PART 15—LEGAL PROCEEDINGS Subpart A—Service of Process

Office of the Secretary, Commerce Pt. 15

(d) If a program or activity is not se- § 13.11 Obligations in interstate situa- lected for a state process, state, tions. areawide, regional and local officials (a) The Secretary is responsible for: and entities may submit comments ei- (1) Identifying proposed Federal fi- ther to the applicant or to the Depart- nancial assistance and direct Federal ment. In addition, if a state process development that have an impact on recommendation for a nonselected pro- interstate areas; gram or activity is transmitted to the (2) Notifying appropriate officials Department by the single point of con- and entities in states which have tact, the Secretary follows the proce- adopted a process and which select the dures of § 13.10 of this part. Department’s program or activity. (e) The Secretary considers comments which do not constitute a state (3) Making efforts to identify and no- process recommendation submitted tify the affected state, areawide, re- under these regulations and for which gional, and local officials and entities the Secretary is not required to apply in those states that have not adopted a the procedures of § 13.10 of this part, process under the Order or do not se- when such comments are provided by a lect the Department’s program or ac- single point of contact, by the appli- tivity; cant, or directly to the Department by (4) Responding pursuant to § 13.10 of a commenting party. this part if the Secretary receives a recommendation from a designated § 13.10 Accommodation of intergovern- areawide agency transmitted by a sin- mental concerns. gle point of contact, in cases in which (a) If a state process provides a state the review, coordination, and commu- process recommendation to the Depart- nication with the Department have ment through its single point of con- been delegated. tact, the Secretary either: (b) The Secretary uses the procedures (1) Accepts the recommendation; in § 13.10 if a state process provides a (2) Reaches a mutually agreeable so- state process recommendation to the lution with the state process; or Department through a single point of (3) Provides the single point of con- contact. tact with a written explanation of the decision in such form as the Secretary PART 14 [RESERVED] in his or her discretion deems appropriate. The Secretary may also supple- PART 15—LEGAL PROCEEDINGS ment the written explanation by providing the explanation to the single Subpart A—Service of Process point of contact by telephone, other telecommunication, or other means. Sec. (b) In any explanation under para- 15.1 Scope and purpose. graph (a)(3) of this section, the Sec- 15.2 Definitions. retary informs the single point of con- 15.3 Acceptance of service of process. tact that: Subpart B—Testimony by Employees and (1) The Department will not imple- the Production of Documents in Legal ment its decision for at least ten days Proceedings after the single point of contact receives the explanation; or 15.11 Scope. (2) The Secretary has reviewed the 15.12 Definitions. decision and determined that, because 15.13 Demands for testimony or production of unusual circumstances, the waiting of documents: Department policy. period of at least ten days is not fea- 15.14 Demand for testimony or production sible. of documents: Department procedures. (c) For purposes of computing the 15.15 Procedures when a Department employee receives a subpoena. waiting period under paragraph (b)(1) 15.16 Legal proceedings between private of this section, a single point of con- litigants: Expert or opinion testimony. tact is presumed to have received writ- 15.17 Demands or requests in legal pro- ten notification 5 days after the date of ceedings for records protected by con- mailing of such notification. fidentiality statutes.

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15.18 Testimony of Department employees § 15.2 Definitions. in proceedings involving the United States. For the purpose of this subpart: (a) General Counsel means the Gen- Subpart C—Involuntary Child and Spousal eral Counsel of the United States De- Support Allotments of NOAA Corps Officers partment of Commerce or other De- partment employee to whom the Gen- 15.21 Purpose. eral Counsel has delegated authority to 15.22 Applicability and scope. act under this subpart, or the chief 15.23 Definitions. legal officer (or designee) of the De- 15.24 Policy. partment of Commerce component con- 15.25 Procedures. cerned. Subpart D—Statement of Policy and Proce- (b) Component means Office of the dures Regarding Indemnification of Secretary or an operating unit of the Department of Commerce Employees Department as defined in Department Organization Order 1–1. 15.31 Policy. (c) Department means the Department 15.32 Procedures for the handling of law- of Commerce. suits against Department employees arising within the scope of their office or (d) Department employee means any employment. officer or employee of the Department, including commissioned officers of the AUTHORITY: 5 U.S.C. 301; 15 U.S.C. 1501, 1512, National Oceanic and Atmospheric Ad- 1513, 1515 and 1518; Reorganization Plan No. 5 ministration. of 1950; 3 CFR, 1949–1953 Comp., p. 1004; 44 U.S.C. 3101; subpart C is issued under 37 (e) Legal proceeding means a pro- U.S.C. 101, 706; 15 U.S.C. 1673; 42 U.S.C. 665. ceeding before a tribunal constituted by law, including a court, an adminis- EDITORIAL NOTE: Nomenclature changes to trative body or commission, or an ad- part 15 appear at 62 FR 19669, Apr. 23, 1997. ministrative law judge or hearing officer. Subpart A—Service of Process (f) Official business means the authorized business of the