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point of contact by telephone, other telecommunication, or other means. (b) In any explanation under paragraph (a)(3) of this section, the Secretary informs the single point of Contact that: (1) The Department will not implement its decision for at least ten days after the single point of contact receives the explanation; or (2) The Secretary has reviewed the decision and determined that, because of unusual Circumstances, the waiting period of at least ten days is not feaSible. (c) For purposes of Computing the waiting period under paragraph (b)(1) of this section, a Single point Of COntact is presumed to have received Written notification 5 days after the date of mailing of such notification.

§ 13.11 Obligations in interstate situations.

(a) The Secretary is responsible for:

(1) Identifying proposed Federal financial assistance and direct Federal development that have an impact. On interState area.S;

(2) Notifying appropriate officials and entities in states which have adopted a process and which select the Department’s program Or activity.

(3) Making efforts to identify and notify the affected State, area wide, regional, and local officials and entities in those states that have not adopted a process under the Order or do not Select the Department’s program Or a Ctivity;

(4) Responding pursuant to § 13.10 of this part if the Secretary receives a recommendation from a designated area wide agency transmitted by a single point of contact, in cases in which the review, COOrdination, and Communication with the Department have been delegated.

(b) The Secretary uses the procedures in § 13.10 if a state process provides a State process recommendation to the Department through a single point of COnta.Ct.

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Subport A–Service of Process

SOURCE: 53 FR 41318, Oct. 21, 1988, unless otherwise noted. Redesignated at 62 FR 19669, Apr. 23, 1997.

§ 15.1 Scope and purpose.

(a) This subpart sets forth the procedures to be followed when a Summons Or Complaint is Served on the Department, a component, or the Secretary Or a Department employee in his Or her official capacity. (b) This subpart is intended to ensure the orderly execution of the affairs of the Department and not to impede any legal proceeding. (c) This subpart does not apply to subpoenas. The procedures to be followed with respect to Subpoenas are Set out in Subpart B. (d) This subpart does not apply to Service of process made On a Department employee personally on matters not related to official business of the Department or to the official responSibilities of the Department employee.

[53 FR 41318, Oct. 21, 1988. Redesignated and amended at 62 FR 19669, 19670, Apr. 23, 1997]

§ 15.2 Definitions.

For the purpose of this subpart: (a) General Counsel means the General Counsel of the United States Department of Commerce or other Department employee to whom the General Counsel has delegated authority to act under this Subpart, or the chief legal officer (or designee) of the Department of Commerce Component ConCerned. (b) Component means Office of the Secretary Or an Operating unit Of the Department as defined in Department Organization Order 1–1. (c) Department means the Department of Commerce. (d) Department employee means any officer or employee of the Department, including commissioned officers of the National Oceanic and Atmospheric Administration. (e) Legal proceeding means a proceeding before a tribunal constituted by law, including a court, an administrative body or commission, or an administrative law judge or hearing Officer. (f) Official business means the authorized business of the Department.

(g) Secretary means Secretary of Commerce.

§ 15.3 Acceptance of service of process.

(a) Except as otherwise provided in this subpart, any summons or complaint to be served in person or by registered Or Certified mail or as otherwise authorized by law on the Department, a Component Or the Secretary Or a Department employee in their Official capacity, Shall be served on the General Counsel of the United States Department of Commerce, Washington, DC 20230. (b) Any Summons or complaint to be Served in person or by registered or Certified mail or as otherwise authorized by law on the Patent and Trademark Office or the Commissioner of Patents and Trademarks Or an employee of the Patent and Trademark Office in his or her official capacity, shall be served on the Solicitor for the Patent, and Trademark Office or a Department employee designated by the Solicitor. (c) Except as otherwise provided in this Subpart, any component, or Department employee served with a Summons or complaint shall immediately notify and deliver the Summons Or Complaint to the Office of the General Counsel. Any employee of the Patent and Trademark Office served, with a Summons or complaint shall immediately notify and deliver the Summons Or Complaint to the Office of the Solicitor. (d) Any Department employee receiving a summons or complaint shall note on the summons or complaint the date, hour, and place of service and whether Service was by personal delivery or by mail. (e) When a legal proceeding is brought to hold a Department employee personally liable in Connection with an action taken in the conduct of official business, rather than liable in an official capacity, the Department employee by law is to be served personally with process. Service of process in this case is inadequate when made upon the General Counsel or the Solicitor or their designees. Except as otherwise provided in this subpart, a Department employee sued personally for an action taken in the conduct of Official business shall immediately notify and

deliver a copy of the Summons Or Complaint to the office of the General Counsel. Any employee of the Patent and Trademark Office sued personally for an action taken in the conduct of official business shall immediately notify and deliver a copy of the summons or complaint to the Office of the Solicitor. (f) A Department employee Sued perSonally in Connection with Official business may be represented by the Department of Justice at its discretion. See 28 CFR 50.15 and 50.16 (1987). (g) The General Counsel or Solicitor or Department employee designated by either, when accepting Service Of process for a Department employee in an official capacity, shall endorse on the Marshal’s Or server’s return of Service form or receipt for registered or certified mail the following Statement: “Service accepted in Official CapaCity only.” The statement may be placed on the form or receipt with a rubber Stamp. (h) Upon acceptance of Service Or receiving notification of Service, as provided in this section, the General CounSel and Solicitor shall take appropriate steps to protect the rights of the Department, Component, the Secretary or Department employee involved.

