Federal Register / Vol. 66, No. 177 / Wednesday, September 12, 2001 / Rules and Regulations                               ...
47388       Federal Register / Vol. 66, No. 177 / Wednesday, September 12, 2001 / Rules and Regulations

     the judge or...
Federal Register / Vol. 66, No. 177 / Wednesday, September 12, 2001 / Rules and Regulations                               ...
47390       Federal Register / Vol. 66, No. 177 / Wednesday, September 12, 2001 / Rules and Regulations

     *     *    *...
Federal Register / Vol. 66, No. 177 / Wednesday, September 12, 2001 / Rules and Regulations                               ...
47392            Federal Register / Vol. 66, No. 177 / Wednesday, September 12, 2001 / Rules and Regulations

     § 104.3...
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  1. 1. Federal Register / Vol. 66, No. 177 / Wednesday, September 12, 2001 / Rules and Regulations 47387 Collection of Information concluded that, under figure 2–1, the Port or the designated on-scene U.S. This rule calls for no new collection (34)(g), of Commandant Instruction Coast Guard patrol personnel. On-scene of information under the Paperwork M16475.lC, this rule is categorically Coast Guard patrol personnel include Reduction Act of 1995 (44 U.S.C. 3501– excluded from further environmental commissioned, warrant, and petty 3520). documentation. A ‘‘Categorical officers of the Coast Guard on board Exclusion Determination’’ is available in Coast Guard, Coast Guard Auxiliary, Federalism the docket where indicated under local, state, and federal law enforcement The Coast Guard analyzed this rule ADDRESSES. vessels. under Executive Order 13132 and has Energy Effects Dated: August 8, 2001. determined that this rule does not have M.E. Landry, implications for federalism under that We have analyzed this rule under Executive Order 13211, Actions Commander, U.S. Coast Guard, Acting Order. Captain of the Port, Boston, Massachusetts. Concerning Regulations that Unfunded Mandates Reform Act Significantly Affect Energy Supply, [FR Doc. 01–22814 Filed 9–11–01; 8:45 am] Distribution, or Use. We have BILLING CODE 4910–15–U The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538) governs determined that it is not a ‘‘significant the issuance of Federal regulations that energy action’’ under that order because require unfunded mandates. An it is not a ‘‘significant regulatory action’’ DEPARTMENT OF COMMERCE unfunded mandate is a regulation that under Executive Order 12866 and is not likely to have a significant adverse effect United States Patent and Trademark requires a State, local, or tribal on the supply, distribution, or use of Office government or the private sector to incur direct costs without the Federal energy. It has not been designated by the Administrator of the Office of 37 CFR Parts 1 and 104 Government’s having first provided the funds to pay those costs. This rule Information and Regulatory Affairs as a [Docket No. 010808202–1202–01] would not impose an unfunded significant energy action. Therefore, it RIN 0651–AB22 mandate. does not require a Statement of Energy Effects under Executive Order 13211. Legal Processes Taking of Private Property List of Subjects in 33 CFR Part 165 AGENCY: Office of the General Counsel, This rule would not effect a taking of private property or otherwise have Harbors, Marine safety, Navigation United States Patent and Trademark taking implications under Executive (water), Reporting and recordkeeping Office, Commerce. Order 12630, Governmental Actions and requirements, Security measures, ACTION: Final rule. Interference with Constitutionally Waterways. Protected Property Rights. SUMMARY: The United States Patent and For the reasons discussed in the preamble, the Coast Guard proposes to Trademark Office (‘‘USPTO’’ or Civil Justice Reform ‘‘Office’’) is implementing rules relating amend 33 CFR part 165 as follows: This rule meets applicable standards to civil actions and claims involving the in sections 3(a) and 3(b)(2) of Executive PART 165—REGULATED NAVIGATION Office. Specifically, the rules provide Order 12988, Civil Justice Reform, to AREAS AND LIMITED ACCESS AREAS procedures for service of process, for minimize litigation, eliminate obtaining Office documents and ambiguity, and reduce burden. 1. The authority citation for part 165 employee testimony, for indemnifying continues to read as follows: employees, and for making a claim Protection of Children against the Office under the Federal Tort Authority: 33 U.S.C. 1231; 50 U.S.C. 191, The Coast Guard analyzed this rule 33 CFR 1.05–1(g), 6.04–1, 6.04–6, 160.5; 49 Claims Act. under Executive Order 13045, CFR 1.46. DATES: Effective September 12, 2001. Protection of Children from 2. Add temporary § 165.T01–139 to FOR FURTHER INFORMATION CONTACT: Environmental Health Risks and Safety read as follows: Bernard J. Knight, Jr., Deputy General Risks. This rule is not an economically Counsel for General Law, at 703–308– significant rule and does not pose an § 165.T01–139 Safety Zone: Chelsea River Blasting, Boston, Massachusetts. 