Report to Congress on the Use of Administrative Subpoena

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					U.S. Department of Justice




    Report to Congress on the Use of
       Administrative Subpoena
    Authorities by Executive Branch
         Agencies and Entities
                              Pursuant to Public Law 106-544




             U.S. Department of Justice
                             Office of Legal Policy

      Report to Congress on the Use of Administrative Subpoena
       Authorities by Executive Branch Agencies and Entities,
                 Pursuant to P.L. 106-544, Section 7
                                            1
I.     EXECUTIVE SUMMARY

       A.   Summary of Report on Administrative Subpoena Authorities Held by Agencies
            under Authorities Other than 18 U.S.C. §3486
       B.   Summary of Report on Justice Department and Treasury Subpoena Authorities
            Held Pursuant to 18 U.S.C. §3486

II.    ADMINISTRATIVE SUBPOENA AUTHORITI ES HELD BY AGENCIES UNDER AUTHORITIES
       OTHER THAN 18 U.S.C. §3486

       A.   General Subpoena Authorities Held by the Various Federal Agencies.
            1.     Source and Scope of Subpoena Authority
            2.     Applicable Subpoena Enforcement Mechanisms
            3.     Notification Provisions and Other Provisions Related to Safeguarding
                   Privacy Interests
            4.     Standards Governing the Issuance of Administrative Subpoenas


       B.   Administrative Subpoena Authority Held by Inspectors General of the Various
            Agencies.
            1.    Source and Scope of Subpoena Authority
            2.    Applicable Subpoena Enforcement Mechanisms
            3.    Notification Provisions and Other Provisions Related to Safeguarding
                  Privacy Interests
            4.    Standards Governing the Issuance of Administrative Subpoenas


III.   JUSTICE DEPARTMENT AND TREASURY SUBPOENA AUTHORITI ES PURSUANT TO 18
       U.S.C. §3486

       A.    Administrative Subpoena in Investigations Relating to “Any Act or Activity
             Involving a Federal Health Care Offense, 18 U.S.C. §3486(a)
             1.     Source and Scope of Subpoena Authority
             2.     Applicable Subpoena Enforcement Mechanisms
             3.     Notification Provisions and Other Provisions Related to Safeguarding
                    Privacy Interests
             4.     Standards Governing the Issuance of Administrative Subpoenas
             5.     Frequency of Use and Usefulness of Administrat ive Subpoena Autho rity

       B.    Administrative Subpoena for Investigations Relating to Child Exploitation and
             Abuse Investigations, 18 U.S.C. §3486(a)(1)(A)(i)(II), (a)(1)(C).
             1.     Source and Scope of Subpoena Authority
             2.     Applicable Subpoena Enforcement Mechanisms
             3.     Notification Provisions and Other Provisions Related to Safeguarding

                                             2
                       Privacy Interests
               4.      Standards Governing the Issuance of Administrative Subpoenas
               5.      Frequency of Use and Usefulness of Administrat ive Subpoena Autho rity

         C.     Secret Service Presidential Threat Protection Authority to Issue Subpoenas where
                there is an “Imminent” Threat to Secret Service Protectee, 18 U.S.C.
                §3486(a)(1)(A)(ii).
                1.      Source and Scope of Subpoena Authority
                2.      Applicable Subpoena Enforcement Mechanisms
                3.      Notification Provisions and Other Provisions Related to Safeguarding
                        Privacy Interests
                4.      Standards Governing the Issuance of Administrative Subpoenas
                5.      Frequency of Use and Usefulness of Administrat ive Subpoena Autho rity

IV.      RECOMM ENDATIO NS REGARDING NECESSARY STEPS TO ENSURE THAT
         ADMINISTRATIVE SUBPOENAS ARE USED AND ENFORCED CONSISTENTLY AND FAIRLY
         BY EXECUTIVE BRANCH AGENCIES.



Table:

         Frequency Data. Department o f Justice and Department of Treasury, Subpoena
         Authority Exercised under 18 U.S.C. §3486(a) During Calendar Year 2001.

Appendices:

         Appendix A: Administrative Subpoena Authorities Held by Agencies Other Than the
                     Departments of Justice and Treasury
         Appendix B: Administrative Subpoena Authorities Held by the Department of Justice
         Appendix C:       Administrative Subpoena Authorities Held by the Department of
                           Treasury




                                                3
      Report to Congress on the Use of Administrative Subpoena
       Authorities by Executive Branch Agencies and Entities,
                 Pursuant to P.L. 106-544, Section 7


                                          I. EXECUTIVE SUMMARY


        Section 7(a) of the Presidential Threat Protection Act of 2000 (Presidential Threat
Protection Act), enacted on December 19, 2000, requires the Attorney General, in consultation
with the Secretary of the Treasury, to conduct “a st udy on the use of administrative subpoena
power by executive branch agencies or entities” and report the findings of that study “to the
Committees on the Judiciary of the Senate and the House of Representatives.”1 Section 7(b) of
the Presidential Threat Protection Act requires the Attorney General and the Secretary of the
Treasury to present data regarding the frequency of issuance of administrative subpoenas
authorized by 18 U.S.C. §3486.

A.     Summary of Report on Administrative Subpoena Authorities Held by Agencies under
       Authorities Other Than 18 U.S.C. §3486

        As directed in section 7(a) of the Presidential Threat Protection Act, Section II of this
report contains: “(1) a description of the sources of administrative subpoena power and scope of
such subpoena power within executive agencies; (2) a description of applicable subpoena
enforcement mechanisms; (3) a description of any notification provisions and any other provisions
relating to safeguarding privacy interests; (4) a description of the standards governing the issuance
of administrative subpoenas.” Section IV presents the Attorney General’s recommendations
regarding “necessary steps to ensure that administrative subpoena power is used and enforced
consistently and fairly by executive branch agencies.” 5 U.S.C. §551 note, Pub.L. 106-544, §
7(a), Dec. 19, 2000, 114 Stat. 2719.

         Definitions and Methodologies. For purposes of this report, “administrative subpoena”
authority has been defined to include all powers, regardless of name, that Congress has granted to
federal agencies to make an administrative or civil investigatory demand compelling document
production or testimony. Civil compulsory process authorities with provision for judicial
enforcement are included. Grand jury subpoenas, administrative law judge subpoenas, and
investigative authorities requiring judicial approval are not within the scope of the report.
Appendices A, B, and C of this report contain the full responses submitted by executive branch
entities, as supplemented by legal research.

       Findings. Congress grants the subpoena power held by executive branch entities, and the


       1
           5 U.S.C. §551 note, Pub.L. 106-544, § 7, 114 Stat. 2719 (2000).

                                                        4
scope and exercise of these authorities are bound by statute. As the single most significant source
of administrative subpoena power is granted by the Inspector General Act of 1978, the Inspector
General subpoena authority is discussed in a separate, detailed Subsection II.B. The study reveals
a complex proliferation of widely varying subpoena powers authorized by Congress. Submissions
from executive branch entities and legal research identified approximately 335 existing
administrative subpoena authorities held by various executive branch entities under current law.

         Some of these subpoena authorities lack clear enforcement mechanisms. All federal
executive branch administrative subpoenas are enforced by the courts. Statutes granting
administrative subpoena authorities, however, generally fall into three enforcement-type
categories: (1) statutes authorizing an agency official to apply directly to an appropriate U.S.
district court for enforcement assistance, (2) statutes requiring an agency official to request the
Attorney General’s aid in applying to a U.S. district court for enforcement assistance, and (3)
statutes containing no identified enforcement mechanism.

       Agencies are limited in their exercise of administrative subpoena authority by: (1) judicial
review of subpoena orders prior to potential judicial enforcement; (2) notice or nondisclosure
requirements imposed in an agency’s organic statutes; (3) privacy-protective constraints or notice
requirements internal to the statute authorizing the subpoena po wer; (4) generally applicable
privacy-protective statutes, prohibiting certain disclosures and requiring notice under certain
circumstances; and (5) agency promulgated guidelines limiting or directing subpoena issuance.

        Appendices A, B, and C of this report contain an individualized description of particular
administrative subpoena authorities held by the various agencies. The appendices contain
information related to: (1) sources of administrative subpoena authority and scope of such
subpoena authority, (2) applicable subpoena enforcement mechanisms, (3) notification provisions
and other provisions related to safeguarding privacy interests, and (4) standards governing
issuance of administrative subpoenas. The report itself also briefly discusses each of these four
topics. The information provided in the appendices is derived from submissions from individual
agencies in response to a survey issued by the Office of Legal Policy of the Department of Justice
as well as some independent legal research. Appendix A contains information related to
authorities held by federal governmental entities other than the Departments of Justice or
Treasury. Appendix B contains information related to authorities held by the Department of
Justice. Appendix C contains information related to authorities held by the Department of
Treasury. As most entries in the Appendices were submitted by individual agencies, commissions,
and other governmental entities, they do not necessarily reflect the view or recommendation of
the Att orney General or Secret ary o f the Treasury.

        Recommendations. The Department of Justice notes that despite inconsistencies in the
formulation of the many authorizing statutes, judicial involvement in enforcement ensures a good
degree of fairness–especially where enforcement actions must be initiated and coordinated by the
Department of Justice. As administrative subpoena authorities are created by separate statutes,
which differ in their purpose and content, and no consistent patterns emerge from a study of these
authorities, making any recommendations generally applicable to these various authorities would
be neither prudent no r practical. As various agencies referred to suggestions regarding authority-
specific changes, the Department of Justice looks forward to working with Congress and other

                                                  5
agencies in the future to evaluate these potential changes.

B.       Summary of Report on Justice Department and Treasury Subpoena Authorities Held
         Pursuant to 18 U.S.C. §3486

         Section 7(b) of the Presidential Threat Protection Act requires the Attorney General and
the Secretary of the Treasury to “report in January of each year to the Committee on the Judiciary
of the Senate and the House of Representatives on the number of administrative subpoenas issued
by them under [18 U.S.C. §3486] and the identity of the agency or component of the Department
of Justice or the Department of Treasury issuing the subpoena and imposing the charges.” 5
U.S.C. §551 note, Pub.L. 106-544, § 7, 114 Stat. 2719 (2000). The reporting requirement of
section 7(b) terminates in December of 2003, “3 years after the date of the enactment,” which
occurred on December 19, 2000. Pub.L. 106-544, §7(b)(2), 114 Stat. 2719 (2000). Section III
of this report contains a description of the authorities provided under 18 U.S.C. §3486(a), as well
as data regarding the frequency of use during Calendar Year 2001. Frequency data for subpoenas
issued under 18 U.S.C. §3486 is also included in tabular form in Table 1 infra.


     II. ADMINISTRATIVE SUBPOENA AUTHORITI ES HELD BY AGENCIES UNDER AUTHORITIES
                              OTHER THAN 18 U.S.C. §3486

A.       General Subpoena Authorities Held by the Various Agencies

1.       Description of the Sources of Administrative Subpoena Power and the Scope of Such
         Subpoena Authority.

         As administrative agencies are established through statute, a statute must also authorize
their issuance of administrative subpoenas.2 Administrative subpoena authorities allow executive
branch agencies to issue a compulsory request for documents or testimony without prior approval
from a grand jury, court, or other judicial entity. Without sufficient investigatory powers,
including some authority to issue administrative subpoena requests, federal governmental entities
would be unable to fulfill their statutorily imposed responsibility to implement regulatory or fiscal
policies.3 Congress has granted some form of administrative subpoena authority to most federal
agencies, with many agencies holding several such authorities. The authority most commonly
used, the authority provided to all Inspectors General, is discussed in detail in Subsection II.B
infra. While the Inspector General authority is mainly used in criminal investigations, specific
administrat ive subpoena authorities may be exercised in civil or criminal investigations. While
federal authorizing statutes generally grant subpoena authorities directly to a particular agency
head, a few statutory aut horities authorize t he President to exercise a subpoena authority, and the
President has generally delegated that authority to a specific agency head through Executive



         2
             See BERNARD SCHWARTZ, ADMINISTRATIVE LAW §3.8, at 125 (3d ed. 1991).
         3
          See Graham Hughes, “Administrative Subpoenas and the Grand Jury: Converging Streams of Criminal
and Civil Compulsory Process,” 47 VAND. L. REV. 573, 584 (1994).

                                                      6
Order.4 Most administrative subpoena authorities have been redelegated by the entity head to
subordinate officials within the entity. Some statutes granting administrative subpoena authorities,
however, limit or forbid delegation o f the autho rity to lower-ranking officials within the agency. 5
In so me instances, the decision to issue a subpoena is made unilaterally by an agency official; 6 in
other instances, the issuance of a subpoena requires the vote, approval, or resolution of multiple
individuals.7

        The Supreme Court has construed administrative subpoena authorities broadly8 and has
consistently allowed expansion of the scope of administrative investigative authorities, including
subpoena authorities, in recognition of the principle that overbearing limitation of these authorities
would leave administrative entities unable to execute their respective statutory responsibilities.9
While an agency’s exercise of administrative subpoena authority is not subject to prior judicial
approval, a subpoena issuance is subject to judicial review upon a recipient’s motion to modify or
quash the subpoena or upon an agency’s initiation of a judicial enforcement action.

         Federal courts subject the exercise of administrative subpoena authority to a


         4
          See, e.g., Exec. Order No. 12,580, Section 2(j), 52 Fed. Reg. 2923 ( Jan. 29, 1987) (delegating to heads
of Execut ive departments a nd agencies the auth ority originally delega ted by Congress to the Executive in Section
104(e) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C.
§9604(e)).
         5
         The Consumer Pr oduct Safety Commission, for instance, ma y delegate any of its functions except the
subpoena power of 15 U.S.C. §2076(b)(3), see §2076(b)(9), to any officer or employee of the Commission.

         6
           See, e.g., Appen dix A, Depar tmen t of Energy (DOE) author ity under the Federal Ener gy Administ ration
Act of 1974. A DOE official “may sign, issue, and serve subpoenas of persons and documents.” 10 C.F.R. §§
205.8(a), 205.8(b).
         7
         See, e.g., 11 C.F.R. § 111.12 (requiring that Federal Election Commission members authorize the
Chairman or Vice Ch airman of the Com missi on to issue specific subpoenas, whet her subpoenas duces tecum or
those requiring); 16 C.F.R. § 2.7(d) (stating that Feder al Tra de Commission or one of its members may issue a
subpoena upon a resolution by the Commission).

         8
            See the following cases for the proposition that the government need only show that the subpoena was
issued for a la wfully author ized purpose and sought information releva nt to the agency's inqu iry: United States v.
LaSalle Nat'l Ban k, 437 U.S. 298, 313 (197 8); United States v. Powell, 379 U.S. 48, 57 (196 4); Oklahoma Pr ess
Publishing Co. v. Walling, 327 U.S. 186, 209 (1946).
         9
          See Endicott Johnson Corp. v. Perkins, 317 U.S. 501 (1943); Oklahoma Press Publishing Co. v. Walling,
327 U.S. 186 (1946); United States v. Morton Salt Co., 338 U.S. 632 (1950). See also the following cases,
demonstrating the lower federal courts’ favorable treatment of a federal agency’s investigative authorities prior to
the Supreme Court decisions listed above: Fleming v. Montgomery Ward & Co., 114 F.2d 384, 388 (7th Cir.)
(rejecting probable cause requirement for investigations by Wage and Hour Division of Department of Labor), cert.
denied, 311 U.S. 690 (1940); Bartlett Frazier Co. v. Hyde, 65 F.2d 350, 351-52 (7th Cir. ) (holdin g that d isclosures
sought by the Departmen t of Agricult ure un der its investigatory powers were reasonably necessary for pr otection of
public and therefore not violative of the Fourth Amendment), cert. denied, 290 U.S. 65 4 (1933); United States v.
First Nat'l Bank, 295 F. 142, 143 (S.D. Ala. 1924) (holding that the privacy protections of the Fourth Amendment
were not applicable where a third-party recordkeeper sought to invoke such protections in an effort to bar
production of information relating to legitimate IRS investigation), aff'd per curiam, 267 U.S. 576 (1925).

                                                          7
reasonableness analysis, not the more stringent Fourth Amendment “probable cause” analysis
applied in situations involving search and seizure and issuance of a warrant. In United States v.
Powell,10 the Court articulated the deferential standard for judicial review of administrative
enforcement actions in a four-factor evaluation of “good faith” issuance, requiring that: (1) the
investigation is conducted pursuant to a legitimate purpose, (2) the information requested under
the subpoena is relevant to that purpose, (3) the agency does not already have the information it is
seeking with the subpoena, and (4) the agency has followed the necessary administrative steps in
issuing the subpoena.11 The federal courts have construed the Powell factors broadly, allowing
greater flexibility for government action.

        While federal agencies are dependent upon the courts to enforce administrative subpoena
requests, U.S. district courts must enforce an agency’s subpoena authority unless the evidence
sought by the subpoena is “plainly incompetent or irrelevant to any lawful purpose of the
[requesting official] in the discharge” of his or her statutory duties. 12 The Supreme Court noted in
Oklahoma Press Publishing Company v. Walling13 that “[t]he very purpose of the subpoena . . . is
to discover and procure evidence, not to prove a pending charge or complaint, but upon which to
make one if . . . the facts thus discovered should justify doing so.”14 In other words, a federal
court may not condition enforcement of an agency’s subpoena upon a showing of probable cause
because the agency may be using the very subpoena at question to make an initial determination
as to whether such probable cause do es, in fact, exist. The Supreme Court has stated in United
States v. Morton Salt15 that, in evaluating the appropriateness of an administrat ive subpoena
request, a court must simply determine that “the inquiry is within the authority of the agency, the
demand is not too indefinite and the information sought is reasonably relevant.”16 The courts are
generally deferential to the agency’s determination that the information sought is “reasonably


         10
             While Powell involved an IRS subpoena, a subsequent case clarified that the analysis applied in Powell
is relevant to all ad ministr ative subpoena authorit ies. See Securities and Exchange Com’n. v. Jerry T. O’Brien,
Inc., 467 U.S. 735, 741-42 (1984).

         11
            379 U.S. 48 (1964). Some cour ts ha ve exclud ed the last two Powell factors, holding that later decisions
of the Supreme Court sometimes exclude such requirements and that adhering strictly to all four factors may
unacceptably restrict agency action. See, e.g., United States v. Bell, 564 F.2d 953, 959 (Temp. Emer. Ct. App.
1977) (stating that the last two requirements are too restrictive); United States v. Security State Bank & Trust, 473
F.2d 638, 641 (5th Cir. 1973) (stating that the governmental entity needs only the two primary requirements).
Other courts, however, have applied less deferential scrutiny in analyzing whether an agency has used its subpoena
authority appropriately. See, e.g., Sunshine Gas Co. v. United States Department of Energy, 524 F.Supp. 834,
838 (N.D. T ex. 1981) (st ating that “th e agency's order sh ould only be affirmed if a ration al basis exists, but such
must be supplied by the agency, not the court”).
         12
              Endicott Johnson Corp. v. Perkins, 317 U.S. 501, 509 (1943).
         13
              327 U.S. 186 (1946).

         14
              Id. at 201.
         15
              338 U.S. 632, 51 (1950).
         16
              Id. at 651.

                                                           8
relevant,” noting that a court must “defer to the agency’s appraisal of relevancy in connection
with an investigative subpoena as long as it is not ‘obviously wrong.’”17

        The Supreme Court has declined to establish universally applicable standards of
reasonableness for evaluating the scope of administrative subpoena issuance, leaving room for
lower courts to tailor their analysis to the unique circumstances of a particular investigation. The
Court has provided some guidance, however, stating that lower courts should require at minimum
that an agency’s “specification of the documents to be produced [is] adequate, but not excessive,
for the purposes of the relevant inquiry” and that the agency use “particularity in ‘describing the
place to be searched, and the persons or things to be seized.’” 18

        In addition to challenges based on the Fourth Amendment, the Supreme Court has
recognized several potential grounds for challenge or modification of an administrative subpoena
authority in certain instances. These grounds include, but are not limited to, the: (1) privilege
against self incrimination, (2) free exercise of religio n, (3) freedom of association, (4) at torney-
client privilege.19

2.       Description of Applicable Subpoena Enforcement Mechanisms.

       Congress has consistently required that agencies and departments seek enforcement of
administrative subpoenas through a federal district court. Federal courts have generally
recognized that “[b]ifurcation of the power, on the one hand of the agency to issue subpoenas and
on the other hand of the courts to enforce them, is an inherent protection against abuse of
subpoena power.”20

        Statutes granting administrative subpoena authorities generally fall into three enforcement-
related categories: (1) statutes authorizing an agency official to apply directly to an appropriate


         17
           United States v. Hunton & Williams, 952 F. Supp. 843, 854 (3d Cir. 1995). The Third Circuit in this
instance noted that the “reasonableness” inquiry in such cases does not correspond with, and is more deferential
than, the Administrative Procedures Act “arbitrary and capricious” standard of review for agency action. Id.

         18
              Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 208 (1946).
         19
          See Graham Hughes, “Administrative Subpoenas and the Grand Jury: Converging Streams of Civil and
Criminal Compulsory Process,” 47 VAND. L. REV. 573, 589 (1994).
         20
           United States v. Security State Bank and Trust, 473 F.2d 638, 641 (5th Cir. 1973). The Supreme Court,
however, has n ot specifically issued a r uling a s to whether t he constraints of due pr ocess preclude federal agencies
from possessing the power to enforce their own subpoenas. Federal courts have generall y held that due process
does preclude federal agencies from enforcing such subpoenas, however. See Shasta Minerals & Chem. Co. v.
SEC, 328 F.2d 285, 286 (10th Cir. 1964). The Court has stated in Interstate Commerce Commission v. Brimson,
154 U.S. 447, 484 (1894), th at “th e power to impose fine or impr isonm ent in order to com pel th e perfor mance of a
legal duty imposed by the United States can only be exerted, under the law of the land, by a competent judicial
tribunal having jurisdiction in the premises,” Id. at 484; however, as Congress h as not tested the outer limit s of
Interstate Commerce Commission v. Brimson by conferring direct administrative subpoena enforcement authority
on a federal agency, the C ourt h as not had occasion to specificall y address the constitutionality of a con ferra l of
such enforcement authority.

                                                            9
U.S. district court for enforcement assistance,21 (2) statutes requiring an agency official to request
the Attorney General’s aid in applying to a U.S. district court for enforcement assistance,22 and
(3) statutes containing no stated enfo rcement mechanism. 23 Where an agency requests the
assistance of the Attorney General through a United States Attorney’s o ffice to seek enforcement
of an administrative subpoena in federal district court, the United States Attorney’s office plays a
role that is more than ministerial, exercising discretion in determining whether to seek
enforcement by a court. In evaluating such requests, the United States Attorney’s office evaluates
the subpoena issued by the agency to determine whether the scope of the request is in keeping
with the agency’s statutory authority and the agency has followed proper procedures in issuing
the subpoena.24 In short, the United States Attorney’s office evaluates the subpoena request to
determine whether the requirements of Powell and Oklahoma Press (good faith and
reasonableness) have been satisfied.

        When a federal court acts in regard to an agency’s enforcement petition, whether
presented by the agency directly or through a United States Attorney, “the district court's ro le is
not that of a mere rubber stamp, but of an independent reviewing authority called upon to insure
the integrity of the proceeding.”25 Federal courts have noted that “[t]he system of judicial
enforcement is designed to provide a meaningful day in court for one resisting an administrative

         21
            Consider, for instan ce, th e Secret ary of Labor , who is auth orized to petition directly for en forcement of
an ERISA Title I subpoena. See, e.g., Dole v. Milonas, 889 F.2d 885, 888 (9th Cir. 1989) (notin g that t he FTC Act
provisions codified at 15 U.S.C. § 49 are incorporated into ERISA at 29 U.S.C. § 1134(c), thereby authorizing the
Secretary of Labor to petition for enforcement of an ERISA Title I subpoena in district court). The Federal Election
Commi ssion is similar ly auth orized under 2 U. S.C. §437d(b) to pet ition a dist rict court directly for en forcement of
certain adm inistra tive subpoenas (authorizi ng the Federal E lection Commission to petiti on the appropr iate U.S.
district court to issue an order requiring compliance with subpoena request authorized by 2 U.S.C. §437d(a)(1)-(4)
and to punish any failure to obey such order).
         22
          See, e.g., U.S. Department of Agriculture, “Procedures Related to Administrative Hearings under the
Program Fraud Ci vil Remedies Act of 1986" (PFCRA), 7 C.F. R. §§ 1.304, 1.319, 1. 322, 1.32 3, 1.328 ( author ized
by 31 U.S.C. §3804(a)).

         23
            See, e.g., Foreig n Shipping Pr actices Act, 46 App. 46 U.S.C. 1710a (authori ty to mak e infor mati on
requests, but no enforcement authority, judicial or otherwise, is mentioned in the statute); See also Federal
Maritime Commission’s related submission and recommendation in Appendix A.
         24
           See UNITED STATES ATTORNEYS MANUAL (USAM), 4-6.210 C. This section of the USAM states that
“[m]ost routine subpoena enforcement actions are handled by the USAOs and are authorized by the Director in
charge of Area 1.” The USAM goes on to state that:
         [a] Bran ch attorney will review the r eferral and proposed pl eadings, and th en prepare a
         memorandum from the assistant director to the director, recommending whether the suit should
         be filed. If the subpoena enforcement action is approved by the director, the Branch attorney will
         write the agency an d the United Stat es Attor ney, statin g whether the suit has been auth orized or
         not, and if so, that it is delegated to the United States Attorney. In cases in which suit is
         authorized, a referral acknowledgment form will also be sent to the United States Attorney, as
         well as a copy of paper s recei ved from the agency.

Id.
         25
              Wearly v. FTC, 616 F.2d 662, 665 (3rd Cir. 1980).

                                                            10
subpoena,"26 and that “the court has the power to condition enforcement upon observance of
safeguards to the respondent's valid interests.”27 The burden of proof imposed on a challenger to
an administrative subpoena is steep, however. A challenge based on an agency’s failure to satisfy
one of the four factors establishing “good faith” under Powell,”28 for instance, will only be
successful upon a showing of “institutionalized bad faith,” not mere bad faith on the part of a
particular individual issuing the subpoena.29 A district court’s order requiring compliance with an
administrative subpoena or refusing to quash a subpoena request is immediately appealable,
however, as such an order is generally treated as a final judgment under 28 U.S.C. §1291.30


         Most statutes authorizing administrative subpoena enforcement in federal district court
authorize the court to impose contempt sanctions upon a recipient who continues to refuse to
comply even after a court order of compliance. Certain statutes authorizing enforcement by a
federal district court also provide for specific penalty ranges or limitations for findings of criminal
or civil contempt of court based on noncompliance with a court order to comply with an
administrative subpoena request. In some instances, these penalties are particularly stringent.31
Stat utes prescribing specific penalties for noncompliance with an administrative subpoena and
subsequent court order occasionally provide more severe penalties for “willful contempt,” as
compared to mere “contempt.”32 Other statutes authorizing district court enforcement action,

         26
              United States v. Security State Bank and Trust, 473 F.2d 638, 642 (5th Cir . 1973).
         27
              Wearly, 616 F.2d at 665.
         28
           United States v. Powell, 379 U.S. 48, 58 (1964). Federal courts have further expounded on the concept
of agency “bad faith,” stating that “bad faith” may be found in “circumstances involving the harassment of the
recipient of a subpoena” or a “conscious attempt by the agency to pressure the recipient to settle a collateral
dispute.” United States v. Markwood, 48 F.3d 969, 978 (6th Cir. 1995).
         29
              United States v. LaSalle Nat’l Bank, 437 U.S. 298, 316 (1978).
         30
            Cobbledick v. United States, 309 U.S. 32 3, 330 (1940) (recognizing the immediate reviewa ble nature of
a district court enforcement order). In contrast, grand jury enforcement orders are not appealable immediately as
this would stall further court proceedings. No further proceedings in the court are necessary, however, after a court
orders compliance with an administrative subpoena. Id. at 329-30.
         31
           See 42 U.S. C. §9604(e) (aut hori zing the court to assess civil penalties of up to $25,000 for each day of
continued noncompliance with subpoena issued un der CERCLA au thorit y); 15 U.S.C. §50 (FTC statute,
incorporated by reference into several other agencies’ subpoena authori ties (See, e.g., 33 U.S.C. §944, Department
of Labor authority) author izing punish ment for n oncomplian ce by “a fine of not less than $1,000 n or more th en
$5,000, or by imprisonment for not more than one year, or by both such fine and imprisonment”).
         32
            See, e.g., Department of Energy authority granted in 15 U.S.C. §772(e), with subsection (i),
incor porating by reference §797(a), (b)( 1) an d (2) (includin g violation of subpoena requirement among list of
various other violations and prescribing disparate civil penalties based on “willful” or non-willful failure to
comply); Department of Interi or, 43 U.S.C. §§102-10 6 (stating th at wilful refusal to comply with subpoena request
in public lands cases may be punished as a misdemeanor); Federal Deposit Insurance Corporation, Federal Deposit
Insurance Act (FDI Act), 12 U.S.C. §1818(n) (stating that any person who willfully fails or refuses to comply with
an FDIC subpoena m ay be subject t o contem pt pr oceedin gs in federal dist rict court and “shal l be guilty of a
misdemeanor and, upon conviction, shall be subject to a fine of not more than $1,000 or to imprisonment for a

                                                           11
either at the request of the agency itself or t hrough petition of the Attorney General, contain no
specific contempt penalty provisions.33 Under such statutes, the U.S. district courts are free to
apply penalties for civil and criminal contempt otherwise available at law where a party refuses to
comply with a court’s order that the party submit to an agency’s subpoena request.34 In st ill
other instances, it is unclear whether a part icular statutory subpoena authority is accompanied by
a particular statutory penalty or penalty limitation to be imposed for contempt based on failure to
comply with a court’s order for compliance. The Department of Interior, for instance, holds a
specific subpoena authority under Section 1724 of the Royalty Simplification and Fairness Act
(RSFA) but has not yet had occasion to litigate the question as to whether a civil penalty
prescribed for a violation of the Federal Oil and Gas Management Act (FOGRMA), a statute
amended by the RSFA, is also applicable as a penalty for contempt of court in failing to comply
with the court’s order to submit to an RFSA subpoena.35


        Proceedings in U.S. district co urt brought to compel compliance with an administrative
subpoena are summary proceedings. In general, the agency issuing a subpoena requests the
court’s assistance in enforcing the agency’s previous subpoena order, or requests the Attorney



term of not more than one year or both”); Internal Revenue Service authority granted in 26 U.S.C. §6420(e)(2),
6421( g)(2), 6427(j)(2 ), 7602, 7603, and 7604(b) (stating th at a person failin g to comply with a subpoena request
under these sections shall “upon conviction thereof, be fined not more than $1,000, or imprisoned not more than 1
year, or both, together with costs of prosecution,” 26 U.S.C. §7210).

         33
             See 26 U.S.C. §7604 (authorizing the Secretary to request a hearing in front of a U.S. district court
judge or Commissioner for contempt proceedings based on noncompliance with an I.R.S. request for information).
This sta tute provides that th e judge or commissioner sha ll, “upon su ch hear ing. . . have power to ma ke such order
as he shall deem proper, not inconsistent with the law for the punishment of contempts, to enforce obedience to the
requirements of the summons and to punish such person for his default or disobedience.” Id.