Subport B–Testimony by Employees Cind the Production of Documents in Legal ProceedIngs

SOURCE: 60 FR 9291, Feb. 17, 1995, unless otherwise noted. Redesignated at 62 F.R. 19669, Apr. 23, 1997.

§ 15.11 Scope.

(a) This subpart sets forth the poliCies and procedures of the Department of Commerce regarding the testimony of employees, and former employees, as witnesses in legal proceedings and the production or disclosure of information COntained in Department Of Commerce documents for use in legal proceedings pursuant to a request, order, or subpoena (collectively referred to in this Subpart as a “demand”).

(b) This subpart does not apply to any legal proceeding in which an employee is to testify while On leave status, regarding facts or events that are

unrelated to the Official business of the Department. (c) This subpart in no way affects the rights and procedures governing public access to records pursuant to the Freedom of Information Act, the Privacy Act Or the Trade Secrets Act.. (d) This subpart is not intended to be relied upon to, and does not, create any right or benefit, Substantive or procedural, enforceable at law by any party against the United States.

§ 15.12 Definitions.

For the purpose Of this Subpart: (a) Agency counsel means the Chief legal officer (or his/her designee) of an agency within the Department of ComIsle I’Ce. (b) Component means Office of the Secretary Or an Operating unit of the Department, as defined in Department Organization Order 1–1. (c) Demand means a request, order, or Subpoena for testimony or documents for use in a legal proceeding. (d) Department means the United States Department of Commerce and itS COnstituent agencies. (e) Document means any record, paper and other property held by the Department, including without limitation, of ficial letters, telegrams, memoranda, reports, studies, calendar and diary entries, maps, graphs, pamphlets, notes, charts, tabulations, analyses, statistical or informational accumulations, any kind of summaries of meetings and conversations, film impressions, magnetic tapes and sound or mechanical reproductions. (f) Employee means all current or former employees or officers of the Department, including commissioned officers of the National Oceanic and Atmospheric Administration and any other individual who has been appointed by, Or subject to the Supervision, jurisdiction or control of the Secretary of the Department of ComII herCe. (g) General Counsel means the General Counsel of the Department or other Department employee to whom the General Counsel has delegated authority to act under this subpart. (h) Legal proceeding means all pretrial, trial and post trial stages of all existing or reasonably anticipated judiCial or administrative actions, hearings, investigations, Or Similar proceedings before Courts, commissions, boards or other tribunals, foreign or domestic. This phrase includes all phases of discovery as well as responses to formal or informal requests by attorneys or others involved in legal proCeedings. (i) Official busineSS means the authorized business of the Department. (j) Secretary means the Secretary of the Department of Commerce. (k) Solicitor means the Solicitor of the Patent and Trademark Office. (l) Testimony means a Statement in any form, including personal appearances before a Court or other legal tribunal, interviews, depositions, telephonic, televised, or videotaped statements Or any responses given during discovery or Similar proceedings, which response would involve more than the production of documents. (m) United States means the Federal Government, its departments and agenCies, and individuals acting on behalf Of the Federal Government.

§ 15.13 Demand for testimony or production of documents: Department policy. No employee shall in response to a demand, produce any documents, or provide testimony regarding any information relating to, or based upon Department of Commerce documents, or disclose any information or produce materials acquired as part of the performance of that employee’s official duties, or because of that employee's official status without the prior authorization of the General Counsel, or the Solicitor, or the appropriate agency counsel. The reasons for this policy are as follows: (a) To conserve the time of Department employees for conducting official business; (b) To minimize the possibility of involving the Department in controversial issues that are not related to the Department’s mission; (c) To prevent the possibility that the public will misconstrue variances between personal Opinions of Department employees and Department pol1Cy;

(d) To avoid spending the time and money of the United States for private purposes;

(e) To preserve the integrity of the administrative process; and

(f) To protect confidential, sensitive information and the deliberative proceSS Of the Department.

$15.14 Demand for testimony or production of documents: Department procedures.