2000. environmental risk to health or risk to safety that may disproportionately affect (a) Location. The following area is a SUPPLEMENTARY INFORMATION: This rule children. safety zone: All waters of the Chelsea was proposed in a notice of proposed River three hundred (300) yards around rulemaking published at 65 FR 80810 on Indian Tribal Governments the Great Lakes dredge barge, at a December 22, 2000. Background This rule does not have tribal location on the eastern bank information on this rule may be found implications under Executive Order approximately 1000 yards north of the in that notice. 13175, Consultation and Coordination Chelsea Street Bridge. Discussion of Comments with Indian Tribal Governments. A rule (b) Effective date. This section is with tribal implications has a effective from 9 a.m. to 7 p.m. each day Comment: Proposed section 104.23 substantial direct effect on one or more from Monday, August 13, 2001 through purports to prohibit ‘‘employees’’ Indian tribes, on the relationship Saturday, September 22, 2001. (which include ex-employees) from between the Federal Government and (c) Regulations. (1) In accordance with giving expert testimony regarding Indian tribes, or on the distribution of the general regulations in § 165.23 of ‘‘Office information, subjects, or power and responsibilities between the this part, entry into or movement within activities.’’ In patent infringement Federal Government and Indian tribes. this zone will be prohibited unless actions, it is common for a party to put authorized by the Captain of the Port up an ex-USPTO employee (often a very Environment Boston. senior employee, such as a former The Coast Guard considered the (2) All vessel operators shall comply Commissioner) as an expert witness to environmental impact of this rule and with the instructions of the Captain of explain the procedures of the USPTO to VerDate 11<MAY>2000 07:49 Sep 12, 2001 Jkt 194001 PO 00000 Frm 00009 Fmt 4700 Sfmt 4700 E:FRFM12SER1.SGM pfrm04 PsN: 12SER1
  2. 2. 47388 Federal Register / Vol. 66, No. 177 / Wednesday, September 12, 2001 / Rules and Regulations the judge or jury. It is unclear that the provisions of section 104.3, which which proposed § 104.21 (b) (2) would Office has the authority to prohibit ex- provides that the General Counsel may exempt. Such former USPTO employees employees from so testifying, but in any waive or suspend the rules in are also former DOC employees and the event the use of ex-USPTO employees extraordinary circumstances. proposed rules do not appear to address as expert witnesses on such general Comment: The application of the this question. subjects should not be prohibited. If this Department of Commerce (‘‘DOC’’) rules Response: While USPTO is a separate is not the intent of proposed section and the proposed USPTO rules to agency within the DOC, only the 104.23 then the rule should be clarified. former employees is unnecessary to USPTO rules are applicable to current Response: Under the provisions of 37 protect the legitimate interests of the and former USPTO employees with CFR 104.21(b)(2), former employees are Office. The existing USPTO rules of respect to testimony related to official excluded from the scope and purpose of practice preclude former employees USPTO business. Of course, a former Subpart C with respect to matters in from taking any action which gives an USPTO employee who is also a current which the former employee did not appearance of impropriety. 37 CFR or former employee of another DOC participate personally while at the 10.110 and 10.111. Those rules give organization would be subject to the Office. In addition, under 37 CFR adequate protection to the USPTO for DOC rules with respect to matters 104.23(a)(2), the General Counsel may voluntary testimony by former related to that organization. Moreover, authorize an employee to give expert employees concerning matters the the exception provided by § 104.21(b)(2) testimony in exceptional circumstances former employees worked on while for former employees, is consistent with and purpose. Consequently, the rule employed by the USPTO. Friedman v. DOC policy regarding similar testimony does not prohibit former employees Lehman, 40 USPQ2d 1206 (D.D.C. of former DOC employees. from giving expert testimony in 1996). Comment: With respect to appropriate circumstances. Response: Part 10 only applies to information sought by subpoena Comment: Generally, it is not clear registered patent practitioners and addressed in § 104.22, the USPTO that the Office should preclude an trademark attorneys practicing before should be required to appear if it investigation into whether inequitable the USPTO. If the former employee is opposes a disclosure of information and conduct or fraud on the Office had been not practicing before the USPTO, Part should not be able to shift that practiced in a given patent application. 