Department. SOURCE: 53 FR 41318, Oct. 21, 1988, unless (g) Secretary means Secretary of otherwise noted. Redesignated at 62 FR 19669, Commerce. Apr. 23, 1997. § 15.3 Acceptance of service of process. § 15.1 Scope and purpose. (a) Except as otherwise provided in (a) This subpart sets forth the proce- this subpart, any summons or com- dures to be followed when a summons plaint to be served in person or by reg- or complaint is served on the Depart- istered or certified mail or as otherwise ment, a component, or the Secretary or authorized by law on the Department, a Department employee in his or her a component or the Secretary or a De- official capacity. partment employee in their official ca- (b) This subpart is intended to ensure pacity, shall be served on the General the orderly execution of the affairs of Counsel of the United States Depart- the Department and not to impede any ment of Commerce, Washington, DC legal proceeding. 20230. (c) This subpart does not apply to (b) Any summons or complaint to be subpoenas. The procedures to be fol- served in person or by registered or lowed with respect to subpoenas are set certified mail or as otherwise author- out in subpart B. ized by law on the Patent and Trade- (d) This subpart does not apply to mark Office or the Commissioner of service of process made on a Depart- Patents and Trademarks or an em- ment employee personally on matters ployee of the Patent and Trademark not related to official business of the Office in his or her official capacity, Department or to the official respon- shall be served on the Solicitor for the sibilities of the Department employee. Patent and Trademark Office or a De- [53 FR 41318, Oct. 21, 1988. Redesignated and partment employee designated by the amended at 62 FR 19669, 19670, Apr. 23, 1997] Solicitor.

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(c) Except as otherwise provided in (h) Upon acceptance of service or re- this subpart, any component or Depart- ceiving notification of service, as pro- ment employee served with a summons vided in this section, the General Coun- or complaint shall immediately notify sel and Solicitor shall take appropriate and deliver the summons or complaint steps to protect the rights of the De- to the office of the General Counsel. partment, component, the Secretary or Any employee of the Patent and Trade- Department employee involved. mark Office served with a summons or complaint shall immediately notify Subpart B—Testimony by Employ- and deliver the summons or complaint to the office of the Solicitor. ees and the Production of (d) Any Department employee receiv- Documents in Legal Pro- ing a summons or complaint shall note ceedings on the summons or complaint the date, hour, and place of service and whether SOURCE: 60 FR 9291, Feb. 17, 1995, unless service was by personal delivery or by otherwise noted. Redesignated at 62 FR 19669, mail. Apr. 23, 1997. (e) When a legal proceeding is brought to hold a Department em- § 15.11 Scope. ployee personally liable in connection (a) This subpart sets forth the poli- with an action taken in the conduct of cies and procedures of the Department official business, rather than liable in of Commerce regarding the testimony an official capacity, the Department of employees, and former employees, as employee by law is to be served person- witnesses in legal proceedings and the ally with process. Service of process in production or disclosure of information this case is inadequate when made contained in Department of Commerce upon the General Counsel or the Solic- documents for use in legal proceedings itor or their designees. Except as oth- pursuant to a request, order, or sub- erwise provided in this subpart, a De- poena (collectively referred to in this partment employee sued personally for subpart as a ‘‘demand’’). an action taken in the conduct of offi- (b) This subpart does not apply to cial business shall immediately notify any legal proceeding in which an em- and deliver a copy of the summons or ployee is to testify while on leave sta- complaint to the office of the General tus, regarding facts or events that are Counsel. Any employee of the Patent unrelated to the official business of the and Trademark Office sued personally Department. for an action taken in the conduct of (c) This subpart in no way affects the official business shall immediately no- rights and procedures governing public tify and deliver a copy of the summons access to records pursuant to the Free- or complaint to the Office of the Solic- dom of Information Act, the Privacy itor. Act or the Trade Secrets Act. (f) A Department employee sued per- (d) This subpart is not intended to be sonally in connection with official relied upon to, and does not, create any business may be represented by the De- partment of Justice at its discretion. right or benefit, substantive or proce- See 28 CFR 50.15 and 50.16 (1987). dural, enforceable at law by any party against the United States. (g) The General Counsel or Solicitor or Department employee designated by § 15.12 Definitions. either, when accepting service of process for a Department employee in an For the purpose of this subpart: official capacity, shall endorse on the (a) Agency counsel means the chief Marshal’s or server’s return of service legal officer (or his/her designee) of an form or receipt for registered or cer- agency within the Department of Com- tified mail the following statement: merce. ‘‘Service accepted in official capacity (b) Component means Office of the only.’’ The statement may be placed on Secretary or an operating unit of the the form or receipt with a rubber Department as defined in Department stamp. Organization Order 1–1.

