(b) Subject to the provisions of § 270.7(e):

(1) Where the Office recommends an invention to ERDA for support, the Office shall furnish a report to ERDA which documents the basis for the recommendation; and

(2) Where the Office decides not to recommend an invention to ERDA, a report which documents the basis of its decision shall be forwarded to ERDA upon its request.

(b) NBS is the Federal agency responsible for the custody, maintenance, and development of the national standards of measurement, and the impartial development and application of measurement technologies upon which the flow of interstate and foreign commerce must necessarily depend (15 U.S.C. 272).

(c) To carry out its statutory mission effectively, NBS must apply the expertise of the many scientific and technical experts it employs exclusively to the performance of its official duties, including providing scientific and technical advisory services to other Federal agencies. It is essential that NBS also maintain a policy of strict impartiality among private litigants, and that it ensure that its employees adhere to the responsibilities for which they were employed. To these

ends, it is the policy of NBS that its employees shall not testify nor otherwise appear in legal proceedings not involving the United States or its officers or employces in their official capacity as a named party in order to produce data, information, or records which concern matters related to official duties of NBS employees or the functions of NBS.

(d) For purposes of this part, "legal proceeding" includes any civil or criminal proceeding before a court of law, administrative board or commission, hearing officer, or other body conducting a legal or administrative proceeding, or any discovery proceeding in support thereof, including depositions and interrogatories.

§ 275.2 Testimony or production of records by NBS employees in legal proceedings not involving the United States as a named party.

No NBS employee shall give testimony in any legal proceeding in which the United States Government or an agency or department in the Executive Branch is not a named party, concerning official duties of an NBS employee or any function of NBS, nor produce any data, information, or record cre ated or acquired by NBS as a result of the discharge of its official duties, without the prior written authorization of the NBS Legal Adviser.

§ 275.3 Certification of records.

Certified copies of NBS records will be provided upon request and payment of the applicable fees. Requests for certification should be addressed to the NBS Legal Adviser, National Bureau of Standards, Washington, D.C. 20234. The applicable fees include charges for certification and reproduction, the amounts of which are set out in § 4.9(a) (3) and (5) of title 15 of the Code of Federal Regulations. Other reproduction costs and postage fees, as appropriate, will also be borne by the requester.

§ 275.4 Request or order for testimony or production of records.

(a) A request or order for testimony of, or the production of data, information, or records by, an NBS employee in a legal proceeding not involving the United States as a named party shall be addressed to the NBS Legal Adviser, National Bureau of Standards, Washington, D.C. 20234. A request or order for testimony shall be accompanied by an affidavit or, if that is not feasible, a statement setting forth the title of the case, the forum, the party's interest in the case, a recitation of the reasons for desiring and the intended use of the testimony, a general summary of the testimony desired, and a showing that (1) the desired testimony is not reasonably available from other sources (including an explanation of such circumstances), and (2) no NBS record in certified form provided under § 275.3 could be introduced in evidence in lieu of the testimony or other appearance requested.

(b) Any employee of NBS who is served with a subpoena or other order for or who receives a request for, testimony or the production of data, information, or records shall immediately report the service or request to the NBS Legal Adviser.

§ 275.5 Response to request or order for testimony or production of records.

(a) Except for the production of payroll, leave, or similar administrative records that may be involved in legal proceedings involving an employee of NBS in other than that employee's official capacity, testimony or the production of data, information, or records in a legal proceeding not involving the United States shall be authorized only as a rare exception. Such exception shall be based only upon a determination by the NBS Legal Adviser that NBS has a significant interest in the legal proceeding and that the outcome may affect the implementation of present policies, or where other circumstances or conditions (including the showing required in paragaph (a) of § 275.4) make it necessary to provide the data, information, or records in the public interest.

(b) When an NBS employee receives a request or order for testimony or the

production of data, information, or records, the NBS Legal Adviser shall determine whether such request or order is legally binding on the employee and whether compliance with such request or order is authorized. Upon making such determination, the NBS Legal Adviser shall accordingly instruct the employee who received such request, or order.

(c) Unless otherwise expressly authorized by the NBS Legal Adviser, an employee who is requested or ordered to testify or produce data, information, or records in a legal proceeding not involving the United States as a named party shall respectfully decline to comply on the ground of the prohibition against compliance contained in this part. If a subpoena or other order is involved, the employee shall decline by appearing at the time and place specified (unless the NBS Legal Adviser determines, in consultation with the party seeking the testimony or other appearance, or the authority conducting the legal proceeding, as appropriate, that a written submission will be sufficient), accompanied by a representative of the Office of the NBS Legal Adviser, the United States Attorney's Office, or the Department of Justice, as appropriate, and explaining to the authority conducting the legal proceeding that this part prohibits the employee fro.n complying.

(d) If an employee who follows the procedure in paragraph (c) of this section is ordered to show cause why he or she should not be cited for contempt, the NBS Legal Adviser shall request the Department of Justice to represent the employee.

(e) If the NBS Legal Adviser authorizes the testimony of an NBS employee, the Legal Adviser may arrange for the taking of the testimony by methods that are less disruptive of official activities of the employee than providing testimony in court or at a hearing. Testimony may, for example, be provided by affidavits, answers to interrogatories, written depositions, or depositions transcribed, recorded, or preserved by any other method allowable by law. Costs of providing testimony, including transcripts, one copy of which will be provided to the NBS Legal Adviser, will be borne by the

party requesting the testimony. Such costs shall also include reimbursing NBS for the usual and ordinary expenses attendant upon the employee's absence from his or her official duties in connection with the legal proceed

ing, including the employee's salary and applicable overhead charges and any necessary travel expenses.

[44 FR 17481, Mar. 22, 1979; 44 FR 19383, Apr. 3, 1979]