         34
             Contempt may be either civil or criminal in nature. A federal court is authorized under 18 U.S.C. §401
to initiate a prosecution for contempt. See id. (stating that “[a] court of the United States shall have power to
punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as-- . . . (3)
Disobedience or resistance to its lawful writ, process, order, rule, decree, or command” ). Under current law, a
person found guilty of criminal contempt may be subject to a fine not to exceed the sum of $1,000, imprisonment
not exceeding a term of six months, or both. 18 U.S.C. §402. In proceedings for criminal contempt where the
penalty authorized by statute makes this contempt something more than a petty offense, the defendant is entitled to
the right to a trial by jury under Article III, Section 2, and under the Sixth Amendment of the Constitution. See
Propriety of Imprisonment under 18 U.S.C. §401(3) for Contempt of Court Order Requiring Compliance with
Statute not Authorizing Imprisonment for its Violation, 41 A.L.R. FED. 900 (2000). In addition, federal courts
have also held that a defendant is entitled to the assistance of counsel in any proceeding for criminal contempt.
See Holt v Virginia, 381 U.S.C. 131 (1965).
         35
            Section 1724 of the RSFA authorizes certain officials in the U.S. Department of Interior to issue
administrative subpoenas. 30 U.S.C. §1724(d)(2)(B). In a separate provision, RSFA amends the FOGRMA.
FOGRMA provides its own compulsory authorities and authorizes enforcement of those authorities. 30 U.S.C.
§1717 . The Depar tmen t of Int erior noted in its submission to the Office of Lega l Policy at the Depar tmen t of
Justice tha t the issue a s to whether t he FOGRMA enforcement provisions apply to situa tions of noncomp liance
with RSFA subpoenas has not been litigated. See Appendix A, U.S. Departmen t of Interior entry.

                                                          12
General’s intervention in petitioning the appropriate district court for enforcement assistance.36
The district court generally issues an order to the subpoena recipient to show cause for
nonenforcement of the subpoena. If the recipient does not present sufficient reason that the
subpoena should not be enforced, including a showing of noncompliance with the Powell “good
faith” factors, “abuse of the court’s process,” or the “unreasonableness” of the agency’s request,
the court will issue an order of compliance. While a subpoena recipient may be entitled to so me
opportunity for discovery and an evidentiary hearing prior to judicial enforcement of an
administrative subpoena, this entitlement is not absolute37 and is dependent upon the recipient’s
presentation of a certain “threshold showing” of facts supporting the need for such hearing.38 The
level of this threshold showing varies among the federal courts. 39 Should a hearing be provided,
the subpoena recipient may present a successful challenge by showing by a preponderance of the
evidence that the administrative agency did not act in “good faith” in issuing the subpoena, was
otherwise unreasonable in its subpoena request, or “abused t he processes o f the court” in seeking
enforcement.40

        While the federal courts have generally been somewhat deferential to federal agencies in
enforcing administrative subpoenas, case law notes that the courts do not merely “rubber stamp”
an agency’s use of subpoena authority. 41 Several courts have noted that "[t]he system of judicial
enforcement is designed to provide a meaningful day in court for one resisting an administrative
subpoena,"42 and that “[i]n the discharge of that duty, the court has the power to condition
enforcement upon observance of safeguards to the respondent's valid interests.43 As the Supreme
Court not ed in 1946 in Oklahoma Press Publishing Company v. Walling, however, the
responsibility of the federal courts in administrative subpoena enforcement proceedings is to
remain “fully alive to the dual necessity of safeguarding adequately the public and the private
interest” involved in such situations.44 Therefore, the lower federal courts have been instructed to
balance the public’s interest in law enforcement, order, and basic fairness with the personal or




        36
           See Therese Maynard, “SEC v. Jerry T. O’Brien, Inc.: Has th e Supreme Cour t Overruled United States
v. Powell?,” 18 LOY. L.A. L. REV. 643, n. 112 (1985) (providing a description of the enforcement process).
        37
          See United States v. Kis, 658 F.2d 526, 539 n. 39 (7th Cir. 1981), cert. denied, 455 U.S. 1018 (1982)
(involving I.R.S. subpoena authority).

        38
             See id.

        39
             See id.
        40
             See id. at 540.
        41
             Wearly v. FTC, 616 F.2d 662, 665 (3d Cir. 1980).

        42
             United States v. Security State Bank an d Trust , 473 F.2d 638, 642 (5th Cir. 1973).
        43
             Id.

        44
             Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 202 (1946).

                                                          13
corporate interest in absolute privacy.45

        As federal agencies are not currently authorized under statute to enforce administrative
subpoena compliance directly, certain agencies have recognized that they are capable of taking
action separate and apart from a U.S. district court’s enforcement action in an indirect effort to
encourage compliance. The Federal Maritime Commission, for instance, states that, in addition to
requesting the Attorney General’s assistance in seeking judicial enforcement, the Commission
may: (1) suspend a common carrier’s tariff or use of a tariff for failure to supply information, 46
App. U.S.C. §1712(b)(2), (2) impose a penalty of up to $50,000 per shipment for carriers
subsequently operating under a suspended tariff, 46 App. U.S.C. §1712(b)(3), and (3) request
that the Secretary of the Treasury refuse clearance to carriers in noncompliance with a subpoena
request, 46 App. U.S.C. §1712(b)(4). Shipping Act of 1984, 46 U.S.C. §13(b)(2)-(4).46

3.       Description of Any Notification Provisions and Any Other Provisions Relating to
         Safeguarding Privacy Interests.

        The privacy interests of administrative subpoena recipients are protected to some degree
by the maintenance of enforcement authority in the judiciary and the statutory ability of recipients
to motion a court to quash or modify a subpoena request.47 See discussion of judicial review in
enforcement proceedings in subsection II.A.3.a infra and section II.A.2 supra. In addition,
agencies and departments are limited in exercising their administrative subpoena authorities by (1)
nondisclosure requirement s imposed in an agency’s organic statutes, (2) privacy-protective
constraints internal to the statute authorizing the subpoena power, (3) generally applicable
privacy-protective st atutes, and (4) agency-promulgated guidelines limiting or directing subpoena
issuance. See discussion of various statutory/regulatory privacy-protective provisions in
subsection II.A.3.b infra. Subsection II.A.3.c infra discusses privacy-protective guidelines and
directives established internally in agencies holding administrative subpoena authorities.

         a.          Privacy-protective impact of maintaining administrative subpoena enforcement
                     authority in judiciary.

        While the privacy interests of an individual or entity are protected by maintaining
administrative subpoena enforcement authority in the federal courts, the courts have consistently
held that the issuance of an administrative subpoena without a showing of probable cause does
not violate the Fourth Amendment.48 The federal courts have recognized that a showing of

         45
              Id. at 203.

         46
           Each of these actions mean t to periph erally encour age complian ce with a subpoena request ar e,
however, subject to the disapproval of the President for “reasons of the national defense or the foreign policy of the
United States.” See 46 App. U.S.C. §1712(b)(7).
         47
            See United States v. Security State Bank and Trust, 473 F.2d 638, 641 (5th Cir. 1973) (stating that
“[b]ifurcation of the power, on the one hand of the agency to issue subpoenas and on the other hand of the courts to
enforce them, is an inherent protection against abuse of subpoena power”).
         48
              See Donovan v. Lone Steer, Inc., 464 U.S. 408 (1984).

                                                          14
probable cause is unnecessary in issuing and enforcing an administrative subpoena as the exercise
of such authority is significantly less intrusive than a search and seizure carried out under a
warrant.49 After all, statutes authorizing administrative subpoenas are generally enforceable
through judicial process,50 and the subject of the subpoena is not subject to the possible physical
invasion that a search and seizure may impose. In addition, as the Supreme Court has recognized,
the issuance of an administrative subpoena may not be subjected to a probable cause requirement
as the administrative subpoena is often issued for the very purpose of determining whether such
probable cause exists.51

        In place of a probable cause requirement, the federal courts in enforcement proceedings
have imposed basic requirements as to the scope, necessity, and authority to issue an
administrat ive subpoena in addition to evaluating the reasonableness of an administrative
subpoena request. A recipient of an administrative subpoena may challenge the issuance or
enforcement of an administrat ive subpoena in court by presenting sufficient evidence that the
agency has not acted in accordance with the basic standards of reasonableness as articulated in
Oklahoma Press Publishing Co. v. Walling,52 has not issued an administrative subpoena in “good
faith” demonstrated by a failure to satisfy factors articulated in United States v. Powell,53 or has
abused the judicial process in petitioning a court for enforcement.54 While a judicial challenge on
these grounds is only available to the subpoena recipient either (1) through a petition to quash a
subpoena or (2) in the course of challenging an administrative subpoena enforcement order, an
agency must consider the strictures of each of these possible grounds for nonenforcement before
issuing an administrative subpoena. While the courts are deferential in evaluating an agency’s
issuance of an administrative subpoena, a court does not merely “rubber stamp”
an agency’s exercise of issuance autho rity.

        In Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186 (1946), the Supreme Court
discussed the necessity of balancing the importance of the public interest in the information being
requested with the importance of the interest in personal or organizational privacy. See 327 U.S.
186, 202 (1946). The Court not ed in Oklahoma Press that a court should evaluate a challenge to

         49
              In re Subpoena Duces Tecum, 228 F.3d 341, 348 (4th Cir. 2000).
         50
           See Appendices A, B, C infra. See also In re Subpoena Duces Tecum, 228 F.3d at 348; Unit ed States v.
Bell, 564 F.2d 953, 959 (Temp . Emer. Ct. App. 1977) (stati ng th at “[b]ifurcation of the power, on the on e han d of
the agency to issue subpoenas and on the oth er hand of the courts t o enforce them, is an in herent pr otection against
abuse of subpoena power”).
         51
              Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 201 (1946).
         52
              See id. at 202.

         53
              See 379 U.S. 48, 57-58 (1964).

         54
            See also Securities and Exchange Comm’n v. Wheeling-Pittsburgh Steel Corp., 648 F.2d 118, 124 at n.
9 (3d Cir. 1981) (sta ting tha t “‘[b]ad faith’" connotes a conscious decision by an agency to pursue a groun dless
allegation without hope of proving that allegation” while “abusing the court's process” connotes vigorous
pursuance “of a charge because of the influence of a powerful third party without consciously and objectively
evaluating the charge”).

                                                          15
an administrative subpoena by considering whet her: (1) the investigation is for a lawfully
authorized purpose, (2) the subpoena authority at issue is within the power of Congress to
command, and (3) the “documents sought are relevant to the inquiry.”55 The Court also noted
that an administrative subpoena request must be “reasonable” in nature. The Court declined to
strictly define the applicable reasonableness inquiry, however, stating that the inquiry in such
situations cannot be “reduced to formula; for relevancy, adequacy or excess in the breadth of
subpoena are matters variable in relation to the nature, purposes, and scope of the inquiry.” 56
The Court noted that reasonableness requires, in summary, “specification of the documents to be
produced adequate, but not excessive, for the purposes of the relevant inquiry,” including
“particularity in ‘describing the place to be searched, and the persons or things to be seized.’”57

         b.          Statutorily imposed privacy limitations or notice provisions.

         (i)         Nondisclosure requirements imposed in an agency’s organic statutes.

        The organic statutes of certain agencies contain internal provisions rest ricting the
disclosure of particular information regularly accessed by the agency. The Federal Trade
Commission Act, for instance, contains strict nondisclosure requirements, protecting confidential
financial or commercial information.58 A full description of the privacy-related provisions
contained in the organic statutes of the federal agencies is beyond the scope of this report.

         (ii)        Internal statutory constraints in the subpoena-authorizing statute.

        Certain of the statutes authorizing exercise of administrative subpoena authority contain
internal privacy limitations.59 Other authorizing statutes contain internal notification
requirements.60 Many of these internal statutory constraints are referenced in the attached


         55
              Oklahoma Press Publishing Co., 327 U.S. at 209.
         56
              Id. at 208.

         57
              Id.
         58
          Consider, for example, strict confidentiality protections provided under the FTC Act §6(f), 15 U.S.C.
§46 (protecting confidential financial or commercial information), 15 U.S.C. § 57b-2, FTC Act §21 (protecting
information obtained pursuant to compulsory process or in lieu thereof).
         59
           See, e.g., EPA’s authority under the Safe Drinking Water Act (SDWA), P.L. 93-523 §1445(b)(1)
(SDWA §1445(d) forbids the public disclosure of information obtained under §1445 administrative subpoena
authority if the information would “divulge trade secrets or secret processes.”); Section 15 of the Occupational
Safety and Health Act of 1970, 29 U.S.C. §661(b), Pub.L. 91-596, 29 CFR §2200.57 (providing that the
Occupational Safety and Health Commi ssion may issu e order s, wher e appr opria te, to protect the con fidential ity of
trade secrets).
         60
           See, e.g., 7 U.S.C. §2(h)(5)(C)(i) (providing administrative subpoena authority to the Commodity
Futures Trading Commission and requir ing that the recipient of a subpoena must “promptly notify the foreign
person of, and transmit to the foreign person, the subpoena in a manner reasonable under the circumstances, or as
specified by the CFTC”).

                                                           16
Appendices. A full description of each of these internal statutory constraints is beyond the scope
of this report.

         (iii)    Generally applicable privacy or notice statutes.

       Many privacy-protective statutory schemes have been enacted to protect specific
categories of information, personal or organizational. These statutes are applicable, in certain
circumstances, to information collected in response to administrative subpoena authorities.
Subsections II.A.3.b.(aa) through II.A.3.b.(ll) infra provide a brief description of several of these
privacy-protective provisions and their potential relation to administrative subpoena requests.

                  (aa)     Privacy Act, 5 U.S.C. §552a.

        The Privacy Act regulates to some degree the sharing of information among federal
agencies and the disclosure of information to third parties. See 5 U.S.C. § 552a. The Act was
intended, among other things, to safeguard an individual’s privacy by preventing the misuse of
federal records.

         Subject to some exceptions, including an exception for records released as part of an
authorized civil or criminal law enforcement investigation, federal agencies are required to obtain
an individual’s consent before releasing protected records to another federal agency or other third
party. 61 5 U.S.C. §552a(b). Records protected by the Act include, but are not limited to, those
containing specific reference to an individual’s “education, financial transactions, medical history,
and criminal or employment history” and that contain the individual’s “name, or the identifying
number, symbol, or other identifying particular assigned to the individual, such as a finger or voice
print or a photograph.” 5 U.S.C. §552a(a)(4).

        Agencies may share information protected by the Act if they do so through a “routine
use,” an information sharing relationship disclosed through advance notice in the Federal Register
and to Congress and the Office of Management and Budget (OMB). By requiring the agencies to
provide Congress and OMB with advance notice of such information sharing, Congress and OMB
are able to evaluate “the probable or potential effect of such proposal[s] on the privacy or other
rights of individuals.” 5 U.S.C. section 552a(r).



         61
          Subsecti on (b) sets fort h twelve circu mstances un der which r ecords concernin g an indi vidual can be
disclosed without the individual's prior written consent. The law enforcement exception states that

         [n]o a gency sh all disclose any record which is conta ined in a system of records by any mean s of
         communication to any person, or to another agency, except pursuant to a wr itten request by, or
         with the prior writt en consent of, the individual to whom the r ecord pertains, unless disclosure of
         the record would be to another agency . . . for a civil or criminal law enforcement activity if the
         activity is auth orized by law, an d if the hea d of the agency or in strumen tality has made a writ ten
         request to the agency which maintains the record specifying the particular portion desired and the
         law enforcement activity for which the record is sought.

5 U.S.C. §552a(b)(7).

                                                           17
                  (bb)     Freedom of Information Act, 5 U.S.C. §552.

         The Freedom of Information Act (FOIA) generally requires the disclosure of certain
government information to the public at the request of an individual or entity. FOIA, however,
contains a number of exceptions, allowing governmental entities to withhold information obtained
in response to an administrative subpoena under certain circumstances. Particular types of
information exempted from FOIA’s general disclosure requirements include, but are not limited
to: (1) “trade secrets and commercial or financial information obtained from a person and
privileged or confidential,” (2) “personnel and medical files and similar files the disclosure of
which would constitute a clearly unwarranted invasion of personal privacy;” and, (3) to a certain
extent, “records or information compiled for law enforcement purposes.”62 In addition, agency
regulations sometimes contain provisions allowing parties to petition for confidential treatment of
information provided at the request of an agency in carrying out its statutory responsibilities.63

                  (cc)     Right to Financial Privacy Act (RFPA), 12 U.S.C. §3401 et seq. (customer
                           financial records)

        The legislative history of the Right to Financial Privacy Act (RFPA) denotes that it was
intended to balance the privacy interests of customers of financial institutions with the public’s
interest in effective and legitimate law enforcement investigations.64 12 U.S.C. §3402. RFPA
limits both the access/disclosure and the interagency transfer of a customer’s personal financial
information.



         62
          Law enfor cement recor ds exempted fr om the disclosure r equir ement s of FOIA include recor ds or
information that:

         (A) could reason ably be expected to interfere with enforcem ent proceedin gs, (B) would deprive a
         person of a right to a fair trial or an impartial adjudication, (C) could reasonably be expected to
         constitute an unwarranted invasion of personal privacy, (D) could reasonably be expected to
         disclose the identity of a con fidential source, includin g a Sta te, local, or foreign agency or
         authority or any private institution which furnished information on a confidential basis, and, in
         the case of a record or information compiled by criminal law enforcement a uthority in th e course
         of a crimin al investi gation or by an agency conductin g a lawful na tional secur ity intelli gence
         investigation, information furnished by a confidential source, (E) would disclose techniques and
         procedures for law enforcement investi gations or prosecu tions, or would disclose gu ideli nes for
         law enforcement investigations or prosecutions if such disclosure could reasonably be expected to
         risk circumvent ion of th e law, or (F) could reasonabl y be expected to endanger th e life or
         physical safety of any individual.

5 U.S.C. §552(b)(7).

         63
            Consider, for example, 17 C.F.R. Part 145 (2002) (providing guidelines as to the process an individual
must follow in requesting that the Commodity Futures Trading Commission keep information submitted by the
individual confidential, nothwithstandin g the general principles of disclosure promoted under FOIA).
         64
          See H.R. REP. NO. 95-1383, at 33, reprinted in 1978 U.S.C.C.A.N. 9273, 9305. See also the discussion
regarding the legislative history surrounding RFPA in U.S. on Behalf of Agency for Int ’l. Developme nt v. First
Nat’l Bank of Maryland, 866 F.Supp. 884 (D.Md. 1994).

                                                         18
         RFPA prohibits any agency or department from obtaining (or any private "financial
institution" as defined in 12 U.S.C. § 3401(1) from disclosing) the financial records of a financial
institution's "customer" as defined in 12 U.S.C. § 3401(5) without prior customer consent, except
where access is authorized by one of the express exceptions to the Act or is accomplished through
one of the five access mechanisms mandated by the Act, including “administrative subpoena or
summons.” See 12 U.S.C. § 3412 (regarding restrictions on interagency transfer of protected
information). Under 12 U.S.C. §3405, a government authority may obtain financial records
protected by RFPA pursuant to an administrative subpoena only if: (1) there is reason to believe
that the records sought are relevant to a legitimate law enforcement inquiry and (2) a copy of the
subpoena or summons has been served upon the customer or mailed to his last known address on
or before the date on which the subpoena or summons was served on the financial institution
together with a notice stating with reasonable specificity the nature of the law enforcement
inquiry. See 12 U.S.C. §3405. The statute provides specific language for the agency to use in the
notice it provides to the customer.65 A financial institution is forbidden under RFPA from
releasing the financial records of a customer "until the Government authority seeking such records
certifies in writing to the financial institution that it has complied with the applicable provisions"
of the Act, including the notice provision. 12 U.S.C. § 3403(b). Pursuant to 12 U.S.C. §3409,
however, a governmental entity may under certain enumerated circumstances seek a court order
allowing delayed notification to the customer.66

         Federal agencies may be subject to civil penalties for violation of RFPA requirements,67
and
federal agents or employees are subject to disciplinary action for willful or intentional violation of
the Act,68 thus providing incentive to protect the privacy of consumer financial records requested
by an agency under its subpoena authority. 69

         65
          An agency issuing an administrat ive subpoena to a fin ancial institution must also notify the customer
whose records it seeks. See 12 U.S.C. § 3405(2). RFPA notice to the consumer must include: (1) a copy of the
subpoena, including a description of the information being requested; (2) the purpose of the subpoena, (3) the
customer’s right to file a motion to quash the subpoena. Id. Toget her with t his n otice, the customer must a lso be
provided blank customer challenge motion and sworn statement forms. Id.
         66
             A presiding judge or magistrate judge may so order if: (1) the investigation being conducted is within
the lawful jurisdiction of the Government authority seeking the financial records, (2) there is reason to believe that
the r ecords being sought are releva nt to a legitima te law en forcement inqui ry, an d (3) there is rea son to bel ieve
that such notice will result in: (a) endangering the life or physical safety of any person, (b) flight from prosecution,
(c) destruction of or tampering with evidence, (d) intimidation of potential witnesses, or (e) otherwise seriously
jeopardizing an investigation or official proceeding or unduly delaying a trial or ongoing official proceeding to the
same extent as the circumstances previously listed. See 12 U.S.C. §3409.
         67
              12 U.S.C. §3417(a).
         68
              12 U.S.C. §3417(b).
         69
            The Act provides for customer challen ges (motion to quash, app lication to enjoin) to governm ent access
to financial r ecords (see 12 U.S. C. §3410) a nd also provides for injunctive relief to enfor ce compliance with any of
its provisions (see 12 U.S.C. §§ 3416, 3418). The Act provides for the assessment of money damages against any
agency or department or private financial institution obtaining or disclosing financial records in violation of the
Act's provisions, at a statutory minimum amount of $100 regardless of the volume of records involved. See 12

                                                           19
         The customer receiving notice of an administrat ive subpoena request has ten days after the
receipt of that notice, or fourteen days after the notice was mailed to the consumer, to provide
consent or to challenge the government access to their records in U.S. district court. 12 U.S.C.
§3410(a). In bringing an RFPRA challenge to a subpoena, however, the customer bears the
initial burden of proof. 70 In order for a customer to challenge a subpoena, he or she may make a
procedural argument that the proper notice was not provided as required by the act or a
substantive argument that either the information sought by the agency was not “reasonably
described”71 or the agency did not have “reason to believe that the records sought are relevant to
a legitimate law enforcement inquiry.”72 Lower federal courts have generally accorded agencies
wide latitude in imposing administrative subpoenas, however, and the two bases for substantive
challenge under RFPA rarely prove fruitful for challengers in court.73 Administrative subpoenas
issued in relation to inquiries not related to law enforcement inquiries are subject to the general
requirement of RFPRA that customer consent must be gained prior to receipt/disclosure of the
subpoenaed information protected by the Act.

                    (dd)     Trade Secrets Act, 18 U.S.C. §1905

        While 18 U.S.C. §1905, a provision of the Trade Secrets Act, does not place restrictions
on information requests, it is intended to prevent a federal employee from publicly divulging
particular information derived from “examination or investigation.” The provision states in full
that:

                    Whoever, being an officer or employee of the United Stat es or of any
                    department or agency thereof, any person acting on behalf of the Office of
                    Federal Housing Enterprise Oversight, or agent of the Department of
                    Justice as defined in the Antitrust Civil Process Act (15 U.S.C.
                    1311-1314), publishes, divulges, discloses, or makes known in any manner


U.S.C. § 3417(a)(1). Beyond this statutory minimum, both actual damages sustained by the customer as the result
of a discl osure, as well as discreti onar y punit ive dam ages where a violati on is found to h ave been "willfu l or
intentional," are allowed, together with costs and reasonable attorney fees. See 12 U.S.C. § 3417(a)(2),(3),(4). See
also 12 U.S.C. § 3410(a) (di scussing ti me limit ations on a party’s abil ity to seek injunct ion of inten ded
government access).
         70
            The governmental entity bears the initial burden in a challenge presented during an enforcement action.
The government ’s initia l burd en in enforcement action s, however, is ligh t, only requiring “a prim a facie recital of
jurisdiction an d statement of the basis for enforcement.” John W. Bagby, “Administra tive Investigations:
Preserving a Reasonable Balance Between Agency Powers and Target Rights,” 23 AM. BUS. L. J. 319, 324 (1985).
         71
              12 U.S.C. § 3402.

         72
              12 U.S.C. §§ 3405(1).

         73
            See, e.g., United Stat es v. Wilson, 571 F. Supp. 1417 (S.D.N.Y. 1983) (rejecting the chal lenge under
RFPA that records subpoenaed were not “reasonably described”); Pennington v. Donovan, 574 F. Supp. 708 (S.D.
Tex. 1983) (rejecting a challenge under RFPA that the agency did not believe that the record subpoenaed were
“relevant to a legitimate law enforcement inquiry”).

                                                           20
               or to any extent not authorized by law any information coming to him in
               the course of his employment or official duties o r by reason of any
               examination or investigation made by, or return, report or record made to
               or filed with, such department or agency or officer or employee thereof,
               which information concerns or relates to the trade secrets, processes,
               operations, style of work, or apparatus, or to the identity, confidential
               statistical data, amount or source of any income, profits, losses, or
               expenditures of any person, firm, partnership, corporation, or association;
               or permits any income return or copy thereof or any book containing any
               abstract or particulars thereof to be seen or examined by any person except
               as provided by law; shall be fined under this title, or imprisoned not more
               than one year, or both; and shall be removed from office or employment.
        Id.

        The language of the statute clearly requires federal employees to protect certain personal
and business information obtained under an issued administrative subpoena from public
disclosure, and the consequences for a statutory violation–including fine, imprisonment, or
both–are stringent. Id.

               (ee)    Limitations in Regard to Substance Abuse and Mental Health
                       Information–42 U.S.C. §290dd-2, regulations at 42 C.F.R. Part 2

        The disclosure of medical records of substance abuse patients obtained through
administrative subpoena compliance is strictly limited by operation of 42 U.S.C. §290dd-2, which
prohibits the disclosure of such medical records unless disclosure is specifically permitted by the
statute, or by the implementing regulations, which may be found at 42 C.F.R. Part 2. Section
290dd-2 of Title 42 of the United States Code requires that “records of the identity, diagnosis,
prognosis, or treatment of any patient which are maintained in connection with the performance of
any program or activity relating to substance abuse education, prevention, training, treatment,
rehabilitation, or research, which is conducted, regulated, or directly or indirectly assisted by any
department o r agency of the United States shall . . . be confidential and be disclosed only for the
purposes and under the circumstances expressly authorized” by the statute. The statute authorizes
disclosure in a limited number of circumstances. Prohibitions on disclosure under the statute
continue to apply to a patient’s records, regardless of “whether or when the individual ceases to
be a patient. 42 U.S.C. §290dd-2(d).

        An agency or department may disclose such information with the consent of the person
who is the subject of the records. 42 U.S.C. §290dd-2(b)(1). Even with patient consent,
however, the information may only be disclosed to (1) medical personnel to meet a “bona fide
medical emergency,” (2) “qualified personnel for the purpose of conducting scientific research,
management audit s, financial audits, o r program evaluation, but such personnel may not identify,
directly or indirectly, any individual patient in any report of such research, audit, or evaluation, or
otherwise disclose patient identities in any manner,” or (3) “if authorized by an appropriate order
of a court of competent jurisdiction granted after application showing good cause therefor,




                                                  21
including the need to avert a substantial risk of death or serious bodily harm.”74 The information
disclosed under the statute may not be used to initiate or substantiate criminal charges against a
patient or to conduct any investigation of the patient.
In criminal investigat ions, a special court order must be obtained before the holder of the
substance abuse patient medical records may produce such records, even in response to
compulsory process, whether a search warrant, grand jury subpoena, or a health care fraud
administrative subpoena.

      A person violating these provisions is subject to fine under Title 18 of the United States
Code. See 42 U.S.C. §290dd-2(f). The Secretary of Health and Human Services has
promulgated extensive regulations related to 42 U.S.C. §290dd-2 at 42 C.F.R. Part 2.

                   (ff)     HHS Medical Privacy Regulations authorized under the Health Insurance
                            Portability and Accountability Act (HIPAA)

       The Health Insurance Accountability and Portability Act (1996) required Congress to enact
privacy standards in relation to patients’ health information by August 21, 1999. 42 U.S.C. §1320d-2
note (2000), Pub. L. 104-191, §264(a)-(b), 110 Stat. 2033. HIPAA also authorized the Secretary
of Health and Human Services to promulgate rules if Congress failed to meet its statutory deadline.
42 U.S.C. §1320d-2 note (2000), Pub. L. 104-191, §§264. As Congress failed to meet its statutory
deadline, the Secretary of Health and Human Services (HHS) promulgated a regulation, which is
scheduled to take effect on April 14, 2003.75

        Under this regulation, no disclosure of patient health information may be made by health care
providers or other covered entities or their associates unless the patient authorizes it, the disclosure
is required by law, or the disclosure is specifically permitted by the rule. A disclosure is considered
"required by law" when the disclosure "complies with and is limited to the relevant requirements of
such law."76 This broad provision is limited by the caveat in §164.512(a)(2) that "[a] covered entity
must meet the requirements described in paragraph (c), (e), or (f) of this section for uses or
disclosures required by law." The requirements imposed in those sections relate to disclosures arising
from adult abuse and neglect or domestic violence (§164.512(c)), disclosures in judicial or
administrat ive proceedings (§164.512(e)), or disclosures for law enforcement purposes (§164.512(f).

        To qualify as a disclosure for law enforcement purposes, the subject of the protected health
information must be the target or subject of the investigation and the activity or investigation may not
relate to: (a) the receipt of health care; (b) a claim for public benefits related to health; or (c)
qualification for or receipt of public benefits or services where the subject’s health is integral to t he


         74
           The statute further states that “[i]n assessing good cause the court shall weigh the public interest and the
need for disclosure against the injury to the patient, to the physician-patient relationship, and to the treatment
services.” 42 U.S.C. §290dd-2(b)(2)(C).


         75
              45 C.F.R. Parts 160, 164.
         76
              45 C.F.R. § 164.512(a)(1).

                                                          22
claim for benefits or services.77 In such cases, a covered entity may disclose protected health
information to law enforcement pursuant to an administrative request only when the material sought
is (1) relevant and material to a law enforcement inquiry, (2) the request is limited in scope in light
of the purpose for which it is sought, and (3) de-identified information could not be used by law
enforcement for the same purpose.78 However, law enforcement may still acquire records from
covered entities without meeting these three requirements through the use of a court order, a
subpoena issued by a judicial officer, or a grand jury subpoena.79

        The regulation recognizes that there may be occasions when law enforcement organizations
perform health oversight activities, thereby increasing the need for access to protected health
information. Examples of this are occasions when the Department of Justice, Federal Bureau of
Investigations, or the Department of Health and Human Services, Office of Inspector General,
investigate allegations of fraud against the Medicare program or other government and private health
care plans.80 These oversight activities, which are granted much broader access to protected health
information under the regulation, include audits, investigations, inspections, civil, criminal, or
administrat ive proceedings or actions, and other activities necessary for oversight of: the nation's
health care system; government benefit programs for which health information is relevant to
beneficiary eligibility; government regulatory programs for which health information is necessary for
determining compliance with program standards; and entities subject to civil rights laws for which
health information is necessary for determining compliance.81 In such oversight activities, the covered
entity is permitted to make a disclosure to an authorized oversight agency without the patient's
consent.

