[Federal Register Volume 86, Number 50 (Wednesday, March 17, 2021)]
[Rules and Regulations]
[Pages 14539-14541]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-04210]


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POSTAL SERVICE

39 CFR Part 230


Rules Governing Compliance With Subpoenas, Summonses, and Court 
Orders for the Office of Inspector General

AGENCY: Postal ServiceTM.

ACTION: Final rule.

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SUMMARY: The Postal Service is amending the Code of Federal Regulations 
to state rules that govern compliance with subpoenas, summonses, and 
court orders served on employees of the Office of Inspector General 
where neither the Postal Service, the United States, nor any other 
Federal agency is a party.

DATES: Effective March 17, 2021.

FOR FURTHER INFORMATION CONTACT: Matthew C. Glover, Director, Legal 
Services, Office of Inspector General, at (703) 248-4584.

SUPPLEMENTARY INFORMATION: On October 3, 2003, the Postal Service 
published rules governing compliance with subpoenas, summonses, and 
court orders served on employees of the Office of Inspector General.
    Those rules appear in subpart B of part 230. This publication 
amends and updates the existing rules.

List of Subjects in 39 CFR Part 230

    Administrative practice and procedure.
    For the reasons stated in the preamble, the Postal Service amends 
39 CFR part 230 as follows:

PART 230--OFFICE OF INSPECTOR GENERAL

0
1. The authority citation for part 230 continues to read as follows:

    Authority: 5 U.S.C. app. 3; 39 U.S.C. 401(2) and 1001.


0
2. Revise subpart B to read as follows:

Subpart B--Rules Governing Compliance With Subpoenas, Summonses, 
and Court Orders by Postal Employees Within the Office of Inspector 
General Where Neither the Postal Service, the United States, Nor 
Any Other Federal Agency Is a Party


Sec.  230.10  Demands for records or testimony.

    (a) Scope and applicability. (1) This section sets forth the Touhy 
regulations of the U.S. Postal Service Office of Inspector General. It 
applies to situations where an employee of the Office of Inspector 
General has been summoned, subpoenaed, or given a court order to 
produce documents or provide testimony in connection with any Federal, 
State, local court, administrative, or legislative proceeding.
    (2) This section does not apply to:
    (i) Proceedings where the United States, the Postal Service, or any 
other Federal agency is named as a party;
    (ii) Congressional requests or subpoenas for testimony or 
documents; or
    (iii) Appearances by employees in their private capacities in 
proceedings unrelated to their Postal Service employment.
    (3) This section should be read together with the Freedom of 
Information Act (FOIA), 5 U.S.C. 552a, which provides additional 
information about access to records. The provisions of this section do 
not affect rights and procedures governing public access to official 
documents pursuant to the FOIA.
    (4) This section does not create any right or benefit, substantive 
or procedural, enforceable by any party against the Office of Inspector 
General or the U.S. Postal Service.
    (b) General prohibition. (1) No employee 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 case or matter, unless authorized to do so by an authorizing 
official.
    (2) Without written authorization from the authorizing official, 
the employee must respectfully decline to produce documents, testify, 
or otherwise disclose the requested information. 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 the regulations in this 
section.
    (3) If an attempt is made to compel production of documents during 
the employee's testimony, the employee is directed to decline to 
produce the item or information and to state that the material cannot 
be disclosed or produced without the approval of the authorizing 
official.
    (c) Procedure to request documents or testimony. (1) All demands 
seeking the production of nonpublic documents or employee testimony 
concerning matters relating to their official duties shall be made in 
writing and conform to the requirements outlined in paragraphs (c)(2) 
and (3) of this section.
    (2) The requesting party shall serve a summons or subpoena issued 
in accordance with the appropriate rules of procedure on the General 
Counsel to the Inspector General at the Office of Inspector General, 
1735 North Lynn Street, Arlington, VA 22209-2020.
    (3) Together with a summons or subpoena served on the General 
Counsel, the requesting party shall include an affidavit or sworn 
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) If testimony is sought, a detailed summary of the anticipated 
testimony;
    (v) If testimony is sought, a showing that Office of Inspector 
General records could not be provided and used in place of the 
requested testimony;
    (vi) The intended use of the documents or testimony; and
    (vii) An affirmative statement that the documents or testimony is 
necessary for defending or prosecuting the case at issue.
    (d) Evaluation of a demand for documents or testimony. (1) The 
authorizing official will consider the factors in paragraphs (d)(1)(i) 
through (viii) of this section when deciding whether to authorize 
testimony or the production of documents:
    (i) Statutory restrictions, as well as any legal objection, 
exemption, or privilege that may apply;