(a) Whenever a demand for testimony or for the production of documents is made upon an employee, the employee shall immediately notify the General Counsel (Room 5890, U. S. Department of Commerce, Washington, DC 20230, (202) 482–1067) or appropriate agency Counsel. When a demand for testimony or for the production of documents is made upon an employee of the Patent and Trademark Office, the employee should immediately notify the Solicitor, by phone, (703) 305—9035; by mailed addressed Solicitor, Box 8, Patent and Trademark Office, Washington, DC 20231; or in person to 2121 Crystal Drive, Crystal Park 2, Suite 918, Arlington, Virginia, 22215.

(b) A Department employee may not give testimony, produce documents, or answer inquiries from a person not employed by the Department regarding testimony Or documents Subject to a demand or a potential demand under the provisions of this subpart without the approval of the General Counsel, or the Solicitor, or the appropriate agency Counsel. A Department employee shall immediately refer all inquiries and Demands to the General Counsel, Or the Solicitor, or appropriate agency Counsel. Where appropriate, the General Counsel, or the Solicitor, or appropriate agency counsel, may instruct the Department employee, orally or in writing, not to give testimony or produce documents.

(c)(1) Demand for testimony or documents. A demand for the testimony of a Department employee shall be addressed to the General Counsel, Room 5890, Department of Commerce, Washington, DC 20230 or appropriate agency Counsel. A demand for testimony of an employee of the Patent and Trademark Office shall be mail addressed to the Solicitor, Box 8, Patent and Trademark Office, Washington, DC 20231; or in person to 2121 Crystal Drive, Crystal Park 2, Suite 918, Arlington, Virginia 22215. (2) Subpoenas. A subpoena for testimony by a Department employee Or a document shall be served in accordance with the Federal Rules of Civil Or Criminal Procedure or applicable state procedure and a copy of the Subpoena, shall be sent to the General Counsel, or the Solicitor, or appropriate agency Counsel. (3) Affidavit. Except when the United States is a party, every demand shall be accompanied by an affidavit or declaration under 28 U.S.C. 1746 Or, if an affidavit is not feasible, a statement setting forth the title of the legal proceeding, the forum, the requesting party’s interest in the legal proceeding, the reason for the demand, a showing that the desired testimony Or document is not reasonably available from any other source, and if testimony is requested, the intended use of the testimony, a general summary of the desired testimony, and a showing that no document could be provided and used in lieu of testimony. The purpose of this requirement is to assist the General Counsel, or the Solicitor, or appropriate agency Counsel in making an informed decision regarding whether testimony Or the production of a document(s) should be authorized. (d) A Certified copy of a document for use in a legal proceeding may be provided upon written request and payment of applicable fees. Written requests for Certification shall be addressed to the agency counsel for the Component having possession, Custody, or control of the document. Unless governed by another applicable provision Of law or component regulation, the applicable fee includes charges for certifiCation and reproduction as Set Out in 15 CFR part 4.9. Other reproduction costs and postage fees, as appropriate, must also be borne by the requester. (e) The Secretary retains the authority to authorize and direct testimony in those cases where a statute or Presidential Order mandates a personal deciSion by the Secretary. (f) The General Counsel, or the Solicitor, or appropriate agency counsel may consult or negotiate with an attorney for a party Or the party if not,

represented by an attorney, to refine or limit a demand so that compliance is less burdensome or obtain information necessary to make the determination required by paragraph (b) of this section. Failure of the attorney to cooperate in good faith to enable the General Counsel, or the Solicitor, or the Secretary, or the appropriate agency counSel to make an informed determination under this subpart may serve, where appropriate, as a basis for a determination not to comply with the demand.

(g) A determination under this Subpart to comply or not to comply with a demand is not an assertion or waiver of privilege, lack of relevance, technical deficiency or any other ground for nonCompliance.

(h) The General Counsel, or the Solicit Or, or appropriate agency Counsel may waive any requirements Set forth under this section when circumstances Warrant.

§ 15.15 Procedures when a Department employee receives a subpoena.

(a) A Department employee who reCeives a Subpoena shall immediately forward the subpoena, to the General Counsel, or the appropriate agency Counsel. In the case of an employee of the Patent and Trademark Office, the Subpoena shall immediately be forwarded to the Solicitor. The General Counsel, Or the Solicitor, Or appropriate agency Counsel will determine the extent to which a Department employee will Comply with the Subpoena.

(b) If an employee is served with a Subpoena that the General Counsel, or the Solicitor, or appropriate agency Counsel determines should not be complied with, the General Counsel, Solicitor Or appropriate agency Counsel will attempt to have the subpoena, withdrawn or modified. If this cannot be done, the General Counsel, Solicitor or appropriate agency Counsel Will attempt to obtain Department of Justice representation for the employee and move to have the subpoena modified or quashed. If, because of time ConStraints, this is not possible prior to the compliance date specified in the subpoena, the employee should appear at the time and place set forth in the

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