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(c) Demand means a request, order, or response would involve more than the subpoena for testimony or documents production of documents. for use in a legal proceeding. (m) United States means the Federal (d) Department means the United Government, its departments and agen- States Department of Commerce and cies, and individuals acting on behalf its constituent agencies. of the Federal Government. (e) Document means any record, paper and other property held by the Depart- § 15.13 Demand for testimony or production of documents: Department ment, including without limitation, of- policy. ficial letters, telegrams, memoranda, reports, studies, calendar and diary en- No employee shall in response to a tries, maps, graphs, pamphlets, notes, demand, produce any documents, or charts, tabulations, analyses, statis- provide testimony regarding any infor- tical or informational accumulations, mation relating to, or based upon De- any kind of summaries of meetings and partment of Commerce documents, or conversations, film impressions, mag- disclose any information or produce netic tapes and sound or mechanical materials acquired as part of the per- reproductions. formance of that employee’s official duties, or because of that employee’s (f) Employee means all current or official status without the prior au- former employees or officers of the De- thorization of the General Counsel, or partment, including commissioned offi- the Solicitor, or the appropriate agen- cers of the National Oceanic and At- cy counsel. The reasons for this policy mospheric Administration and any are as follows: other individual who has been ap- (a) To conserve the time of Depart- pointed by, or subject to the super- ment employees for conducting official vision, jurisdiction or control of the business; Secretary of the Department of Com- (b) To minimize the possibility of in- merce. volving the Department in controver- (g) means the Gen- General Counsel sial issues that are not related to the eral Counsel of the Department or Department’s mission; other Department employee to whom (c) To prevent the possibility that the General Counsel has delegated au- the public will misconstrue variances thority to act under this subpart. between personal opinions of Depart- (h) Legal proceeding means all pre- ment employees and Department pol- trial, trial and post trial stages of all icy; existing or reasonably anticipated judi- (d) To avoid spending the time and cial or administrative actions, hear- money of the United States for private ings, investigations, or similar pro- purposes; ceedings before courts, commissions, (e) To preserve the integrity of the boards or other tribunals, foreign or administrative process; and domestic. This phrase includes all (f) To protect confidential, sensitive phases of discovery as well as responses information and the deliberative proc- to formal or informal requests by at- ess of the Department. torneys or others involved in legal proceedings. § 15.14 Demand for testimony or pro- (i) Official business means the author- duction of documents: Department ized business of the Department. procedures. (j) Secretary means the Secretary of (a) Whenever a demand for testimony the Department of Commerce. or for the production of documents is (k) Solicitor means the Solicitor of made upon an employee, the employee the Patent and Trademark Office. shall immediately notify the General (l) Testimony means a statement in Counsel (Room 5890, U. S. Department any form, including personal appear- of Commerce, Washington, DC 20230, ances before a court or other legal tri- (202) 482–1067) or appropriate agency bunal, interviews, depositions, tele- counsel. When a demand for testimony phonic, televised, or videotaped state- or for the production of documents is ments or any responses given during made upon an employee of the Patent discovery or similar proceedings, which and Trademark Office, the employee

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should immediately notify the Solic- any other source, and if testimony is itor, by phone, (703) 305–9035; by mailed requested, the intended use of the tes- addressed Solicitor, Box 8, Patent and timony, a general summary of the de- Trademark Office, Washington, DC sired testimony, and a showing that no 20231; or in person to 2121 Crystal document could be provided and used Drive, Crystal Park 2, Suite 918, Ar- in lieu of testimony. The purpose of lington, Virginia 22215. this requirement is to assist the Gen- (b) A Department employee may not eral Counsel, or the Solicitor, or appro- give testimony, produce documents, or priate agency counsel in making an in- answer inquiries from a person not em- formed decision regarding whether tes- ployed by the Department regarding timony or the production of a docu- testimony or documents subject to a ment(s) should be authorized. demand or a potential demand under (d) A certified copy of a document for the provisions of this subpart without use in a legal proceeding may be pro- the approval of the General Counsel, or vided upon written request and pay- the Solicitor, or the appropriate agen- ment of applicable fees. Written re- cy counsel. A Department employee quests for certification shall be ad- shall immediately refer all inquiries dressed to the agency counsel for the and Demands to the General Counsel, component having possession, custody, or the Solicitor, or appropriate agency or control of the document. Unless gov- counsel. Where appropriate, the Gen- erned by another applicable provision eral Counsel, or the Solicitor, or appro- of law or component regulation, the ap- priate agency counsel, may instruct plicable fee includes charges for certifi- the Department employee, orally or in cation and reproduction as set out in 15 writing, not to give testimony or CFR part 4.9. Other reproduction costs produce documents. and postage fees, as appropriate, must (c)(1) Demand for testimony or docu- also be borne by the requester. ments. A demand for the testimony of a (e) The Secretary retains the author- Department employee