[[Page 14540]]

    (ii) Relevant legal standards for disclosure of nonpublic 
information and documents;
    (iii) Office of Inspector General rules and regulations;
    (iv) The public interest;
    (v) Minimizing or preventing expenditures of Office of Inspector 
General time and resources solely for private purposes;
    (vi) Minimizing the appearance of improperly favoring one litigant 
over another;
    (vii) Minimizing the possibility that the public will misconstrue 
variances between personal opinions of Office of Inspector General 
employees and agency policy; and
    (viii) Preserving the integrity of the administrative process.
    (2) Where, on the basis of its investigation, the Office of 
Inspector General has requested or recommended that a State or local 
prosecuting authority pursue a criminal prosecution or has otherwise 
approved such a prosecution, that prosecuting authority will be deemed 
to have made a proper request for information to be used in connection 
with that prosecution. With respect to other criminal matters pursued 
in state or local courts, the consideration shall also be given to the 
additional factors in paragraphs (d)(2)(i) through (iv) of this 
section:
    (i) The seriousness of the violation or crime involved;
    (ii) The past history or criminal record of the violator or 
accused;
    (iii) The importance of the legal issues presented; and
    (iv) The relatedness of the crime to the Office of Inspector 
General's mission.
    (3) The following records described in paragraphs (d)(2)(i) through 
(iii) of this section will not be released:
    (i) Records required to remain confidential by the Freedom of 
Information Act, the Privacy Act, this part, and part 262 of this 
chapter,
    (ii) Records containing information relating to an employee's 
security or loyalty; and
    (iii) Original records.
    (4)(i) The following records and testimony may only be produced 
under the circumstances described in paragraphs (d)(4)(i)(A) through 
(C) of this section:
    (A) The Office of Inspector General Manual and other operating 
instructions issued to employees when specifically authorized after 
consultation with the General Counsel to the Inspector General;
    (B) Office of Inspector General criminal investigative reports when 
specifically authorized after consulting with the General Counsel to 
the Inspector General; and
    (C) Information relating to confidential investigative techniques, 
confidential sources of information, and information that must be keep 
confidential under the Inspector General Act, as amended, 5 U.S.C. app. 
3. Where the authorizing official determines this information would 
otherwise be appropriate for release under this part, the Office of 
Inspector General may request an in camera review to determine the 
necessity for its release.
    (ii) The specific limitations on the production of certain 
categories of information set forth in paragraphs (d)(4)(i)(A) through 
(C) of this section do not require or imply that other documents or 
testimony will be authorized without limitation.
    (5) When authorizing testimony or the release of documents, the 
authorizing official will establish the extent of the Office of 
Inspector General's response.
    (i) Permission to testify or to release documents in all cases will 
be limited to matters outlined in the affidavit or declaration 
described in paragraph (c)(3) of this section, or to such matters as 
deemed appropriate by the authorizing official.
    (ii) If the authorizing official allows the production of documents 
or testimony, arrangements shall be made for the taking of testimony or 
receipt of documents by the method least disruptive 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.
    (iii) The Inspector General, authorizing official, or a delegee may 
designate an employee other than the employee identified in the request 
to respond to a request for an appearance.
    (6) Upon the authorizing official's issuance of a final 
determination not to authorize testimony or release records, the party 
making the request may consult or negotiate with the authorizing 
official to refine and limit the demand.
    (7) Notwithstanding the Office of Inspector General's general 
commitment to offer all possible assistance to the courts, the 
disclosure of information falling within the scope of this part is a 
matter of discretion, resting with the authorizing official. If, in the 
opinion of the authorizing official requested documents should not be 
released or testimony should not be provided, that determination will 
be final.
    (e) Representation of an employee in any appearance. At the option 
of the authorizing official, an Office of Inspector General attorney 
may make an appearance on behalf of the Office of Inspector General and 
assist an employee whose appearance has been requested and authorized. 
The authorizing official may also request assistance from the U.S. 
Department of Justice.
    (f) Expert or opinion witness. Unless authorized by the authorizing 
official, an employee may not testify as an expert or opinion witness 
regarding any matter arising out of the employee's duties or functions 
at the Office of Inspector General for any party other than the United 
States. A litigant must first obtain the permission of an authorizing 
official before designating an employee as an expert or opinion 
witness.
    (g) Costs and fees. (1) The Office of Inspector General is 
authorized to charge reasonable fees to parties demanding documents or 
information. Unless determined by 28 U.S.C. 1821 or other applicable 
statute, the costs of responding to a request for documents or 
testimony shall be borne by the requesting party. As determined by the 
Office of Inspector General, costs calculated to reimburse the Office 
for the cost of responding to a demand may include:
    (i) The costs of time expended by employees to process and respond 
to the demand;
    (ii) Attorney time for reviewing, responding to, or processing the 
demand and for legal work in connection with the demand;
    (iii) Expenses generated by equipment used to search for, produce, 
and copy the requested information;
    (iv) Expenses attendant upon an 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;
    (v) Travel costs of any employees who testify or are requested to 
testify and any agency attorney or other representative who travels in 
connection with a request for testimony, including lodging and per 
diem, assessed, as applicable, at the rates and in the manner specified 
in 39 CFR 265.9; and
    (vi) Other costs of providing testimony, including the cost of 
transcripts.
    (2) At the discretion of the Office of Inspector General where 
appropriate, fees and costs may be estimated and collected before 
testimony is given.
    (h) Definitions. The following definitions apply to this section.
    Authorizing official means the Inspector General or an official 
designated by the Inspector General to

