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| Collection of Evidence | 270.310 – 270.316 | ||||||||||||||||||||||
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Pub. L. 107-231, 116 Stat. 1471 (15 U.S.C. 7301 et seq.).
68 FR 4694, Jan. 30, 2003, unless otherwise noted.
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Subscribe to: 15 CFR Part 270 Subpart D - Collection of Evidence
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Upon receipt of evidence pursuant to an investigation under the Act, each investigation participant who is not a NIST employee shall:
(a) As soon as practicable, transfer the original evidence to NIST, and retain a copy of the evidence only if necessary to carry out their duties under the investigation; and
(b) For any evidence that cannot reasonably be duplicated, retain the evidence in accordance with NIST procedures for preserving evidence as described in § 270.330 of this subpart, and upon completion of the duties for which retention of the evidence is necessary, transfer the evidence to NIST.
[68 FR 4694, Jan. 30, 2003, as amended at 68 FR 24345, May 7, 2003]
(a) In the course of an investigation, evidence normally will be collected following the procedures described in §§ 270.312 through 270.315 of this subpart.
(b) Upon a written showing by the Lead Investigator of urgent and compelling reasons to believe that evidence may be destroyed, or that a witness may become unavailable, were the procedures described in §§ 270.312 through 270.314 of this subpart followed, the Director, with the concurrence of the General Counsel, may immediately issue a subpoena for such evidence or testimony, pursuant to § 270.315 of this subpart.
After the Director establishes and deploys a Team, members of the public are encouraged to voluntarily submit to the Team non-privileged evidence that is relevant to the subject matter of the pending investigation.
[68 FR 4694, Jan. 30, 2003, as amended at 68 FR 24345, May 7, 2003]
(a) After the Director establishes and deploys a Team, the Lead Investigator, or their designee, may request the testimony of any person by deposition, upon oral examination or written questions, and may request documents or other physical evidence without seeking prior approval of the Director.
(b) Requests for responses to written questions will be made in writing and shall include:
(1) A statement that the request is made to gather evidence necessary to an investigation being conducted under the Act;
(2) Identification of the person whose responses are sought;
(3) Contact information for the person to whom the responses should be submitted;
(4) The date and time by which the responses are requested;
(5) A statement that the questions for which responses are sought are attached; and
(6) Contact information for the person to whom questions or problems regarding the request should be addressed.
(c) Requests for documents or other physical evidence will be made in writing and shall include:
(1) A statement that the request is made to gather evidence necessary to an investigation being conducted under the Act;
(2) A description of the documents or other physical evidence sought;
(3) Identification of the person or persons to whom the request is made;
(4) A request that each person to whom the request is directed produce and permit inspection and copying of the documents and physical evidence in the possession, custody, or control of that person at a specific time and place; and
(5) Contact information for the person to whom questions or problems regarding the request should be addressed.
(d) Requests for witness testimony will be made in writing and shall include:
(1) The name of the person whose testimony is requested;
(2) The date, time, and place of the deposition;
(3) A statement that the person whose testimony is requested may be accompanied by an attorney; and
(4) Contact information for the person to whom questions or problems regarding the request should be addressed.
(e) Collections of evidence under paragraphs (b), (c), and (d) of this section are investigatory in nature and will not be considered research for any purpose.
[68 FR 4694, Jan. 30, 2003, as amended at 68 FR 66707, Nov. 28, 2003]
The Lead Investigator may enter into discussions with appropriate parties to address problems identified with the submission of evidence requested pursuant to § 270.313 of this subpart. Should negotiations fail to result in the submission of such evidence, a subpoena may be issued pursuant to § 270.315.
[68 FR 4694, Jan. 30, 2003, as amended at 68 FR 24345, May 7, 2003]
(a) General. Subpoenas requiring the attendance of witnesses or the production of documentary or physical evidence for the purpose of taking depositions or at a hearing may be issued only under the signature of the Director with the concurrence of the General Counsel, but may be served by any person designated by the Counsel for NIST on behalf of the Director.
(b) Determination whether to issue a subpoena. In determining whether to issue a subpoena, the Director will consider the following factors:
(1) Whether the testimony, documentary, or physical evidence is required for an investigation being conducted pursuant to the Act;
(2) Whether the evidence sought is relevant to the purpose of the investigation;
(3) Whether NIST already has the evidence in its possession; and
(4) Whether the evidence required is described with specificity.
(c) Contents of a subpoena. A subpoena issued by the Director will contain the following:
(1) A statement that the subpoena is issued by the Director pursuant to section 5 of the Act;
(2) A description of the documents or physical evidence or the subject matter of the testimony required by the subpoena;
(3) A command that each person to whom it is directed attend and give testimony or produce and permit inspection and copying of designated books, documents or physical evidence in the possession, custody or control of that person at a time and place specified in the subpoena;
(4) A statement that any person whose testimony is required by the subpoena may be accompanied by an attorney; and
(5) The signature of the Director.
(d) Service of a subpoena. Service of a subpoena will be effected:
(1) By personal service upon the person or agent of the person whose testimony is required or who is in charge of the documentary or physical evidence required; or
(2) By certified mail, return receipt requested, or delivery to the last known residence or business address of such person or agent; or
(3) Where personal service, mailing, or delivery has been unsuccessful, service may also be effected by publication in the Federal Register.
(e) Witness fees. Witnesses will be entitled to the same fees and mileage as are paid to witnesses in the courts of the United States.
(f) Failure to obey a subpoena. If a person disobeys a subpoena issued by the Director under the Act, the Attorney General, acting on behalf of the Director, may bring civil action in a district court of the United States to enforce the subpoena. The court may punish a failure to obey an order of the court to comply with the subpoena as a contempt of court.
[68 FR 4694, Jan. 30, 2003, as amended at 68 FR 24345, May 7, 2003; 68 FR 66707, Nov. 28, 2003]
(a) During the course of an investigation by a Team, if the Director considers it to be in the public interest, NIST may hold a public hearing for the purposes of gathering testimony from witnesses and informing the public on the progress of the investigation.
(b) Should NIST plan to hold a public hearing, NIST will publish a notice in the Federal Register, setting forth the date, time, and place of the hearing, and procedures for members of the public wishing to speak at the hearing. In addition, witnesses may be subpoenaed to provide testimony at a public hearing, in accordance with § 270.315 of this subpart.
(c) The Director, or his designee, will preside over any public hearing held pursuant to this section.