shall be ad- ity to authorize and direct testimony dressed to the General Counsel, Room in those cases where a statute or Presi- 5890, Department of Commerce, Wash- dential order mandates a personal deci- ington, DC 20230 or appropriate agency sion by the Secretary. counsel. A demand for testimony of an employee of the Patent and Trademark (f) The General Counsel, or the Solic- Office shall be mail addressed to the itor, or appropriate agency counsel Solicitor, Box 8, Patent and Trademark may consult or negotiate with an at- Office, Washington, DC 20231; or in per- torney for a party or the party if not son to 2121 Crystal Drive, Crystal Park represented by an attorney, to refine or 2, Suite 918, Arlington, Virginia 22215. limit a demand so that compliance is (2) Subpoenas. A subpoena for testi- less burdensome or obtain information mony by a Department employee or a necessary to make the determination document shall be served in accordance required by paragraph (b) of this sec- with the Federal Rules of Civil or tion. Failure of the attorney to cooper- Criminal Procedure or applicable state ate in good faith to enable the General procedure and a copy of the subpoena Counsel, or the Solicitor, or the Sec- shall be sent to the General Counsel, or retary, or the appropriate agency coun- the Solicitor, or appropriate agency sel to make an informed determination counsel. under this subpart may serve, where (3) Affidavit. Except when the United appropriate, as a basis for a determina- States is a party, every demand shall tion not to comply with the demand. be accompanied by an affidavit or dec- (g) A determination under this sub- laration under 28 U.S.C. 1746 or, if an part to comply or not to comply with a affidavit is not feasible, a statement demand is not an assertion or waiver of setting forth the title of the legal pro- privilege, lack of relevance, technical ceeding, the forum, the requesting par- deficiency or any other ground for non- ty’s interest in the legal proceeding, compliance. the reason for the demand, a showing (h) The General Counsel, or the Solic- that the desired testimony or docu- itor, or appropriate agency counsel ment is not reasonably available from may waive any requirements set forth

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under this section when circumstances § 15.16 Legal proceedings between pri- warrant. vate litigants: Expert or opinion testimony. § 15.15 Procedures when a Department In addition to the policies and proce- employee receives a subpoena. dures as outlined in §§ 15.11 through (a) A Department employee who re- 15.16, the following applies to legal pro- ceives a subpoena shall immediately ceedings between private litigants: forward the subpoena to the General (a) If a Department employee is au- Counsel, or the appropriate agency thorized to give testimony in a legal counsel. In the case of an employee of proceeding not involving the United the Patent and Trademark Office, the States, the testimony, if otherwise subpoena shall immediately be for- proper, shall be limited to facts within the personal knowledge of the Depart- warded to the Solicitor. The General ment employee. Employees, with or Counsel, or the Solicitor, or appro- without compensation, shall not propriate agency counsel will determine vide expert testimony in any legal pro- the extent to which a Department em- ceedings regarding Department infor- ployee will comply with the subpoena. mation, subjects or activities except on (b) If an employee is served with a behalf of the United States or a party subpoena that the General Counsel, or represented by the United States De- the Solicitor, or appropriate agency partment of Justice. However, upon a counsel determines should not be com- showing by the requester that there plied with, the General Counsel, Solic- are exceptional circumstances and that itor or appropriate agency counsel will the anticipated testimony will not be attempt to have the subpoena with- adverse to the interest of the Depart- drawn or modified. If this cannot be ment or the United States, the General done, the General Counsel, Solicitor or Counsel, or the Solicitor, or appro- appropriate agency counsel will at- priate agency counsel may, in writing tempt to obtain Department of Justice grant special authorization for the em- representation for the employee and ployee to appear and give the expert or move to have the subpoena modified or opinion testimony. quashed. If, because of time con- (b)(1) If, while testifying in any legal straints, this is not possible prior to proceeding, an employee is asked for the compliance date specified in the expert or opinion testimony regarding official DOC information, subjects or subpoena, the employee should appear activities, which testimony has not at the time and place set forth in the been approved in advance in accord- subpoena. If legal counsel cannot ap- ance with the regulations in this sub- pear on behalf of the employee, the em- part, the witness shall: ployee should produce a copy of the De- (i) Respectfully decline to answer on partment’s regulations and inform the the grounds that such expert or opin- legal tribunal that he/she has been ad- ion testimony is forbidden by the regu- vised by counsel not to provide the re- lations in this subpart; quested testimony and/or produce doc- (ii) Request an opportunity to con- uments. If the legal tribunal rules that sult with the General Counsel, or the the demand in the subpoena must be Solicitor, or appropriate agency coun- complied with, the employee shall re- sel before giving such testimony; and spectfully decline to comply with the (iii) Explain that upon such consulta- demand. United States ex rel. Touhy v. tion, approval for such testimony may Ragen, 340 U. S. 462 (1951). be provided. (c) Where the Department employee (2) If the witness is then ordered by is an employee of the Office of the In- the body conducting the proceeding to spector General, the Inspector General provide expert or opinion testimony re- in consultation with the General Coun- garding official DOC information, sub- sel, will make a determination under jects or activities without the opportunity to consult with either the Gen- paragraphs (a) and (b) of this section. eral Counsel, or the Solicitor, or appropriate agency counsel, the witness shall respectfully refuse to provide