10 does not apply. Thus, this proposed obligation to the former employee. Interested parties (e.g., the defendant in rule is intended to apply to all Thus, the commenter opposes the an infringement action) should be employees, not just those employees proposed rules insofar as they would permitted to inquire into certain events who practice before the USPTO. Indeed, enable the USPTO to sanction a former if fraud is alleged. For instance, if an some former employees do not practice employee for failure to comply with exhibit had been shown at an interview before the Office. Further, Part 10 is and it were alleged that the exhibit intended to protect the public from proposed § 104.22(f) when the Office (which had since been destroyed) had improper conduct by practitioners, has been properly notified but does not fraudulently represented the invention, while these rules are intended in part to send legal counsel to appear and contest there would be no way to obtain that protect the USPTO’s deliberative or the subpoena on behalf of the employee. information absent interviewing the otherwise confidential information from Response: The purpose of § 104.22(f) Examiner—the interview summary unauthorized disclosure. is not to ‘‘shift that obligation to the sheet would not be effective here. Comment: If, however, the USPTO former employee.’’ The USPTO intends Permitting such discovery would does adopt rules applying to former to seek Department of Justice impose only a slight burden on the employees, it should be made clear that representation for former employees Office and would not be inconsistent such rules would not have retroactive when the General Counsel makes a with the policies discussed in the notice effect, so that activity that was determination under the rules that an of the proposed rule. Moreover, to the considered proper when performed employee should not comply with a extent that permitting such inquiry would not now become improper and subpoena. In those cases where would assist in uncovering and subject a former employee to some type compliance with a subpoena is deterring fraud and inequitable conduct, of disciplinary action. In this regard, it commanded before Department of other important policies would be would be desirable to clarify what Justice representation can be arranged, furthered. It may be appropriate to treat relationship any violation of the the employee must, nevertheless, refuse requests for such discovery under proposed rules would have to to comply. In order to minimize the proposed section 104.3 (relating to misconduct under the disciplinary rules occurrence of this event, § 104.22(a) exceptional circumstances). If such is of 37 CFR Part 10. requires employees to immediately the case, then the Office is requested to Response: The rules are not given notify the General Counsel when they respond to this comment by indicating retroactive effect. Under the provisions are served with a subpoena. that lawsuits in which fraud/inequitable of 37 CFR 10.23, misconduct potentially Comment: It is noted that unlike the conduct issues are raised are sufficiently could include the actions of an DOC rules which define employee as ‘‘exceptional’’ that requests for employee who provided testimony that including ‘‘current or former discovery into such allegations will be was not authorized by the rules. This employees’’ (15 CFR 15.12(f)) and then favorably considered (or at least deemed issue, however, is within the consistently use the term ‘‘employee’’, appropriately raised) under this rule. jurisdiction of the Director, Office of the proposed rules use the same Response: The rule does not prohibit Enrollment and Discipline, and is not definition as the DOC rules but then a party from calling an employee as a properly addressed in these rules. Note, make a reference to ‘‘former employee’’ fact witness. The rules do prevent however, that the DOC rules have in § 104.21(b)(2). While this appears inquiry into an examiner’s state of explicitly applied to former employees appropriate for § 104.21(b)(2), other mind. For example, subjective state of since 1995. sections seem to apply solely to a mind of the employee is irrelevant to an Comment: In addition, consideration current employee but are not so limited. inequitable-conduct inquiry. If fact should also be given to the effect which We believe that such potential testimony proves to be inadequate, then the current DOC rules will have with ambiguities will render application of the parties may avail themselves of the respect to former USPTO employees the rules unclear. VerDate 11<MAY>2000 07:49 Sep 12, 2001 Jkt 194001 PO 00000 Frm 00010 Fmt 4700 Sfmt 4700 E:FRFM12SER1.SGM pfrm04 PsN: 12SER1
