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OFFICE OF THE GENERAL COUNSEL

DOO 10-6: OFFICE OF THE GENERAL COUNSEL
Number: DOO 10-6
Effective Date: 2019-10-18

SECTION 1. PURPOSE.

.01       This Order prescribes the authority and functions of the Office of the General Counsel (OGC) of the Department of Commerce (the Department).

.02       The purpose of this revision is to set forth the order of succession within OGC; document the re-titling of the Assistant General Counsel for Administration and Transactions to Deputy General Counsel for Administration; standardize the reporting structure for program counsels; and update the functions of the Office of the General Counsel.  


SECTION 2.  ORGANIZATION.

.01        The position of Solicitor was established by the Act of March 18, 1904 (33 Stat. 135; 15 U.S.C. 1508), as amended by the Act of August 20, 1954 (68 Stat. 753). The title of Solicitor was changed to that of General Counsel by the Act of July 17, 1952 (66 Stat. 758). The General Counsel is appointed by the President, by and with the advice and consent of the Senate, and reports and is responsible to the Secretary of Commerce.

.02        The General Counsel shall be assisted by a Deputy General Counsel who shall be the principal assistant to the General Counsel and shall perform such duties as the General Counsel directs. The Deputy General Counsel shall perform the functions of the General Counsel in the event that the General Counsel is unable to carry out the duties of the office or during a vacancy in the office. Unless delegated otherwise, the Deputy General Counsel for Administration shall perform the non-exclusive functions and duties of the General Counsel in the event both the General Counsel and the Deputy General Counsel are unable to carry out their duties or during vacancies in those offices.

.03       The Office of the General Counsel is a constituent operating unit of the Office of the Secretary of the Department established for the purpose of providing adequate staff and resources to enable the General Counsel to fulfill the responsibilities and perform statutory and assigned duties. The General Counsel shall assign and appoint staff as necessary, including additional Deputy General Counsel positions to perform such duties as the General Counsel directs.


SECTION 3.  THE GENERAL COUNSEL.

.01       The General Counsel is the chief legal officer of the Department, and most senior legal adviser to the Secretary, the Under Secretaries, the Assistant Secretaries, and other officers of the Department, including operating unit heads. The General Counsel is designated second in the Department’s Order of Succession (Executive Order 13613) and shall act as and perform the duties of the Secretary in the event that the Secretary and his Deputy are unable to perform their duties.

.02       The General Counsel shall supervise and coordinate the development of the legislative program, and shall be the focal point within the Department for coordinating the analysis of legislation, developing and articulating the views of the Department on pending legislation, and fulfilling the Department’s legislative clearance responsibilities with the Office of Management and Budget (OMB) pursuant to OMB Circular A-19. The Office of the General Counsel shall consult with the Office of Legislative and Intergovernmental Affairs in the undertaking of these activities as contemplated by Section 4 of DOO 10- 12.

.03       The General Counsel shall have the primary responsibility within the Department for providing advice related to regulatory policy, promulgation, review, and improvement; shall develop or coordinate and manage the development of regulatory policies and reforms for the Department; shall be the regulatory ombudsman for the Department; and shall advise the Secretary on regulatory matters.

.04      The authority to render all legal services necessary to enable the Secretary and the heads of operating units in the Department to discharge their respective duties is vested in the General Counsel. The General Counsel shall exercise direct or technical supervision over the provision of all legal advice and legal representation to the Department.

.05      The authority delegated herein, or any part thereof, may be redelegated to appropriate officers and employees of the Department and shall be exercised in accordance with such delegations, regulations, policies, standards, procedures, and instructions as the General Counsel may issue or approve. Copies of any written delegations of authority made under this section shall be filed with the original signed copy of this Order. 

                       

SECTION 4.  FUNCTIONS OF THE OFFICE OF THE GENERAL COUNSEL.

.01     The functions performed by the Office of the General Counsel include, but are not limited to, the following:

a.       The preparation and/or coordination, clearance and submission to the Office of the Federal Register of all items proposed for publication in the Federal Register except for notices regarding advisory committee and other meetings, symposia, workshops, and conferences, notices of hearings, notices announcing the receipt of an application or petition and requesting public comment thereon, and notices regarding the availability of licenses on patents owned by the Federal Government; the preparation and/or coordination and clearance of all expressions of official opinion proposed for transmittal outside of the Department on any regulation or on any regulatory proposal, policy or action of or by any entity outside of the Department; and the preparation and/or coordination and clearance of all public orders and regulations not proposed for publication in the Federal Register and all internal orders and regulations requiring the approval of the Secretary;

b.        The preparation, or examination for legal form and effect, of all transactional legal instruments including, but not limited to, contracts, financial assistance agreements, interagency and other special agreements, leases, licenses, bonds, and settlement agreements resolving litigation or claims against the Department, entered into by the Department; 

c.         The appearance on behalf of the Secretary or Department, or any officer or operating unit thereof, before regulatory commissions, independent boards, and similar tribunals and courts when such action appears to be appropriate, the preparation or review of pleadings, briefs, memoranda, and other legal documents necessary in proceedings involving the Department, or requested by any other Government agency for use in proceedings;

d.         The preparation or review of all papers relating to matters on which the opinion or advice of the Comptroller General is desired, except for determinations requested by certifying officers under the provisions of the Act of December 29, 1941 (96 Stat. 967; 31 U.S.C. 3529);