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such testimony. See United States ex rel. the Solicitor, or appropriate agency Touhy v. Ragen, 340 U. S. 462 (1951). counsel will make all necessary ar- (c) If an employee is unaware of the rangements for the Department em- regulations in this subpart and pro- ployee to give testimony on behalf of vides expert or opinion testimony re- the United States. Where appropriate, garding official DOC information, sub- the General Counsel, or the Solicitor, jects or activities in a legal proceeding or appropriate agency counsel may re- without the aforementioned consulta- quire reimbursement to the Depart- tion, the witness shall, as soon after ment of the expenses associated with a testifying as possible, inform the Gen- Department employee giving testi- eral Counsel, or the Solicitor, or appro- mony on behalf of the United States. priate agency counsel that such testimony was given and provide a written Subpart C—Involuntary Child and summary of the expert or opinion testimony provided. Spousal Support Allotments of NOAA Corps Officers [60 FR 9291, Feb. 17, 1995. Redesignated and amended at 62 FR 19669, 19670, Apr. 23, 1997] SOURCE: 53 FR 15548, May 2, 1988, unless § 15.17 Demands or requests in legal otherwise noted. Redesignated at 62 FR 19669, proceedings for records protected Apr. 23, 1997. by confidentiality statutes. § 15.21 Purpose. Demands in legal proceedings for the production of records, or for the testi- This subpart provides implementing mony of Department employees regard- policies governing involuntary child or ing information protected by the Pri- child and spousal support allotments vacy Act, 5 U.S.C. 552a, the Trade Se- for officers of the uniformed service of crets Act, 18 U.S.C. 1905 or other con- the National Oceanic and Atmospheric fidentiality statutes, must satisfy the Administration (NOAA), and prescribes requirements for disclosure set forth in applicable procedures. those statutes before the records may be provided or testimony given. The § 15.22 Applicability and scope. General Counsel, or the Solicitor, or This subpart applies to Commis- appropriate agency counsel should first sioned Officers of the NOAA Corps on determine if there is a legal basis to active duty. provide the testimony or records sought under applicable confidentiality § 15.23 Definitions. statutes before applying §§ 15.11 (a) Active duty. Full-time duty in the through 15.18. Where an applicable con- NOAA Corps. fidentiality statute mandates disclo- (b) Authorized person. Any agent or sure, §§ 15.11 through 15.18 will not attorney of any state having in effect a apply. plan approved under part D of title IV [60 FR 9291, Feb. 17, 1995. Redesignated and of the Social Security Act (42 U.S.C. amended at 62 FR 19669, 19670, Apr. 23, 1997] 651–664), who has the duty or authority to seek recovery of any amounts owed § 15.18 Testimony of Department em- as child or child and spousal support ployees in proceedings involving (including, when authorized under the the United States. state plan, any official of a political The following applies in legal pro- subdivision); and the court that has au- ceedings in which the United States is thority to issue an order against a a party: member for the support and mainte- (a) A Department employee may not nance of a child or any agent of such testify as an expert or opinion witness court. for any other party other than the (c) Child support. Periodic payments United States. for the support and maintenance of a (b) Whenever, in any legal proceeding child or children, subject to and in ac- involving the United States, a request cordance with state or local law. This is made by an attorney representing or includes but is not limited to, pay- acting under the authority of the ments to provide for health, education, United States, the General Counsel, or recreation, and clothing or to meet

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other specific needs of such a child or shall be established by notice from an children. authorized person to the designated of- (d) Designated official. The official ficial. Such notice shall specify the who is designated to receive notices of name and address of the person to failure to make payments from an au- whom the allotment is payable. The thorized person (as defined in para- amount of the allotment shall be the graph (b) of this section). For the De- amount necessary to comply with the partment of Commerce this official is support order. If requested, the allot- the Assistant General Counsel for Ad- ment may include arrearages as well as ministration. amounts for current support, except (e) Notice. A court order, letter, or that the amount of the allotment, to- similar documentation issued by an au- gether with any other amounts with- thorized person providing notification held for support from the officer as a that a member has failed to make peri- percentage of pay, shall not exceed the odic support payments under a support limits prescribed in section 303 (b) and order. (c) of the Consumer Credit Protection (f) Spousal support. Periodic pay- Act (15 U.S.C. 1673). An allotment ments for the support and maintenance under this subpart shall be adjusted or of a spouse or former spouse, in accord- discontinued upon notice from an au- ance with state and local law. It in- thorized person. cludes, but is not limited to, separate (b) Notwithstanding the above, no ac- maintenance, alimony while litigation tion shall be taken to require an allot- continues, and maintenance. Spousal ment from the pay and allowances of support does not include any payment any officer until such officer has had a for transfer of property or its value by consultation with an attorney from the an individual to his or her spouse or Office of the Assistant General Counsel former spouse in compliance with any for