  3. 3. Federal Register / Vol. 66, No. 177 / Wednesday, September 12, 2001 / Rules and Regulations 47389 Response: The term ‘‘employee’’ is involved when the General Counsel certification remains the same for this consistently used in the rules to refer to makes a decision not to comply with a final rule, and therefore, need not be both current and former employees. The subpoena. In addition, other minor repeated. use of the term ‘‘former employee’’ in changes have been made to the wording This rulemaking does not contain § 104.21(b)(2), which is the only section of the proposed rule. policies with federalism implications that does not apply to both current and sufficient to warrant preparation of a Other Considerations former employees, does not create Federalism Assessment under Executive ambiguity. This rule is not significant under Executive Order 12866. Order 13132 (August 4, 1999). Comment: The USPTO should clarify that proposed section 104.21(b)(2), This final rule involves information List of Subjects in 37 CFR Parts 1 and which prohibits former employees from collection requirements which are 104 testifying as to matters in which they subject to review by the Office of ‘‘participate[d] personally,’’ does not Management and Budget (OMB) under Administrative practice and prohibit former high ranking USPTO the Paperwork Reduction Act of 1995 procedure, Claims, Courts, Freedom of officials or employees from providing (44 U.S.C. 3501 et seq.). The collection information, Inventions and patents, expert testimony in court on USPTO of information involved in this final rule Tort claims, Trademarks. procedures during the period when the has been reviewed and previously approved by OMB under control For the reasons stated in the official or employee was working at the number 0651–0046. The USPTO is not preamble, the United States Patent and USPTO. Response: The term ‘‘participated resubmitting an information collection Trademark Office amends 37 CFR personally’’ is derived from 18 U.S.C. package to OMB for its review and chapter I as follows: 207(a) and is used here in keeping with approval because the changes in this final rule do not affect the information PART 1—RULES OF PRACTICE IN the interpretation the Office of collection requirements associated with PATENT CASES Government Ethics has given the phrase at 5 CFR 2637.201(d). the information collection under OMB 1. The authority citation for 37 CFR control number 0651–0046. Other Revisions to the Proposed Rule In accordance with the Regulatory Part 1 continues to read as follows: A new section 104.4 has been added Flexibility Act (5 U.S.C. 605(b)), USPTO Authority: 35 U.S.C. 2(b)(2), unless to clarify that nothing in the rules has certified that this rule will not have otherwise noted. waives or limits any requirement under a significant impact on a substantial the Federal Rules of Criminal or Civil number of small businesses. The factual 2. Section 1.17 is amended by revising Procedure. Subsection 104.24(f) has basis for this certification was provided paragraph (h) to read as follows: been modified to clarify the Office’s in the Notice of Proposed Rulemaking duty to seek Department of Justice published on December 22, 2000, 65 FR § 1.17 Patent application processing fees. representation for the employee 80810. The factual basis for the * * * * * (h) For filing a petition to the Commissioner under one of the following sections which refers to this paragraph ....................... $130.00 § 1.12—for access to an assignment record § 1.14—for access to an application § 1.47—for filing by other than all the inventors or a person not the inventor § 1.53(e)—to accord a filing date § 1.59—for expungement and return of information § 1.84—for accepting color drawings or photographs § 1.91—for entry of a model or exhibit § 1.102—to make an application special § 1.103(a)—to suspend action in an application § 1.138(c)—to expressly abandon an application to avoid publication § 1.182—for decision on a question not specifically provided for § 1.183—to suspend the rules § 1.295—for review of refusal to publish a statutory invention registration § 1.313—to withdraw an application from issue § 1.314—to defer issuance of a patent § 1.377—for review of decision refusing to accept and record payment of a maintenance fee filed prior to expiration of a patent § 1.378(e)—for reconsideration of decision on petition refusing to accept delayed payment of maintenance fee in an ex- pired patent § 1.644(e)—for petition in an interference § 1.644(f)—for request for reconsideration of a decision on petition in an interference § 1.666(b)—for access to an interference settlement agreement § 1.666(c)—for late filing of an interference settlement agreement § 1.741(b)—to accord a filing date to an application under § 1.740 for extension of a patent term § 5.12—for expedited handling of a foreign filing license § 5.15—for changing the scope of a license § 5.25—for a retroactive license § 104.3—for waiver of a rule in Part 104 of this title VerDate 11<MAY>2000 07:49 Sep 12, 2001 Jkt 194001 PO 00000 Frm 00011 Fmt 4700 Sfmt 4700 E:FRFM12SER1.SGM pfrm04 PsN: 12SER1