        Entities subject to the requirements of the final rule include: (1) health care providers, (2)
health plans, (3) health clearinghouses82 and (4) business associates of these entities who assist with
their performance, including lawyers and consultants.83

                   (gg)     Electronic Communications Privacy Act (ECPA), 18 U.S.C. §2701 et seq.
                            (stored electronic communications and customer records)



        77
             45 C.F.R. § 164.512(d)(2).

        78
             45 C.F.R. § 164.512(f)(1)(ii)(C).
        79
             45 C.F.R. § 164.512(f)(1)(ii)(a), (B).
        80
            An oversight agency is defined in the regulation to include an agency authorized by law to oversee the
health care system (whether public or private) or government programs in which health information is necessary to
determine eligibility or compliance, or to enforce civil rights laws for which health informati on is relevant." 45
C.F.R. § 164.501.
        81
             45 C.F.R.§ 164.512(d)(1).
        82
           45 C.F.R. § 165.534. Most of these entities must comply with the privacy standards by April 14, 2003.
Small health plans, however, need not comply until April 14, 2004. Id.
        83
             45 C.F.R. § 160.103.

                                                        23
        The provisions of the Electro nic Communications Privacy Act (ECPA) limit the disclosure
        of
certain “wire or electronic communications” pertaining to a subscriber to or customers of a “provider
of electronic communication service or remote computing service.” 18 U.S.C. §2703. The Act limits
a service provider’s ability to disclose the contents of electronic co mmunications that have been in
electronic storage for less than 180 days or in a remote computing service, unless sought under a
valid warrant. Id. Communications that have been in electronic storage for more than 180 days or
in a remote computing service, however, may be released to a governmental entity when the entity
seeks the communications under a valid warrant without prior notice to the customer or subscriber
or with prior notice to the customer of subscriber by use of “an administrative subpoena authorized
by a Federal or State statute.” Id.

        Section 2703 of the ECPA requires that a governmental agency give prior notice to the
service’s subscriber or customer if the agency issues a subpoena seeking disclosure of
communications covered by the Act. Section 2705 allows the agency or governmental entity to delay
notification of a subpoena to the subscriber/customer in some circumstances for ninety days upon
written certification by a supervisory official that timely notice may have an “adverse result.” Under
the language of the statute, such “adverse result[s]” may include: “(a) endangering the life or physical
safety of an individual, (b) flight from prosecution, (c) destruction of or tampering with evidence, (d)
intimidation of potential witnesses; or (e) otherwise seriously jeopardizing an investigation or unduly
delaying a trial.” 18 U.S.C. §2705. In addition, the ECPA authorizes an agency to seek a court order
prohibiting an electronic service provider from notifying a user of the existence or compliance with
an administrative subpoena. A court is required to issue such an order “for such period as the court
deems appropriate” if there is reason t o believe that notification will cause any of the five “adverse
results” listed above. 18 U.S.C. §2705(b).

                (hh)     Fair Credit Reporting Act (FCRA), 15 U.S.C. §1681 et seq. (consumer
                         reports).
        The Fair Credit Reporting Act generally limits permissible disclosures of consumer reports
by consumer reporting agencies. While consumer repo rting agencies are authorized to disclose
consumer reports in response to grand jury subpoena requests or court order, consumer reporting
agencies may not disclose such reports in response to administrative subpoena requests. Consumer
reporting agencies are, however, authorized to disclose such information to the Federal Bureau of
Investigation or other governmental agencies for counterterrorism purposes when “presented with
a written certification by such government agency that such information is necessary for the agency's
conduct or such investigation, activity or analysis.” 15 U.S.C. §1681u. A consumer reporting agency
may only “disclose the name, address, former addresses, places of employment, or former places of
employment, to t he Federal Bureau of Investigation when presented with a written request, signed
by the Director or the Director's designee in a position not lower than Deputy.” 15 U.S.C.
§1681u(b). The Director, or the Director’s designee, may only certify such a request of he or she has
“determined in writing that such information is sought for the conduct of an authorized investigation
to protect against international terrorism or clandestine intelligence activities, provided that such an
investigation of a United States person is not conducted solely upon the basis of activities protected
by the first amendment to the Constitution of the United States.” 15 U.S.C. §1681u(b). Consumer
reporting agencies and their agents are prohibited from disclosing to third parties any information that
would alert them to the fact that the FBI had requested such information. 15 U.S.C. §1681u(d).

                                                  24
                (ii)    Protection of Cable Subscriber Privacy, 47 U.S.C. §551.

         The Cable Act requires prior subscriber consent for any disclosure of personally
identifiable information from a cable provider except in the instance of a court order for
production of the information. Exercise of administrative subpoena authority is not sufficient to
justify the release of certain personally-identifiable information from a cable provider, including
the “(i) extent of any viewing or other use by the subscriber of a cable service or other service
provided by the cable operator, or (ii) the nature of any transaction made by the subscriber over
the cable system of the cable operator.” 47 U.S.C. §551(c)(2)(C)(i)-(ii).

                (jj)    26 U.S.C. §6103 (tax return information).

       Disclosure of tax return information accessed through administrative subpoenas is limited by
26 U.S.C. §6103. Section 6103(b)(2) defines tax return information to include, among other things,
a “taxpayer’s identity, the nature, source, or amount of his income, payments, receipts, deductions,
exemptions, credits, assets, liabilities, net worth, tax liability, tax withheld, deficiencies,
overassessments, or tax payments.” Section 6103(p)(4) requires an agency receiving tax return
information to establish and maintain adequate procedures to safeguard the confidentiality of
information disclosed. Disclosing non-taxpayer information in a manner prohibited by 26 U.S.C.
§6103 is currently a felony, punishable by five years imprisonment, a fine of five thousand dollars, and
dismissal from employment. 26 U.S.C. 7213.

                (kk)    Family Educational Rights and Privacy Act (FERPA), 20 U.S.C.
                        §1232g(b)(2)(B).

          FERPA generally prohibits the dispersal of federal funds to student educational agencies or
institut ions that have a policy or practice of permitting the release of a student’s educational records
or personally identifiable information contained therein to any individual, agency or organization
without the written consent of the student’s parents. 20 U.S.C. §1232g(b)(1). Entities responding
to subpoena requests, however, are exempt from the general prohibition. 20 U.S.C.
§1232g(b)(1)(J)(ii). The agency issuing the subpoena may, upon showing good cause, order the
disclosing educational entity not to disclose the “the existence or co ntents of the subpoena” or “any
information furnished in response to the subpoena” to the student or her parents. Where “good
cause” is not shown, entities disclosing information in response to a subpoena are required to give
notice of the subpoena to parents and the student prior to the compliance date. 20 U.S.C.
§1232g(b)(2)(B). Government agencies accessing “records which may be necessary in connection
with the audit and evaluation of Federally-supported education programs, or in connection with the
enforcement of the Federal legal requirements which relate to such programs” are required to protect
the information “in a manner which will not permit the personal identification of students and t heir
parents by other than those officials, and such personally identifiable data shall be destroyed when no
longer needed for such audit, evaluation, and enforcement of Federal legal requirements.” 20 U.S.C.
§1232g(b)(3). In addition, 20 U.S.C. §1232g(b)(2)(B) and (4)(B) require that the information
submitted in response to a subpoena request be transferred to third parties only upon the condition
that the third party will not permit access to any other party without the consent of the parent s or t he
student.


                                                   25
         Federal courts have held that FERPA does not provide a private right of action against an
entity seeking educational records, however, as the statute only authorizes the Secretary of Education
or an adminstrative head of an education agency to take appropriate actions to enforce the provisions
of FERPA. 84 20 U.S.C. §1232(g)(f). In addition, at least one federal court has held that FERPA
prohibits the disclosure but not the act of accessing such records. 85

                  (ll)      Wrongful Disclosure of Video Tape Rental or Sale Records, 18 U.S.C. §2710

        Video tape service providers are prohibited from disclosing “personally identifiable
information,” except in certain circumstances including the issuance of a law enforcement warrant,
grand jury subpoena, or court order. 18 U.S.C. §2710(b)(2)(C). Permissible disclosure in other
circumstances, including, presumably, in response to an administrative subpoena request, is limited
to include only the names and addresses of subscribers. Disclosure of such names and addresses may
only be provided if : “(i) the video tape service provider has provided the consumer with the
opportunity, in a clear and conspicuous manner, to prohibit such disclosure; and (ii) the disclosure
does not identify the title, description, or subject matter of any video tapes or other audio visual
material. . . .” 18 U.S.C. §2710(b)(2)(D).

         c.       Intra-agency Regulations, Guidelines, and Directives

        See Appendices A, B, and C for references to intra-agency regulations, guidelines and
directives related to administrative subpoena issuance. Brief descriptions of such regulat ions and
guidelines are included in the appendices where provided by the agency holding the subpoena
authority.

4.       Description of the Standards Governing the Issuance of Administrative Subpoenas

        In addition to being governed by statutory issuance st andards, agencies issuing administrative
subpoenas are also governed by internal agency regulations and guidelines. Most agencies holding
statutory administrative subpoena authorities have a structured system of issuance in place, requiring
pre-approval from various agency officials as to the legality of issuance based on scope, necessity,
and other considerations. 86 See Appendices A, B, and C (column entitled “standards governing the
issuance of administrative subpoena authorities”) for further description of internal agency standards
governing the issuance of administrative subpoenas under specific authorities.



         84
           See Tarka v. Cunningham, 917 F.2d 890, 891 (5th Cir.1990); Fay v. South Colonie Cent. Sch. Dist.,
802 F. 2d 21, 33 (2d Cir. 1986) ; Gir ardier v. Webster College, 563 F.2d 1267, 1276-77 (8t h Cir .1977); Gi rar dier v.
Webster College, 563 F.2d 1267, 1277 (8th Cir.1977); Smith v. Duquesne Univ., 612 F.Supp. 72, 79-80
(W.D.Pa.1985) (applying Cort v. Ash), aff'd, 787 F.2d 583 (3d Cir.1986).
         85
           See Storck v. Suffolk County Department of Social Services, 12 F.Supp.2d. 392, 402 (S.D. NY 2000)
(rejecting Section 1983 action brought against county department of social services).

         86
           See, e.g., Appendix B, describing guidelin es for FBI issuance of adm inistr ative subpoenas a uthorized
under 21 U.S.C. §876, Comprehensive Drug Abuse Prevention and Control Act of 1970, commonly called the
“Controlled Substances Act,” Pub. L. No. 91-513, Title II, 84 Stat. 1242, 1236 (1970).

                                                           26
B.       Administrative Subpoena Authority Held By Inspectors General of the Various
         Agencies

        On October 12, 1978, Congress enacted the Inspector General Act (IGA), 5 U.S.C.App. 3,
creating an Office of Inspector General (OIG) within several federal agencies. The Inspector General
Act has since been amended multiple times to create an Office of Inspector General within most
federal agencies and other entities. The Offices of Inspector General are authorized to conduct audits
and investigations “to conduct and supervise audits and invest igate relative to the programs and
operations of the establishments listed in section 11(2).”87 Inspectors General are authorized not only
to conduct investigations within their respective agencies but also to investigate situations of potential
fraud involving recipients of federal funding. Inspectors General are intended to function independent
of the agency head. They are appointed by the President, subject to the advice and consent of the
Senate, and removeable only by the President.88 The Inspector General Act requires that Inspectors
General be appointed "without regard to political affiliation and solely on the basis of integrity and
demonstrated ability in accounting, auditing, financial analysis, law, management analysis, public
administration, or investigations." 89

       In order to fulfill their investigative responsibilities, Inspectors General are authorized to
exercise certain administrative subpoena authority. 5 U.S.C. app. 3 §6(a)(4).

1.       Description of the Source of Inspector General Administrative Subpoena Power and the
         Scope of Such Subpoena Authority.

        Federal courts have generally stated that Inspectors General hold broad investigative
authority90 to carr y out their responsibilities of promoting efficiency and preventing fraud, waste,
abuse, and mismanagement in federal government programs. See Inspector General Act of 1978, §
1, 5 U.S.C. app. 3. Inspectors General are authorized to exercise administrative subpoena authority
to obtain information required for administrative, civil and criminal investigat ion. 91 See 5 U.S.C.A.



         87
              5 U.S.C. App. 3 §§ 2 (1), 4(a)(1).
         88
         See, id. at § 3 (a). The Inspectors General in certain "federal entities" are appointed by the head of the
agency. See, id. at § 8G(c).
         89
              Id. at § 3(a).
         90
           See Burlington Northern R.R. Co. v. Office of Inspector General, 983 F.2d 631, 641 (5th Cir. 1993)
(citing Kurt W. Muellenberg & Harvey J. Volzer, “Inspector Gen eral Act of 1978,” 53 Temp . L. Q. 473 (1985), for
the proposition that “the Inspector General Act of 1978 gives Inspectors General broad--not limited--investigatory
and subpoena powers”); See also United States v. Westinghouse Elec. Corp., 788 F.2d 164, 165 (3d Cir. 1986)
(stating that "Congress gave the Inspector General broad subpoena power").

         91
          Federal courts have upheld this principle in various circumstances. See, e.g., United States v. Art
Metal-U.S.A., Inc., 484 F.Supp. 884, 886- 87 (D.N.J. 1980); See also U.S. v. Aero-Mayflower Transit Co., 646
F.Supp. 1467, 1471 (D.D.C. 1986) (stating that “such agency communication with prosecutors is precisely the kind
of cooperation that an efficient government should encourage”).

                                                         27
app. 3 § 6.92 The Inspector General Act authorizes coordination between the Inspector General and
other agencies. See 5 U.S.C. app. 3 §4(a)(4)(A), (B). An Inspector General is required by statute
to report to the Atto rney General any discovery of grounds to believe that a violation of federal law
has occurred. 5 U.S.C. app. 3 § 4(d). Inspector General administrative subpoena authority has been
upheld by federal courts even in situations where the Inspector General is cooperating with divisions
of the Justice Department exercising criminal prosecutorial authority where there are reasonable
grounds to believe a violation of federal criminal law has occurred.93 Federal courts have also held
that an Inspector General is authorized to continue using civil subpoena authority for civil and
administrat ive investigative purposes even where he or she has referred a case to the Department of
Justice for prosecution.94

       The Inspector General Act of 1978 authorizes “each Inspector General” to “require by
subpoena the production of all information, documents, reports, answers, records, accounts, papers,
and other data and documentary evidence necessary in the performance of the functions assigned by
[the Act].” 5 U.S.C. app. 3 §6(a)(4). The Inspector General Act solely authorizes subpoena duces
tecum, or documentary requests. In addition, the statute requires that “procedures other than
subpenas shall be used by the Inspector General to obtain documents and information from Federal
agencies.” 5 U.S.C. app. 3 §6(a)(4).

2.       Description of Applicable Subpoena Enforcement Mechanisms for Subpoenas under the
         Inspector General Act.95



         92
           Whil e the a dmin istr ative subpoena authori ty held by Inspectors Gen eral is generally not limit ed by
senior officials in a parent agency, certain agency heads are authorized to intervene in the exercise of the authority
where issues of national security or other sensitive interests are involved. See 5 U.S.C . App. 3 §8(b) (Secretary of
Defense), 5 U.S.C. App. 3 §8D(a)(1)(Secretary of Treasury), 5 U.S.C. App. 3 §8E(a)(1) (Attorney General).
         93
           See 5 U.S.C. §4(d); United States v. Aero Mayflower Transit Co., 831 F.2d 1142, 1144-46 (D.C. Cir.
1987) . The Court in this case up held the use of the a dmin istr ative subpoena authori ty even where th e Inspector
General of the Department of Defense was in cooperation with the FBI and the Antitrust Division of the
Depar tmen t of Justice. The cour t stated th at “so long as the Inspector Gen eral's subpoenas seek in formation
relevant to the discharge of his duties, the exact degree of Justice Department guidance or influence seems
manifestly immaterial." Id. at 1146. In addition, Rule 6e does not preclude Uni ted States At torn eys from
conducting joint investigation s with an In spector Gener al or from using in a gran d jury in vestigation infor mati on
obtain ed by an IG investiga tion by the Department of Justice, even if the IG serves as a source of inform ation for
the Justice Department investigation. See 72 A.P.R. FLA. B.J. 34, 37 (1988). See also United States v.
Educational Dev. Network Corp., 884 F.2d 737, 738-40, 741-43 (3d Cir. 1989), cert. denied, 494 U.S. 1078
(1990). 5 U.S.C. §6(a)(4) requires that “procedures other than subpoenas shall be used by the Inspector General to
obtain documents and information from federal agencies,” however.
         94
              See United States v. Art Metal-U.S.A., Inc., 484 F.Supp. 884, 886 (D.N.J. 1980).
         95
           Since the U.S. Supreme Court's decision in Interstate Commerce Commission v. Brimson, 154 U.S. 447
(1894), federal courts have generally held that, as a matter of due process, federal agencies cannot be given the
power to enforce their subpoenas. See Shasta Minerals & Chem. Co. v. SEC, 328 F.2d 285, 286 (10th Cir. 1964).
The U.S. Supreme Court has not made a specific ruling on this issue. See 1 KENNETH CULP DAVIS & RICHARD J.
PIERCE, ADMINISTRATIVE LAW TREATISE § 4.2, at 143 (1994)) (noting that "[i]t is hard to know whether the broad
holding [in Brimson] remains good law because Congress has not tested it”).

                                                          28
        Inspectors General may seek the enforcement of a subpoena “by order of any appropriate
United States district court.” 5 U.S.C. app. 3 §6(a)(4). Inspector General subpoena enforcement
proceedings are prosecuted by the Department of Justice, at the request of the relevant Inspector
General, as part of the Department’s responsibility to conduct litigation in which the U.S. is
interested. See 28 U.S.C. §§516-19. The Inspector General Act does not provide any specific
sanctions for failure to comply with an Inspector General’s subpoena, so federal district courts are
free to exercise discretion in applying general contempt sanctions for noncompliance with a court
order enforcing an Inspector General subpoena. Federal courts have enforced Inspector General
administrative subpoenas where 1) the subpoena is within the statutory authority of the agency; 2)
the information sought is reasonably relevant to the inquiry; 96 and 3) the demand is not unreasonably
broad or burdensome.97 In addition, federal courts have held that an Inspector General administrative
subpoena is unenforceable if it is issued in “bad faith” 98 or if the petition for enforcement constitutes
an abuse of the court’s process.

3.       Description of Any Notification Provisions and Any Other Provisions Relating to
         Safeguarding Privacy Interests.

       The Inspector General Act contains no internal privacy protections directed specifically at the
subpoena authority provided in the Act. The Inspector General Act itself, however, does forbid an
Inspector General to disclose an employee’s identity “after receipt of a complaint or information from
an employee” except in circumstances where the “Inspector General determines such disclosure is
unavoidable during the course of the investigation.” 5 U.S.C. app. 3 §7(b).99

         96
          See United States v. Powell, 379 U.S. 48, 57-58 (1964); United States v. Morton Salt Co., 338 U.S. 632,
652 (1950).
         97
          See Pickel v. United States, 746 F.2d 176, 185 (3d Cir.1984); SEC v. Wheeling Pittsburgh Steel Corp.,
648 F.2d 118, 125 (3d Cir.1981) (en banc).

         98
             SEC v. ESM Gov't Sec., Inc. 645 F.2d 310, 317 (5th Cir. 1981). Th e court in this case established a
three pr ong test to deter mine whether an administrat ive subpoena was issued i n bad faith : (1) wheth er the agency
intentionally or knowingly misled the subject of the subpoena; (2) whether the subject was actually misled; and (3)
whether the subpoena was th e result of improper access to the part y's records. Id. at 317-18.

         99
             See also Pub. L. No. 104-134, Section 509, (h)-(i) (protecting certain information obtained by the
Office of the Inspector General at the Legal Services Corporation from further disclosure):

         (h) Notwithstanding section 1006(b)(3) of the Legal Services Corporation Act (42 U.S.C.
         2996e(b)(3)), financial records, time records, retainer agreements, client trust fund and eligibility
         records, and client names, for each r ecipient sh all be m ade ava ilabl e to any auditor or m onitor of
         the recipient, including any Federal department or agency that is auditing or monitoring the
         activities of the Corporation or of the recipient, and any independent auditor or monitor receiving
         Federal funds to conduct such auditing or monitoring, including any auditor or monitor of the
         Corporat ion, except for r eports or records subject to the at torney-clien t privileg e.
          (i) The Legal Services Corporation shall not disclose any name or document
         referred to in subsection (h), except to--
           (1) a Federal, State, or local law en forcement official; or
           (2) an official of an appropriate bar association for the purpose of enabling the official to
         conduct an investigation of a rule of professional conduct.

                                                           29
        Inspector General subpoena authority is also subject to the same general statutory privacy-
protective requirements applicable to other agency subpoena authorities. These privacy-protective
statutes are listed and described supra in section II.A.3, which discusses agency subpoena authorities
other than the authority provided under the Inspector General Act. Agency guidelines implementing
these privacy-protective st atutes are generally applicable to the Inspector General subpoena authority
as well as other subpoena authorities exercised by an agency. 100 The Right to Financial Privacy Act
of 1978 (RFPA), for instance, subjects an agency to certain notification requirements when issuing
a subpoena subject to the RFPA. 12 U.S.C. §§ 3405. 101 RFPA also limits an agency’s subpoena
authority, including the authority held by Inspectors General, by allowing a government authority to
access financial records only in situations where there is reason to believe that the records sought are
relevant to a legitimate law enforcement inquiry. 102 Individual agencies have promulgated Inspector
General policies specifically to comply with the requirements of the RFPA103 and other privacy-
protective statutes.

4.       Description of the Standards Governing the Issuance of Administrative Subpoenas.

        Federal courts have held that the enforceability of an Inspector General administrative
subpoena authority is subject to many of the limitations imposed on other administrative subpoena
authorities, including the requirements that such a subpoena: (1) be issued for a lawful purpose within
the statutory authority of the Inspector General Act, (2) be reasonably relevant to that purpose, and
(3) not be unduly burdensome.104 Inspectors General must carefully comply with these requirements
in order to ensure that a subpoena will be enforceable by a federal district court. In addition to these
generally applicable requirements, the Offices of Inspector General in specific agencies have
established and published specific intra-agency policies governing requests for and issuance of


Id.

         100
            See, e.g., Appen dix A for infor mati on reg arding the Inspectors General at U.S. Dep artment of
Agriculture (Inspector General Directive, IG-8551 (C2-C5)) and Department of Energy (Inspector General
Directive, IG-916, dated, June 24, 1986.).
         101
              The Right to Financial Privacy Act (RFPA) requires Inspectors General to provide, as notice, a copy
of an RFPA subpoena to a customer whose records are being requested. See 12 U.S.C. § 3405. The RFPA
prohibits a financial institution from releasing financial records without certification of compliance with the
requirements of RFPA. See 12 U.S.C. § 3403(b).
         102
              Id. at § 3405. A copy of the subpoena must be served on the customer , and th e customer must be given
the opportunity to move to quash the subpoena. Id. Under the RFPA, subsequent to 1986 amendment, a financial
instit ution or a n officer or employee thereof is not precluded from noti fying a governm ent auth ority that they
possess inform ation that may be relevant to a violation of any statute or regulation. Id. at § 3403(c).

         103
            See, e.g., Appen dix A for infor mati on reg arding Inspectors Gener al at the U.S. Depa rtment of
Agriculture (Inspector General Directive, IG-8551 (C2-C5)) and Department of Energy (Inspector General
Directive, IG-916, June 24, 1986).
         104
              See Burlington Northern RR v. Office of Inspector General, R.R. Retirement Board, 983 F.2d 631, 637
  th
(5 Cir. 1993) (applying the principles articulated in United States v. Morton Salt Co., 338 U.S. 632, 652 (1950),
etc., to a situation involving an administrative subpoena issued by an Inspector General).

                                                         30
Inspector General administrative subpoenas.105


III. JUSTICE DEPARTMENT AND TREASURY SUBPOENA AUTHORITI ES PURSUANT TO 18 U.S.C.
                                     §3486

A.      Administrative Subpoena in Investigations Relating to “Any Act or Activity Involving
        a Federal Health Care Offense”

         Administrative subpoenas have proved an effective resource in the investigation and
prosecution of federal health care offenses. In enacting HIPAA in 1996, Congress targeted health
care fraud as a major factor in the exploding cost of federal health care programs, and created a
carefully balanced array of new criminal statutes, administrative sanctions, investigative tools and a
fraud and abuse control program to be jointly promulgated by the Secretary of HHS and the Attorney
General. The administrative subpoena authority for the Attorney General as enacted in 18 U.S.C.
§3486 was a key element to this coordinated approach. Health care fraud administrative subpoenas
facilitate a more efficient and expeditious coordinated approach to the investigation of federal criminal
health care fraud offenses. First, unlike grand jury subpoenas, the evidence produced in a criminal
investigation in response to such a subpoena can be shared with att orneys in the Civil Division of the
Department of Justice. This enables the government to pursue parallel criminal and civil relief
simultaneously and to resolve these matters in a coordinated and timely fashion. The early global
resolution of all pending civil and criminal exposure is considered of great importance by many targets
of health care fraud investigations who find a benefit in a relatively swift resolution which permits
them to put the episode behind them and begin with a fresh start. Also, the sharing of information
allowed with the use of administrative subpoenas eliminates the need of the government to otherwise
serve two sets of subpoenas, one criminal and one civil, in each health care fraud investigation, and
similarly avoids cost and expense which would otherwise be imposed if two sets o f the same
documents had to be produced. Finally, the civil investigation does not have to be suspended pending
resolution of the criminal case when information can be shared as the investigation proceeds.

1.      Source and Scope of Subpoena Authority under 18 U.S.C. §3486(a).

        As Congress estimated in 1997 that the costs of fraud and abuse in healthcare amounted to
“as much as 10 percent of total health care cost s,” the legislative history of the Health Insurance
Portability and Accountability Act of 1996 (HIPAA) suggests that Congress granted subpoena
authority to t he Attorney General in investigations of healthcare fraud and abuse in order to facilitate
enforcement of federal statutes and thereby to improve the “availability and affordability of health
insurance in the United States.” See H.R.Rep. No. 104-496, at 1, 66-67, reprinted in 1996
U.S.C.C.A.N. at 1869. Section 248 of HIPAA authorizes the Attorney General to issue subpoenas
requesting production of certain documents and testimony in investigations relating to “any act or
activity involving a federal health care offense.” See 18 U.S.C. §3486(a)(1)(A)(i)(I). Specifically,
the Attorney General is authorized to compel production of: (1) “any records or other things relevant
to the investigation and (2) testimony by the custodian of the things required to be produced


        105
              See, e.g., FDIC OIG Policy 110.6 (May 1999).

                                                        31
concerning the production and authenticity of those things.” 18 U.S.C. §3486(a)(1)(B)(i)-(ii).

        In evaluating the scope of an administrative subpoena issued under 18 U.S.C.
§3486(a)(1)(A)(i)(I), the federal courts apply the principle formulated by the Supreme Court in
Oklahoma Press, generally applicable to executive branch administrative subpoenas, that an
administrat ive subpoena must be “reasonably relevant” to an agency’s investigation at issue.106 The
permissible scope of an administrative subpoena is, however, "variable in relation to the nature,
purposes and scope of the inquiry."107 In order to satisfy the general reasonableness standard, the
agency issuing the subpoena, in this instance the Attorney General, must satisfy the court, in
accordance with the Powell108 factors, that: (1) “the investigation will be conducted pursuant to a
legitimate purpose,” (2) “the inquiry may be relevant to the purpose,” (3) “that the information sought
is not already within the [agency’s] possession,” and (4) “the administrative steps required by the
Code have been followed[.]"109 As noted in section II.A.2 supra, however, the courts have varied in
their application of the last two factors, with some courts suggesting that the Supreme Court has
obviated the requirement of considering these latter factors in decisions subsequent to Powell.110

2.       Applicable Subpoena Enforcement Mechanisms

        In cases of refusal to comply with a subpoena, the Attorney General is authorized to seek the
aid of a United States district court where the investigation is occurring or where the subpoenaed
person resides. 18 U.S.C. §3486(c). Failure to obey a federal court’s order to comply with a
subpoena issued by the Attorney General under 18 U.S.C. §3486(a) may be punished as contempt
of court. 18 U.S.C. §3486(c). A district court’s order requiring compliance with an administrative
subpoena is generally treated as a final judgment under 28 U.S.C. §1291, and, therefore, is
immediately appealable.111

3.       Notification Provisions and Other Provisions Related to Safeguarding Privacy Interests

       Subpoenas issued under §3486 in the course of investigations of Federal health care offenses
are subject to all other limitations placed on the production of evidence pursuant to compulsory
process. See Section II.A.3 supra for a description of privacy-protective statutes applicable to


         106
               In re Administrative Subpoena John Doe, 253 F.3d 256 (6th Cir. 2001).
         107
               Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 209 (1946).
         108
               United States v. Powell, 379 U.S. 48 (1964).
         109
           Id. (evaluatin g §3486(a) health care offense subpoena au thorit y and referr ing to standards establish ed
in United States v. Powell, 379 U.S. 48, 57-58 (1964)).
         110
             See, e.g., United States v. Bell, 564 F.2d 953, 959 (Temp. Emer. Ct. App. 1977) (last two requirements
too restrictive); United States v. Security State Bank & Trust, 473 F.2d 638, 641 (5th Cir. 1973) (governmental
entity need only the two primary requirements).
         111
            See Cobbledick v. United States, 309 U.S. 323, 330 (1940) (recognizing the immediate reviewable
nature of a district court enforcement order).

                                                              32
administrative subpoena authorities in appropriate circumstances.

        In addition to extrinsic statutory limitations, 18 U.S.C. §3486 contains several internal,
privacy-protective limitations. At any time before the return date specified for subpoenaed
information, for instance, the person or entity subpoenaed may petition for an order modifying or
quashing the summons or modifying any court nondisclosure order acquired by the government. See
18 U.S.C. §3486(a)(5). Federal courts have determined that the authority granted under 18 U.S.C.
§3486(a) is “reasonable” and therefore sufficiently protective of Fourth Amendment interests, as the
statute requires that: (1) subpoenaed items must be “described” in the subpoena, (2) the recipient of
a subpoena is ensured “a reasonable period of time within which to comply, and (3) t he subpoena
“may not require production more than 500 miles from the place of service.”112 See 18 U.S.C. §
3486(a)(2), (3).

         While section 3486 contains no requirement that patients be notified of impending subpoena
of their health records, the subsequent use and disclosure of information gathered through compliance
with such a subpoena is limited under the statute. Section 3486, for instance, protects information
obtained under an administrative subpoena from disclosure “to any person for use in, any
administrative, civil or criminal action or investigation direct ed against the individual who is the
subject of the information unless t he action or investigation arises out of and is directly related to
receipt of health care or payment for health care or action involving a fraudulent claim related to
health.” 18 U.S.C. §3486(e)(1). This prohibition on disclosure may only be overcome through a
court order issued after the court has determined that “good cause” has been shown by the party
seeking the disclosure. 18 U.S.C. §3486(e)(1). In determining whether “good cause” exists, the
court must “weigh the public interest and the need for disclosure against the injury to the patient, to
the physician-patient relationship, and to the treatment services.” 18 U.S.C. §3486(e)(2).