[[Page 14541]]

authorize release of documents or employee testimony.
    Case or matter means any civil or criminal proceeding before a 
court of law, administrative board, hearing officer, or other body 
conducting a judicial or administrative proceeding. The term also 
includes proceedings in legislative bodies other than the Congress of 
the United States.
    Demand means any request, order, or subpoena for testimony or the 
production of documents.
    Document includes all information falling within the scope of the 
terms ``documents'' and ``electronically stored information'' in 
Federal Rule of Civil Procedure 34(a) and any analogous rules 
applicable to the case or matter in which a demand is made.
    Employee includes all current and former employees of the Office of 
Inspector General (whether temporary or permanent, part-time or full-
time), employees of the Postal Service assigned or detailed to the 
Office of Inspector General, student interns, student cooperatives, 
contractors, and employees of contractors who have or had access to 
Office of Inspector General information and records.
    Nonpublic means all documents or information not subject to 
mandatory public disclosure under 39 CFR 265.6(b) or that must be kept 
confidential under the Inspector General Act of 1978 as amended, 5 
U.S.C. app. 3.
    Testify or testimony include in-person oral statements before any 
body conducting a judicial, administrative, or legislative proceeding, 
statements made in depositions, answers to interrogatories, 
declarations, affidavits, or other similar documents.

Ruth Stevenson,
Chief Counsel, Federal Compliance.
[FR Doc. 2021-04210 Filed 3-16-21; 8:45 am]
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