
Sec.  5.42, mail summonses and complaints against FEMA or its 
personnel in their official capacity by registered or certified mail 
to the following address: Office of the Chief Counsel, Federal 
Emergency Management Agency, 500 C Street SW, Washington, DC 20472. 
To aid in prompt handling of any summons and complaint, parties are 
encouraged to also email a copy to [email protected].
    (b) Service of Process for Subpoenas. Pursuant to Sec.  5.43, 
deliver service of process to the address indicated at 44 CFR 5.83. 
To aid in prompt handling of any summons and complaint, parties are 
encouraged to also email a copy to [email protected].

5. Federal Law Enforcement Training Centers (FLETCs)

    (a) Service of Process of Summonses and Complaints. Pursuant to 
Sec.  5.42, unless an alternative means of service is specified at 
https://www.fletc.gov/about/contact-us, mail summonses and 
complaints against FLETC or its personnel in their official capacity 
by registered or certified mail to the following address: Office of 
Chief Counsel, Federal Law Enforcement Training Centers, 1131 Chapel 
Crossing Rd., Bldg. 93, Glynco, GA 31524.
    (b) Service of Process for Subpoenas. Pursuant to Sec.  5.43, 
unless an alternative means of service is specified at https://www.fletc.gov/about/contact-us, deliver service of process to the 
following address: Office of Chief Counsel, Federal Law Enforcement 
Training Centers, 1131 Chapel Crossing Rd., Bldg. 93, Glynco, GA 
31524.

6. United States Immigration & Customs Enforcement (ICE)

    (a) Service of Process of Summonses and Complaints. Pursuant to 
Sec.  5.42, mail summonses and complaints against ICE or its 
personnel in their official capacity by registered or certified mail 
to the following address: U.S. Immigration and Customs Enforcement, 
Office of the Principal Legal Advisor, 500 12th St. SW, Mail Stop 
5900, Washington, DC 20536-5900. To aid in prompt handling, parties 
are encouraged to email a courtesy copy of a summons or complaint 
properly served in accordance with local rules and this guidance to 
[email protected].
    (b) Service of Process for Subpoenas. Pursuant to Sec.  5.43, 
deliver service of process to the following address: U.S. 
Immigration and Customs Enforcement, Office of the Principal Legal 
Advisor, 500 12th St. SW, Mail Stop 5900, Washington, DC 20536-5900. 
To aid in prompt handling, parties are encouraged to email a 
courtesy copy to [email protected].

7. Office of Inspector General (OIG)

    (a) Service of Process of Summonses and Complaints. Pursuant to 
Sec.  5.42, unless an alternative means of service is specified at 
https://www.oig.dhs.gov/about/contact, mail summonses and complaints 
against OIG or its personnel in their official capacity by 
registered or certified mail to the following address: Office of 
Inspector General, 245 Murray Lane SW, Stop 0305, Washington, DC 
20528.
    (b) Service of Process for Subpoenas. Pursuant to Sec.  5.43, 
unless an alternative means of service is specified at https://www.oig.dhs.gov/about/contact, deliver service of process to the 
following address: Office of Inspector General, 245 Murray Lane SW, 
Stop 0305, Washington, DC 20528.

8. Transportation Security Administration (TSA)

    (a) Service of Process of Summonses and Complaints. Pursuant to 
Sec.  5.42, unless an alternative means of service is specified at 
https://www.TSA.gov/contacts, mail summonses and complaints against 
TSA or its personnel in their official capacity by registered or 
certified mail to the following address: TSA- Office of Chief 
Counsel (TSA-2), 601 S 12th Street, Arlington, VA 20598-6002. To aid 
in prompt handling of any summons and complaint, parties are 
encouraged to also email a copy to [email protected].
    (b) Service of Process for Subpoenas. Pursuant to Sec.  5.43, 
unless an alternative means of service is specified at https://www.TSA.gov/contacts, deliver service of process to the following 
address: TSA- Office of Chief Counsel (TSA-2), 601 S 12th Street, 
Arlington, VA 20598-6002. Subpoenas or other judicial process 
directed to TSA or its officers/employees in an official capacity 
(not addressed in paragraph (a) of item 7 of this appendix) may also 
be sent by email to [email protected].
    (c) Field counsel. TSA field counsel may also accept service of 
process at their normal duty station, in their discretion.

9. U.S. Citizenship & Immigration Services (USCIS)

    (a) Service of Process of Summonses and Complaints. Pursuant to 
Sec.  5.42, unless an alternative means of service is specified at 
https://www.uscis.gov/about-us/contact-us, mail summonses and 
complaints against USCIS or its personnel in their official capacity 
by registered or certified mail to the following address: USCIS, 
Office of the Chief Counsel, 20 Massachusetts Ave. NW, Room 4210, 
Washington, DC 20529. To aid in prompt handling of any summons and 
complaint, parties are encouraged to also email a copy to 
[email protected].
    (b) Service of Process for Subpoenas. Pursuant to Sec.  5.43, 
unless an alternative means of service is specified at https://www.uscis.gov/about-us/contact-us, deliver service of process to the 
following address: USCIS, Office of the Chief Counsel, 20 
Massachusetts Ave. NW, Room 4210, Washington, DC 20529. To aid in 
prompt handling of subpoenas, parties are encouraged to also email a 
copy to [email protected].

10. U.S. Coast Guard (USCG)

    (a) Service of Process of Summonses and Complaints. Pursuant to 
Sec.  5.42, unless an alternative means of service is specified at 
https://www.uscg.mil/Resources/Legal/, mail summonses and complaints 
against USCG or its personnel in their official capacity by 
registered or certified mail to the following address: Commandant 
CG-LCL, US Coast Guard HQ, 2703 Martin Luther King Jr. Ave. SE, Stop 
7213, Washington, DC 20593-7213.
    (b) Service of Process for Subpoenas. Pursuant to Sec.  5.43, 
unless an alternative means of service is specified at https://www.uscg.mil/Resources/Legal/, deliver service of process to the 
following address: Commandant CG-LCL, US Coast Guard HQ

[[Page 22584]]

Visitor Center, Gate 4, 1790 Ash St. SE, Washington, DC 20032.

11. United States Secret Service (USSS)

    (a) Service of Process of Summonses and Complaints. Pursuant to 
Sec.  5.42, unless an alternative means of service is specified at 
https://www.secretservice.gov/contact/, mail summonses and 
complaints against USSS or its personnel in their official capacity 
by registered or certified mail to the following address: 
Communications Center, 245 Murray Lane SW, Building T5, Washington, 
DC 20223, Attn: Office of Chief Counsel.
    (b) Service of Process for Subpoenas. Pursuant to Sec.  5.43, 
unless an alternative means of service is specified at https://www.secretservice.gov/contact/, deliver service of process to the 
following address: Communications Center, 245 Murray Lane SW, 
Building T5, Washington, DC 20223, Attn: Office of Chief Counsel.

Chad R. Mizelle,
Senior Official Performing the Duties of the General Counsel, 
Department of Homeland Security.
[FR Doc. 2020-08756 Filed 4-21-20; 4:15 pm]
 BILLING CODE 9110-9B-P