  4. 4. 47390 Federal Register / Vol. 66, No. 177 / Wednesday, September 12, 2001 / Rules and Regulations * * * * * administrative actions, hearings, Subpart B—Service of Process 3. Redesignate subchapter B to read as investigations, or similar proceedings before courts, commissions, boards or § 104.11 Scope and purpose. follows: other tribunals, foreign or domestic. (a) This subpart sets forth the SUBCHAPTER B—ADMINISTRATION procedures to be followed when a This phrase includes all phases of 4. Add Part 104 to read as follows: discovery as well as responses to formal summons and complaint is served on or informal requests by attorneys or the Office or on the Director or an PART 104—LEGAL PROCESSES others involved in legal proceedings. employee in his or her official capacity. Office means the United States Patent (b) This subpart is intended, and Subpart A—General Provisions should be construed, to ensure the and Trademark Office, including any Sec. operating unit in the United States efficient administration of the Office 104.1 Definitions. Patent and Trademark Office, and its and not to impede any legal proceeding. 104.2 Address for mail and service; predecessors, the Patent Office and the (c) This subpart does not apply to telephone number. Patent and Trademark Office. subpoenas, the procedures for which are 104.3 Waiver of rules. Official business means the set out in subpart C. 104.4 Relationship of this Part to the authorized business of the Office. (d) This subpart does not apply to Federal Rules of Civil and Criminal service of process made on an employee Procedure. General Counsel means the General Counsel of the Office. personally on matters not related to Subpart B—Service of Process Testimony means a statement in any official business of the Office or to the 104.11 Scope and purpose. form, including personal appearances official responsibilities of the employee. 104.12 Acceptance of Service of Process. before a court or other legal tribunal, § 104.12 Acceptance of service of process. Subpart C—Employee Testimony and interviews, depositions, telephonic, televised, or videotaped statements or (a) Any summons and complaint to be Production of Documents in Legal any responses given during discovery or served in person or by registered or Proceedings similar proceedings, which response certified mail or as otherwise authorized 104.21 Scope and purpose. by law on the Office, on the Director, or 104.22 Demand for testimony or production would involve more than the production of documents, including a on an employee in his or her official of documents. 104.23 Expert or opinion testimony. declaration under 35 U.S.C. 25 or 28 capacity, shall be served as indicated in 104.24 Demands or requests in legal U.S.C. 1746. § 104.2. proceedings for records protected by United States means the Federal (b) Any employee of the Office served confidentiality statutes. Government, its departments and with a summons and complaint shall agencies, individuals acting on behalf of immediately notify, and shall deliver Subpart D—Employee Indemnification the Federal Government, and parties to the summons and complaint to, the 104.31 Scope. Office of the General Counsel. 104.32 Procedure for requesting the extent they are represented by the United States. (c) Any employee receiving a indemnification. summons and complaint shall note on Subpart E—Tort Claims § 104.2 Address for mail and service; the summons and complaint the date, 104.41 Procedure for filing claims. telephone number. hour, and place of service and whether 104.42 Finality of settlement or denial of (a) Mail under this part should be service was by hand or by mail. claims. addressed to General Counsel, United (d) When a legal proceeding is Authority: 35 U.S.C. 2(b)(2), 10, 23, 25; 44 States Patent and Trademark Office, brought to hold an employee personally U.S.C. 3101, except as otherwise indicated. P.O. Box 15667, Arlington, VA 22215. liable in connection with an action (b) Service by hand should be made taken in the conduct of official business, Subpart A—General Provisions during business hours to the Office of rather than liable in an official capacity, the General Counsel, Crystal Park Two, the employee by law is to be served § 104.1 Definitions. Suite 905, 2121 Crystal Drive, Arlington, personally with process. See Fed. R. Civ. Demand means a request, order, or P. 4(e). An employee sued personally for Virginia. subpoena for testimony or documents an action taken in the conduct of official (c) The Office of the General Counsel for use in a legal proceeding. business shall immediately notify and may be reached by telephone at 703– Director means the Director of the deliver a copy of the summons and 308–2000 during business hours. United States Patent and Trademark complaint to the General Counsel. Office. § 104.3 Waiver of rules. (e) An