10 C.F.R. § 205.8

Subpoenas, special report orders, oaths, witnesses

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(a) In this section the following terms have the definitions indicated unless otherwise provided.

(1) “DOE Official” means the Secretary of the Department of Energy, the Administrator of the Economic Regulatory Administration, the Administrator of Energy Information Administration, the General Counsel of the Department of Energy, the Special Counsel for Compliance, the Assistant Administrator for Enforcement, the Director of the Office of Hearings and Appeals, or the duly authorized delegate of any of the foregoing officials.

(2) “SRO” means a Special Report Order issued pursuant to paragraph (b) of this section.

(b) (1) In accordance with the provisions of this section and as otherwise authorized by law, a DOE Official may sign, issue and serve subpoenas; administer oaths and affirmations; take sworn testimony; compel attendance of and sequester witnesses; control dissemination of any record of testimony taken pursuant to this section; subpoena and reproduce books, papers, correspondence, memoranda, contracts agreements, or other relevant records or tangible evidence including, but not limited to, information retained in computerized or other automated systems in possession of the subpoenaed person. Unless otherwise provided by subpart O, the provisions of this section apply to subpoenas issued by the office of Hearings and Appeals with respect to matters in proceedings before it.

(2) A DOE Official may issue a Special Report Order requiring any person subject to the jurisdiction of the ERA to file a special report providing information relating to DOE regulations, including but not limited to written answers to specific questions. The SRO may be in addition to any other reports required by this chapter.

(3) The DOE Official who issues a subpoena or SRO pursuant to this section, for good cause shown, may extend the time prescribed for compliance with the subpoena or SRO and negotiate and approve the terms of satisfactory compliance.

(4) Prior to the time specified for compliance, but in no event more than 10 days after the date of service of the subpoena or SRO, the person upon whom the document was served may file a request for review of the subpoena or SRO with the DOE Official who issued the document. The DOE Official then shall forward the request to his supervisor who shall provide notice of receipt to the person requesting review. The supervisor or his designee may extend the time prescribed for compliance with the subpoena or SRO and negotiate and approve the terms of satisfactory compliance.

(5) If the subpoena or SRO is not modified or rescinded within 10 days of the date of the supervisor's notice of receipt,

(i) the subpoena or SRO shall be effective as issued; and

(ii) the person upon whom the document was served shall comply with the subpoena or SRO within 20 days of the date of the supervisor's notice of receipt, unless otherwise notified in writing by the supervisor or his designee.

(6) There is no administrative appeal of a subpoena or SRO.

(c) (1) A subpoena or SRO shall be served upon a person named in the document by delivering a copy of the document to the person named.

(2) Delivery of a copy of the document to a natural person may be made by:

(i) Handing it to the person;

(ii) Leaving it at the person's office with the person in charge of the office;

(iii) Leaving it at the person's dwelling or usual place of abode with a person of suitable age and discretion who resides there;

(iv) Mailing it to the person by registered or certified mail, at his last known address; or

(v) Any method that provides the person with actual notice prior to the return date of the document.

(3) Delivery of a copy of the document to a person who is not a natural person may be made by:

(i) Handing it to a registered agent of the person;

(ii) Handing it to any officer, director, or agent in charge of any office of such person;

(iii) Mailing it to the last known address of any registered agent, officer, director, or agent in charge of any office of the person by registered or certified mail, or

(iv) Any method that provides any registered agent, officer, director, or agent in charge of any office of the person with actual notice of the document prior to the return date of the document.

(d)(1) A witness subpoenaed by the DOE shall be paid the same fees and mileage as paid to a witness in the district courts of the United States.

(2) If in the course of a proceeding conducted pursuant to subpart M or O, a subpoena is issued at the request of a person other than an officer or agency of the United States, the witness fees and mileage shall be paid by the person who requested the subpoena. However, at the request of the person, the witness fees and mileage shall be paid by the DOE if the person shows:

(i) The presence of the subpoenaed witness will materially advance the proceeding; and

(ii) The person who requested that the subpoena be issued would suffer a serious hardship if required to pay the witness fees and mileage. The DOE Official issuing the subpoena shall make the determination required by this subsection.