        While the statute does not generally prohibit a governmental entity from notifying a person
or entity of the disclosure of records under section 3486, a district court in which the subpoena is or
will be served may issue an ex parte order prohibiting a person or entity from disclosing to any other
person or ent ity (except in the course of obtaining legal advice from an attorney) the existence of a
subpoena served under this section for ninety days. Such an order may only be issued upon a finding
by the court that disclosure may result in: a) endangerment to the life or physical safety of any
person, b) flight to avoid prosecution, c) destruction of or tampering with evidence, or d) intimidation
of potential witnesses. See 18 U.S.C. §3486(a)(6)(A)-(B). This ex parte order of nondisclosure may
be extended for additional periods of up t o ninety days only upon a showing that the conditions
recounted above still exist. See 18 U.S.C. §3486(a)(6)(C). If no case or proceeding arises from the
production of the records or other things, pursuant to a §3486 subpoena, within a reasonable time,
the person producing the records or things to the agency may make a written demand that the agency
return the records to that person, except where the materials provided were only copies, not originals.
See 18 U.S.C. §3486(a)(8).

        In addition, the privacy interests of the recipient of a §3486 subpoena, as with the privacy
interests o f recipients of all other currently authorized administrative subpoenas, are protected in


       112
             In re Subpoena Duces Tecum, 228 F.3d 341, 349 (4th Cir. 2000).

                                                       33
that enforcement of the subpoena may only be accomplished by a federal court, thus removing
final action from the issuer of the subpoena and providing an independent safeguard. In
evaluating subpoenas issued under 18 U.S.C. §3486, federal courts have evaluated Fourth
Amendment concerns in a manner similar to all other current administrative subpoena authorities
in that they are subject to a general reasonableness standard, not a probable cause standard.113
Federal courts have held that in order to satisfy the general reasonableness standard, the agency
issuing the subpoena, in this instance the Attorney General, must satisfy the court that: (1) “the
investigation will be conducted pursuant to a legitimate purpose,” (2) “the inquiry may be relevant
to t he purpose,” (3) “that the information sought is not already within the Commissioner's
possession,” and (4) “the administrative steps required by the Code have been followed[.]"114 The
impact and application of this standard is discussed in Section II.A.2 supra.

4.       Standards Governing the Issuance of Administrative Subpoenas

        The Attorney General signed Order 2468-2001 on June 28, 2001, delegating his authority
under 18 U.S.C. §3486 to issue administrative subpoenas to all United States Atto rneys and the
Assistant Atto rney General of the Criminal Division.115 The order also authorizes redelegation of
authority from United States Attorneys to Assistant United States Attorneys as the particular United
States Atto rneys deem appropriate. As the Attorney General has not delegated his authority to issue
administrat ive subpoenas related to healthcare offenses under section 3486(a) to the Director of the
Federal Bureau of Investigation (FBI), the FBI relies on a district’s United States Attorney to issue
a subpoena on its behalf.
        Attorney General guidelines related to investigations, applicable to administrative subpoena
issuance, are contained in Attorney General Guidelines on General Crimes, Racketeering Enterprise
and Domestic Security/Terrorism Investigations (March 21, 1989). Regulations internal to the FBI
that are relevant to administrative subpoena are found in the Manual of Investigative Operations and
Guidelines (MIOG), Part II, 10-8,2(1), “Access t o Transactional Information: Telephone Toll
Records, Subscriber Listing Information.”

      5. Frequency of use and usefulness of administrative subpoena authority pursuant to
§3486(a)(1)(A)(i)(I).

       During calendar year 2001, United States Attorneys offices issued a total of 2,102
administrat ive subpoenas in investigations related to health care offenses pursuant to 18 U.S.C.
§3486. The Assistant Attorney General for the Criminal Division is also authorized to issue subpoenas


         113
           See, e.g., In re Administrative Subpoena John Doe, 253 F.3d 256, 263-4 (6th Cir. 2001) (evaluating
§3486(a) health care offense subpoena authority and referring to standards established in United States v. Powell,
379 U.S. 48, 57-58 (1964)).
         114
           Id. (evaluati ng §3486(a) heal th care offense subpoen a authority and r eferring to standa rds established
in United States v. Powell, 379 U.S. 48, 57-58 (1964)).
         115
           Order 2486-2001 superceded an ea rlier or der dated Ap ril 23, 1997 and issued by former Attor ney
General Janet Reno. See United States Attorney’s Manual, 9-44.200. The new delegation order ratified all
outstanding administrative subpoenas and any actions taken pursuant to the previous delegation order.

                                                          34
under this authority but issued no such subpoenas during calendar year 2001.

        Section 3486 subpoenas have been used to obtain bank/financial institution records, medical
records, cost reports, and other documentation typically requested in those investigations. In
addition, the use of an administrative subpoena provides a mechanism for information sharing
between the FBI, HHS, and other law enforcement agencies as well as the Civil Division of the
Department of Justice. Therefore, documents and records obtained under the administrat ive
subpoena can be utilized both in a civil investigation and a criminal investigation stemming from the
same fraudulent scheme. Should the statutory authority provided in 18 U.S.C. §3486 be revoked,
the use of a grand jury subpoena to obtain the same documents would decrease the opportunity to
share information because of the protective provisions of Fed. R. Crim. P. 6(e). Loss of t his
information sharing capacity would hamper the efforts of the Attorney General to fulfill Congress’
intent in providing the authority in HIPAA–to facilitate enforcement of federal statutes related to
health care fraud and abuse and thereby improve the "availability and affordability of health insurance
in the United States.” See H.R.Rep. No. 104-496, at 1, 66-67, reprinted in 1996 U.S.C.C.A.N. at
1869. A grand jury subpoena remains an option in such investigations, however, and is sometimes
utilized when confidentiality is important to the development of the case.

        Section 3486 authority has been used in notable health care fraud investigations conducted
by the FBI to obtain records and documents in major U.S. cities from various entities, such as
hospitals, nursing homes and individual practitioners, including medical records, billing records,
and cost reports. Through subpoenaed documents, evidence has been found of fraudulent claims
and false statements such as “upcoding,” which is billing for a higher level of service than that
actually provided; double billing for t he same visit; billing for services not rendered; and providing
unnecessary services.

        The incriminating information obtained via an administrative subpoena in these
investigations could have been obtained by grand jury subpoena. However, because an
administrative subpoena can be obtained more quickly and its use avoids the Fed. R. Crim. P. 6(e)
secrecy problems, it is a more flexible investigative tool in health care fraud cases. For example,
information obtained by administrative subpoena in such investigations may be used not only for
criminal prosecution purposes, but also for negotiating a civil settlement.

        As Congress recognized in authorizing subpoena authority for investigations relating to
health care fraud and abuse in 18 U.S.C. 3486(a), the Attorney General’s ability to combat such
fraud and abuse without this subpoena authority would be hampered.

B.      Administrative Subpoena for Investigations Relating to Child Exploitation and
        Abuse Investigations, 18 U.S.C. 3486(a)(1)(A)(i)(II), (a)(1)(C)

        The use of administrative subpoenas, in lieu of grand jury subpoenas, has enhanced the ability of the FBI t
online child exploitation offenses in an expeditious manner. Section 3486 created a speedy mechanism to identify
electronic communication services or remote computing services. A timely method was needed because the inform
extremely perishable. Many private and commercial online service providers maintain records on Internet usage b
periods of time, sometimes two days or less. Although an investigative agency can obtain grand jury subpoenas fr
Attorney’s Office in exigent circumstances on an expedited basis, more commonly, the agency’s acquisition of gra

                                                  35
even weeks. As a result, the Internet service provider is often no longer able to provide the needed information. D
authority to the United States Atto rneys, the Assistant Att orney General for the Criminal Division, and the FBI ha
investigative process necessary to obtaining information that identifies subjects and victimized children. In additio
investigative information can be particularly important in cases involving the abuse and exploitation of children. S
broader when the information is obtained by administrative subpoena, as opposed to by grand jury subpoena, in vi
disclosure of grand jury information under Rule 6 of the Federal Rules of Criminal Procedure.

1.     Source and Scope of Subpoena Authority under 18 U.S.C. §3486(a).

        The Attorney General or the Attorney General’s designee is authorized under 18
U.S.C. §3486(a) to issue administrative subpoenas for a limited category of information in criminal investigations
pornography, sex abuse and t ransportation for illegal sexual activity offenses, where the victim was under eighteen
underlying investigation must relate to an act or activity involving a violation of 18 U.S.C. §§1201, 2241(c), 2242
2260, 2421, 2422, or 2423, when the victim was a minor who had not attained the age of eighteen years. Section
information that a governmental entity may request from a provider of electronic communications service or remo
provider receiving a subpo ena under section 3486 can be required to disclose only the subscriber or customer’s: (1
long distance telephone toll billing records; (4) telephone number or other subscriber identity; (5) length of service
customer or subscriber utilized, which may be relevant to an authorized law enforcement inquiry. 18 U.S.C. §348
administrat ive subpoenas to obt ain testimony is limited to requiring a custodian of records to give testimony conce
authentication of such records. 18 U.S.C. §3486(a)(1)(C)(ii). Administrative subpoenas issued under section 348
require production as soon as possible after service of the subpoena, but not less than twenty-four
hours after such issuance. 18 U.S.C. §3486(a)(9).

2.     Applicable Subpoena Enforcement Mechanisms

        The Attorney General has no authority to enforce an administrative subpoena issued under
18 U.S.C. §3486(a). The Attorney General is permitted to invoke the aid of any court of the United States within
the investigation is carried on or of which the subpoenaed person is an inhabitant, or in which he carries on busine
compliance with the subpoena. 18 U.S.C. §3486(c). Failure to comply with a court order may be punished
by the court as contempt. 18 U.S.C. § 3486(c).

3.     Notification Provisions and Other Provisions Related to Safeguarding Privacy Interests

         Title 18 U.S.C. 2703(c)(2) provides that a governmental entity receiving records from a provider of electr
remote computing service pursuant to an administrative subpoena requesting the name, address, local and long dis
telephone number or other subscriber number or identity, and length and type of service does not have to provide
addition, 18 U.S.C. §3486(a)(6) allows an entity issuing a subpoena under 3486 authority to
obtain an ex parte order preventing the disclosure of the existence of the summons for 90 days if
the court finds that: there is reason to believe that disclosure may result in: (1) endangerment to
the life or physical safety of any person; (2) flight to avoid prosecution; (3) destruction of or
tampering with evidence; or (4) intimidation of potential witnesses. This ex parte order is
renewable for additional 90 day period based on a finding that the reasons listed above continue to
exist. 18 U.S.C. §3486(a)(6)(B) and (C).

        A governmental entity issuing a subpoena request under this section related to child
exploitation and abuse investigations is subject to the limitations placed on the production of

                                                 36
evidence pursuant to compulsory process, including, but not limited to: (1) 5 U.S.C. §552a
(Privacy Act) (disallowing disclosure without the prior written consent of the person to whom the
record pertains, unless permitted by one of twelve exceptions), with regulations found at 28
C.F.R. Part 16, Subpart D; (2) 5 U.S.C. §552(b) (Freedom of Information Act exemptions),
Regulations at 28 C.F.R. Part 16, Subpart A; (3) 42 U.S.C. §2000aa-11(a), “Guidelines for
Federal officers and employees,” (relevant when documents are in the possession of third parties,
Regulations at 28 C.F.R. Part 59 (“Guidelines on Methods of Obtaining Documentary Materials
Held by Third Parties”); (4) 20 U.S.C. §1232g(b), Family Educational Rights and Privacy Act of
1974 (FERPA) (the Buckley Amendment). Regulations are found at 34 C.F.R. Part 99. See
Subsection II.A.3 infra for a further discussion of extrinsic privacy-protective statutes and
regulations.

4.     Standards Governing the Issuance of Administrative Subpoenas

        The Attorney General has delegated the administrative subpoena power to all United
Stat es Attorneys, the Assistant Attorney General in charge of the Criminal Division, and the
Director of the Federal Bureau of Investigation. See Attorney General Order No. 2421-2001,
April 5, 2001. The Attorney General’s order also authorized redelegation to Assistant U.S.
Atto rneys, Criminal Division trial attorneys, and FBI Special Agents in Charge (SACs), Assistant
Special Agents in Charge (ASACs) and Senior Supervisory Resident Agents(SSRA). Pursuant to
the Attorney General’s order, the Director of the FBI redelegated his authority to all SACs,
ASACs and SSRAs on April 31, 2001.

        Other intra-agency guidelines relevant to the issuance of administrative subpoenas under
18 U.S.C. 3486(a) include: (1) Attorney General Guidelines on General Crimes, Racketeering
Enterprise and Domestic Security/Terrorism Investigation (March 21, 1989); (2) Internal FBI
regulations found in the Manual of Investigative Operations and Guidelines (MIOG), Part II, 10-
8,2(1); (3) “Access to Transactional Information: Telephone Toll Records, Subscriber Listing
Information;” MIOG, Part I, 7-20; and (4) “Administ rative Subpoenas in Child Abuse and Child
Sexual Exploitation Cases” (publication of section 7-20 is pending revision reflecting amendments
to 18 U.S.C. §3486(a) by Pub. L. No. 106-544).

5.    Frequency of Use and Usefulness of Administrative Subpoena Authority Pursuant to
§3486(a)(1)(A)(i)(I)

       During calendar year 2001, the United States Atto rneys offices issued sevent y-one
administrative subpoenas and the FBI issued 1,802 administrative subpoenas under this authority.
The Assistant Attorney General in charge of the Criminal Division issued no such subpoenas.

       The use of an administrative subpoena is an important tool for the investigation of child
pornography/child sexual exploitation investigations. In cases where children are at “high risk”
and/or may be in imminent danger, the execution of an administrative subpoena allows immediate
requests t o be made to the appropriate entity. Furthermore, unlike grand jury material which is
protected under Fed. R. Crim. P. 6(e), information gleaned from the service of an administrative
subpoena can be shared with other law enforcement entities without delay. Delay could literally
mean the difference between life and death for a threatened child. In contrast, the disclosure

                                               37
limitations placed on investigators using grand jury subpoenas may not allow investigators to
share information necessary to the location and apprehension of violent child sexual predators.

        The Innocent Images National Initiative is based on a multi-agency, multi-disciplinary
        approach
to investigations. The majority of the investigations concerning child pornography/sex
exploitation of children are managed jointly with the assistance of state and local authorities.
Witho ut the FBI’s ability to issue administrative subpoenas to service providers to obtain
information, such as the name, address, local and long distance telephone toll billing records,
telephone numbers, and the length and types of services of a particular subscriber or customer,
investigations of child abuse/sex exploitation offenses would be significantly hindered and would
not be completed as quickly o r as successfully.

C.       Secret Service Presidential Threat Protection Authority to Issue Subpoenas where
         there is an “Imminent” Threat to Secret Service Protectee, 18 U.S.C. §3486
         (a)(1)(A)(ii)

1.       Source and Scope of Subpoena Authority under 18 U.S.C. §3486(a)

        Section 3486 (a)(1)(A)(ii) authorizes the Secretary of Treasury to issue an administrative
subpoena if the Director of the Secret Service determines that a threat against a Secret Service
protectee is “imminent.” Such an administrative subpoena may compel: (1) the production of any
records or other things relevant to t he investigation; and (2) testimony by the custodian of the
things required to be produced concerning the production and authenticity of those things. 18
U.S.C. §3486(a)(1)(B). Administrative subpoenas issued under section 3486 may require
production as soon as possible after service of the subpoena, but not less than twenty-four hours
after such issuance. 18 U.S.C. §3486(a)(10).

2.      Applicable Subpoena Enforcement Mechanisms

        Subsection (10)(c) authorizes the Attorney General to seek enforcement by requesting an
order from the appropriate United States district court requiring a subpoenaed person or entity to
appear. Failure to appear may result in a contempt order. 18 U.S.C. §3486 (a)(10)(c). A federal
court petitioned to order compliance with an administrative subpoena issued under 18 U.S.C.
§3486 (a)(1)(A)(ii) must review the subpoena under the same criterion applicable to all other
administrative subpoenas issued by federal agencies in other circumstances.116

3.       Notification Provisions and Other Provisions Related to Safeguarding Privacy Interests

       Subsection (a)(5) permits the recipient of an administrative subpoena to seek to modify
the scope of the administrative demand, or modify any a court nondisclosure order acquired by


        116
            These factors include the factors articulated in United States v. Powell, 379 U.S. 48, 57-58 (1964). In
addition, the court must determine that the subpoena was not issued in “bad faith” or otherwise constituted an
“abuse of the court’s process.” Id.

                                                         38
the government. 18 U.S.C. §3486 (a)(5). Subpoenas issued under §3486 in the course of
investigating an imminent threat against a Secret Service protectee are subject to all other
limitations placed on the production of evidence pursuant to compulsory process. See Section
II.A.3 infra for a further discussion of privacy-protective statutes and regulations applicable to the
exercise of administrative subpoena authorities.

        In evaluating the scope of an administrative subpoena issued under 18 U.S.C. §3486(a),
the federal courts apply the principle formulated by the Supreme Court in Oklahoma Press,
generally applicable to executive branch administrative subpoenas, that an administrative
subpoena must be “reasonably relevant” to an agency’s investigation at issue.117 The permissible
scope of an administrative subpoena is, however, "variable in relation to the nature, purposes and
scope of the inquiry."118 In order to satisfy the general reasonableness standard, the agency issuing
the subpoena, in this instance the department issuing the subpoena, in this instance the Secretary
of the Treasury, must satisfy the court that: (1) “the investigation will be conducted pursuant to a
legitimate purpose,” (2) “the inquiry may be relevant to the purpose,” (3) “that the information
sought is not already within the Commissioner's possession,” and (4) “the administrative steps
required by the Code have been followed[.]"119 While the specific “imminent threat” subpoena
authority provided under 18 U.S.C. §3486 (a)(1)(A)(ii) has not been exercised by the Department
of Treasury, and therefore has not been addressed directly in federal court, the general standard
recounted above would presumably apply to an exercise of this authority.

4.       Standards Governing the Issuance of Administrative Subpoenas

        In order to request issuance of a subpoena by the Secretary of the Treasury under 18
U.S.C. §3486(a)(1)(A)(ii), the Director o f the Secret Service must determine that a threat against
a Secret Service protectee is “imminent.” The Director of the Secret Service may issue an
administrative subpoena under this authority in “an investigation of an imminent threat
constituting an offense under 18 U..S.C. § 871 or 879 or an imminent threat against a person
protected by the Secret Service under 18 U.S.C. § 3056 (5) or (6).” See Treasury Directive 15-
58, November 15, 2001. Upon issuing a subpoena under 18 U.S.C. §3486(a)(1)(A)(ii), the
Director of the Secret Service must notify the Attorney General of such issuance. Where a
finding of “imminence” is not appropriate, the Secret Service does not seek an administrative
subpoena but proceeds, instead, through the process of procuring a grand jury subpoena through
a local United States Attorney’s office.

        Treasury Directive 15-58 authorizes the Director of the Secret Service to redelegate this
authority “in writing, in whole or in part, to the Assistant Director, Office of Protective Research,
who may in turn redelegate in writing, in whole or in part, to the Senior Intelligence


        117
              In re Administrative Subpoena John Doe, 253 F.3d 256 (6th Cir. 2001).
        118
              Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 209 (1946).
        119
            In re Administrative Subpoena John Doe, 253 F.3d 256, 263 (6th Cir. 2001) (evaluating §3486(a)
health care offense subpoena authority and referring to standards established in United States v. Powell, 379 U.S.
48, 57-58 (1964)).

                                                        39
Officer/Special Agent in Charge, Intelligence Division.” Id.

5.    Frequency of use and usefulness of administrative subpoena authority pursuant to 18
      U.S.C.
§3486(a)(1)(A)(ii)

        During calendar year 2001, the United States Secret Service (USSS) issued no
administrat ive subpoenas under 18 U.S.C. §3486(a)(1)(A)(ii). On November 15, 2001, the
Secretary of Treasury issued Treasury Directive 15-58, properly delegating the authority for
issuance of administrative subpoenas to the USSS. While delegation is now complete, the USSS
intends to use the authority only sparingly, in accordance with USSS understanding of Congress’
intent upon granting such authority. The authority granted in 18 U.S.C. §3486(a)(1)(A)(ii) is
essential to the Secret Service’s protective function, providing expedited investigation procedures
in particularly threatening and dangerous situations, particularly where an individual is en route to
exercise threats made against the President.

IV.    RECOMMEN DATIONS REGARDING NECESSARY STEPS TO ENSU RE THA T ADMINISTRATIVE
       SUBPOENAS ARE USED AND ENFORCED CONSISTENTLY AND FAIRLY BY EXECUTIVE
       BRANCH AGENCIES

        The Department of Justice notes that despite inconsistencies in the formulation of the
        many
authorizing statutes, judicial involvement in enforcement ensures a good degree of
fairness–especially where enforcement actions must be initiated and coordinated by the
Department of Justice. As administrative subpoena authorities are created by separate statutes
differing in purpose and content, and no significant or consistent patterns emerge from a study of
these authorities, making any recommendations generally applicable to these various authorities
would be neither prudent nor practicable. As various agencies participating in the study referred
to suggestions regarding authority-specific changes, the Department of Justice looks forward to
working with Congress and other agencies in the future to evaluate these potential changes.


                                              Table 1

          Frequency Report, 18 U.S.C. §3486 Administrative Subpoenas


 Authority                         Issuing Entity                    Number of Subpoenas Issued
                                                                     During Calendar Year 2001
 18 U.S.C.                         Attorney General Authority                    2,102
 §3486(a)(1)(A)(I)(1)              Delegated to United States
 (Federal Healthcare Offenses)     Att orneys




                                                 40
18 U.S.C.                        Attorney General Authority        0
§3486(a)(1)(A)(I)(1)             Delegated to Assistant
(Federal Healthcare Offenses)    Atto rney General for the
                                 Criminal Division, United
                                 States Department of Justice
18 U.S.C.                        Attorney General Authority       1,802
§3486(a)(1)(A)(i)(II)            Delegated to Director, FBI
(Federal Offense involving the
Sexual Exploitation or Abuse
of Children)
18 U.S.C.                        Attorney General Authority        71
§3486(a)(1)(A)(i)(II)            Delegated to United States
(Federal Offense involving the   Att orneys
Sexual Exploitation or Abuse
of Children)
18 U.S.C.                        Attorney General Authority         0
§3486(a)(1)(A)(i)(II)            Delegated to the Assistant
(Federal Offense involving the   Atto rney General of the
Sexual Exploitation or Abuse     Criminal Division
of Children)
18 U.S.C. §3486(a)(1)(A)(ii)     Secretary of the Treasury          0
(Imminent Threat against         Authority Delegated to
Secret Service Protectee)        Director of the Secret Service




                                              41
      Appendices A, B, and C

           Accompanying
      Report to Congress on the
        Use of Administrative
       Subpoena Authorities by
Executive Branch Agencies and Entities
         Pursuant to Public Law 106-544
                Appendix A1:
Administrative Subpoena Authorities Held by Agencies
 Other Than the Departments of Justice and Treasury


                 Accompanying a
             Report to Congress on the
     Use of Administrative Subpoena Authorities
     by Executive Branch Agencies and Entities
                Pursuant to Public Law 106-544
                                                                                  Appendix A


             Administrative Subpoena Authorities Held by Agencies Other Than the Departments of Justice and Treasury
                     P.L. 106-544, Section 7(a), Executive Branch Study on Administrative Subpoena Authority,
                                                       Scope and Protections

† Denotes supplemental entry derived from independent research, not submitted by the relevant agency or department
* Denotes Administrative Law Judge authority (For purposes of this report, “administrative subpoena” authority has been defined to include all powers, regardless of name, that
Congress has gr anted to federal agencies to mak e an admin istrative or civil in vestigatory demand compelling document production or testi mony. Civil compulsory process
authorities with provision for judicial enforcement are included. Grand jury subpoenas, administrative law judge subpoenas, and investigative authorities requiring judicial
approval a re not with in the scope of the report; h owever, descripti ons of administrat ive law judge subpoenas submitted by individual agen cies and entities ha ve been included
as submitted.)


   Name of Submitting            Source and Common               Scope of Authority                 Enforcement              Notification Req. and           Issuance Standards
    Agency or Entity               Name of Authority                Description                     Mechanism                Privacy Protections              and Qualifiers or
                                 (Including Act Name,                                               Description                                                  Procedures
                                   P.L. and U.S.C. &
                                       CFR cites)

 Appalachian
 Regional
 Comm ission
 Appalachian                    IG Act & Amend. P.L.          Administrative subpoena         Courts by showing:            Privacy Act of 1978 12         Obtain in formation from
 Regional                       95-452 P.L. 100-504 5         for documentary evidence.       1. IG authority               U.S.S. Sections 3406-          non-governmen t agencies.
                                U.S.C. Appendix 3,                                            2. Relevant to inquiry        3422
 Commission
                                Section 4                                                     3. Not to indefinite


 Broad casting                  Holds no administ rative
                                subpoena authori ty.
 Board of
 Governors



 Chemic al Safety
and Hazard
Investig ation
Board (CSB)
Chemical Safety and    Clean Air Act              Auth ority to require by       Enforcement proceeding       Applicable pr ivacy        Issuance standard:
Hazard Investigation   Amendments of 1990; 42     subpoena attendance and        in Federal district court.   exemptions of the          “reasonableness,” as
                       U.S.C. 7412(r)(6)(L)(i);   testimony of witnesses and                                  Freedom of Infor mati on   determined by the
Board (CSB)                                                                                                                              standards set forth in
                       P.L. 101-549               production of evidence as                                   Act, 5 U.S.C. 552;
                                                  required by the Board to                                    Privacy Act of 1974, 5     Oklahoma Press Publ’g
                                                  carry out its duties                                        U.S.C. 552a.               Co. v. Walling, 327 U.S.
                                                  authorized by 42 U.S.C.                                                                186 (1946).
                                                  7412(r)(6)(C)                                                                          Procedures: subpoenas
                                                  (investigation of accidental                                                           must be issued in
                                                  chemical releases, issuance                                                            accordance with
                                                  of safety recommendation s,                                                            procedures establi shed by
                                                  and establishm ent of                                                                  an internal Board order.
                                                  reporting regulations).




Chemical Safety and    Clean Air Act              Auth ority to require by       Enforcement proceeding       Applicable pr ivacy         Standards and procedures
Hazard Investigation   Amendments of 1990; 42     order that any person          in Federal district court    exemptions of the          not explicitly provided.
                       U.S.C. 7412(r)(6)(L)(i);   engaged in the production,                                  Freedom of Infor mati on
Board (CSB)                                                                                                   Act, 5 U.S.C. 552;
                       P.L. 101-549               processing, handling or
                                                  storage of extremely                                        Privacy Act of 1974, 5
                                                  hazar dous substances                                       U.S.C. 552a.
                                                  submit writ ten r eports or
                                                  responses to questions as
                                                  required by the Board to
                                               carry out its duties
                                               authorized by 42 U.S.C.
                                               7412(r)(6)(C).

Chemical Safety and    Clean Air Act           The CSB’s enabling             Enforcement proceeding      Applicable pr ivacy        Issuance standard:
                       Amendments of 1990 42   statute, 42 U.S.C.             in Federal district court   exemption of the           “reasonableness,” as
Hazard Investigation
                       U.S.C. 7607(a)(1)       7412(r)(6)(M), also                                        Freedom of Infor mati on   determined by the
Board (CSB)                                                                                               Act, 5 U.S.C. 552;         standards set forth in
                                               authorizes th e Board to use
                                               the subpoena authority                                     Privacy Act of 1974,       Oklahoma Press Publ’g
                                               provided to the                                            5 U.S.C. 552a.             Co. v. Walling, 327 U.S.
                                               Administr ator of the EPA                                                             186 (1946).
                                               by 42 U.S.C. 7607(a)(1)
                                               The authority is to issue                                                             Procedures: subpoenas
                                               subpoenas for the                                                                     must be issued in
                                               attendance and testimony                                                              accordance with
                                               of witnesses and the                                                                  procedures establi shed by
                                               production of relevant                                                                an internal Board order.
                                               papers, books, and
                                               documents.


                                               This subpoena authority is
                                               an essential tool in
                                               conducting investiga tions,
                                               allowing the Board to
                                               obtain the cooperation of,
                                               and gather critical
                                               information from,
                                               witnesses and companies
                                               who are often reluctant and
                                               at times obstructionist.
                                               This authorit y has been
                                               used or cited in several
                                               investigations.
                                               The authority is to issue
                                               subpoenas for the
                                               attendance and testimony
                                               of witnesses and the
                                               production of relevant
                                               papers, books, and
                                               documents.
Comm odity
Futures Trad ing
Comm ission

Commodity Futures    Commodity Exchange          “For th e purp ose of            Enforcement action in      1. Privacy Act of 1974, 5    1. Th e CFTC’s Division
                     Act (“CEA”), Pub. L.        securing effective               federal district court.    U.S.C. § 552a.               of Enforcement (“DOE”)
Trading Commission
                     No. 93-463, as amended,     enforcement of [the              Section 6(c) of the CEA,                                requests that the CFTC
                     § 6(c), 7 U.S.C. § 15       provisions of the CEA and]       7 U.S.C. § 15.                                          issue a n “Order of
                                                                                                             2. Records Main tained
                     (2000); CFTC Rules          for the purpose of any                                                                   Investigation” delegating
                                                                                                             on Individuals, 17 C.F.R.
                     Relating to                 investigation or proceeding                                                              its subpoena authority to
                                                                                                             Part 146 (CFTC’s
                     Investigations, Part 11,    under [the CEA] . . . any                                                                specifically ident ified
                                                                                                             regulations implementing
                     17 C.F.R. Part 11 (2001).   member of the Com missi on                                                               DOE staff members.
                                                                                                             the Privacy Act).
                                                 or any Administrative Law
                                                 Judge or other officer                                                                   2. An order of the CFTC
                                                 designated by the                                           3. Right to Financial
                                                                                                                                          authorizing one or more
                                                 Commission . . . may . . .                                  Privacy Act, 12 U.S.C.
                                                                                                                                          member s of the CFTC or
                                                 subpoena witnesses,                                         § 3401 et seq.
                                                                                                                                          of its staff to issue
                                                 compel their attendance . .                                                              subpoen as in the course of
                                                 . and requ ire the pr oduction                              4. Electronic                a par ticul ar investi gation
                                                 of any books, papers,                                       Communi cations Pr ivacy     shall include (1) a general
                                                 corresponden ce,                                            Act of 1986 (“ECPA”),        description of the scope of
                                                 memoran da, or oth er                                       18 U.S.C. § 2701 et seq.     the investigation; (2) the
                                                 records that the                                                                         authority under which the
                                                 Commission deems                                                                         investigation is being
                                                 relevant or material to the                                 5. All information and
                                                                                                                                          conducted; and (3) a
                                                 inquiry.” 7 U.S.C. § 15.                                    documents obtai ned
                                                                                                                                          designation of the
                                                                                                             during the course of an
                                                                                                                                          member s of the CFTC or
                                                                                                             investigation and all
                                                                                                                                          its staff authorized by the
                                                                                                             investigative proceedings
                                                                                                                                          CFTC to issue subpoenas.
                                                                                                             shall be treated as non-
                                                                                                                                          17 C.F.R. § 11.4.
                                                                                                             public by the CFTC and
                                                                                                             its staff except to the
                                                                                                             extent that (1) the          3. DOE Enforcement
                                                                                                             Commi ssion directs or       Procedure No. 6,
                                                                                                             authorizes the public        regarding DOE’s
                                                                                                             disclosure of the            applicat ion of the Pri vacy
                                                                                                             investigation; (2) the       Act, is a non-statutory
                                                                                                             information or documents     procedure.
                                                                                                             are made a m atter of
                                                                                                             public record during the
                                                                                                                                          4. DOE also h as prepar ed
                                                                                                             course of an adjudicatory
                                                                                                                                          Compliance manuals to
                                                                                                             proceeding; or (3)
                                                                                                                                          provide guidance and
                                                                                                             disclosure i s required by
                                                                                                                                          procedures for its staff
                                                                                                             the Fr eedom of               with respect to both the
                                                                                                             Informat ion Act              RFPA and the ECPA.
                                                                                                             (“FOIA”), 5 U.S.C. § 552,
                                                                                                             and the r ules adopted by
                                                                                                             the CFTC thereunder, 17
                                                                                                             C.F.R. Part 145.
                                                                                                             Procedures by which
                                                                                                             persons submitting
                                                                                                             information to the CFTC
                                                                                                             during the course of an
                                                                                                             investigation may
                                                                                                             specifically seek
                                                                                                             confidential tr eatment of
                                                                                                             information for pur poses
                                                                                                             of FOIA disclosure ar e set
                                                                                                             forth in 17 C.F.R. §
                                                                                                             145.9. A request for
                                                                                                             confidential tr eatment of
                                                                                                             information for pur poses
                                                                                                             of FOIA shall not,
                                                                                                             however, prevent
                                                                                                             disclosure for law
                                                                                                             enforcement pur poses or
                                                                                                             when disclosure is
                                                                                                             otherwise found
                                                                                                             appropriate in the public
                                                                                                             interest and permitted by
                                                                                                             law. 17 C.F.R. § 11.3.