employee sued personally in Document means any record, paper, In extraordinary situations, when the connection with official business may and other property held by the Office, interest of justice requires, the General be represented by the Department of including without limitation, official Counsel may waive or suspend the rules Justice at its discretion (28 CFR 50.15 letters, telegrams, memoranda, reports, of this part, sua sponte or on petition of and 50.16). studies, calendar and diary entries, an interested party to the Director, (f) The Office will only accept service maps, graphs, pamphlets, notes, charts, subject to such requirements as the of process for an employee in the tabulations, analyses, statistical or General Counsel may impose. Any employee’s official capacity. informational accumulations, any kind petition must be accompanied by the of summaries of meetings and petition fee set forth in § 1.17(h) of this Subpart C—Employee Testimony and conversations, film impressions, title. Production of Documents in Legal magnetic tapes, and sound or Proceedings mechanical reproductions. § 104.4 Relationship of this Part to the Employee means any current or Federal Rules of Civil or Criminal § 104.21 Scope and purpose. former officer or employee of the Office. Procedure. (a) This subpart sets forth the policies Legal proceeding means any pretrial, Nothing in this part waives or limits and procedures of the Office regarding trial, and posttrial stages of existing or any requirement under the Federal the testimony of employees as witnesses reasonably anticipated judicial or Rules of Civil or Criminal Procedure. in legal proceedings and the production VerDate 11<MAY>2000 07:49 Sep 12, 2001 Jkt 194001 PO 00000 Frm 00012 Fmt 4700 Sfmt 4700 E:FRFM12SER1.SGM pfrm04 PsN: 12SER1
  5. 5. Federal Register / Vol. 66, No. 177 / Wednesday, September 12, 2001 / Rules and Regulations 47391 or disclosure of information contained Counsel to make an informed (ii) Request an opportunity to consult in Office documents for use in legal determination under this subpart may with the General Counsel before giving proceedings pursuant to a demand. serve as a basis for a determination not such testimony; and (b) Exceptions. This subpart does not to comply with the demand. (iii) Explain that upon such apply to any legal proceeding in which: (e) A determination under this consultation, approval for such (1) An employee is to testify regarding subpart to comply or not to comply with testimony may be provided. facts or events that are unrelated to a demand is not a waiver or an assertion (2) If the tribunal conducting the official business; or of any other ground for noncompliance, proceeding then orders the employee to (2) A former employee is to testify as including privilege, lack of relevance, or provide expert or opinion testimony an expert in connection with a technical deficiency. regarding Office information, subjects, particular matter in which the former or activities without the opportunity to employee did not participate personally (f) Noncompliance. If the General consult with the General Counsel, the while at the Office. Counsel makes a determination not to employee shall respectfully refuse to comply, he or she will seek Department provide such testimony, citing United § 104.22 Demand for testimony or of Justice representation for the production of documents. States ex rel. Touhy v. Ragen, 340 U.S. employee and will attempt to have the 462 (1951). (a) Whenever a demand for testimony subpoena modified or quashed. If (c) If an employee is unaware of the or for the production of documents is Department of Justice representation regulations in this subpart and provides made upon an employee, the employee cannot be arranged, the employee expert or opinion testimony regarding shall immediately notify the Office of should appear at the time and place set Office information, subjects, or activities the General Counsel at the telephone forth in the subpoena. In such a case, in a legal proceeding without the number or addresses in § 104.2 and the employee should produce a copy of aforementioned consultation, the make arrangements to send the these rules and state that the General employee shall, as soon after testifying subpoena to the General Counsel Counsel has advised the employee not as possible, inform the General Counsel promptly. to provide the requested testimony nor (b) An employee may not give that such testimony was given and to produce the requested document. If a testimony, produce documents, or provide a written summary of the expert legal tribunal rules that the demand in answer inquiries from a person not or opinion testimony provided. the subpoena must be complied with, employed by the Office regarding (d) Proceeding where the United the employee shall respectfully decline testimony or documents subject to a States is a party. In a proceeding in to comply with the demand, citing