(e) If any person upon whom a subpoena or SRO is served pursuant to this section, refuses or fails to comply with any provision of the subpoena or SRO, an action may be commenced in the United States District Court to enforce the subpoena or SRO.

(f) (1) Documents produced in response to a subpoena shall be accompanied by the sworn certification, under penalty of perjury, of the person to whom the subpoena was directed or his authorized agent that (i) a diligent search has been made for each document responsive to the subpoena, and (ii) to the best of his knowledge, information, and belief each document responsive to the subpoena is being produced unless withheld on the grounds of privilege pursuant to paragraph (g) of this section.

(2) Any information furnished in response to an SRO shall be accompanied by the sworn certification under penalty of perjury of the person to whom it was directed or his authorized agent who actually provides the information that (i) a diligent effort has been made to provide all information required by the SRO, and (ii) all information furnished is true, complete, and correct unless withheld on grounds of privilege pursuant to paragraph (g) of this section.

(3) If any document responsive to a subpoena is not produced or any information required by an SRO is not furnished, the certification shall include a statement setting forth every reason for failing to comply with the subpoena or SRO.

(g) If a person to whom a subpoena or SRO is directed withholds any document or information because of a claim of attorney-client or other privilege, the person submitting the certification required by paragraph (f) of this section also shall submit a written list of the documents or the information withheld indicating a description of each document or information, the date of the document, each person shown on the document as having received a copy of the document, each person shown on the document as having prepared or been sent the document, the privilege relied upon as the basis for withholding the document or information, and an identification of the person whose privilege is being asserted.

(h)(1) If testimony is taken pursuant to a subpoena, the DOE Official shall determine whether the testimony shall be recorded and the means by which the testimony is recorded.

(2) A witness whose testimony is recorded may procure a copy of his testimony by making a written request for a copy and paying the appropriate fees. However, the DOE official may deny the request for good cause. Upon proper identification, any witness or his attorney has the right to inspect the official transcript of the witness' own testimony.

(i) The DOE Official may sequester any person subpoenaed to furnish documents or give testimony. Unless permitted by the DOE Official, neither a witness nor his attorney shall be present during the examination of any other witnesses.

(j)(1) Any witness whose testimony is taken may be accompanied, represented and advised by his attorney as follows:

(i) Upon the initiative of the attorney or witness, the attorney may advise his client, in confidence, with respect to the question asked his client, and if the witness refuses to answer any question, the witness or his attorney is required to briefly state the legal grounds for such refusal; and

(ii) If the witness claims a privilege to refuse to answer a question on the grounds of self-incrimination, the witness must assert the privilege personally.

(k) The DOE Official shall take all necessary action to regulate the course of testimony and to avoid delay and prevent or restrain contemptuous or obstructionist conduct or contemptuous language. DOE may take actions as the circumstances may warrant in regard to any instances where any attorney refuses to comply with directions or provisions of this section.

(Emergency Petroleum Allocation Act of 1973, Pub. L. 93-159, as amended, Pub. L. 94-163, and Pub. L. 94-385; Federal Energy Administration Act of 1974, Pub. L. 93-275, as amended, Pub. L. 94-332, Pub. L. 94-385, Pub. L. 95-70, and Pub. L. 95-91; Energy Supply and Environmental Coordination Act of 1974, Pub. L. 93-319, as amended; Energy Policy and Conservation Act, Pub. L. 94-163, as amended, Pub. L. 94-385, and Pub. L. 95-70; Department of Energy Organization Act, Pub. L. 95-91; E.O. 11790, 39 FR 23185; E.O. 12009, 42 FR 46267) [44 FR 23201, Apr. 19, 1979]

Notes of Decisions

Cited in 15 cases, 1976–1984 · leading case: United States v. Bell, 564 F.2d 953 (Temp. Emerg. Ct. App. 1977).