Commodity Futures     Commodity Exchange           “For th e purp ose of         Enforcement action in       1. Privacy Act of 1974, 5     1. Th e Part 10 Rules of
Trading Commission   Act (“CEA”), Pub. L.          securing effective            federal district court. 7   U.S.C. § 552a.                Practice govern
                     No. 93-463, as amended,       enforcement of [the           U.S.C. § 15. See also 17    2. Records Main tained        adjudicatory proceedings
                     § 6(c), 7 U.S.C. § 15         provisions of the CEA and]    C.F.R. § 10.68(f)           on Individuals, 17 C.F.R.     before the CFTC un der
                     (2000 ); Par t 10 Rul es of   for the purpose of any        (enforcement                Part 146 (CFTC’s              the CEA. See 17 C.F. R.
                     Practice, 17 C.F.R. Part      investigation or proceeding   proceedings).               regulations implementing      § 10.1.
                     10 (2001).                    under the CEA . . . any                                   the Privacy Act).
                                                   member of the Com missi on
                                                                                                                                           2. Administrative law
                                                   or any Administrative Law
                                                                                                             3. Right to Financial         judges and judgment
                                                   Judge or other officer
                                                                                                             Privacy Act, 12 U.S.C.        officers preside over
                                                   designated by the
                                                                                                             § 3401 et seq.                adjudicatory proceedings.
                                                   Commission . . . may . . .
                                                                                                                                           Presiding officers are
                                                   subpoena witnesses,
                                                                                                                                           authorized to issue
                                                   compel their attendance . .                               4. Electronic                 administrative subpoenas.
                                               . and requ ire the pr oduction                              Communi cations Pr ivacy       See 17 C.F.R. § 10.8.
                                               of any books, papers,                                       Act of 1986 (“ECPA”),
                                               corresponden ce,                                            18 U.S.C. § 2701 et seq.
                                                                                                                                          3. In enforcement
                                               memoran da, or oth er
                                                                                                                                          proceedings, a subpoena
                                               records that the
                                                                                                           5. If a person has             ad testifica ndum shal l be
                                               Commission deems
                                                                                                           requested confidential         issued upon a showin g by
                                               relevant or material to the
                                                                                                           treatmen t of infor mati on    the requesting party of the
                                               inquiry.” 7 U.S.C. § 15.
                                                                                                           submitted by him or her,       general relevance of the
                                                                                                           either pursuan t to rules      testimony being sought.
                                                                                                           adopted by the CFTC            17 C.F.R. § 10.68.
                                                                                                           under FOIA or under Part
                                                                                                           11 of the CFTC’s rules,
                                                                                                                                          4. The administrative law
                                                                                                           the Division of
                                                                                                                                          judge considering any
                                                                                                           Enfor cement sha ll notify
                                                                                                                                          application for a subpoena
                                                                                                           him or h er, if possible,
                                                                                                                                          duces tecum shall issue
                                                                                                           that the information is to
                                                                                                                                          the subpoena if he is
                                                                                                           be disclosed to parties to
                                                                                                                                          satisfied th e applicati on
                                                                                                           the proceedi ng and he or
                                                                                                                                          complies with 17 C.F.R. §
                                                                                                           she may apply to the
                                                                                                                                          10.68 and the request is
                                                                                                           Administrative Law
                                                                                                                                          not unr easonable,
                                                                                                           Judge for an or der
                                                                                                                                          oppressive, excessive in
                                                                                                           protecting the infor mati on
                                                                                                                                          scope or unduly
                                                                                                           from disclosur e,
                                                                                                                                          burdensome. No detailed
                                                                                                           consideration of which
                                                                                                                                          or burdensome showing
                                                                                                           shall be governed by 17
                                                                                                                                          shall be required a s a
                                                                                                           C.F.R. § 10.68(c)(2). 17
                                                                                                                                          condition to the issuan ce
                                                                                                           C.F.R. § 10.42(b)(7).
                                                                                                                                          of any subpoena. 17
                                                                                                                                          C.F.R. § 10.68.


Commodity Futures    Commodity Exchange        “For th e purp ose of            Enforcement action in      1. Privacy Act of 1974, 5      1. The Part 12 Rules
Trading Commission   Act (“CEA”), Pub. L.      securing effective               federal district court.    U.S.C. § 552a; Records         Relati ng to Reparation
                     No. 93-463, as amended,   enforcement of [the              Section 6(c) of the CEA,   Main tain ed on                Proceedings a re the r ules
                     § 6(c), 7 U.S.C. § 15     provisions of the CEA and]       7 U.S.C. § 15. See also    Indivi duals, 17 C.F. R.       of practice applicable to
                     (2000); Pa rt 12 Rules    for the purpose of any           17 C.F.R. § 12.313(f)      Part 146 (CFTC’s               reparations applications
                     Relati ng to Reparation   investigation or proceeding      (reparations               regulations implementing       filed pursuant to Section
                     Proceedin gs, 17 C.F.R.   under [the CEA] . . . any        proceedings).              the Privacy Act).              14 of the CEA, 7 U.S.C. §
                     Part 12 (2001).           member of the Com missi on                                                                 18. See 17 C.F.R. Part
                                               or any Administrative Law                                                                  12.
                                                                                                           2. Right to Financial
                                               Judge or other officer
                                                                                                           Privacy Act, 12 U.S.C.
                                               designated by the                                                                          2. Administrative law
                                                                                                           § 3401 et seq.
                                               Commission . . . may . . .                                                                 judges and judgment
                                               subpoena witnesses,                                                                        officers preside over
                                               compel their attendance . .                                 3. Electronic
                                                                                                                                          reparations proceedings
                                               . and requ ire the pr oduction                              Communi cations Pr ivacy      and are authorized to
                                               of any books, papers,                                       Act of 1986 (“ECPA”),         issue a dmin istr ative
                                               corresponden ce,                                            18 U.S.C. § 2701 et seq.      subpoenas. 17 C.F.R. §§
                                               memoran da, or oth er                                                                     12.34, 12.36, 12.101,
                                               records that the                                                                          12.201, 12.209, 12.304,
                                                                                                           4. If any par ty or per son
                                               Commission deems                                                                          12.313.
                                                                                                           against whom an order to
                                               relevant or material to the
                                                                                                           produce has been directed
                                               inquiry.” 7 U.S.C. § 15.
                                                                                                           acting in good faith has      3. In reparations
                                                                                                           reason to believe that any    proceedings, an
                                                                                                           documents or other            administrative law judge
                                                                                                           tangible thing ordered to     considering any
                                                                                                           be produced contains a        application for a subpoena
                                                                                                           trade secret, or              “shall issue the subpoena
                                                                                                           commer ciall y sensitive or   if he is satisfied the
                                                                                                           other confidential            application complies with
                                                                                                           infor mati on, the party or   this rule and the request is
                                                                                                           person may, in lieu of        not unr easonable,
                                                                                                           serving any such              oppressive, excessive in
                                                                                                           document, file and ser ve a   scope or unduly
                                                                                                           writt en request for          burdensome. In the event
                                                                                                           confidential tr eatment of    the Administrative Law
                                                                                                           such documents. 17            Judge determines that a
                                                                                                           C.F.R. § 12.34. 1             requested subpoena is
                                                                                                                                         unreasonable, oppr essive,
                                                                                                                                         excessive in scope or
                                                                                                                                         unduly burdensome, he
                                                                                                                                         may refuse to issue the
                                                                                                                                         subpoena, or may issue it
                                                                                                                                         only upon such conditions
                                                                                                                                         as he determin es fairness
                                                                                                                                         requires.” 17 C.F.R.
                                                                                                                                         § 12.313(a).




Commodity Futures    Commodity Exchange        “[F]or the purpose of . . .      Enforcement action in      1. Privacy Act of 1974, 5     1. Section 6(c) of the
Trading Commission   Act (“CEA”), Pub. L.      any action taken un der          federal district court.    U.S.C. § 552a; Records        CEA authorizes the CFTC
                     No. 93-463, as amended,   section 16(f) of this title,     Section 6(c) of the CEA,   Main tain ed on               to issue admi nist rative
                     §§ 6(c) and 12(f), 7      any member of the                7 U.S.C. § 15.             Indivi duals, 17 C.F. R.      subpoenas “for the
                     U.S.C. § 15, 16(f)        Commission or any                                           Part 146 (CFTC’s              purp ose of any action
                     (2000).                   Administrative Law Judge                                    regulations implementing      taken under section
                                               or other officer designated                                 the Privacy Act).             12(f).” 7 U.S.C. § 15.
                                               by the Commission . . .
                                               may . . . subpoena
                                                                                                           2. Right to Financial         2. Section 12(f) of the
witnesses, compel their        Privacy Act, 12 U.S.C.     CEA authorizes the
attendance . . . and require   § 3401 et seq.             CFTC, in its di scretion
the production of any                                     and “[o]n request from a
books, papers,                                            foreign futures authori ty”
                               3. Electronic
corresponden ce,                                          to provide assistance in
                               Communi cations Pr ivacy
memoran da, or oth er                                     accordance with this
                               Act of 1986 (“ECPA”),
records that the                                          section if the requesting
                               18 U.S.C. § 2701 et seq.
Commission deems                                          authority states that the
relevant or material to the                               requesting authority is
inquiry.” 7 U.S.C. § 15.                                  conducting an
                                                          investigation which it
                                                          deems necessary to
                                                          determine whether any
                                                          person has violated, is
                                                          violating or is about to
                                                          violat e any la ws, rules or
                                                          regulations relating to
                                                          futures or options matters
                                                          that the requesting
                                                          auth ority admin ister s or
                                                          enforces. The CFTC may
                                                          conduct such
                                                          investigation as the CFTC
                                                          deems necessary to
                                                          collect information and
                                                          evidence pertinent to the
                                                          request for assistance.
                                                          Such a ssistance m ay be
                                                          provided without regard
                                                          to whether t he facts stated
                                                          in the request would also
                                                          consti tute a violation of
                                                          the laws of the United
                                                          States. 7 U.S.C. § 16(f).


                                                          3. In deciding whether to
                                                          provid e assistance to a
                                                          foreign futures authori ty,
                                                          the CFTC sh all consider
                                                          whether “(A) the
                                                          requesting authority has
                                                          agreed to provide
                                                          reciprocal assistance to
                                                          the [CFTC] in futures and
                                                          options matter s; and (B)
                                                                                                                                          compliance with the
                                                                                                                                          request would pr ejudice
                                                                                                                                          the public interest of the
                                                                                                                                          United States.” 7 U.S.C.
                                                                                                                                          § 16(f)(2).

Commodity Futures    Inspector General Act of   Production of all               In case of refusal to        1. Privacy Act of 1974, 5    There are not specific
                     1978, as amended, Pub.     information, documents,         obey, enforcement is         U.S.C. § 552a.               issuance standa rds,
Trading Commission
                     L. 95-452, 5 U.S.C. app    reports, answers, records,      obtained by order of any                                  qualifiers or procedures in
                     3, § 6(a)(4) (2000).       accounts, pa pers, an d other   appropr iate U.S. district                                connection with the
                                                                                                             2. Records Main tained
                                                data and documentary            court.                                                    issuance of administr ative
                                                                                                             on Individuals, 17 C.F.R.
                                                evidence (regardless of                                                                   subpoenas by the
                                                                                                             Part 146 (CFTC’s
                                                medium) necessary for the                                                                 Inspector General.
                                                                                                             regulations implementing
                                                performance of the
                                                                                                             the Privacy Act).
                                                functions a ssigned un der
                                                the Insp ector Genera l Act
                                                (essentially a subpoena                                      3. Right to Financial
                                                duces tecum).                                                Privacy Act (“RFPA”), 12
                                                                                                             U.S.C. §§ 3401 et seq.
                                                                                                             Notification requirements
                                                                                                             of ten days from the date
                                                                                                             of service or fourteen
                                                                                                             days from the date of
                                                                                                             mailing of notice apply
                                                                                                             when records at a
                                                                                                             financial institution are
                                                                                                             sought of customers
                                                                                                             covered by the RFPA.
                                                                                                             Customers have a right to
                                                                                                             challenge in an
                                                                                                             appropr iate U.S. district
                                                                                                             court during th e notice
                                                                                                             period.


                                                                                                             4. Electronic
                                                                                                             Communi cations Pr ivacy
                                                                                                             Act of 1986 (“ECPA”),
                                                                                                             18 U.S.C. § 2701 et seq.

Commodity Futures    Commodity Exchange         The CFTC, or per sons by        If the CFTC h as rea son     The r ecipient of a          This administra tive
Trading Commission   Act (“CEA”), Pub. L.       or on behalf of the CFTC,       to believe that a per son    subpoena must “promptly      subpoena authority was
                     No. 93-463, as amended,    are authorized to issue         has not timely complied      notify the foreign person    recently provided in the
                     § 2(h), 7 U.S.C. § 2(h)    administrative subpoenas        with a subpoena issued       of, and transmit to the      Commodity Futur es
                     (2000).                    to any foreign person who       by or on behalf of the       foreign person, the          Modern izat ion Act of
                                                the CFTC believes is            CFTC pursuant to 7           subpoena in a mann er        2000, Pub. L. No. 106-
                                               conducting or has               U.S.C. § 2(h)(5)(C)(i),       reasonable under the        554, App. E, § 106, 114
                                               conducted transactions in       and the CFTC has in           circumstances, or as        Stat. 2763A-379 (Dec. 21,
                                               reliance on the exempti on      writing directed that a       specified by the CFTC.”     2000) (codified at 7
                                               set forth in 7 U.S.C. §         facility relying on the       7 U.S.C. § 2(h)(5)(C)(i).   U.S.C. § 2(h)). The
                                               2(h)(3) (2000) on or            exemption set forth in 7                                  CFTC has not yet issued
                                               through the electronic          U.S.C. § 2(h )(3) deny or                                 stan dards, qualifiers or
                                               trading facility relating to    limit further transactions                                procedures concerning
                                               the transactions. 7 U.S.C.      by the person, the facility                               this authority.
                                               § 2(h)(5)(C)(i).                shall deny that person
                                                                               further trading access to
                                                                               the facility or, as
                                                                               applicable, limit that
                                                                               person’s access to the
                                                                               facili ty for liquidation
                                                                               trading only. 7 U.S.C.
                                                                               § 2(h)(5)(C)(ii).




Consumer
Product Sa fety
Comm ission
Consumer Product    Consumer Product Safety    “Any person”                    Commission may seek                                       The Commission may
Safety Commission   Act, 15 U.S.C.                                             subpoena enforcement in                                   delegate any of its
                    §§2076(b)(1), (3) and                                      federal court.                                            functions EXCEPT the
                                               “To carry out a specific
                    (4), P.L. 92-573 (1973);                                                                                             subpoena power of 15
                                               regulatory or enforcement
                    16 C.F.R. §§1118.4, .8,                                                                                              U.S.C. §207 6(b)(3) [see
                                               function of the
                    and .9.                                                                                                              §2076(b)(9)] to any
                                               Commission”
                                                                                                                                         officer or employee of the
                                                                                                                                         Commission.
                                               “Documentar y evidence
                                               relating to th e execution of
                                               [the Commission’s] dut ies”

Corpor ation for
National a nd
Comm unity
Service
Corporation for     The Inspector General      Section 6(a)(4) of the          With respect to               With respect to the         An Inspector General
National and        Act of 1978, Pub. L. 95-   Inspector Gen eral Act          subpoenas under the           Inspector General Act, a    subpoena must be 1)
                    452, 5 U.S.C. App §§ 3-    auth orizes an Office of        Inspector General Act, if     person is per mitted ten    issued for a lawful
Community Service                                                              the person does not           days from receip t, or      purpose within the
                    8.                         Inspector General “to
                                               require by subpoena the         respond to the subpoena,     fourteen days from the         statutory authority of the
                                               production of all               or file a motion to quash    mail ing of the n otice of     Inspector General’s Act,
                                               information, documents,         it, OIG requests the U.S.    subpoena, to comply with       2) reasonably relevant to
                                               reports, answers, records,      Department of Justice to     the deman d, or file a         that pur pose, and 3) not
                                               accounts, pa pers, an d other   file a Petiti on for         motion to quash it, in the     unduly burdensome. See
                                               data and documentary            Enfor cement of              appropriate Federal            Burlington Northern R.R.
                                               evidence necessary in the       Subpoena in the              district court.                Co. v. Office of Inspector
                                               performance of the              appropriate Federal                                         General, R.R. Retirement
                                               functions assigned by this      district court.                                             Board, 983 F. 2d 631, 637
                                               Act.” 5 U.S.C. § 5 U.S.C.                                                                   (5th Cir. 1993).
                                               App § 6(a)(4).




Corporation for     The Right to Financial     Section 3405 of the Right       With respect to the Right    With respect to the Right      An Inspector General
National and        Privacy Act of 1978,       to Finan cial Privacy Act       to Financial Privacy Act,    to Financial Privacy Act,      subpoena must be 1)
                    Pub. L. 95-630, 12         states that a “government       if the data subject of the   a                              issued for a lawful
Community Service                                                                                                                          purpose within the
                    U.S.C. §§ 3401-3433.       authority may obtain            records fails to respond,    person is per mitted ten
                                               financi al records under        or files a motion to         days from receip t, or         statutory authority of the
                                               section 3402(2) of this title   quash, then the              fourteen days from the         Inspector General’s Act,
                                               pursuant to an                  responsible financial        mail ing of the n otice of     2) reasonably relevant to
                                               admi nist rative subpoena or    institution must deliver     subpoen a, to file a mot ion   that pur pose, and 3) not
                                               summons otherwise               that person's financial      to quash it in the             unduly burdensome. See
                                               authorized by law.” 12          records to OIG after OIG     appropriate Federal            Burlington Northern R.R.
                                               U.S.C. § 3405.                  presents a Certificat e of   district court. A Pr ivacy     Co. v. Office of Inspector
                                                                               Compliance with the          Act Notice is included         General, R.R. Retirement
                                                                               Right to Financial           with the subpoena,             Board, 983 F. 2d 631, 637
                                                                               Privacy Act to the           pursuant to subsection         (5th Cir. 1993).
                                                                               appropriate records          (e)(3) of the Privacy Act
                                                                               custodian.                   of 1974, 5 U.S.C. §
                                                                                                            552a(e)(3).




Court Services      Holds no administ rative
                    subpoena authori ty.
and Offender
Superv ision
Agency
Defense Nuclear
Facilities S afety
Board
Defense Nuclear             42 U.S.C. §2286b(a),         Compel testimony of           Federal court in the            Personal ser vice   Subpoenas may be issued
Facilities Safety           National Defense             witnesses at hearin gs.       distr ict of th e hear ing or                       only by the Chairman of
                            Authorization Act, Fiscal                                  the district where the                              the Board or by a Board
Board
                            Year 1989, P.L. No. 100-                                   person resid es or                                  member designated by the
                            456. Sept. 29, 1988.                                       transacts busin ess.                                Chairman.




Depa rtment of              Holds no administ rative
                            subpoena authority,
Defense                     excluding Inspector
                            General authority.


                            (Subpoena authority is
                            available in court martial
                            proceedings, however).

Defense Contract            10 U.S. C. §2313(b)          (2) Any such subpoena, in     (3) The authority
Audit Agency (under         DCAA subpoena                the ca se of contu macy or    provided by paragraph
the Authority, Direction,   authority.--(1) The          refusa l to obey, sh all be   (1) may not be
and Control of the          Director of the Defense      enforceable by order of an    redelegated.
Under secretary of          Contra ct Audit Agen cy      appropr iate United States
Defense–Comptroller)†       (or an y successor           district court.
                                                                                       10 U.S.C. §2313(b)(3).
                            agency) may req uire by
                            subpoen a the produ ction
                                                         10 U.S.C. §2313(b)(2).
                            of any records of a
                            contractor that the
                            Secretary of Defense is
                            auth orized to audit or
                            examine under
                            subsection (a).


                            Subsection (a):
                            “(a) Agency
                            authority.--(1) The head
                            of an agency, acting
                            through an auth orized
                            representative, is
authorized to inspect the
plant and audit the
records of--
(A) a con tractor
performing a
cost-reimbursement,
incentive, time-and-
materials, labor-hour , or
price-redeterminable
contract, or any
combination of such
contracts, made by that
agency under this
chapter; and
(B) a subcontr actor
performing any
cost-reimbursement,
incentive, time-and-
materials, labor-hour , or
price-redeterminable
subcontract or any
combination of such
subcontracts under a
contract referred to in
subparagraph (A).
(2) The head of an
agency, acting through
an authorized
representative, is
authorized, for the
purpose of evaluating the
accuracy, completeness,
and cur rency of certified
cost or pricing data
required to be submitted
pursuant to section 2306a
of this titl e with respect
to a contract or
subcontract, to examine
all records of the
contr actor or
subcontractor related to--
(A) the proposal for the
contract or subcontract;
                      (B) the discussions
                      conducted on the
                      proposal;
                      (C) pricing of the
                      contract or subcontract;
                      or
                      (D) performance of the
                      contract or subcontract.”


                      10 U.S.C. §2313(b).

Depa rtment of the    Holds no administ rative
                      subpoena authori ty.
Air Force




Depa rtment of the    Holds no administ rative
                      subpoena authori ty.
Army
Depa rtment of
Agriculture
US Department of      Section 14(a)(7) of the     The Administrative Law       In case of disobedience      When the ALJ issues a        Subpoenas sha ll be issued
Agriculture*          Food Stamp Act of 1977,     Judge (ALJ) presiding over   to a subpoena, the           subpoen a under the Food     by the ALJ, over the
                      7 U.S.C. 2023(a)(7),        Food Stamp Program           Secretary or an y of her     Stamp Act, the party who     facsimile signature of the
                      regulations set forth       Quality Control Claim        examiners may invoke         requested the subpoena       Secretary, upon a
USDA/OGC              under 7 C.F.R. § 283.13     Appeals has subpoena         the aid of an y court of     shall ser ve all other       reasonable showing by the
Food and Nutr ition                               authority as provided to     the United States in         parties with a copy of the   applicant of the gr ounds,
Divisi on                                         him by section 13(c) and     requiring th e attenda nce   subpoena, notice of the      necessity and reasonable
                                                  (d) of the Perishable        and testimony of             names and addr esses of      scope th ereof.
                                                  Agricult ural Commodities    witnesses and the            the individuals
                                                  Act of 1930 (7 U.S.C.        production of accounts,      subpoen aed an d specify
                                                  499m(c) and (d)).            records, and memoranda.      any documents r equired
                                                                               Any district court of the    to be produced.
                                                                               United States within the
                                                                               jurisdiction of which any
                                                                               hear ing is car ried on
                                                                               may, in case of
                                                                               contumacy or refusal to
                                                                               obey a subpoena issued
                                                                               to any person, issue an
                                                                                     order requiring the
                                                                                     person to appear before
                                                                                     the Secretary or her
                                                                                     examiner or to produ ce
                                                                                     accounts, records, and
                                                                                     memoranda if so
                                                                                     order ed, or to give
                                                                                     evidence touching any
                                                                                     matter pertinent to any
                                                                                     complaint; and any
                                                                                     failure to obey such
                                                                                     order of the court shall
                                                                                     be punished by the court
                                                                                     as a con tempt ther eof.

US Department of        Rules of Practice            These regulations give an       Enforcement authority, if    Notification requirements     Issuance standards, if any,
Agriculture             Governing Formal             ALJ, appointed under 5          any, is provided for by      and privacy protections, if   are provided for by the
                        Adjudicatory                 U.S.C. 3105, the authority      the specific statutes        any, are pr ovided for by     specific statutes under
                        Proceedings Inst ituted by   to issue subpoenas as           under which the              the specific statutes under   which the subpoena is
OGC                     the Secreta ry Under         authorized by the statute       subpoena is issued.          which the subpoena is         issued.
Gener al Law Division   Various Statutes, 7          under which a formal                                         issued.
                        C.F.R. § 1.144,              adjudicatory proceeding is
                        authorized by 5 U.S.C.       conducted.
                        301

US Department of        Procedures Related to        7 C.F.R. § 1.304,               An ALJ may sanction a        When an ALJ issues a          A subpoena issued under
Agriculture             Administrative Hearings      authorizes an investigating     person, including any        subpoena under the            7 C.F.R. § 1.304 must
                        Under the Program Fraud      official, who is                party or rep resen tati ve   PFCRA, the party who          notify the per son to wh om
                        Civil Remedies Act           investigating an                for failing to comply        requested the subpoena        it is addressed of the
OGC                     (PFCRA) of 1986, 7           individu al’s liability under   with a lawful subpoena.      must serve all other          authority under which it is
Gener al Law Division   C.F.R. §§ 1.304, 1.319,      7 C.F.R. § 1.303 (dealing       Sanction s include:          parties with notice of the    issued and shal l iden tify
                        1.322, 1.323, 1.328,         with false statements, etc.),   drawing an inference in      names and addr esses of       the information,
                        authorized by 31 U.S.C.      to issue a subpoena.            favor of the requesting      the individuals               documents, reports,
                        3804(a).                                                     party with regard to the     subpoen aed an d specify      answers, records,
                                                                                     information sought; in       any documents r equired       accounts, papers, or data
                                                     7 C.F.R. §§ 1.319, 1.322,
                                                                                     the case of requests for     to be produced.               sought. The investigating
                                                     1.323,1.328 authorizes an
                                                                                     admission , deem                                           official may designate a
                                                     ALJ conducting a hearing
                                                                                     admitted each item as to                                   person to act on his behalf
                                                     under the PFCRA to issue
                                                                                     which an admission is                                      to receive the documents
                                                     subpoenas requiring the
                                                                                     requested; prohibit the                                    or other materials sought
                                                     attendance of witnesses and
                                                                                     party failing to comply                                    by a subpoena issued.
                                                     the production of
                                                                                     with such or der fr om
                                                     documents at depositions
                                                                                     introducing eviden ce
                                                     or hearings                                                                                For a subpoena to be
                                                                                     concerning, or otherwise
                                                                                                                                                issued by an ALJ, the
                                                                                     relying upon testimony
                                                                                                                                                party requesting the
                                                                                     relating to the
                                                                                                                                                subpoena must submit a
                                                                                   information sought;           written request n ot less
                                                                                   strike any part of the        than 15 days before the
                                                                                   pleadings or other            date fixed for the hearing
                                                                                   submissions of the party      unless otherwise allowed
                                                                                   failing to comply with        by the ALJ for good cause
                                                                                   such requests; or request     shown.
                                                                                   the Attorney General
                                                                                   petition an appropriate
                                                                                   district court for an order
                                                                                   to enforce a subpoena.

US Department of        Rules of Pr ocedure for     An Administrative Law          In the case of contumacy      In issuing the subpoena to
                        the USDA Board of           Judge hearing an appeal        or r efusal to obey a         a requesting party, the
Agriculture *
                        Contract Appeals, 7         pursuan t to the Cont ract     subpoena by a person          ALJ shall sign the
                        C.F.R. §§ 24.3, Pt. 24,     Disputes Act (CDA) of          who resides, is found, or     subpoena and may, in the
OGC                     Subpt. B, App.,             1978 (41 U.S.C. 601-613),      transacts business within     Judge’s discretion, enter
Gener al Law Division   authorized by 5 U.S.C.      may issue a subpoena           the jurisdiction of the       the n ame of th e witness or
                        304.                        requiring testimony at a       United Stat es District       otherwise leave it blank.
                                                    deposition, testimony at a     Court, the Board will
                                                    hear ing, and production of    apply to the Court
                                                    books and papers.              through the Attor ney
                                                                                   General of the United
                                                                                   States for an order
                                                    For non-CDA appeals the
                                                                                   requiring the person to
                                                    Chair of the Board has
                                                                                   appear before the Board.
                                                    auth ority by delegati on
                                                                                   A failure to obey such an
                                                    from the Secretary to
                                                                                   order is punish able by a
                                                    request the appropriate
                                                                                   contempt order.
                                                    United States Attorney to
                                                    apply to the appropriate
                                                    United States District Court
                                                    for th e issua nce of
                                                    subpoen as pur suan t to 5
                                                    U.S.C. 304.

US Department of        Rules of Procedure          The Director of NAD and        If a person refuses to        A Hearing Officer must
Agriculture             governing the National      Hearing Officers have the      obey a subpoena, the          obtain the con curr ence of
                        Appeals Division (NAD),     authority to issue             Director, acting through      the Director prior to
                        7 U.S.C. 6997, 7 C.F.R.     subpoenas compelling the       the Office of the General     issuing a subpoena. A
OGC                     § 11.8, authorized by the   attendance of witnesses and    Counsel of the USDA           subpoena sha ll be issued
Gener al Law Division   Federal Cr op Insura nce    production of evidence.        and the Departmen t of        for documents only if the
                        Reform and Department                                      Justice, may apply to the     Director or Hearing
                        of Agriculture                                             United Stat es District       Officer determine that the
                        Reorganization Act of                                      Court in the jur isdiction    appellan t or the ag ency
                        1994.`                                                     where the per son resides     has established that
                                                                                   to have the subpoena          produ ction of
                                                                                   enforced.                     documentary evidence is
                                                                                                                                         necessary and is
                                                                                                                                         reasonably calculated to
                                                                                                                                         lead to information which
                                                                                                                                         would affect the final
                                                                                                                                         determination or is
                                                                                                                                         necessary to fully present
                                                                                                                                         the case before the
                                                                                                                                         Division. A subpoena
                                                                                                                                         shal l be issued for
                                                                                                                                         appearan ce of a witness
                                                                                                                                         only if the Director or
                                                                                                                                         Hearing Officer
                                                                                                                                         determines that the
                                                                                                                                         appellan t or the ag ency
                                                                                                                                         has establi shed tha t either
                                                                                                                                         a representative of the
                                                                                                                                         Department or a private
                                                                                                                                         individu al possesses
                                                                                                                                         information that is
                                                                                                                                         pertinent and necessary
                                                                                                                                         for disclosure of all
                                                                                                                                         relevant facts which could
                                                                                                                                         impact the final
                                                                                                                                         determination, that
                                                                                                                                         infor mati on can not be
                                                                                                                                         obtained except through
                                                                                                                                         testimony of the person,
                                                                                                                                         and that the testimony
                                                                                                                                         cannot be obtained absent
                                                                                                                                         issuance of a subpoena.