e.         The preparation or review of all papers relating to matters on which the opinion of the Attorney General is desired;

f.         The preparation or review of all legislative proposals the enactment of which is deemed desirable by the Department, expressions of official opinion as to the merits of proposed or pending legislation, statements concerning proposed or pending legislation to be made before committees of the Congress, and advice to the President with respect to enrolled enactments;

g.         Coordination and management of compliance by Departmental operating units with Executive Orders governing the regulatory process, the Regulatory Flexibility Act and other administrative and procedural regulatory requirements. These functions include maintenance of an inventory of Departmental regulations setting forth the status of regulations proposed or being considered for proposal and the status of reviews of existing regulations, and review and/or coordination and management of the review by Departmental operating units of Departmental regulations;

h.         The acceptance of service of congressional subpoenas on behalf of Department employees, except employees of the Office of Inspector General;

i.         The hearing and deciding of appeals from secrecy orders under section 181 of title 35 U.S.C. and section 5.4 of title 37 CFR. This function is not within the limitation regarding the issuance of patents, set forth under paragraph 5.01 of this Order, because secrecy orders prohibit any disclosure of the subject matter of an invention, not limited to disclosure through the issuance and publication of a patent;

j.         The management of a Commercial Law Development Program (CLDP), which shall help achieve U.S. foreign policy goals in developing and post-conflict countries through government-to-government technical assistance, as authorized by law, aimed at commercial legal reforms;

k.         The coordination and management of compliance by Department personnel with conflict of interest statutes and standards of conduct through the provision of legal advice on matters of ethics and through the operation of financial disclosure and ethics training programs. Such ethics program and legal services shall be overseen by a Designated Agency Ethics Official and an Alternate Designated Agency Ethics Official;

l.         Overseeing the Department’s implementation of the National Environmental Policy Act as detailed in Department Administrative Order 216-6;

m.         The provision of advice to the Department’s Federal Senior Intelligence Coordinator, Insider Threat Program, and all other classified information workflows, controls, and interfaces with the National Security Council or any member of the intelligence community;

n.         The General Counsel is equivalent to the Deputy Secretary position for the purposes of the Committee on Foreign Investment in the United States (CFIUS). 50 U.S.C. § 4565. As directed by the Secretary, the General Counsel may perform specific CFIUS functions including those delegable to a deputy head (or equivalent thereof); and

o.         The functions assigned to the Secretary by section 172 of the Tax Equity and Fiscal Responsibility Act of 1982 (Public Law 97-248) are hereby delegated and are to be performed by the General Counsel.

.02          The General Counsel may request and, with the concurrence of the heads of the appropriate operating units, use Departmental scientific, economic, industrial, statistical and other experts in the conduct of any of the Office of the General Counsel’s functions.

.03          The heads operating units of the Department shall consult with and obtain clearance from the Office of the General Counsel as to the legal aspects of new and major programs.

.04          All personnel actions involving legal positions (other than patent attorney positions) in the Department and any contracts for legal services will be coordinated by the General Counsel as provided in administrative Orders of the Department. All matters pertaining to the purchase of law books or legal supplies shall be subject to review by the General Counsel before action is taken thereon.


SECTION 5.  LIMITATIONS.

.01          The General Counsel shall have no authority with respect to the issuance of patents or the registration of trademarks.

.02          The General Counsel shall retain responsibility for legislation and matters related thereto as provided in subsections 3.02 and 4.01 of this Order, with due regard given to the statutory responsibilities outlined in Department Organization Order 10-14, “Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office.”

.03         Nothing in this Order shall have the effect of, or be construed as, limiting the authorities and responsibilities of the Department’s Inspector General under the provisions of the Inspector General Act of 1978, as amended (5 U.S.C. App. 3).


SECTION 6.  UNITS REPORTING TO THE GENERAL COUNSEL.

The following officers and offices shall report to and be responsible to the General Counsel or designee:

a.        the Deputy General Counsel for Administration;

b.        the Assistant General Counsel for Employment, Litigation, and Information;

c.        the Assistant General Counsel for Legislation and Regulation;

d.        the Chief Counsel for the Commercial Law Development Program;

e.        the Chief Counsel for Economic Affairs;

f.        the Chief Counsel for Economic Development;

g.        the Chief Counsel for FirstNet;

h.        the Chief Counsel for Industry and Security;

i.        the Chief Counsel for International Commerce;

j.        the Chief Counsel for the Minority Business Development Agency;

k.        the Chief Counsel for the National Institute of Standards and Technology;

l.        the Chief Counsel for the National Telecommunications and Information Administration;

m.        the Chief Counsel for Trade Enforcement and Compliance;

n.        the General Counsel for the National Oceanic and Atmospheric Administration, who shall dually report to the General Counsel and to the Under Secretary for Oceans and Atmosphere;

o.        the General Counsel for the USPTO regarding policy and other matters as determined by the Secretary of Commerce, with financial management, budgeting, and personnel decisions of the USPTO Office of the General Counsel being the responsibility of USPTO as required by statute;

p.        the Director of Administrative Operations; and

q.        the Office of Executive Support.


SECTION 7.  EFFECT ON OTHER ORDERS.

This Order supersedes Department Organization Order 10-6, dated September 18, 2015.

Signed by: Deputy Secretary of Commerce

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Page last updated: January 6, 2020