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United States v. Bell, 564 F.2d 953 (Temp. Emerg. Ct. App. 1977). · cites it 2× “under authority of Section 206 of the Economic Stabilization Act of 1970, as amended, incorporated by Section 5(a)(1) of the Emergency Petroleum Allocation Act of 1973, as amended, and Section 13(e)(1) of the Federal Energy Administration Act of 1974, and 10 C.F.R. Sections…”

United States v. Fitch Oil Co., 676 F.2d 673 (Temp. Emerg. Ct. App. 1982). · cites it 4× “1 On February 24,1981, Appellants sought supervisory review of the subpoenas pursuant to 10 C.F.R. § 205.8 (b)(4). [Appellants’ Br.”

United States v. First City Nat'l Bank, 598 F.2d 594 (Temp. Emerg. Ct. App. 1979). · cites it 2× “The administrative subpoena involved in this case recites that it was issued by the DOE “under the authority of § 206 of the Economic Stabilization Act of 1970, as amended, incorporated by § 5(a)(1) of the Emergency Petroleum Allocation Act of 1973, as amended; § 13 of the…”

United States v. Empire Gas Corp, 547 F.2d 1147 (Temp. Emerg. Ct. App. 1976). “The procedures for implementing FEA’s statutory authority to collect data and information by subpoena are set forth in FEA’s procedural regulations at 10 C.F.R. § 205.8 . . “By way of explanation and numerous examples, FEA’s Ruling 1975-2 provided extensive and necessary…”

United States v. Thriftyman, Inc., 704 F.2d 1240 (Temp. Emerg. Ct. App. 1983). · cites it 2× “…13 of the Federal Energy Administration Act of 1974; §§ 645 and 705 of the Department of Energy Organization Act and 10 C.F.R. § 205.8 and § 205.201.” The appellants did not comply with the subpoenas (Tr. 6, 37). Therefore, on April 2,1982, the United States, and Jane O’Neill…”

United States v. Merit Petroleum, Inc., 731 F.2d 901 (Temp. Emerg. Ct. App. 1984). · cites it 2× “” Merit refused to produce additional records, and on September 10, 1981, requested a Review of the subpoena under provisions of 10 CFR § 205.8 (b)(4). (Deft.Ex. 4, R. pp.”

United States v. Wickland, 619 F.2d 75 (Temp. Emerg. Ct. App. 1980). “Wickland did not comply, but sought to quash or modify the subpoena pursuant to the administrative remedy provided in 10 C.F.R. § 205.8 (h). 2 Wickland was unsuccessful in quashing or modifying the subpoena at the administrative level.”

United States v. Pel-Star Energy, Inc., 670 F.2d 1032 (Temp. Emerg. Ct. App. 1982). · cites it 2× “Thereafter, DOE issued a notice of receipt of the request for review and pursuant to 10 C.F.R. § 205.8 (b)(5) extended the date for compliance to April 19, 1981.”

United States v. Juren, 687 F.2d 493 (Temp. Emerg. Ct. App. 1982). “§ 754 (a)(1) (1976), as amended; Section 13(e)(1) of the Federal Energy Administration Act of 1974, 15 U.”

Apache Oil Co. v. United States, 694 F.2d 714 (Temp. Emerg. Ct. App. 1982). “The third contention urged by appellants is that the review procedures ( 10 C.F.R. § 205.8 (b)(4)) are violative of due process.”

United States v. Armada Petroleum Corp., 562 F. Supp. 43 (S.D. Tex. 1982). “10 C.F.R. § 205.8 (b)(5) (1981). After Armada failed to produce the subpoenaed records, the DOE filed the present application on August 12, 1981.”

United States v. Tobins, 512 F. Supp. 308 (D. Mass. 1981). “27777 (June 27,1978); and that on April 17, 1980, petitioner McCarthy personally served on respondent a subpoena issued in accordance with DOE Regulations, 10 C.F.R. § 205.8 , requiring respondent to appear before petitioner at a specified time and place and to bring with him…”

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— 10 C.F.R. § 205.8(b) — 1 case

United States v. Merit Petroleum, Inc., 731 F.2d 901 (Temp. Emerg. Ct. App. 1984). “” Merit refused to produce additional records, and on September 10, 1981, requested a Review of the subpoena under provisions of 10 CFR § 205.8 (b)(4). (Deft.Ex. 4, R. pp.”

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