US Department of      Animal and Plant Health   The Secretary may require       The Secretary may             Service of a subpoena is   Duri ng in vestigation s or
Agriculture           Inspection Service        by subpoena the atten dance     invoke the aid of the         required.                  admi nist rative
                      (APHIS)                   and testi mony of witnesses     appropr iate U.S. Dist rict                              proceedings.
                                                and the production of           Court to enforce
OGC                                             books, papers, and              subpoenas.
                      The Hor se Protection
Mark eting Division                             documents relating to any
                      Act, 15 U.S.C. 1821-
                                                matt er un der investi gation
                      1831, (Section 6(d)(1)
                                                or th e subject of a
                      (15 U.S.C. 1825))
                                                proceedings.
US Department of      APHIS                        Incor porates Section 9 of      The Secretary may             Service of a subpoena is     Duri ng in vestigation s or
Agriculture                                        the Federal Trade               invoke the aid of the         required.                    admi nist rative
                                                   Commission Act (15              appropr iate U.S. Dist rict                                proceedings.
                      The Animal Welfare Act,
                                                   U.S.C. 48) wh ich               Court to enforce
OGC                   7 U.S.C. 2131-2159,
                                                   authorizes the Secretary to     subpoenas.
                      (Section 16(c), 7 U.S.C.
Mark eting Division                                require by subpoena the
                      2146(c)).
                                                   attendance and testimony
                                                   of witnesses and the
                                                   production of all such
                                                   documentar y evidence
                                                   relating to any matter
                                                   under investigation or at
                                                   any desi gnated place of
                                                   hearing.

US Department of      Grain Inspection packers     The Administrator may           The Administrator may          Service of a subpoena is    Duri ng in vestigation s or
Agriculture           and Stockyards               require by subpoena the         invoke the aid of the         required.                    admi nist rative
                      Administration (GIPSA)       attendance and testimony        U.S. District Courts, the                                  proceedings.
                                                   of witnesses and the            District Court Of Guam,
OGC                                                production of all such          the District Court of the
                      The United States Grain
Mark eting Division                                documentar y evidence           Virgin Islands, the
                      Standards Act, 7 U.S.C.
                                                   relating to any matter          highest court of
                      71-et seq., (Section 17, 7
                                                   under investigation or at       American Samoa, and
                      U.S.C. 87f.)
                                                   any desi gnated place of        the United States courts
                                                   hearing.                        of other territories and
                                                                                   possessions of the Unit ed
                                                                                   States to enforce
                                                                                   subpoenas.

US Department of      Agricultural Marketing       This section adopts             The Secretary may             Service of the subpoena is   Duri ng in vestigation s or
Agriculture           Service (AMS)                section s 48, 49 and 50 of      invoke the aid of the         required.                    admi nist rative
                                                   Title 15 (Federal Trade         appropr iate U.S. Dist rict                                proceedings.
                                                   Commission Act) which           Court to enforce
OGC                   Agricultural Marketing
                                                   may require by subpoena         subpoenas.
                      Agreement Act of 1937,
Mark eting Division                                the attendance and
                      7 U.S.C. 601-670, 7
                                                   testimony of witnesses and
                      U.S.C. 610(h).
                                                   the production of
                                                   documents relating to any
                                                   matt er un der investi gation
                                                   or th e subject of a
                                                   proceeding.

US Department of      AMS                          The Secretary may require       The Secretary may              Service of a subpoena is    Duri ng in vestigation s or
Agriculture           Commodity Promotion,         by subpoena the atten dance     invoke the aid of the         required.                    admi nist rative
                      Research and                 and testi mony of witnesses     appropr iate U.S. Dist rict                                proceedings.
                      Information Act of 1996,     and the production of           Court to enforce
OGC                   7 U.S.C. 7411-7425,       documents relating to any       subpoenas.
Mark eting Division   7 U.S.C. 7420.            matt er un der investi gation
                                                or th e subject of a
                                                proceeding.



US Department of      AMS                       The Secretary may require        The Secretary may            Service of a subpoena is   Duri ng in vestigation s or
Agriculture           Cotton Research and       by subpoena the atten dance     invoke the aid of the         required.                  admi nist rative
                      Promotion Act, 7 U.S.C.   and testi mony of witnesses     appropr iate U.S. Dist rict                              proceedings.
                      2101-2118, 7 U.S.C.       and the production of           Court to enforce
OGC                   2115.                     documents relating to any       subpoenas.
Mark eting Division                             matt er un der investi gation
                                                or th e subject of a
                                                proceeding.


US Department of      AMS                       The Secretary may require       The Secretary may             Service of a subpoena is   Duri ng in vestigation s or
Agriculture           Dair y Product ion        by subpoena the atten dance     invoke the aid of the         required.                  admi nist rative
                      Stabiliza tion Act of     and testi mony of witnesses     appropr iate U.S. Dist rict                              proceedings.
                      1983, 7 U.S.C. 4501-      and the production of           Court to enforce
OGC                                             documents relating to any       subpoenas.
                      4513, 7 U.S.C. 4511.
Mark eting Division                             matt er un der investi gation
                                                or th e subject of a
                                                proceeding.

US Department of      AMS                       The Secretary may require       The Secretary may             Service of a subpoena is    During in vestigation s or
Agriculture           Fluid Milk Promotion      by subpoena the atten dance     invoke the aid of the         required.                  admi nist rative
                      Act of 1990, 7 U.S.C.     and testi mony of witnesses     appropr iate U.S. Dist rict                              proceedings.
                      6401-6417, 7 U.S.C.       and the production of           Court to enforce
OGC                                             documents relating to any       subpoenas.
                      6412.
Mark eting Division                             matt er un der investi gation
                                                or th e subject of a
                                                proceeding.


US Department of      AMS                       The Secretary may require       The Secretary may             Service of a subpoena is    During in vestigation s or
Agriculture           Federal Seed Act, 7       by subpoena the atten dance     invoke the aid of the         required.                  admi nist rative
                      U.S.C. 1551-1611, 7       and testi mony of witnesses     appropr iate U.S. Dist rict                              proceedings.
                      U.S.C. 1603.              and the production of           Court to enforce
OGC                                             documents relating to any       subpoenas.
Mark eting Division                             matt er un der investi gation
                                                or th e subject of a
                                                proceeding. The Secretary
                                                may also require access to
                                                office and warehouse
                                                premises.
US Department of      AMS                         The Secretary may require       The Secretary may             Service of a subpoena is    Duri ng in vestigation s or
Agriculture           Egg Pr oducts I nspection   by subpoena the atten dance     invoke the aid of the         required.                   admi nist rative
                      Act, 21 U.S.C. 1031-        and testi mony of witnesses     appropr iate U.S. Dist rict                               proceedings.
                      1056, 21 U.S.C. 1051.       and the production of           Court to enforce
OGC                                               documents relating to any       subpoenas.
Mark eting Division                               matt er un der investi gation
                                                  or th e subject of a
                                                  proceeding.

US Department of      AMS                         The Secretary may require       The Secretary may             Service of a subpoena is    Duri ng in vestigation s or
Agriculture           Egg Research and            by subpoena the atten dance     invoke the aid of the         required.                   admi nist rative
                      Consumer Inform ation       and testi mony of witnesses     appropr iate U.S. Dist rict                               proceedings.
                      Act, 7 U.S.C. 2701-2718,    and the production of           Court to enforce
OGC                   7 U.S.C.2717.               documents relating to any       subpoenas.
Mark eting Division                               matt er un der investi gation
                                                  or th e subject of a
                                                  proceeding.

US Department of      AMS                          The Secretary may require       The Secretary may            Service of a subpoena is     During in vestigation s or
Agriculture           Floral Research and         by subpoena the atten dance     invoke the aid of the         required.                   admi nist rative
                      Consumer Inform ation       and testi mony of witnesses     appropr iate U.S. Dist rict                               proceedings.
                      Act 7 U.S.C. 4301-4319,     and the production of           Court to enforce
OGC                   7 U.S.C. 4317.              documents relating to any       subpoenas.
Mark eting Division                               matt er un der investi gation
                                                  or th e subject of a
                                                  proceeding.


US Department of      AMS                         The Secretary may require       The Secretary may             Service of a subpoena is    Duri ng in vestigation s or
Agriculture           Fresh Cut Flowers and       by subpoena the atten dance     invoke the aid of the         required.                   admi nist rative
                      Fresh Cut Greens            and testi mony of witnesses     appropr iate U.S. Dist rict                               proceedings.
                      Promotion and               and the production of           Court to enforce
OGC                   Information Act of 1993,    documents relating to any       subpoenas.
Mark eting Division   7 U.S.C. 6801-6814, 7       matt er un der investi gation
                      U.S.C. 6809.                or th e subject of a
                                                  proceeding.



US Department of      AMS                         The Secretary may require        The Secretary may             Service of a subpoena is   Duri ng in vestigation s or
Agriculture           Honey Research,             by subpoena the atten dance     invoke the aid of the         required.                   admi nist rative
                      Promotion a nd Consum er    and testi mony of witnesses     appropr iate U.S. Dist rict                               proceedings.
                      Information Act, 7          and the production of           Court to enforce
OGC                   U.S.C. 4601-4612,           documents relating to any       subpoenas.
Mark eting Division   7 U.S.C. 4610a.             matt er un der investi gation
                                                  or th e subject of a
                                                  proceeding.
US Department of      AMS                        The Secretary may require       The Secretary may             Service of a subpoena is    During in vestigation s or
Agriculture           Lime Research,             by subpoena the atten dance     invoke the aid of the         required.                  admi nist rative
                      Promotion a nd Consum er   and testi mony of witnesses     appropr iate U.S. Dist rict                              proceedings.
                      Information Act of 1990,   and the production of           Court to enforce
OGC                   7 U.S.C. 6201-6212, 7      documents relating to any       subpoenas.
Mark eting Division   U.S.C. 6208.               matt er un der investi gation
                                                 or th e subject of a
                                                 proceeding.


US Department of      AMS                        The Secretary may require       The Secretary may             Service of a subpoena is   Duri ng in vestigation s or
Agriculture           Mushroom Promotion,        by subpoena the atten dance     invoke the aid of the         required.                  admi nist rative
                      Research an d Consumer     and testi mony of witnesses     appropr iate U.S. Dist rict                              proceedings.
                      Information Act of 1990,   and the production of           Court to enforce
OGC                                              documents relating to any       subpoenas.
                      7 U.S.C. 6101-6112, 7
Mark eting Division   U.S.C. 6108.               matt er un der investi gation
                                                 or th e subject of a
                                                 proceeding.


US Department of      AMS                        The Secretary may require       The Secretary may             Service of a subpoena is   Duri ng in vestigation s or
Agriculture           National Kiwifruit         by subpoena the atten dance     invoke the aid of the         required.                  admi nist rative
                      Research, Promotion and    and testi mony of witnesses     appropr iate U.S. Dist rict                              proceedings.
                      Information Act,           and the production of           Court to enforce
OGC                   7 U.S.C. 7461-7473, 7      documents relating to any       subpoenas.
Mark eting Division   U.S.C. 7469.               matt er un der investi gation
                                                 or th e subject of a
                                                 proceeding.


US Department of      AMS                        The Secretary may require       The Secretary may             Service of a subpoena is   Duri ng in vestigation s or
Agriculture           Pecan Promotion and        by subpoena the atten dance     invoke the aid of the         required.                  admi nist rative
                      Research Act of 1990,      and testi mony of witnesses     appropr iate U.S. Dist rict                              proceedings.
                      7 U.S.C. 6001-6013, 7      and the production of           Court to enforce
OGC                   U.S.C. 6010.               documents relating to any       subpoenas.
Mark eting Division                              matt er un der investi gation
                                                 or th e subject of a
                                                 proceeding.


US Department of      AMS                        The Secretary may require       The Secretary may             Service of a subpoena is   Duri ng in vestigation s or
Agriculture           Popcorn Promotion,         by subpoena the atten dance     invoke the aid of the         required.                  admi nist rative
                      Research an d Consumer     and testi mony of witnesses     appropr iate U.S. Dist rict                              proceedings.
                      Information Act,           and the production of           Court to enforce
OGC
Mark eting Division   7 U.S.C. 7481-7491, 7      documents relating to any       subpoenas.
                      U.S.C. 7488.               matt er un der investi gation
                                                 or th e subject of a
                                                 proceeding.


US Department of      AMS                        The Secretary may require       The Secretary may              Service of a subpoena is   Duri ng in vestigation s or
Agriculture           Potato Research and        by subpoena the atten dance     invoke the aid of the         required.                   admi nist rative
                      Promotion Act, 7 U.S.C.    and testi mony of witnesses     appropr iate U.S. Dist rict                               proceedings.
                      2612-2627, 7 U.S.C.        and the production of           Court to enforce
OGC                   2622.                      documents relating to any       subpoenas.
Mark eting Division                              matt er un der investi gation
                                                 or th e subject of a
                                                 proceeding.

US Department of      AMS                        The Secretary may require       The Secretary may             Service of a subpoena is    Duri ng in vestigation s or
Agriculture           Watermelon Research        by subpoena the atten dance     invoke the aid of the         required.                   admi nist rative
                      and Promotion Act,         and testi mony of witnesses     appropr iate U.S. Dist rict                               proceedings.
                      7 U.S.C. 4901-4916, 7      and the production of           Court to enforce
OGC                   U.S.C. 4911.               documents relating to any       subpoenas.
Mark eting Division                              matt er un der investi gation
                                                 or th e subject of a
                                                 proceeding.

US Department of      AMS                         The Secretary may require      The Secretary may             Service of a subpoena is    Duri ng in vestigation s or
Agriculture           Beef Research and          by subpoena the atten dance     invoke the aid of the         required.                   admi nist rative
                      Information Act,           and testi mony of witnesses     appropr iate U.S. Dist rict                               proceedings.
                      7 U.S.C. 2901-2911, 7      and the production of           Court to enforce
OGC                                              documents relating to any       subpoenas.
                      U.S.C. 2902.
Mark eting Division                              matt er un der investi gation
                                                 or th e subject of a
                                                 proceeding.

US Department of      AMS                        The Secretary may require       The Secretary may             Service of a subpoena is    Duri ng in vestigation s or
Agriculture           Canola a nd Rapeseed       by subpoena the atten dance     invoke the aid of the         required.                   admi nist rative
                      Research, Promotion and    and testi mony of witnesses     appropr iate U.S. Dist rict                               proceedings.
                      Consumer Inform ation      and the production of           Court to enforce
OGC                                              documents relating to any       subpoenas.
                      Act, 7 U.S.C. 7441-7452,
Mark eting Division   7 U.S.C. 7449.             matt er un der investi gation
                                                 or th e subject of a
                                                 proceeding.


US Department of      AMS                        The Secretary may require        The Secretary may             Service of a subpoena is   Duri ng in vestigation s or
Agriculture           Pork Promotion,            by subpoena the atten dance     invoke the aid of the         required.                   admi nist rative
                      Research an d Consumer     and testi mony of witnesses     appropr iate U.S. Dist rict                               proceedings.
OGC                   Information Act of 1985,   and the production of           Court to enforce
Mark eting Division   7 U.S.C. 4801-4819, 7      documents relating to any       subpoenas.
                      U.S.C. 4816.               matt er un der investi gation
                                                 or th e subject of a
                                                 proceeding.

US Department of      AMS                        The Secretary may require       The Secretary may              Service of a subpoena is   Duri ng in vestigation s or
Agriculture           Sheep Promotion,           by subpoena the atten dance     invoke the aid of the         required.                   admi nist rative
                      Research and               and testi mony of witnesses     appropr iate U.S. Dist rict                               proceedings.
                      Information Act of 1994,   and the production of           Court to enforce
OGC                   7 U.S.C. 7101-7111, 7      documents relating to any       subpoenas.
Mark eting Division   U.S.C. 7108.               matt er un der investi gation
                                                 or th e subject of a
                                                 proceeding.


US Department of      AMS                        The Secretary may require       The Secretary may             Service of a subpoena is    Duri ng in vestigation s or
Agriculture           Soybean Promotion,         by subpoena the atten dance     invoke the aid of the         required.                   admi nist rative
                      Research an d Consumer     and testi mony of witnesses     appropr iate U.S. Dist rict                               proceedings.
                      Information Act,           and the production of           Court to enforce
OGC                                              documents relating to any       subpoenas.
                      7 U.S.C. 6301-6311, 7
Mark eting Division   U.S.C. 6308.               matt er un der investi gation
                                                 or th e subject of a
                                                 proceeding.


US Department of      AMS                        The Secretary may require       The Secretary may             Service of a subpoena is    Duri ng in vestigation s or
Agriculture           Wheat and Wheat Foods      by subpoena the atten dance     invoke the aid of the         required.                   admi nist rative
                      Research Nutrition and     and testi mony of witnesses     appropr iate U.S. Dist rict                               proceedings.
                      Education Act, 7 U.S.C.    and the production of           Court to enforce
OGC                                              documents relating to any       subpoenas.
                      3401-3417, 7 U.S.C.
Mark eting Division   3412.                      matt er un der investi gation
                                                 or th e subject of a
                                                 proceeding.


US Department of      AMS                        The Secretary may require       The Secretary may             Service of a subpoena is    Duri ng in vestigation s or
Agriculture           Tobacco Inspection Act,    by subpoena the atten dance     invoke the aid of the         required.                   admi nist rative
                      7 U.S.C. 511-511q, 7       and testi mony of witnesses     appropr iate U.S. Dist rict                               proceedings.
                      U.S.C. 511n.               and the production of           Court to enforce
OGC                                              documents relating to any       subpoenas.
Mark eting Division                              matt er un der investi gation
                                                 or th e subject of a
                                                 proceeding.
US Department of      Section 104(e) of the       Authority to require any         With respect to releases     A CERCLA Section              USDA standards and
                      Compr ehensive              person to furnish                or threatened releases       104(e) infor mati on          policy for the issuan ce of
Agriculture
                      Environ mental Response,    information or documents         where either th e release    request ma y be issued        CERCLA Section 104(e)
                      Compensation, and           relating to: (a) the             is on or the sole source     upon reasonable notice.       information requests is
OGC                   Liability Act (CERCLA),     identification, nature, and      of the release is from any   USDA’s Section 104( e)        contained in the USDA
Pollut ion Con trol   42 U.S.C. § 9604(e), as     quantity of hazardous            facility under USDA          information r equest          Potentially Responsible
                      delegated by Section 2(j)   substances generated,            jurisdiction, custody, or    require recipients to         Party (PRP) Search Guide
                      of Execut ive Ord er No.    treated, stored, or di sposed    control, the Secretary       respond within 30 days,       (June 2001). The Sear ch
                      12580 (52 Fed. Reg.         of at a site; (b) the nature     may issue, with the          or adequately justify the     Guide provides that
                      2923, Jan. 29, 1987).       or extent of a relea se or       concurrence of the           need for additional time      CERCLA Section 104(e)
                                                  thr eaten ed release of          Attorney General, an         to respond. An                information requests
                                                  hazardous substances at a        administrat ive order        admi nist rative              should be tailored to site
                      In Executi ve Order                                                                       complian ce order und er      specific needs and to the
                                                  site; or (c) i nform ation       directin g complian ce
                      12580, the President                                                                      Section 104(e)(5)(A),         particular recipient of the
                                                  relating to th e abili ty of a   with the request. USDA
                      delegated to the                                                                          may be issued “after such     request. USDA CE RCLA
                                                  respon sible party to pay for    may ask the Attorney
                      Secretary of Agriculture                                                                  notice and opport unity for   Section 104(e)
                                                  or to perform a cleanup.         General to file a civil
                      the auth ority under                                                                      consultation as is            information request letters
                                                  This auth ority may be           action to compel
                      Section 104(e) of the                                                                     reasonably appropriate        should be prepared with
                                                  exercised only for pur poses     compliance with a
                      Compr ehensive                                                                            under the circumstances.”     the assistance of the
                                                  of determining the n eed for     request or order issued
                      Environ mental Response,                                                                                                Office of the General
                                                  respon se action, or             under Section 104(e).
                      Compensation, and                                                                                                       Counsel (OGC). OGC
                                                  choosing or taking any           The Court may assess
                      Liability Act (CERCLA),                                                                   Any records, repor ts, or
                                                  response acti on under           civil penalties of up to                                   should also be consulted
                      42 U.S.C. § 9604(e), to                                                                   information obtain ed
                                                  CERCLA.                          $25,000 for each day of                                    in reviewing responses to
                      make a n administr ative                                                                  from any person under
                                                                                   continued                                                  CERCLA Section 104(e)
                      investigatory demand                                                                      Section 104(e) are
                                                                                   noncompli ance.                                            requests and in the
                      compelling the                                                                            available to th e public,
                                                                                                                                              preparation of any follow-
                      production of documents                                                                   except upon a showing
                                                                                                                                              up Section 104 (e)
                      and information relating                                                                  that the information is
                                                                                                                                              requests.
                      to releases and                                                                           protected from disclosure
                      thr eaten ed releases of                                                                  under the Trade Secrets
                      hazardous substances on                                                                   Act, 18 U.S.C. § 1905. In     The USDA PRP Search
                      lands within USDA                                                                         the event that USDA           Guide states that, as a
                      jurisdiction, custody and                                                                 receives a Freedom of         gener al rule, r equests for
                      control.                                                                                  Information Act r equest      financial information
                                                                                                                for information which has     should not be included in
                                                                                                                been designated as            the initial request letter.
                                                                                                                business confidential,        A request for financial
                                                                                                                USDA will handle the          information is normally
                                                                                                                request in accordance         only appropriate once the
                                                                                                                with the procedures in 40     potential liability of a
                                                                                                                C.F.R. Part 2 and 7           party has been
                                                                                                                C.F.R. § 1.11.                established. A PRP
                                                                                                                Information provided to       should be asked that if the
                                                                                                                USDA by an individual in      PRP believes she, he, or it
                                                                                                                response to a CE RCLA         has an inability to pay its
                                                                                                                Section 104(e)                share of the cleanup costs,
                                                                                                                information request may      the PRP should contact
                                                                                                                also be protect ed from      the agen cy. The agency
                                                                                                                public disclosur e under     should then send
                                                                                                                the Privacy Act, 5 U.S.C.    appropriate financial
                                                                                                                § 552a.                      questi ons to the PRP for
                                                                                                                                             purposes of making the
                                                                                                                                             ability to pay
                                                                                                                                             determination. Financial
                                                                                                                                             information necessary to
                                                                                                                                             determine a PRP’s
                                                                                                                                             financial ability to
                                                                                                                                             perform cleanup work
                                                                                                                                             may also be requested,
                                                                                                                                             when appr opriate.

US Department of        • Poultry Products         Administrative subpoena         Administ rative              The Food Safety and          The Secreta ry’s delegatee,
                        Inspection Act, P.L. 90-   author ity is provided by the   subpoenas for testimony      Inspection Service will      the Administrator of the
Agriculture *
                        492, 21 U.S.C. 451         provisions of the Federal       and production of            first seek document          Food Safety and
                                                   Trade Commission Act in         documen ts ar e issued by    production or testimony      Inspection Service, makes
OGC                                                15 U.S.C. 46, 48, 49, 50,       USDA Administra tive         on a voluntary basis.        the initial decision to
                        • Federal Meat                                                                                                       issue a n administr ative
Regula tory Divi sion                              incorporated by reference       Law Judges at the
                        Inspection Act, P.L. 90-                                                                                             investigative subpoena.
                                                   into these 3 statutes.          request of any party to an
                        201, 21 U.S.C. 601                                                                      If the request ed
                                                                                   administ rative                                           The Gener al Counsel
                                                                                                                documents or testimony
                                                                                   proceeding brought to                                     must concur in the
                                                   • PPIA incorporation is                                      are not provided on a
                        • Egg Products                                             enforce the statutes.                                     issuance of the subpoena.
                                                   found in 21 U.S.C. 467d.                                     voluntary basis, a
                        Inspection Act, P.L. 91-
                                                                                                                subpoena will be issued to
                        597, 21 U.S.C. 1031
                                                                                   Investigative subpoenas      compel their production.     An ad ministr ative
                                                   • FMIA incorporation is
                                                                                   are issued by the                                         subpoena will be issued
                                                   found in 21 U.S.C. 677.
                        • 7 C.F.R. 1.29                                            Secretary’s delegatee,                                    by USDA Admi nist rative
                                                                                                                The Privacy Act and the
                                                                                   the Administrator of the                                  Law Judges in
                                                                                                                Trade Secr ets Act
                                                   • EPIA incorporation is         Food Safety and                                           admi nist rative
                                                                                                                provisions and
                                                   found in 21 U.S.C. 1051.        Inspection Service.                                       proceedings upon a
                                                                                                                prohibitions are
                                                                                                                                             reasonable showing by the
                                                                                                                applicable to the exercise
                                                                                                                                             applicant of the grounds
                                                                                   If a subpoena is not         of subpoena authorities.
                                                                                                                                             and necessity thereof; and
                                                                                   honored, the General
                                                                                                                                             with respect to subpoenas
                                                                                   Counsel can seek judicial
                                                                                                                                             for th e produ ction of
                                                                                   enforcement of that
                                                                                                                                             documents, the request
                                                                                   subpoena by the
                                                                                                                                             shall show their
                                                                                   Department of Justice in
                                                                                                                                             competency, relevan cy
                                                                                   a Federal district court.
                                                                                                                                             and ma teriality. See 7
                                                                                                                                             C.F.R 1.149.
US Department of            • Plant Protection Act,     Administrative subpoena         Administ rative              The Animal and Plant          The Secreta ry’s delegatee,
Agriculture *               P.L., 106-224, 7 U.S.C      authority relating to the       subpoenas for testimony      Health Inspection             the Administrator of the
                            7733.                       admi nist ration or             and production of            Service will first seek       Animal and Plant Health
                                                        enforcement of the Acts         documen ts ar e issued by    documen t prod uction or      Inspection Service, makes
OGC                                                     and an y matter un der          USDA Administra tive         testimony on a voluntary      the initial decision to
                            • Title V of the
Regula tory Divi sion                                   invest igation in connecti on   Law Judges at the            basis.                        issue a n administr ative
                            Agricultura l Risk
                                                        with the Acts.                  request of any party to an                                 investigative subpoena.
                            Protection Act of 2000.
                                                                                        administ rative                                            The Gener al Counsel
                            P.L. 106-224, 7 U.S.C.                                                                   If the request ed
                                                                                        proceeding brought to                                      must concur in the
                            2279f.                                                                                   documents or testimony
                                                                                        enforce the statutes.                                      issuance of the subpoena.
                                                                                                                     are not provided on a
                                                                                                                     voluntary basis, a
                            • 7 C.F.R. 1.29
                                                                                        Investigative subpoenas      subpoena will be issued to    An ad ministr ative
                                                                                        are issued by the            compel their production.      subpoena will be issued
                                                                                        Secretary’s delegatee,                                     by USDA Admi nist rative
                                                                                        the Administrator of the                                   Law Judges in
                                                                                                                     The Privacy Act and the
                                                                                        Animal and Plant Health                                    admi nist rative
                                                                                                                     Trade Secr ets Act
                                                                                        Service.                                                   proceedings upon a
                                                                                                                     provisions and
                                                                                                                                                   reasonable showing by the
                                                                                                                     prohibitions are
                                                                                                                                                   applicant of the grounds
                                                                                        If a subpoena is not         applicable to the exercise
                                                                                                                                                   and necessity thereof; and
                                                                                        honored, the General         of subpoena authorities.
                                                                                                                                                   with respect to subpoenas
                                                                                        Counsel can seek judicial
                                                                                                                                                   for th e produ ction of
                                                                                        enforcement of that
                                                                                                                                                   documents, the request
                                                                                        subpoena by the
                                                                                                                                                   shall show their
                                                                                        Department of Justice in
                                                                                                                                                   competency, relevan cy
                                                                                        a Federal district court.
                                                                                                                                                   and ma teriality. See 7
                                                                                                                                                   C.F.R. 1.149.




US Department of            Packers & Stockyards        Packers, stockyards,            Section 9 of FTC Act -       No notification req’ts        Must have statutory
Agriculture                 Act, 7 U.S.C. 222,          dealers, mar ket agencies;      Enforcement in any court     except those specific to      jurisdiction over person
                            incorporatin g sections 6   and those with whom it          in US for hearing            Right to Fin ancial Privacy   and acti vity under
                            and 9 of the Fed’l Trade    does business.                  subpoenas. Investigatory     Act). Forthwith demand        investigation or being
Packers and Stockyards      Comm’n Act (15 U.S.C.       Investigatory subpoenas         subpoenas enforced in        issued when                   proceeded agai nst, whi ch
Programs of Grain           46 and 49 ), as appr oved   issue pursuant to section 9     district court. Both         circumstances warrant.        is basis for authority to
Inspection & Packers and    September 26, 1914.         of FTC Act [15 U.S.C. 49]       handled by local AUSA                                      subpoena records in
Stockyards                                              - access to and right to        Office.                                                    possession of unregulated
Administration.                                         copy documents of entity                                                                   entities. Reviewed for
                                                        being invest igated for                                                                    legal sufficiency by OGC.
Trade Pra ctices Division                               violation of Act. Section 6                                                                Investigatory subpoenas
                                                        [15 U.S.C. 46]- to gath er                                                                 issued by agency Adm’r
                                                        and compil e infor mati on                                                                 and served by agency
                                                        re: business, organizati on                                                                investigator. Hearing
                                                       and conduct. Section 9-                                                                    subpoenas for witn esses
                                                       hear ing subpoenas for                                                                     sought by OGC a ttorn ey,
                                                       attendance, testimony and                                                                  issued by ALJ, served by
                                                       documents; from anywhere                                                                   OGC attor ney.
                                                       in US to place of hearing.