Administration, in person, to dis- community property settlement, equi- cuss the legal and other factors in- table distribution of property, or other volved with respect to the officer’s sup- division of property between spouses or port obligation and his/her failure to former spouses. make payments. Where it has not been (g) Support order. Any order for the possible, despite continuing good faith support of any person issued by a court efforts to arrange such a consultation, of competent jurisdiction or by admin- the allotment shall start the first pay istrative procedures established under period beginning after 30 days have state law that affords substantial due elapsed since the notice required in process and is subject to judicial re- paragraph (d)(1) of § 15.25 is given to the view. A court of competent jurisdiction affected officer. includes: (1) Indian tribal courts within [53 FR 15548, May 2, 1988. Redesignated and any state, territory, or possession of amended at 62 FR 19669, 19670, Apr. 23, 1997] the United States and the District of Columbia; and (2) a court in any for- § 15.25 Procedures. eign country with which the United (a) Service of notice. (1) An authorized States has entered into an agreement person shall send to the designated of- that requires the United States to ficial a signed notice that includes: honor the notice. (i) A statement that delinquent support payments equal or exceed the § 15.24 Policy. amount of support payable for 2 (a) It is the policy of the Department months under a support order, and a re- of Commerce to require Commissioned quest that an allotment be initiated Officers of the NOAA Corps on active pursuant to 42 U.S.C. 665. duty to make involuntary allotments (ii) A certified copy of the support from pay and allowances as payment of order. child, or child and spousal, support (iii) The amount of the monthly sup- payments when the officer has failed to port payment. Such amount may in- make periodic payments under a sup- clude arrearages, if a support order port order in a total amount equal to specifies the payment of such arrear- the support payable for two months or ages. The notice shall indicate how longer. Failure to make such payments much of the amount payable shall be

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applied toward liquidation of the ar- (i) 50 percent of the officer’s dispos- rearages. able earnings for any month where the (iv) Sufficient information identi- officer asserts by affidavit or other ac- fying the officer to enable processing ceptable evidence, that he/she is sup- by the designated official. The fol- porting a spouse and/or dependent lowing information is requested: child, other than a party in the support (A) Full name; order. When the officer submits evi- (B) Social Security Number; dence, copies shall be sent to the au- (C) Date of birth; and thorized person, together with notifica- (D) Duty station location. tion that the officer’s support claim will be honored. (v) The full name and address of the allottee. The allottee shall be an au- If the support claim is contested by thorized person, the authorized per- the authorized person, that authorized son’s designee, or the recipient named person may refer this matter to the ap- in the support order. propriate court or other authority for resolution. (vi) Any limitations on the duration of the support allotment. (ii) 60 percent of the officer’s disposable earnings for any month where the (vii) A certificate that the official officer fails to assert by affidavit or sending the notice is an authorized per- other acceptable evidence that he/she son. is supporting a spouse and/or dependent (viii) A statement that delinquent child. support payments are more than 12 (iii) Regardless of the limitations weeks in arrears, if appropriate. above, an additional 5 percent of the of- (2) The notice shall be accomplished ficer’s disposable earnings shall be by certified or registered mail, return withheld when it is stated in the notice receipt requested, or by personal serv- that the officer is in arrears in an ice, upon the appropriate designated of- amount equivalent to 12 or more ficial, who shall note the date and time weeks’ support. of receipt on the notice. (b) Disposable earnings. The following (3) The notice is effective when it is moneys are subject to inclusion in received in the office of the designated computation of the officer’s disposable official. earnings: (4) When the information submitted (1) Basic pay. is not sufficient to identify the officer, (2) Special pay (including enlistment the notice shall be returned directly to and reenlistment bonuses). the authorized person with an expla- (3) Accrued leave payments (basic nation of the deficiency. However, pay portions only). prior to returning the notice if there is sufficient time, an attempt should be (4) Aviation career incentive pay. made to inform the authorized person (5) Incentive pay for Hazardous Duty. who caused the notice to be served, (6) Readjustment pay. that it will not be honored unless ade- (7) Diving pay. quate information is supplied. (8) Sea pay. (5) Upon receipt of effective notice of (9) Severance pay (including dis- delinquent support payments, together ability severance pay). with all required supplementary docu- (10) Retired pay (including disability ments and information, the designated retired pay). official shall identify the officer from (c) Exclusions. In determining the whom moneys are due and payable. The amount of any moneys due from or allotment shall be established in the payable by the United States to any in- amount necessary to comply with the dividual, there shall be excluded support order and to liquidate arrear- amounts which are: ages if provided by a support order (1) Owed by the officer to the United when the maximum amount to be al- States. lotted under this provision, together (2) Required by law to be deducted with any other moneys withheld for from the remuneration or other pay- support from the officer, does not ex- ment involved, including, but not lim- ceed: ited to:

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(i) Amounts withheld from benefits (vii) Of the date that the allotment is payable under Title II of the Social Se- scheduled to begin. curity Act where the withholding is re- (2) The officer shall be provided with quired by law. the following: (ii) Federal employment taxes. (i) A consultation in person with an (3) Properly withheld for federal and attorney from the Office of the Assist- state income tax purposes if the with- ant General Counsel for Administra- holding of the amounts is authorized tion, to discuss the legal and other fac- by law and if amounts withheld are not tors involved with the officer’s support greater than would be the case if the obligation and his/her failures to make individual claimed all dependents to payment. which he/she were entitled. The with- (ii) Copies of any other documents holding of additional amounts pursu- submitted with the notice. ant to section 3402(i) of Title 26 of the (3) The Office of the Assistant Gen- United States Code may be permitted eral Counsel for Administration will only when the officer presents evidence make every effort to see that the offi- of a tax obligation which supports the cer receives a consultation concerning additional withholding. the support obligation and the con- (4) Deducted for servicemen’s Group sequences of failure to make payments Life Insurance coverage. within 30 days of the notice required in (5) Advances of pay that may be due paragraph (d)(1). In the event such con- and payable by the officer at some fu- sultation is not possible, despite con- ture date. tinuing good faith efforts to arrange a consultation, no action shall be taken (d) Officer notification. (1) As soon as to require an allotment from the pay possible, but not later than 15 calendar and allowances of any NOAA Corps Of- days after the date of receipt of notice, ficer until 30 days have elapsed after the designated official shall send to the the notice described in paragraph (d)(1) officer, at his/her duty station or last is given to the affected officer. known address, written notice: (4) If, within 30 days of the date of (i) That notice has been received the notice, the officer has furnished the from an authorized person, including a designated official affidavits or other copy of the documents submitted; documentation showing the informa- (ii) Of the maximum limitations set tion in the notice to be in error, the forth, with a request that the officer designated official shall consider the submit supporting affidavits or other officer’s response. The designated offi- documentation necessary for deter- cial may return to the authorized per- mining the applicable percentage limi- son, without action, the notice for a tation; statutorily required support allotment (iii) That the officer may submit sup- together with the member’s affidavit porting affidavits or other documenta- and other documentation, if the mem- tion as evidence that the information ber submits substantial proof of error, contained in the notice is in error; such as: (iv) That by submitting supporting (i) The support payments are not de- affidavits or other necessary docu- linquent. mentation, the officer consents to the (ii) The underlying support order in disclosure of such information to the the notice has been amended, super- party requesting the support allot- seded, or set aside. ment; (e) Absence of funds. (1) When notice (v) Of the amount or percentage that is served and the identified officer is will be deducted if the officer fails to found not to be entitled to moneys due submit the documentation necessary to from or payable by NOAA, the des- enable the designated official to re- ignated official shall return the notice spond to the notice within the pre- to the authorized person, and advise scribed time limits; that no moneys are due from or pay- (vi) That legal counsel will be pro- able by NOAA to the named individual. vided by the Office of the Assistant (2) Where it appears that moneys are General Counsel for Administration; only temporarily exhausted or other- and wise unavailable, the authorized person

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shall be fully advised as to why, and for not later than the first pay period be- how long, the money will be unavail- ginning after 30 days have elapsed since able. the notice required in paragraph (d)(1) (3) In instances where the officer sep- of this section is given to the affected arates from active duty service, the au- officer. The Department of Commerce thorized person shall be informed by shall not be required to vary its normal the Office of Commissioned Personnel, NOAA Corps allotment payment cycle NOAA Corps that the allotment is dis- to comply with the notice. continued. (g) Designated official. Notice should (4) Payment of statutorily required be sent to: The Assistant General allotments shall be enforced over other Counsel for Administration, Office of voluntary deductions and allotments the General Counsel, U.S. Department when the gross amount of pay and al- of Commerce, Washington, DC 20230, lowances is not sufficient to permit all (202) 377–5387. authorized deductions and collections. (f) Allotment of funds. (1) The authorized person or allottee shall notify the Subpart D—Statement of Policy designated official promptly if the op- and Procedures Regarding In- erative court order upon which the al- demnification of Department lotment is based is vacated, modified, of Commerce Employees or set aside. The designated official shall also be notified of any events af- SOURCE: 62 FR 19670, Apr. 23, 1997, unless fecting the allottee’s eligibility to re- otherwise noted. ceive the allotment, such as the former spouse’s remarriage, if a part of the § 15.31 Policy. payment is for spousal support, and no- (a) The Department of Commerce tice of a change in eligibility for child may indemnify a present or former De- support payments under circumstances partment employee who is personally of death, emancipation, adoption, or named as a defendant in any civil suit attainment of majority of a child in state or federal court, or other