demand or a potential demand under which the United States is a party or is United States ex rel. Touhy v. Ragen, the provisions of this subpart without representing a party, an employee may 340 U.S. 462 (1951). the approval of the General Counsel. not testify as an expert or opinion The General Counsel may authorize the § 104.23 Expert or opinion testimony. witness for any party other than the provision of certified copies not United States. (a)(1) If the General Counsel otherwise available under Part 1 of this authorizes an employee to give § 104.24 Demands or requests in legal title subject to payment of applicable testimony in a legal proceeding not proceedings for records protected by fees under § 1.19. involving the United States, the confidentiality statutes. (c)(1) Demand for testimony or testimony, if otherwise proper, shall be Demands in legal proceedings for the documents. A demand for the testimony limited to facts within the personal production of records, or for the of an employee under this subpart shall knowledge of the employee. Employees, testimony of employees regarding be addressed to the General Counsel as with or without compensation, shall not information protected by the indicated in § 104.2. provide expert testimony in any legal confidentiality provisions of the Patent (2) Subpoenas. A subpoena for proceedings regarding Office Act (35 U.S.C. 122), the Privacy Act (5 employee testimony or for a document information, subjects, or activities U.S.C. 552a), the Trade Secrets Act (18 shall be served in accordance with the except on behalf of the United States or U.S.C. 1905), or any other Federal Rules of Civil or Criminal a party represented by the United States confidentiality statute, must satisfy the Procedure or applicable state procedure, Department of Justice. requirements for disclosure set forth in and a copy of the subpoena shall be sent (2) The General Counsel may those statutes and associated rules to the General Counsel as indicated in authorize an employee to appear and before the records may be provided or § 104.2. give the expert or opinion testimony testimony given. (3) Affidavits. Except when the United upon the requester showing, pursuant to States is a party, every demand shall be Subpart D—Employee Indemnification § 104.3 of this part, that exceptional accompanied by an affidavit or circumstances warrant such testimony § 104.31 Scope. declaration under 28 U.S.C. 1746 or 35 and that the anticipated testimony will U.S.C. 25(b) setting forth the title of the The procedure in this subpart shall be not be adverse to the interest of the legal proceeding, the forum, the followed if a civil action or proceeding Office or the United States. requesting party’s interest in the legal is brought, in any court, against an proceeding, the reason for the demand, (b)(1) If, while testifying in any legal employee (including the employee’s a showing that the desired testimony or proceeding, an employee is asked for estate) for personal injury, loss of document is not reasonably available expert or opinion testimony regarding property, or death, resulting from the from any other source, and, if testimony Office information, subjects, or employee’s activities while acting is requested, the intended use of the activities, which testimony has not been within the scope of the employee’s testimony, a general summary of the approved in advance in writing in office or employment. When the desired testimony, and a showing that accordance with the regulations in this employee is incapacitated or deceased, no document could be provided and subpart, the witness shall: actions required of an employee should used in lieu of testimony. (i) Respectfully decline to answer on be performed by the employee’s (d) Failure of the attorney to cooperate the grounds that such expert or opinion executor, administrator, or comparable in good faith to enable the General testimony is forbidden by this subpart; legal representative. VerDate 11<MAY>2000 07:49 Sep 12, 2001 Jkt 194001 PO 00000 Frm 00013 Fmt 4700 Sfmt 4700 E:FRFM12SER1.SGM pfrm04 PsN: 12SER1
  6. 6. 47392 Federal Register / Vol. 66, No. 177 / Wednesday, September 12, 2001 / Rules and Regulations § 104.32 Procedure for requesting may be considered final for the purpose Agency, Region IX, 75 Hawthorne indemnification. of judicial review. Street, San Francisco, CA 94105–3901. (a) After being served with process or Dated: September 6, 2001. You can inspect copies of the pleadings in such an action or submitted SIP revisions and EPA’s Nicholas P. Godici, proceeding, the employee shall within technical support documents (TSDs) at five (5) calendar days of receipt, deliver Acting Under Secretary of Commerce for Intellectual Property and Acting Director of our Region IX office during normal to the General Counsel all such process the United States Patent and Trademark business hours. You may also see copies and pleadings