US Department of            Perishable Agricultural    Commission merch ants,          Section 13(d)[7 U.S.C.       No noti ficati on             Must have statutory
                            Commodities Act, 7         dealers and brokers;            499m(d)] -investigatory      requirements; time            jurisdiction over person
Agriculture
                            U.S.C. 499m (section 13)   financial in stitutions.        subpoenas enforced in        usually provided to amass     and acti vity under
                                                       Investigatory subpoenas         any court in US; hearing     required records.             investigation or being
Packers and Stockyards                                 issue pursuant to section       subpoenas are enforced       Notification requirements     proceeded agai nst, whi ch
Programs of Grain           7 DFR 47.11 - Hearing
                                                       13(a)- viola tion of section    in district court where      specific to Right to          is basis for authority to
Inspection & Packers and    and deposition subpoenas
                                                       2 or other sections of Act,     hearing held. Both           Finan cial Privacy Act        subpoena records in
Stockyards                  and subpoena s duces
                                                       e.g., section 6(c)[7 U.S.C.     handled by local AUSA        (Pub. L. 95-63 0) when        possession of financial
Administration.             tecum.
                                                       499f(c)] - complaints or        Office.                      seeking financial records     institutions. Subpoena
                                                       notifications of violation;                                  of individual.                requests ar e reviewed for
Trade Pra ctices Division                              section 9[7 U.S.C. 499i] -                                                                 legal sufficiency by OGC.
                                                       maintaining records.                                                                       Investigatory subpoenas
                                                       Deposition subpoenas issue                                                                 are issued by agency
                                                       pursuant to section 13(e)-                                                                 Administ rator. Ser ved by
                                                       appear, depose and pr oduce                                                                agency investigator.
                                                       records in any proceeding                                                                  Hearing subpoenas for
                                                       (including reparation ) or                                                                 witnesses sought by OGC
                                                       investigations. Hearing                                                                    attorney, issued by ALJ,
                                                       subpoenas issue pursuant to                                                                served by OGC attorn ey.
                                                       Sec. 13(c) - Atten dance,                                                                  Subpoenas and subpoenas
                                                       testimony an d production                                                                  duces tecum in rep aration
                                                       of documents (ALJ).                                                                        cases sought by att’y,
                                                                                                                                                  issued by OGC Presiding
                                                                                                                                                  Officer, served by att’y.
                                                                                                                                                  Standards for issuance at
                                                                                                                                                  7 CFR 47.17.


US Department of            Inspector General Act, 5   OIG-USDA is auth orized         In case of a "refusal to     Privacy: OIG-USDA             Standards: OIG
Agriculture                 U.S.C.A. app. 3 §          to "require [by subpoena]       obey", OIG may seek the      internal pr ocedures          subpoena authority is
                            6(a)(4) (West 1996 &       the production of all           enforcement of a             require that special agents   limited t o "evidence
                            Supp. 2001), Pub. L. No.   information, documents,         subpoena in any              and auditors maintain all     necessary in the
Office of In spector        95-42, 92 Stat. 1101       reports, answers, records,      appropr iate United States   subpoenaed documents          performance of the
General                     (1978).                    accounts, pa pers, an d other   district court. 5 U.S.C.     "securely" within OIG-        function assigned by this
                                                       data and documentary            app. 3 § 6(a)(4).            USDA case/audit files.        Act [IG Act]." 5 U.S.C.
                                                       evidence necessary in the                                    See IG-8551 § C1f (1)         app. 3 § 6(a)(4). OIG
                                                         performance of the              (Legal Procedures and       should obtain in formation
                                                         functions assigned by the       Aspects).                   from other Federal
                                                         IG Act." 5 U.S.C.A. app.                                    agencies by means oth er
                                                         3 § 6(a)(4). OIG-USDA, in                                   than subpoenas. 5
                                                                                         OIG-USDA internal
                                                         general, is authorized to                                   U.S.C.A. app. 3 § 6(a)(4).
                                                                                         procedures and the
                                                         issue subpoenas under 7                                      OIG-USDA internal
                                                                                         Privacy Act prohibit OIG-
                                                         C.F.R. § 2610.1.                                            procedures and th e RFPA
                                                                                         USDA from disclosure of
                                                                                                                     prohibit release of records
                                                                                         "personally identifiable
                                                                                                                     without certifica tion of
                                                                                         records" under certain
                                                                                                                     RFPA compliance. See 12
                                                                                         circumstances. See 5
                                                                                                                     U.S.C.A. § 3403(b); see
                                                                                         U.S.C.A. § 552a(a), et
                                                                                                                     also IG-1427 (C)(4)
                                                                                         seq.; see also IG-1421
                                                                                                                     (Information Services).
                                                                                         (Personal Privacy
                                                                                         Information). OIG-
                                                                                         USDA internal                Procedures: -OIG-USDA
                                                                                         procedures require that     internal pr ocedures
                                                                                         any origin al subpoenaed    require that subpoenas be
                                                                                         document be returned to     reviewed by OIG
                                                                                         the subpoena addressee.     management and Legal
                                                                                         See IG-8551 § C1f(3)        Staff. See IG-8551 (C2-
                                                                                         (Legal Procedures and       C5) (OIG Subpoenas).
                                                                                         Aspects).                   OIG-USDA internal
                                                                                                                     procedures r estrict
                                                                                                                     transfer of RFPA records
                                                                                         Notification
                                                                                                                     except in accord with the
                                                                                         Requirements: OIG-
                                                                                                                     RFPA. See IG-8611
                                                                                         USDA internal
                                                                                                                     (C7(c)(1)) (Investigative
                                                                                         procedures and the Right
                                                                                                                     Reports). OIG-USDA
                                                                                         to Finan cial Privacy Act
                                                                                                                     internal pr ocedures
                                                                                         ("RFPA") require OIG-
                                                                                                                     require retention of audit
                                                                                         USDA to provide notice
                                                                                                                     work papers, some of
                                                                                         of RFPA subpoenas to a
                                                                                                                     which may include
                                                                                         customer with a copy of
                                                                                                                     documen ts obtained by
                                                                                         the subpoena. See 12
                                                                                                                     subpoena. See IG-7215
                                                                                         U.S.C.A. § 3401, et seq.;
                                                                                                                     (The Audit Process:
                                                                                         see also IG-1421Hc(2)(a)
                                                                                                                     General Requiremen ts -
                                                                                         (Information Services").
                                                                                                                     Working Papers).

US Department of             Rules of practice           The hearing panel may
Agriculture                  govern ing proceeding on    compel production of
                             petitions to modify or to   documentary evidence,
                             be exempted from            appea ran ce of witnesses, or
Regula tory author ity for   compact over-order price    the giving of testi mony by
issuing admin istr ative     regulat ions promu lgated   subpoena throughout all
subpoen as that coul d not    by the Northeast Dairy      signatory states pursuant to
be ascribed to a particular   Compact Commission, 7       section 16(a) of the
division within the USDA.     C.F.R. § 1381.4,            Compact.
                              authorized by 7 U.S.C.
                              7256.

US Department of              Agricultural, Rural         In a hearing to determine if     In the case of contumacy
Agriculture                   Development, Food and       the Hass Avocado Act has         by, or refusal to obey a
                              Drug Administration and     been violated the presiding      subpoena issued under
                              Related Agenci es           officer may subpoena             the Act, any person, the
Regula tory author ity for    Appropriati ons Act, Hass   witnesses.                       Secretary of Agriculture
issuing admin istr ative      Avocado Promotion,                                           may invoke the aid of
subpoen as that coul d not    Research, and                                                any court of the Uni ted
be ascribed to a particular   Information, 7 U.S.C. §                                      States within the
division within the USDA.     7808                                                         jurisdiction of which the
                                                                                           invest igation or
                                                                                           proceeding is conducted,
                                                                                           or wher e the person
                                                                                           resides or conducts
                                                                                           business, in order to
                                                                                           enforce a subpoena. Any
                                                                                           failure to obey the order
                                                                                           of the court may be
                                                                                           punished by the court as
                                                                                           a contempt of the court.

Department of                 7 U.S.C. §1446              Price support investigations
Agriculture †

Depa rtment of
Commerce


US Department of              Magnuson-Stevens            The MSFCMA provides              NOAA’s civil procedure       Right to Fin ancial Privacy   Under 15 C.F.R §
Commerce*                     Fishery Conservation and    that, “[f]or th e purp oses of   regulations, which apply     Act (P.L. 95-630)             904.245 (a) “[s]ubpoenas
                              Managem ent Act             conducting any hearing           in NOAA’s                                                  for the attendance and
                              (MSFCMA)                    [under the civil pen alties      administ rative                                            testimony of witnesses
National Oceanic And          16 U.S.C. § 1801 et seq.    section ], th e Secret ary of    proceedings, may be                                        and the production of
Atmospheric                                               Commerce may issue               found at 15 C.F.R. – Part                                  documen tary evidence for
Administration                                            subpoenas for the                904.                                                       the purpose of discovery
(NOAA)                                                    attendance and testimony                                                                    or hearing may be issued
                                                          of witnesses and the                                                                        as authorized by the
                                                                                           Under 15 C.F.R §
                                                          production of relevant                                                                      statute under which the
Enforcement and                                                                            904.245(d ), “[i]n case of
                                                          papers, books, and                                                                          proceeding is conducted.”
Litig ation                                                                                disobedi ence to a
documents...”          subpoena, NOAA may           These admi nist rative
16 U.S.C. § 1858(e).   request th e Justice         subpoen as may only be
                       Department to invoke the     issued by an
                       aid of any court of the      Administrative Law
                       United States in             Judge. See 15 C.F.R. §
                       requiring th e attenda nce   904.204 (i).
                       and testimony of
                       witnesses and the
                       production of
                       documentary evidence.”


                       Under 15 C.F.R. §
                       904.108 (g), a
                       respondent’s failure to
                       respond to wri tten
                       interrogator ies or
                       discovery requests
                       pertaining to ability to
                       pay “may serve as the
                       basis for inferring that
                       such information would
                       have been adverse to
                       any claim by respondent
                       of inability to pay the
                       assessed penalty, or
                       result in respondent
                       being barr ed from
                       asserting financial
                       hardship.” This in ference
                       may be drawn by the
                       enforcement attorney in
                       assessi ng th e penalty or
                       by the Judge in
                       reviewin g th e penalty.


                       Under 15 C.F.R. §
                       904.240 (f), “[i]f a party
                       fails to comply with any
                       subpoena or order
                       concerning discovery,
                       the Judge may, in the
                       interest of justice: (1)
                       [i]nfer that the
                                                                                admission, testimon y,
                                                                                documents, or other
                                                                                evidence would h ave
                                                                                been adverse to the
                                                                                party; (2) [r]ule that the
                                                                                matter or matters
                                                                                covered by th e order or
                                                                                subpoena are established
                                                                                adversely to the party;
                                                                                (3) [r]ule that the party
                                                                                may not introduce into
                                                                                evidence or otherwise
                                                                                rely upon, in support of
                                                                                any claim or defense,
                                                                                testimon y by such party,
                                                                                officer, or agent, or the
                                                                                documents or other
                                                                                evidence; (4) [r]ule that
                                                                                the party may not be
                                                                                heard to object to
                                                                                introduction and use of
                                                                                secondary evidence to
                                                                                show what the withheld
                                                                                admission, testimon y,
                                                                                documents or other
                                                                                evidence would h ave
                                                                                shown; (5) [s]trike al l or
                                                                                part of a pleading (except
                                                                                a request for hearing), a

US Department of       Endan gered Species Act   The ESA provides that                       “                “   “
Commerce               (ESA), 16 U.S.C. § 1531   “[h]earings held during
                       et seq.                   proceedings for the
                                                 assessment of civil
National Oceanic And                             penalties ... shall be
Atmospheric                                      conducted in accordance
Administration                                   with section 554 of Title 5.
(NOAA)                                           The Secretary may issue
                                                 subpoenas for the
                                                 attendance and testimony
Enforcement and
                                                 of witnesses and the
Litig ation
                                                 production of relevant
                                                 papers, books, and
                                                 documents, and adm inister
                                                 oaths.” 16 U.S.C. §
                                                  1540(a)(2).

US Department of       National Marine            The NMSA provides that          “   “   “
Commerce               Sanctuaries Act (NMSA),    “[i]n the case of any
                       16 U.S.C. § 1431 et seq.   hearing ... in accorda nce
                                                  with the procedures
National Oceanic And                              provid ed for un der section
Atmospheric                                       554 of Title 5, the
Administration                                    Secretary may issue
(NOAA)                                            subpoenas for the
                                                  attendance and testimony
                                                  of witnesses and the
Enforcement and
                                                  production of relevant
Litig ation
                                                  papers, books, and
                                                  documents, and may
                                                  administer oaths.” 16
                                                  U.S.C. § 1437(f).

US Department of       Northern Pacific Halibut   The Halibut Act provides        “   “   “
Commerce               Act of 1982, 16 U.S.C. §   that, “[F]or th e purp ose of
                       773 et seq.                all investigations which, in
                                                  the opinion of the
National Oceanic And                              Secretary, are necessary
Atmospheric                                       and proper for the
Administration                                    enforcement of this
(NOAA)                                            subchapter, the Secretary
                                                  or any officer design ated
                                                  by him is empowered to
Enforcement and
                                                  administer oaths and
Litig ation
                                                  affirmations, subpoena
                                                  witnesses, ta ke evidence,
                                                  and requi re th e produ ction
                                                  of any books, paper s, or
                                                  other documents which the
                                                  Secretary deems relevant
                                                  or material to the inquiry.
                                                  Such a ttendance of
                                                  witnesses and the
                                                  production of such
                                                  documentary evidence may
                                                  be required fr om any place
                                                  in the United States at any
                                                  design ated place or
                                                  hearing.” 16 U.S.C. §
                                                  773i(f)(2).
US Department of           Atlantic Tuna              The ATCA incorporates by                  “               “   “
Commerce                   Convention s Act           reference the civil penalty
                           (ATCA), 16 U.S.C. § 971    and permit sanction
                           et seq.                    provisions of the
National Oceanic And                                  Magnuson-Stevens Fishery
Atmospheric                                           Conservation and
Administration                                        Managem ent Act
(NOAA)                                                (MSFCMA) for violations
                                                      of the ATCA. 16 U.S.C. §
                                                      971(e).
Enforcement and
Litig ation


US Department of           Lacey Act, 16 U.S.C. §     The Lacey Act provides                    “               “   “
Commerce*                  3371 et seq.               that “[h]earings held during
                                                      proceedings for the
                                                      assessment of civil
National Oceanic And                                  penalties shal l be
Atmospheric                                           conducted in accordance
Administration                                        with section 554 of Title 5.
(NOAA)                                                The administrative law
                                                      judge may issue subpoenas
                                                      for the attendance and
Enforcement and
                                                      testimony of witnesses and
Litig ation
                                                      the production of relevant
                                                      papers, books, and
                                                      documents, and adm inister
                                                      oaths.” 16 U.S.C. §
                                                      3373(b).

US Department of           National Weather           The Secretary may require      This mechanism ha s not
Commerce                   Modification Policy Act    any person to submit a          been used in the recent
                           of 1976, 15 U.S.C. § 330   repor t before, duri ng, or             past.
                           et seq.                    after that person may
NOAA, National                                        engage in any weather
Environmental Satellite,                              modification attem pt or
Data, and Information                                 activity. 15 U.S.C. § 330c.
Service




US Department of           Land Remote Sensing        Under the LRSPA, the           Under 15 CFR §§            “   “
Commerce                   Policy Act (LRSPA), 15     Secretary may “ . . .          960.14 and 960.15, §
                           U.S.C. § 5601 et seq.      issue subpoenas for any        5623(a) of the LRSPA is
NOAA, National             materials, documents, or         incor porated by
Environmental Satellite,   records, or for the              reference. Specifically,
Data, and Information      attendance and testimony         under 15 CFR § 960.15,
Service                    of witnesses for the             “As authori zed by
                           purpose of conducting a          Section 203(a) of the
                           hearing under this section,”     Act, if the Secretary . . .
Satellite Programs
                           as well as the ability to        determines that the
Counsel
                           “seize any object, record,       licensee has substantially
                           or rep ort pu rsuant to a        failed to comply with the
                           warrant from a magistrate        Act, the regulations in
                           based on a showing of            this part, or any term,
                           probable cause to believe        condition or restriction of
                           that such object, r ecord, or    the [NOAA] license, the
                           report was used, is being        Secretary . . . may
                           used, or is li kely to be used   request the appropriate
                           in violation of this Act . . .   U.S. Attorney to seek an
                           “ 15 U.S.C.            §         order of injun ction or
                           5623(a)                          similar judicial
                                                            determination from the
                                                            U.S. Distri ct Cour t for
                                                            the District of Columbia
                                                            Circuit or a U.S. District
                                                            Court within which the
                                                            licensee resides or has its
                                                            prin cipal place of
                                                            business, to ter minat e,
                                                            modify, or suspend the
                                                            license, and/or to
                                                            termin ate licensed
                                                            operations on an
                                                            immediate basis.”


                                                            Additionally, under 15
                                                            CFR § 960.15, “ . . . (a)
                                                            any person who violates
                                                            any provision of the Act,
                                                            any license issued
                                                            thereunder, or the
                                                            regulations in this part
                                                            may be assessed a civil
                                                            penalty by the Secretary
                                                            of not more that $10,000
                                                            for each violati on. Each
                                                            day of operation in
                                                             violation constitutes a
                                                             separate violation. All
                                                             civil penal ties [sic]
                                                             procedures shall be in
                                                             accordance with 15 CFR
                                                             Part 904. (b) Violation of
                                                             the Act, this part, or any
                                                             license issued under this
                                                             part, may be subject to
                                                             criminal penalty
                                                             provisions prescribed in
                                                             other applicable laws.”


US Department of   Fur Seal Act           16 U.S.C. § 1174   This mechanism ha s not
Commerce                                                      been used in the recent
                                                                      past.

NOAA


US Department of   Anadromous Stocks      16 U.S.C. § 5010   This mechanism ha s not
Commerce                                                      been used in the recent
                                                                      past.

NOAA


US Department of   High Seas Fishing      16 U.S.C. § 5507   This mechanism ha s not
Commerce           Complian ce                                been used in the recent
                                                                      past.

NOAA




US Department of   Ocean Thermal Energy   42 U.S.C. § 9152   This mechanism ha s not
Commerce                                                      been used in the recent
                                                                      past.

NOAA




US Department of   Compr ehensive         42 U.S.C. § 9609        Used to collect
Commerce        Environ mental Response,                                      informati on on hazardous
                Compensation and                                                    waste sites.
                Liability Act ( CERCLA)
NOAA




Department of   15 U.S.C. §155               (a) Subpoena for                 (b) Aid of Federal
                                             attendance of witness and        district court
Commerce†
                                             production of records, etc.
                The Secreta ry of
                Commerce may                                                  In the case of failure to
                authorize such Foreign       For the efficient                comply with any
                Service officer as           administration of the            subpoena or in the case
                Secretary of State shall     functions vested in the          of the contumacy of any
                make available to            registrar by this chapter, he    witness before the
                perform duties of China      may require, by subpoena         registrar or any
                Trade Act Registrar          issued by him or under his       individual so auth orized
                under his direction. The     direction, (1) the               by him, the r egistrar or
                statute states that the      attendan ce of any witness       such individual may
                Registrar is to be located   and the production of any        invoke the aid of any
                in China.                    book, paper, documen t, or       Federal district court.
                                             other evidence from any          Such court may
                                             place in China at any            thereupon order the
                                             designated place of hearing      witness to comply with
                                             in Chin a, or, if the witness    the requi rements of such
                                             is actually resident or          subpoena and to give
                                             temporarily sojourning           evidence touching the
                                             outside of China, at any         matter in question. Any
                                             designated place of hearing      failure to obey such
                                             within fifty miles of the        order may be punished
                                             actua l resi dence or place of   by such court as a
                                             sojourn of such witness,         contem pt th ereof.
                                             and (2) th e taki ng of a
                                             deposition before any            15 U.S.C. §155(b).
                                             designated person having
                                             power to administer oath s.
                                             In the case of a deposition,
                                             the testimony shall be
                                             reduced to writing by the
                                             person taking the
                                             deposition or under his
                                             direction, and shall th en be
                                             subscribed by the
                                             deponent. The r egistrar , or
                                             any officer , empl oyee, or
                                             agent of the United Stat es
                                             auth orized in writi ng by
                                             him, may administer oaths
                                             and examin e any witness.
                                             Any witn ess summoned or
                                             whose deposition is taken
                                             under th is secti on shall be
                                             paid the same fees and
                                             mileage as are paid
                                             witnesses in the courts of
                                             the United States.


                                             15 U.S.C. §155(a).

Department of   15 U.S.C. §155               (d) Access of registr ar or     Any person who upon
Commerce†                                    his employee to books and       demand refuses the
                                             records                         registrar, or any duly
                The Secreta ry of
                                                                             authorized officer,
                Commerce may
                                                                             employee, or agent, such
                authorize such Foreign       For the efficient
                                                                             access or opportunity to
                Service officer as           administration of the
                                                                             copy, or hinders,
                Secretary of State shall     functions vested in the
                                                                             obstructs, or resists him
                make available to            registrar by this chapter,
                                                                             in the exercise of such
                perform duties of China      he, or any officer,
                                                                             righ t, sh all be l iable t o a
                Trade Act Registrar          employee, or agent of the
                                                                             penalty of not more than
                under his direction. The     United States authorized in
                                                                             $5,000 for each such
                statute states that the      writing by him, shall at all
                                                                             offense. Such penalty
                Registrar is to be located   reasonable times, for the
                                                                             shall be recoverable in a
                in China.                    purpose of examination,
                                                                             civil suit brought in the
                                             have access to and the right
                                                                             name of the United
                                             to copy any book, account,
                                                                             States.
                                             record, paper, or
                                             correspondence relating to
                                             the business or affairs of a    15 U.S.C. §155(d).
                                             China Trade Act
                                             corporation.


                                             15 U.S.C. §155(d).

Department of   15 U.S.C. § 1193             Secretary of Commer ce
Commerce†                                    [Consumer Product Safety
                                             Commission] may
                                             subpoena documents
                                             required for findings
                                            pursuant to 15 U.S.C. §§
                                            1191 et seq. (flammable
                                            products)

Department of    15 U.S.C. § 5408           Fastener requirements
Commerce†                                   investigations

Department of    16 U.S.C. § 4017           Fish and seafood
Commerce†                                   promotion investigations

Department of    43 U.S.C.§§1845            Outer continental shelf
Commerce†                                   resource management

Depa rtment of
Educa tion
Department of    Section 490A of the        Education Department may        Education Department is     None specified in statute     Authority to issue
                 Higher Educati on Act of   by this authority require       to request th e attorney    itself; nothing in the        subpoenas ha s been
Education
                 1965(HEA), Pub. L. 89-     any person to pr oduce          general to seek             statute preempts              delega ted to the Director
                 329, as amended by         documents and records           enforcement of the          otherwise applicable          of the Case Management
                 §490B of Pub. L. 105-      pertaining to par ticip ation   subpoena in federal         requirements of the Right     and Oversight Division,
                 244, th e Higher           in the student financial        district court. 20 U.S.C.   to Financial Privacy Act,     Schools, Channel, and
                 Education Amendments       assistance programs             1097a(b).                   and those requirements        Office of Student
                 of 1998, codified at 20    authorized under Title IV                                   would remain applicable       Financial Assistance. The
                 U.S.C. §1097a. There       of the HEA. 20 U.S.C.                                       where Education               delegation requires the
                 are no regulations         §1097a(a). Th ese                                           Department seeks records      concurren ce of the Office
                 implementing this          programs include the Pell                                   from a financial              of General Counsel. No
                 authori ty.                Grant, Supplemental                                         instit ution of a customer    specific stan dards have
                                            Educational Opportunity                                     protected that Act.           been adopted for issu ance;
                                            Grant, College Work                                         Information pertaining to     in the only inst ance we
                                            Study, Perkins Loan,                                        an individual may be          are aware of in which the
                                            Federal Family Ed ucati on                                  protected by virtue of the    subpoena was used, the
                                            Loan, and Direct Loan                                       Privacy Act once records      cognizant Edication
                                            Programs. 20 U.S.C. 1070-                                   are produced to Educati on    Department official was
                                            1099c-2, 42 U.S.C. 2751-                                    Department, and in            advised why the records
                                            2756b.                                                      instances in which records    were needed, whether the
                                                                                                        sought by the subpoena        records sought were
                                                                                                        may result in the             related to participating in
                                                                                                        produ ction of informati on   the studen t assistan ce
                                                                                                        that would be included in     programs, whether the
                                                                                                        records maintained by         records had been sought
                                                                                                        Education Department in       by other means, and
                                                                                                        a system of records           whether the records were
                                                                                                        subject to the Privacy        likely to be subject to
                                                                                                             Act, an a ppropri ate notice   privilege.
                                                                                                             would be included in the
                                                                                                             subpoena explaining the
                                                                                                             authority for the demand,
                                                                                                             the purposes for which
                                                                                                             the information is
                                                                                                             expected to be used, the
                                                                                                             routine uses for that
                                                                                                             information, and the
                                                                                                             consequences of failure to
                                                                                                             provide the information,
                                                                                                             as required by 5 U.S.C. §
                                                                                                             552a(e)(3),

Depa rtment of
Energy
Department of    Federal Energ y Adminis-      Collect, assemble, evalu-        There is no administra-        The Administrator has         Certain DOE officials
                 tration Act of 1974.         ate, and analyze energy         tive appeal of a sub-          authority not to disclose      may sign, issue an d serve
Energy
                                              information by categorical      poena.                         some collected informa-        subpoenas of persons and
                                              groupings.                      10 CFR § 205.8(b)(6).          tion that would other wise     documents. 10 CFR §§
                 P.L. 93-275.                                                                                be available under FOIA.       205.8(a), 205.8(b).
                                              15 U.S.C. § 772(a).
                                                                                                             15 U.S.C. § 773(b).
                   Functions transferred to                                     Any appropriate United
                 the Secretary of Energy,       Power to r equir e by sub-    Sta tes district court may,
                 42 U.S.C. §§ 7151(a),        poena the attendance and        in case of contu macy or         DOE regulations contain
                 7293.                        testimony of witnesses, and     refusal to obey a              inst ructions on how sub-
                                              the production of all infor-    subpoena, issue an order       poenas are t o be
                                              mation, document s,             requiring th e recip ient of   delivered.
                 15 U.S.C. §§ 761, et seq.,   reports, answers, records,      the subpoena to appear         10 CFR § 205.8(c).
                 15 U.S.C. § 772(a) (man-     accounts, pa pers, an d other   before the Administra-
                 date).                       data and documentary            tion and to give testi-
                 15 U.S. C. § 772(e) (sub-    evidence which the Admin-       mony touching on the
                 poena auth ority; enforce-   istrator is authorized to       matter in question, or to
                 ment);                       obtain pursuant to this         produce documents. Any
                 15 U.S.C. § 772(i)           section. 15 U.S.C.              failure to obey such
                 (enforcement penalties).     772(e)(1).                      order of the court may be
                                                                              punished by such court
                                                                              as contempt of court.
                 10 CFR §§ 205.8,
                                                                              15 U.S.C. § 772(e)(2).
                 205.198, 205.199,
                 205.284, and 207.3
                 (implementing regula-                                          Violaters shall be sub-
                 tions).                                                      ject to a civil penalty of
                                                                              not more th an $ 2,500 for
                                                                              each violation. Willful
                                                                              violaters sh all be fined
                                                                              not more th an $ 5,000 for
                                                                              each violati on.


Department of   Energy Supply and Envi-       Request, acquire, and col-        Violaters shall be sub-       The Administrator has       Certain DOE officials
                ronm ental Coord ination    lect such energy informa-         ject to a civil penalty of    authority not to disclose    may sign, issue an d serve
Energy
                Act of 1974 (ESECA).        tion as determi ned to be         not more th an $ 2,500 for    some collected informa-      subpoenas of persons and
                                            necessary to assist in the        each violation. Willful       tion that would other wise   documents.
                                            formulation of energy             violaters sh all be fined     be available under FOIA.        (10 CFR §§ 205.8(a),
                P.L. 93-319:
                                            policy or to carry out the        not more th an $ 5,000 for       (15 U.S.C. § 773(b))              205.8(b))
                §§ 11(a), 11(b)             purposes of this Act or the       each violation.
                (authority).                Emergency Petroleum                 (15 U.S.C. § 797(b))          DOE regulations contain
                §§ 12(a), 12(b) (enforce-   Allocation Act of 1973 [15
                ment).                      U.S.C. §§ 751 et seq.].                                         inst ructions on how
                                                                                In case of a refusal to     subpoen as ar e to be
                                                                              obey a subpoena or order      delivered. 10 CFR §
                15 U.S.C. §§ 796, 797.       The Federal Energy Ad-                                         205.8(c).
                                                                              of the Federal Energy
                                            ministrator is authorized to      Administrator, the
                                            sign and issue subpoenas          Administrator may
                Functions transferred to
                                            for the attendance and            request an y United States
                the Secretary of Energy,
                                            testimony of witnesses and        district court within the
                42 U.S.C. §§ 7151(a),
                                            the production of books,          jurisdiction of which any
                7293.
                                            records, pa pers, an d other      inquiry is carried on to
                15 U.S.C. §§ 796, 797.      documents; to require any         issue an order requiring
                                            person , by gener al or           compliance therewith;
                10 CFR §§ 205.8, 207.3,     special order, to submit          and an y failure to obey
                207.8.                      answers in writing to             the order of the court
                                            interrogator ies, r equests for   may be punished by the
                                            reports or for other              court as a contempt
                                            information; and to admin-        thereof. 15 U.S.C. §
                                            ister oaths. 15 U.S.C. §§         796(b)(3).
                                            796(a), 796(b).


Department of   DOE Organization Act.         The Secretary, or his duly        The litigation of the                                     Certain DOE officials
Energy                                      authorized a gent or agents,      Depar tmen t sha ll be sub-                                may sign, issue an d serve
                                            shall have the same powers        ject to the supervisi on of                                subpoenas of persons and
                P.L. 95-91, Title V, §
                                            and authorities as the Fed-       the Attorney General                                       documents. 10 CFR §§
                501, (Aug. 4, 1977, as
                                            eral Trade Comm ission            pursuant to 28 U.S.C. §§                                   205.8(a), 205.8(b).
                amended).
                                            under 15 U.S.C. § 49. That        501 et seq. 42 U.S.C. §§
                                            statute in cludes access to,      7192.
                                                                                                                                           In all h earings conducted
                42 U.S.C. §§ 7191, et       for the purpose of examina-
                                                                                                                                         in Securi ty Clearan ce
                seq.                        tion, and the righ t to copy
42 U.S.C. § 7255.       any documenta ry evidence        The Board [of Contract     cases under 10 CFR Part
                        of any person, partnership,    Appeals] may apply           710, th e individual is re-
                        or corporation being in-       through the Attor ney        sponsible for producing
10 CFR §§ 205.8,
                        vestigated or proceeded        General to an appropriate    witnesses in his own be-
205.198, 205.199, and
                        against; a nd the commis-      United Stat es District      half, including requesting
205.284.
                        sion shall have power to       Court for an order requir-   the issuance of subpoenas,
                        require by subpoena the        ing a person, who has        if necessary, or presenting
                        attendance and testimony       failed to obey a subpoena    other proof before the
                        of witnesses an d the pro-     issued by the Board, to      Hearing Officer to support
                        duction of all such docu-      produce evidence or to       his defense to the allega-
                        mentary evidence relating      give testimony, or both,     tions contained in the
                        to any matter under inves-     41 U.S.C. § 610. 10          notification letter. 10
                        tigation.                      CFR § 1023.4.                CFR § 710.26.
                         Such attendance of wit-
                        nesses and the production
                        of such documentary evi-
                        dence may be requir ed
                        from any place in the
                        United States, at any desig-
                        nated place of hearing.
                        And in case of -
                        disobedience to a subpoena
                        the commission may
                        invoke the aid of any court
                        of the United States in
                        requiring th e attenda nce
                        and testi mony of witnesses
                        and the production of
                        documentary evidence. 15
                        U.S.C. §49.
                            The Hearin g Officer
                        shall have all powers
                        necessary to regulate the
                        conduct of proceedings
                        concernin g review of
                        security clearances,
                        including issuing
                        subpoenas for witnesses to
                        atten d the hear ing or for
                        the production of specific
                        documents or other
                        physical evidence.
                        Requests for suboenas shall
                        be liberally granted. 10
                                                CFR §710.25.

