[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
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
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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.
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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 OGC@hq.dhs.gov.
(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 CBP-Service-Intake@cbp.dhs.gov.
(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 CBP-Service-Intake@cbp.dhs.gov.
(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
CISA.OCC@cisa.dhs.gov.
(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 CISA.OCC@cisa.dhs.gov.
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 FEMA-ActionOffice-OCC@fema.dhs.gov.
(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 FEMA-ActionOffice-OCC@fema.dhs.gov.
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
OPLAServiceIntake@ice.dhs.gov.
(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 OPLAServiceIntake@ice.dhs.gov.
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 OCCCommunications@tsa.dhs.gov.
(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 OCCCommunications@tsa.dhs.gov.
(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
uscis.serviceofprocess@uscis.dhs.gov.
(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 uscis.serviceofprocess@uscis.dhs.gov.
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]
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