or an attested true copy Office. of the submitted SIP revisions at the thereof, together with a fully detailed following locations: [FR Doc. 01–22854 Filed 9–11–01; 8:45 am] report of the circumstances of the BILLING CODE 3510–16–P Environmental Protection Agency, Air incident giving rise to the court action Docket (6102), Ariel Rios Building, or proceeding. (b)(1) An employee may request 1200 Pennsylvania Avenue, NW., indemnification to satisfy a verdict, ENVIRONMENTAL PROTECTION Washington DC 20460. judgment, or award entered against that AGENCY California Air Resources Board, employee only if the employee has Stationary Source Division, Rule timely satisfied the requirements of 40 CFR Part 52 Evaluation Section, 1001 ‘‘I’’ Street, paragraph (a) of this section. [CA 249–0290a; FRL–7045–9] Sacramento, CA 95814. (2) No request for indemnification Bay Area Air Quality Management will be considered unless the employee Revisions to the California State District, 939 Ellis Street, San has submitted a written request through Implementation Plan, Bay Area Air Francisco, CA 94109. the employee’s supervisory chain to the Quality Management District and South South Coast Air Quality Management General Counsel with: Coast Air Quality Management District District, 21865 E. Copley Drive, (i) Appropriate documentation, Diamond Bar, CA 91765. AGENCY: Environmental Protection including copies of the verdict, FOR FURTHER INFORMATION CONTACT: judgment, appeal bond, award, or Agency (EPA). ACTION: Direct final rule. Yvonne Fong, Rulemaking Office (AIR– settlement proposal; 4), U.S. Environmental Protection (ii) The employee’s explanation of SUMMARY: EPA is taking direct final Agency, Region IX, (415) 744–1199. how the employee was acting within the action to approve revisions to the Bay SUPPLEMENTARY INFORMATION: scope of the employee’s employment; Area Air Quality Management District and Throughout this document, ‘‘we,’’ ‘‘us’’ (BAAQMD) and South Coast Air Quality and ‘‘our’’ refer to EPA. (iii) The employee’s statement of Management District (SCAQMD) whether the employee has insurance or portions of the California State Table of Contents any other source of indemnification. Implementation Plan (SIP). These I. The State’s Submittal Subpart E—Tort Claims revisions concern volatile organic A. What rules did the State submit? compound (VOC) emissions from B. Are there other versions of these rules? Authority: 28 U.S.C. 2672; 35 U.S.C. adhesives and sealants and from other C. What is the purpose of the submitted 2(b)(2); 44 U.S.C. 3101; 28 CFR Part 14. solvent containing materials. We are rules? approving local rules that regulate these II. EPA’s Evaluation and Action § 104.41 Procedure for filing claims. emission sources under the Clean Air A. How is EPA evaluating the rules? Administrative claims against the B. Do the rules meet the evaluation Act as amended in 1990 (CAA or the criteria? Office filed pursuant to the Act). C. Public comment and final action. administrative claims provision of the III. Background information. DATES: This rule is effective on Federal Tort Claims Act (28 U.S.C. A. Why were these rules submitted? November 13, 2001 without further 2672) and the corresponding IV. Administrative Requirements notice, unless EPA receives adverse Department of Justice regulations (28 comments by October 12, 2001. If we I. The State’s Submittal CFR Part 14) shall be filed with the receive such comment, we will publish General Counsel as indicated in § 104.2. A. What Rules Did the State Submit? a timely withdrawal in the Federal § 104.42 Finality of settlement or denial of Register to notify the public that this Table 1 lists the rules we are claims. rule will not take effect. approving with the dates that they were Only a decision of the Director or the ADDRESSES: Mail comments to Andy adopted by the local air agencies and General Counsel regarding settlement or Steckel, Rulemaking Office Chief (AIR– submitted by the California Air denial of any claim under this subpart 4), U.S. Environmental Protection Resources Board (CARB). TABLE 1.—SUBMITTED RULES Rule Local agency Rule title Adopted Submitted # BAAQMD .................................................................................................................. 8–51 Adhesive and Sealant 05/02/01 05/31/01 Products. SCAQMD .................................................................................................................. 443.1 Labeling of Materials Con- 12/05/86 06/09/87 taining Organic Solvent. On July 20, 2001, submitted Rule 8– which must be met before formal EPA for rules like 443.1 that were submitted 51 was found to meet the completeness review. Completeness was not required prior to 1988. criteria in 40 CFR Part 51 Appendix V, VerDate 11<MAY>2000 07:49 Sep 12, 2001 Jkt 194001 PO 00000 Frm 00014 Fmt 4700 Sfmt 4700 E:FRFM12SER1.SGM pfrm04 PsN: 12SER1

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