legal whose support is provided through the proceeding seeking damages against a allotment. present or former Department em- (2) An allotment established under this Directive shall be adjusted or dis- ployee personally, for any verdict, continued upon notice from the author- judgment or other monetary award ized person. which is rendered against such em- (3) Neither the Department of Com- ployee, provided that the conduct giv- merce nor any officer or employee ing rise to the verdict, judgment or thereof, shall be liable for any payment award was taken within the scope of made from moneys due from, or pay- his/her employment and that such in- able by, the Department of Commerce demnification is in the interest of the to any individuals pursuant to notice Department as determined by the Sec- regular on its face, if such payment is retary or his/her designee. made in accordance with this subpart. (b) The Department may settle or If a designated official receives notice compromise a personal damage claim based on support which, on its face, ap- against a present or former employee pears to conform to the law of the ju- by the payment of available funds at risdiction from which it was issued, the any time provided the alleged conduct designated official shall not be re- giving rise to the personal property quired to ascertain whether the au- claim was taken within the employee’s thority that issued the orde had ob- scope of employment and such settle- tained personal jurisdiction over the ment is in the interest of the Depart- member. ment as determined by the Secretary (4) Effective date of allotment. The al- or his/her designee. lotment shall start with the first pay (c) Absent exceptional cir- period beginning after the officer has cumstances, as determined by the Sec- had a consultation with an attorney retary or his/her designee, the Depart- from the Office of the Assistant Gen- ment will not consider a request either eral Counsel for Administration but to indemnify or to settle a personal

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damage claim before entry of an ad- ing within the scope of employment verse verdict, judgment or award. and whether the employee has insur- (d) Any payment under this section ance or any other source of indem- either to indemnify a present or former nification. Department employee or to settle a (3) The head of the component or his/ personal damage claim shall be contin- her designee will forward the employ- gent upon the availability of appro- ee’s request with a recommendation to priated funds of the Department of the General Counsel for review. The re- Commerce. quest for indemnification shall include a detailed analysis of the basis for the § 15.32 Procedures for the handling of recommendation. The head of the com- lawsuits against Department em- ponent will also certify to the General ployees arising within the scope of Counsel that the component has funds their office or employment. available to pay the indemnification. The following procedures shall be fol- (c) The General Counsel or his/her lowed in the event that a civil action designee will review the circumstances or proceeding is brought, in any court, of the incident giving rise to the action against a present or former employee or proceeding, and all data bearing of the Department (or against his/her upon the question of whether the em- estate) for personal injury, loss of prop- ployee was acting within the scope of erty or death, resulting from the De- his/her employment. Where appro- partment employee’s activities while priate, the agency shall seek the views acting within the scope of his/her office of the Department of Justice and/or the or employment: U.S. Attorney for the district embrac- (a) After being served with process or ing the place where the action or pro- pleadings in such an action or proceeding is brought. ceeding, the employee (or the execu- (d) The General Counsel shall forward tor(rix) or administrator(rix)) of the the request, the accompanying docu- estate shall within five (5) calendar mentation, and the General Counsel’s days of receipt, deliver all such process recommendation to the Secretary or and pleadings or an attested true copy his/her designee for decision. thereof, together with a fully detailed report of the circumstances of the incident giving rise to the court action or PART 16—PROCEDURES FOR A proceeding to the General Counsel. VOLUNTARY CONSUMER PROD- Where appropriate, the General Coun- UCT INFORMATION LABELING sel, or his/her designee, may request PROGRAM that the Department of Justice provide legal representation for the present or Sec. former Department employee. 16.1 Purpose. (b)(1) Only if a present or former em- 16.2 Description and goal of program. ployee of the Department has satisfied 16.3 Definitions. the requirements of paragraph (a) of 16.4 Finding of need to establish a specifica- this section in a timely fashion, may tion for labeling a consumer product. the employee subsequently request in- 16.5 Development of performance information labeling specifications. demnification to satisfy a verdict, 16.6 Establishment of fees and charges. judgment, or award entered against 16.7 Participation in program. that employee. 16.8 Termination of participation. (2) No request for indemnification 16.9 Rules governing designated agents. will be considered unless the employee 16.10 The Department of Commerce Mark. has submitted a written request, with 16.11 Amendment or revision of a perform- appropriate documentation, including ance information labeling specification. copies of the verdict, judgment, appeal 16.12 Consumer education. bond, award, or settlement proposal 16.13 Coordination with State and local pro- through the employee’s supervisory grams. chain to the head of the employee’s 16.14 Annual report. component. The written request will AUTHORITY: Sec. 2, 31 Stat. 1449, as amend- include an explanation by the em- ed; sec. 1, 64 Stat. 371, (15 U.S.C. 272); Re-or- ployee of how the employee was work- ganization Plan No. 3 of 1946, Part VI.

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