Department of   Atomic Ener gy Act of             The Commission is auth o-        The Board [of Contract                                   Certain DOE officials
                1954 (AEA).                     rized to make such stud ies      Appeals] may apply                                        may sign, issue an d serve
Energy
                                                and investigations, obtain       through the Attor ney                                     subpoenas of persons and
                                                such information, and hold       General to an appropriate                                 documents. 10 CFR §§
                42 U.S.C. §§ 2011,                                               United Stat es District                                   205.8(a), 205.8(b).
                                                such meetings or hearings
                et seq., Aug. 30 , 1954, ch                                      Court for an order requir-
                                                as it may deem necessary
                1073, Title I, 68 Stat.                                          ing a person, who has
                                                or proper to assist in exer-                                                                 In all h earings conducted
                921, et seq.                                                     failed to obey a subpoena
                                                cisin g any authority pro-                                                                 in Securi ty Clearan ce
                                                vided in this Act, or in the     issued by the Board, to
                                                                                                                                           cases under 10 CFR Part
                42 U.S.C. § 2201                admin istrat ion or enforce-     produce evidence or to
                                                                                                                                           710, th e individual is re-
                (subpoena authority).           ment of this Act or any          give testimony, or both,
                                                                                                                                           sponsible for producing
                                                regulat ions or order s issued   41 U.S.C. § 610. 10 CFR
                                                                                                                                           witnesses in his own be-
                                                thereunder. For such pur-        § 1023.4.
                  The word                                                                                                                 half, including requesting
                                                poses the Commission is                                                                    the issuance of subpoenas,
                “commission” in the
                                                authorized by subpoena to                                                                  if necessary, or presenting
                AEA referred to the
                                                require any person to                                                                      other proof before the
                Atomic Energy Commis-
                                                appear and testify, or to                                                                  Hearing Officer to support
                sion (AEC). The AEC
                                                appear and produce docu-                                                                   his defense to the allega-
                was abolished in 1974
                                                ments, or both, at any                                                                     tions contained in the
                (42 U.S.C. § 5814(a)),
                                                designated place. 42 U.S.C.                                                                notification letter. 10
                and its functions were
                                                § 2201(c).                                                                                 CFR § 710.26.
                transferred to the
                Administrator of the
                Energy Research and De-           The Hearing Officer shall
                velopment                       have all powers necessary
                Administration (ERDA)           to regulate the con duct of
                and cert ain oth er             proceedings concerning
                agencies. ERDA was              review of security clear-
                abolished and all its           ances, including issuing
                functions were trans-           subpoenas for witnesses to
                ferred to an d all its fun c-   atten d the hear ing or for
                tions were transferred to       the production of specific
                DOE by Act Aug. 4,              documents or other physi-
                1977, P.L. 95-91, Title         cal evidence. Requests for
                III, § 301(a), Title III,       subpoenas shall be liberally
                § 301(a), Title VII,            granted.
                §§ 703, and 707, 91 Stat.              (10 CFR § 710.25)
                577, 606-607, which
                appear as 42 U.S.C.
                §§ 7151(a), 7293, and
                7297, respectively.

Department of   Natura l Gas Act                 Any member of the Com-           Any appropriate United         DOE regulations contain    Certain DOE officials
                                                mission, or any officer          Sta tes district court may,   inst ructions on how sub-   may sign, issue an d serve
Energy          June 21, 1938, ch 556,       designated by it, is em-          in case of contu macy or       poenas are t o be           subpoenas of persons and
                § 14, 52 Stat. 828; Oct.     powered to subpoena               refusal to obey a              delivered.                  documents. 10 CFR §§
                15, 1970, P.L. 91-452,       witnesses, compel their           subpoena, issue an order       10 CFR § 205.8(c).          205.8(a), 205.8(b).
                Title II, § 218, 84 Stat.    attenda nce, take eviden ce,      requiring th e recip ient of
                929.                         and requi re th e produ ction     the subpoena to appear
                                             of any books, papers, cor-        before th e Commission
                                             respondence, memoranda,           and to give testimony
                15 U.S.C. §§ 717, et seq.
                                             contr acts, agreement s, or       touching on the matter in
                15 U.S.C. § 717m             other records which the           question, or to produce
                                             Commission finds relevant         documents. Any failure
                Ex. Or. No. 10485 of         or m aterial to th e in qui ry.   to obey such order of the
                Sept. 3, 1953, 18 Fed.       15 U.S.C. § 717m.                 court may be punished
                Reg. 5397; Ex. Or. No.                                         by such court as
                12038 of Feb. 3, 1978,                                         contempt of court. 15
                43 Fed. Reg. 4957.                                             U.S.C. § 717m(d).


                  The Federal Power
                Commission was
                terminated and its
                functions were
                transferred to the
                Secretary of Energy (ex-
                cept for certain functions
                which were transferred to
                the Federal Energy Regu-
                lator y Commission) by
                42 U.S.C. §§ 7151(b),
                7171(a), 7172(a), 7291
                and 7293.




Department of   Federal Power Act              The Secreta ry may pre-           Any appropriate United         DOE regulations contain    Certain DOE officials
Energy                                       scribe such procedures as         States district court or       inst ructions on how sub-   may sign, issue an d serve
                                             deemed necessar y or de-          certain other Federal          poenas are t o be           subpoenas of persons and
                June 10, 1920, ch 285,
                                             sira ble for the exer cise of     courts may enjoin              delivered.                  documents. 10 CFR §§
                Part III, § 314, as added
                                             the authority delegat ed by       violations and enforce         10 CFR § 205.8(c).          205.8(a), 205.8(b).
                Aug. 26, 1935, ch 687,
                                             E.O. 10485.                       compliance with the
                Title II, § 213, 49 Stat.
                                               Further, the Secretary has      Federal Power Act or any
                861.
                                             author ity to issue subpoe-       rule, regulation , or order
                                             nas under the DOE Organ-          thereunder. A court may
                16 U.S.C. §§ 791a et seq.    ization Act (P.L. 95-91).         also gr ant a permanent or
                       16 U.S.C. § 824a(e)                                          tempor ary in junction or
                                                                                    decree or restraining
                                                                                    order.
                       Ex. Or. No. 10485 of
                       Sept. 3, 1953, 18 Fed.                                       16 U.S.C. 825m.
                       Reg. 5397; Ex. Or. No.
                       12038 of Feb. 3, 1978,
                       43 Fed. Reg. 4957.


                         The Federal Power
                       Commission was
                       terminated and its
                       functions, personnel,
                       property, funds, etc.,
                       were transferred to the
                       Secretary of Energy (ex-
                       cept for certain functions
                       which were transferred to
                       the Federal Energy Regu-
                       lator y Commission) by
                       42 U.S.C. §§ 7151(b),
                       7171(a), 7172(a), 7291
                       and 7293.




Department of          The Inspector General          The Inspector General is       United States district         Notification, Privacy       The Inspector General
Energy                 Act of 1978, as amended      auth orized to requir e by      court, pur suan t to section   and Right to Financial      procedures for issuing
                       (IG Act).                    subpoen a the produ ction of    6(a)(4).                       Privacy Act procedur es     subpoenas ar e contained
                                                    all informat ion, documents,                                   are consistent with         in IG Directive, IG-916.
Office of In spector                                reports, answers, records,                                     Inspector General
General                Section 6(a)(4),             accounts, pa pers, an d other                                  Directive, IG-916, dated,
                       P.L. 95-452, as amended.     data and documentary evi-                                      June 24, 1986.
                                                    dence necessary in the
                                                    performan ce of the func-
                       5 U.S.C. app. 3.
                                                    tions assigned by this Act,
                                                    which subpoena, in the
                                                    case of contuma cy or
                                                    refusa l to obey, sh all be
                                                    enforceable by order of any
                                                    appropr iate United States
                                              district court: Provided,
                                              That procedures other than
                                              subpoen as shall be used by
                                              the Inspector General to
                                              obtain documents and
                                              information from Federal
                                              Agencies. §6(a)(4).

Department of   Natura l Gas Policy Act        The Secreta ry or his dele-     The appr opriate Uni ted      DOE regulations contain    Certain DOE officials
                of 1978 (NGPA).               gate may sign and issue        Sta tes district court may,   inst ructions on how sub-   may sign, issue an d serve
Energy
                                              subpoenas for the attend-      upon petition of the          poenas are t o be           subpoenas of persons and
                                              ance and testimony of wit-     Attorney General at the       delivered.                  documents. 10 CFR §§
                Sec. 304,                                                                                                              205.8(a), 205.8(b).
                                              nesses and the production      request of th e Secretary,    10 CFR § 205.8(c).
                P.L. 94-586, § 11, 90         of books, records, papers,     in the case of refusal to
                Stat. 2914, Oct. 22, 1976.    and other documen ts.          obey a subpoen a or
                                              15 U.S.C. § 3364(a)(1)(A).     order, issue an order
                15 U.S.C. §§ 3361, et                                        requiring compli ance
                seq.                                                         therewith. Any failure to
                                                                             obey an order of the
                15 U.S.C. §
                                                                             court may be punished
                3364(a)(1)(A)
                                                                             by the court as a
                   (Subpoena power)                                          contem pt th ereof.
                15 U.S.C. § 3364(a)(2)                                       15 U.S.C. § (a)(2).
                     (Enforcement)
                                                                              It shall be unlawful for
                  By Ex. Or. No. 12235                                       any person to violate any
                of Sept. 3, 1980, 45 Fed.                                    provision of th is Act or
                Reg. 58803, the President                                    any rule or or der under
                delegated to the                                             the NGPA. 15 U.S.C. §
                Secretary of Energy the                                      3414(a).
                functions vested in the
                President by Sections
                                                                               Any appropriate United
                301 through 304(c) of the
                                                                             States district court or
                NGPA (15 U.S.C. §§
                                                                             certain other Federal
                3361- 3364( c)), except for
                                                                             courts may enjoin
                the auth ority to declare,
                                                                             violations and enforce
                extend, a nd term inate a
                                                                             compliance with the
                natural gas supply
                                                                             NGPA or any rule,
                emergency pursuant to
                                                                             regulation, or order
                Section 301 thereof (15
                                                                             there- thereunder.
                U.S.C. 3361).
                                                                             Knowing violators (civil
                                                                             violations) may be
                                                                             assessed up to $ 5,000
                                                                                for any one violation,
                                                                                except that violators of §
                                                                                302 [15 U.S.C. § 3362]
                                                                                may be assessed up to
                                                                                $ 25,000. Criminal
                                                                                penalties are al so
                                                                                provided. 15 U.S.C. §§
                                                                                3414(b), 3414(c).

Department of   The Defense Pr oduction          While th is Act is in effect     In case of contumacy           DOE regulations contain    The production of a per-
                Act of 1950 (DPA).             and for a per iod of two         by, or refusal to obey a       inst ructions on how sub-   son’s book s, records, or
Energy
                                               years therea fter, the Secre-    subpoena served upon,          poenas are t o be           other documentary evi-
                                               tary may subpoena such           any person, the distr ict      delivered.                  dence shall not be
                Sept. 8, 1950, ch 932,                                                                                                     required at any place
                                               information or ma ke such        court of the Unit ed States       (10 CFR § 205.8(c))
                Title VII, § 705, 64 Stat.                                                                                                 other than the place where
                                               inspection of the books,         for any district in whi ch
                816.                                                                                                                       such person usually keeps
                                               records, and oth er writings,    such person is found or
                                               premises, or proper ty of,       resides or transacts                                       them, if, prior to the
                50 U.S.C. Appx 2061 et         and take the sworn testi-        business, upon                                             return date specified in
                seq.                           mony of any person, as           application by the Presi-                                  the regulations, subpoena,
                                               may be necessar y or appr o-     dent, sh all ha ve jurisdic-                               or other docum ent issued
                                               priate, in his discretion, to    tion to issue an order r e-                                with respect thereto, such
                10 CFR § 205.8
                                               the enforcement or the           quiring such person to                                     person furnishes a true
                                               administr ation of the DPA       appear an d give                                           copy of such books,
                  Ex. Or. No. 11790 of         and the r egulations or          testimony or to appear                                     records, or other
                June 25, 1974, § 4, 39         orders issued thereunder.        and produce documents,                                     documentar y evidence
                Fed. Reg. 23185; Ex. Or.             (50 U.S.C. Appx            or both; and any failure                                   (certified by such per son
                No. 12038 of Feb. 3,                    § 2155(a))              to obey such order of the                                  under oath to be a true
                1978, 43 Fed. Reg. 4957,                                        court may be punished                                      and correct copy) or
                located at 15 U.S.C. §                                          by such court as a                                         enter s into a stip ulation
                761 note, provided that                                         contem pt th ereof.                                        with the Secretary as to
                the Secretary of Energy                                             (50 U.S.C. Appx                                        the infor mation contain ed
                is authoriz ed to exercise                                             § 2155(a))                                          in such books, records, or
                the authority vested in                                                                                                    other documentary evi-
                the President by this                                                                                                      dence.
                section as it relates to the                                      Willful performance of
                                                                                                                                                (50 U.S.C. Appx
                production, conservation,                                       any act prohibited or
                                                                                                                                                   § 2155(b))
                use, control, distribution,                                     willful failure to perform
                and allocation of energy,                                       any act required by the
                without approval,                                               DPA, or any rule, regula-                                  Certain DOE officials
                ratifica tion, or other                                         tion, or order thereunder,                                 may sign, issue an d serve
                action of the Pr esiden t or                                    shall upon convict ion be                                  subpoenas of persons and
                any other official of the                                       subject to a fine of not                                   documents. 10 CFR §§
                executive branch of the -                                       more than $10,000 or                                       205.8(a), 205.8(b).
                Government,                                                     impr isonm ent for not
                notwithstanding the                                             more than one year or
                           provisions of Ex. Or . No.                                      both. 50 U.S.C. Appx
                           12919, 59 FR 29525                                              § 2155(c).
                           (June 7, 19 94). Ex Or der
                           12919, in section 902,
                           also delegates to the
                           Secretary of Energy the
                           subpoena power with
                           respect to sect ion 10 1 of
                           the DPA.

Department of              42 U.S.C. § 13263             Authority of the Secretary
Energy†                                                  or designee to require the
                                                         attendance and testimony
                                                         of witnesses and the
                                                         production of books,
                                                         papers, cor responden ce,
                                                         and other documentary
                                                         items in carrying out
                                                         various provisions related
                                                         to alternative fuels

Department of              42 U.S.C. § 6381              Energy database and
Energy &                                                 energy infor mati on
Department of the
Interior†

Depa rtment of
Health a nd
Human Services
Department of              Inspector General Act,        Administrative subpoena           In the event of refusal to    None specific to the          OIG has esta blished
Health and Human           Public Law 95-452,            authority, generally              obey, court order             Inspector General Act;        within OIG various
                           Appendix (the same            recognized as limited to          obtain ed through petition    statutory n otifica tion      policies and procedures
Services                                                                                   to enforce filed in the       requirem ents fol lowed for   regarding subpoena
                           auth ority possessed by       subpoena duces tecum
                           other Inspectors              (statutor y language: “[Each      appropr iate U.S. Dist rict   Inspector General             request an d issuance.
                           General).                     Inspector General...is            Court.                        subpoenas issued pursuant
Office of th e Inspector                                 auth orized... ] to req uire by                                 to the Right of Financial
General                                                  subpoen a the produ ction of                                    Privacy Act.
                                                         all informat ion, documents,
                                                         reports, answer, records,
                                                         accounts, pa pers, an d other
                                                         data and documentary
                                                         evidence necessary in the
                                                         performance of the
                                                    functions assigned by this
                                                    Act, which subpoena, in
                                                    the ca se of contu macy or
                                                    refusal to obey, shall
                                                    enforceable by order of any
                                                    appropr iate United States
                                                    district court: provided,
                                                    that procedures other than
                                                    subpoen as shall be used by
                                                    the Inspector General to
                                                    obtain infor mati on from
                                                    Federal agencies.”).

Department of              Food, Drug, and          In a hear ing to assess a      In the event of refusal to   The presiding officer in a
                           Cosmetic Act § 303(f),   civil m oney penalty for       obey a subpoena in a         hearing to assess civil
Health and
                           21 U.S.C. § 333(f).      violations with respect to     hearing to assess civil      money pen alti es for
Human Services                                                                     money pen alti es for        violations with respect to
                                                    adulterated food, the
                                                    presiding officer may          violations with respect to   adulterated food is
Office of the General                               authorize a party to obtain    adulterated food, court      governed by the Federal
Counsel                                             discovery from other           order obtained through       Rules of Civil Procedure.
                                                    persons an d may issue a       petition to enforce filed    21 U.S.C. § 333(f)(2)(C)
                                                    subpoena to compel             in the appr opriate U.S.     (incorporatin g by
Food & Drug
                                                    testimony or production of     District Court. 21 U.S.C.    reference 21 U.S.C.
Administ ration
                                                    documents from any             § 333(f)(2)(C)               § 346a(g)(B)).
Office of the                                       person. 21 U.S.C.              (incorporatin g by
Administ rative                                     § 333(f)(2)(C)                 reference 21 U.S.C.
  Law Judge                                         (incorpor ating by reference   § 346a(g)(B)).
                                                    21 U.S.C. § 346a(g)(B)).
Office of th e Inspector
  General                                           In the course of any
                                                    investigation or hearing
                                                    with respect to civil money
                                                    penalties for violations
                                                    with respect to devices, or
                                                    the introduction into
                                                    intersta te commerce of
                                                    adulterated food, the
                                                    Secretary may issue
                                                    subpoenas requiring the
                                                    attendance and testimony
                                                    of witnesses and the
                                                    production of documents.
                                                    21 U.S.C. § 333(f)(3).
Department of              Food, Drug, and           In the course of any
Health and                 Cosmetic Act § 306(i),    investigation or hearing
                           21 U.S.C. § 335a(i).      with respect to debarment,
Human Services                                       tempor ary den ial of
                                                     appr oval, or suspen sion of
Office of the General                                any corporation,
Counsel                                              partner ship, associ ation , or
                                                     individual, the Secretary
                                                     may issue subpoenas
Food & Drug
                                                     requiring th e attenda nce
Administ ration
                                                     and testi mony of witnesses
Office of the                                        and the production of
Administ rative                                      evidence regarding the
  Law Judge                                          matter under investigation.
                                                     21 U.S.C. § 335a(i).
Office of th e Inspector
General




Department of              Food, Drug, and           In the course of any
Health and                 Cosmetic Act              investigation or hearing
                           § 307(b)(1)(A), 21        with respect to the
Human Services
                           U.S.C. § 335b(b)(1)(A).   potential imposi tion of
Office of the General                                civil money penalties for,
  Counsel                                            among other th ings, false
                                                     statements,
                                                     misrepresentations, the
Food & Drug                                          payment of bribes or illegal
Administ ration                                      gratuities in connection
Office of the                                        with an abbreviated drug
Administ rative                                      application, the Secretary
   Law Judge                                         can issue subpoenas
                                                     requiring th e attenda nce
                                                     and testi mony of witnesses
Office of th e Inspector                             and the production of
General                                              evidence regarding the
                                                     matter under investigation.
                                                     21 U.S.C. § 335b(b)(1)(A).

Department of              Food, Drug and Cosmetic   In the course of any
Health and                 Act § 308(b), 21 U.S.C.   investigation or hearing
                           § 335c(b).                with respect to the
Human Services                                       withdrawal of approval of
Office of the General                                 an abbreviated drug
Counsel                                               applicati on as a resul t of,
                                                      among other th ings,
                                                      bribery, payment of illegal
Food & Drug
                                                      gratuities, or an applicant’s
Administ ration
                                                      demonstrated inability to
Office of the                                         produce the drug for which
Administ rative                                       the appl ication h as been
  Law Judge                                           submitted, the Secretary
                                                      can issue subpoenas
                                                      requiring th e attenda nce
Office of th e Inspector
                                                      and testi mony of witnesses
  General                                             and the production of
                                                      evidence regarding the
                                                      matter under investigation.
                                                      21 U.S.C. § 335c(b).

Department of              Food, Drug & Cosmetic      In connection with hearings     The presiding officer can      A party to the hearing is
                           Act §§ 303, 307, 21        with respect to the             sanction a person,             required to request
Health and Human
                           U.S.C. §§ 33 3, 335b;      imposition of civil money       including a party or its       documents at least 60
Services                   Public Health Service      penalties, the presiding        counsel, for failure to        days prior to the hearing.
                           Act §§ 351, 354, 2128,     officer has the authority to    comply with a subpoena         21 CFR § 17.23.
Office of the General      42 U.S. C. §§ 262, 263b,   issue subpoenas requiring       by (1) the employment of
  Counsel                  300aa-28.                  the attendance and              an inference in favor of
                                                                                                                     A party wishing to
                                                      testimony of witnesses and      the person requesting the
                                                                                                                     procure th e attenda nce
                                                      the production of evidence      information; (2)
Food & Drug                21 CFR Chapter I, FDA,                                                                    and testimony of an
                                                      relating to the matter u nder   prohibiting th e party not
Administ ration            Subchapter A, General,                                                                    individual at a hearing
                                                      investigation. 21 CFR           complying with the
                           Part 17, Civil Money                                                                      (and the production of
Office of the                                         § 17.19(b)(5).                  subpoena from
                           Penalty Hearings,                                                                         documents at the hearing)
Administ rative                                                                       introducing evidence, or
                           §§ 17.19, 17.23, 17.27,                                                                   is required to request that
  Law Judge                                                                           relying on t estimony,
                           17.28, 17.35.                                                                             the presiding officer issue
                                                                                      regarding the
                                                                                                                     a subpoena at least 20
                                                                                      information sought; and
                                                                                                                     days prior to the hearing.
                                                                                      (3) striki ng pl eadin gs of
                                                                                                                     21 CFR § 17.27(a) - (c).
                                                                                      the noncomplying party.
                                                                                      21 CFR § 17.35(c).
                                                                                                                     A party or person to
                                                                                                                     whom a subpoena is
                                                                                                                     addressed who believes
                                                                                                                     that the subpoena is
                                                                                                                     unreasonable, oppr essive,
                                                                                                                     excessive in scope, etc.,
                                                                                                                     can file a motion to quash
                                                                                                                     the subpoena within 10
                                                                                                                     days of the subpoena. 21
                                                                                                                    CFR § 17.27(f).


                                                                                                                    A party or prospective
                                                                                                                    witness may file a mot ion
                                                                                                                    for a protective order with
                                                                                                                    respect to discovery
                                                                                                                    sought by a party or with
                                                                                                                    respect to a hearing, in
                                                                                                                    order to limit the
                                                                                                                    availability or disclosure
                                                                                                                    of evidence. 21 CFR
                                                                                                                    § 17.28.

Department of              Mammography Quality        In holding a formal hearing     In event of refusal to        A party must file a            The subpoena must be
                           Standards Act, Public      with respect to th e decision   obey, court order             written request for a          reasonably necessary for
Health and Human
                           Health Service Act         of the Di vision of             obtain ed through petition    subpoena with the              the full presentation of the
Services*                                             Mammography Quality and         to enforce filed in the       administrative law judge       case. 21 CFR
                           § 354(d)(2)(B), 42
                           U.S.C. § 263b(d)(2)(B).    Radiation Programs              appropr iate U.S. Dist rict   at least 5 days prior to the   § 900.15(d)(4)
Office of the General                                 (DMQRP) following its           Court. 42 U.S.C.              date set for the hearing.      (incorporatin g by
Counsel                                               reconsideration of an           §§ 1320a-7, 1320a-7a          21 CFR § 900.15(d)(4)          reference 42 CFR Part
                           21 CFR Chapter I, FDA,
                                                      accreditation body’s            (both i ncorporating by       (incorporatin g by             498, Subpart D); 42 C FR
                           HHS, Subchapter I,
                                                      adverse accredita tion or       reference Social Security     reference 42 CFR Part          § 498.58(a).
Department of Health and   Mammography Quality
                                                      reaccreditati on decision       Act § 205(d) & (e), 42        498, Subpart D); 42 C FR
  Human Services           Standards Act, Part 900,
                                                      that precludes certificati on   U.S.C. § 405(d) & (e)),       § 498.58(b).
                           Mammography, Subpart
Food & Drug                                           or recertificati on of a        1396q.
                           B, Quality Standar ds &
Administ ration                                       mammography facility, an
                           Certification,                                                                           The r equest must i dentify
                                                      administrative law judge
Office of the              § 900.15(d)(4).                                                                          the witnesses or
                                                      may issu e subpoenas upon
Administ rative                                                                                                     documents to be pr oduced
                                                      his own motion or at the
                                                                                                                    and specify the pertinent
  Law Judge                                           request of a party. 21 CFR
                                                                                                                    facts that the party
                                                      § 900.15(d)(4)
                                                                                                                    expects to establish by the
                                                      (incorpor ating by reference
                                                                                                                    witnesses or documents,
                                                      42 CFR Part 498, Subpart
                                                                                                                    and why those facts could
                                                      D); 42 CFR § 498.58(a).
                                                                                                                    not be established without
                                                                                                                    the use of a subpoena. 21
                                                                                                                    CFR § 900.15(d)(4)
                                                                                                                    (incorporatin g by
                                                                                                                    reference 42 CFR Part
                                                                                                                    498, Subpart D); 42 C FR
                                                                                                                    § 498.58(d).

Department of              Indi an Self-              With respect to hearings
Health and Human           Determination &            before an ALJ on appeals
                           Education Act, 25 U.S.C.   of, among other thi ngs,
Services                       § 450f et seq., including   denials of certain contracts
                               25 U.S.C. §§ 450f(b)(3),    and refusa ls to wai ve
                               450j(m), 450j-1(f),         certain regulations, etc.
Office of the General          450m-1(d), 458aaa-6,        (listed in 25 CFR
  Counsel                      458aaa-8(b), 458aaa-11.     § 900.150), with respect to
                                                           the Indian Self-
Depar tmen t of the Interior                               Determination and
                               25 CFR Chapter V, BIA
                                                           Education Act, Indian
Interior Board of Indian       & IHS, Part 900,
                                                           tribes, tribal org anizati ons,
  Appeals                      Contracts Under the
                                                           and th e government agency
                               Indi an Self-
Interi or Board of Contr act                               all ha ve the righ t to compel
                               Determination &
  Appeals                                                  the presen ce of witnesses
                               Education Assistance
                                                           or th e produ ction of
                               Act, Subpart L, Appeals,
                                                           documen ts or both by
                               § 900.164.
                                                           subpoen a at h earings or
                                                           depositions. 25 CFR
                                                           § 900.164.

Department of                  Health In surance           The Secretary has the             In the event of refusal to    Notice by service of the       The Department is in the
                                                           authority to issue                obey, court order             subpoena. 42 U.S.C.            process of developing
Health and Human               Portability and
                               Accountabili ty Act         subpoenas in investigating        obtain ed through petition    § 1320d-5(a)(2)                standa rds and procedures
Services                                                   matters and holding               to enforce filed in the       (incorporatin g by             for th e issua nce of
                               (“HIPAA”), Pub. L. No.
                               104-191, 42 U.S.C.          hearings under the                appropr iate U.S. Dist rict   reference Social Security      administrative subpoenas
Office of the General          § 1320d-5(a)(2)             Administ rative                   Court. 42 U.S.C.              Act § 1128A, 42 U.S.C.         under th e Administ rative
                               ((in corpor atin g by       Simplification provisions         § 1320d-5(a)(2)               § 1320a-7a); 42 U.S.C.         Simplification provisions
  Counsel
                               reference Social Security   of HIPAA, with respect to         (incorporatin g by            § 1320a -7a(j)                 of HIPAA. (No covered
                               Act § 1128A, 42 U.S.C.      matters involving the             reference Social Security     (incorporatin g by             entity is required to
                               § 1320a-7a,                 imposition of civil money         Act § 1128A, 42 U.S.C.        reference Social Security      comply with the
                               incor porating by           penalties. 42 U.S.C.              § 1320a-7a); 42 U.S.C.        Act § 205(d) & (e), 42         regulat ions adopted u nder
                               reference Social Security   § 1320d-                          § 1320a-7a(j)                 U.S.C. § 405(d) & (e)).        the Admin istr ative
                               Act § 205(d) & (e), 42      5(a)(2)(i ncorporating by         (incorporatin g by                                           Simplification provisions
                               U.S.C. § 405(d) & (e)).     reference Social Security         reference Social Security                                    of HIPAA until 2003 at
                                                                                                                           45 CFR § 160.310(c)(3)
                                                           Act § 1128A, 42 U.S.C.            Act § 205(d) & (e), 42                                       the earliest.)
                                                                                                                           requires t he pr otection of
                                                           § 1320a-7a); 42 U.S.C.            U.S.C. § 405(d) & (e)).
                                                                                                                           any protected health
                                                           § 1320a -7a(j)                                                  infor mati on obtained by
                                                           (incorpor ating by reference                                    the Secretary to ascertain
                                                           Social Securit y Act                                            compliance with the
                                                           § 205(d) & (e), 42 U.S.C.                                       Administ rative
                                                           § 405(d) & (e)).                                                Simplification provisions
                                                                                                                           of HIPAA and 45 CFR
                                                           With respect to the pr ivacy                                    Parts 160 and 164.
                                                           provisions, the Secretary
                                                           has delegated that authority
                                                           to the Office for Civil
                                                       Rights.

Department of              Social Securit y Act        In any hearing,                 In the event of refusal to
Health and Human           § 1918, 42 U.S.C.           investigation, or other         obey, court order
                           § 1396q (incorporating      proceeding relating to          obtain ed through petition
Services                                               grants to States for medical    to enforce filed in the
                           by reference Social
                           Security Act § 205(d) &     assistance programs, the        appropr iate U.S. Dist rict
Office of the General      (e), 42 U.S.C. § 405(d) &   Secretary has the authority     Court. 42 U.S.C.
  Counsel                  (e)).                       to issue subpoenas              § 1396q (incorporating
                                                       requiring th e attenda nce      by reference Social
                                                       and testi mony of witnesses     Security Act § 205(e), 42
Office of th e Inspector                               and the production of any       U.S.C. § 405(e)).
  General                                              evidence that relates to any
                                                       matt er un der investi gation
                                                       or in question. 42 U.S.C.
                                                       § 1396q (in corpor atin g by
                                                       reference Social Security
                                                       Act § 205(d), 42 U.S.C.
                                                       § 405(d)).

Department of              Social Security Act,        The Provider                    In the event of refusal to    A party wishing to obtain     The Board m ay issue a
Health and Human           § 1878, 42 U.S.C.           Reimbursemen t Review           obey, court order             the issuan ce of a            subpoena where
                           § 1395oo(e)                 Board has the authority to      obtain ed through petition    subpoena sha ll file a        reasonably necessary for
Services                                               issue subpoenas requiring       to enforce filed in the       written request at least 10   the full pr esentation of a
                           (incorporatin g by
                           reference 42 U.S.C.         the attendance and              appropr iate U.S. Dist rict   days before the hearing.      party’s case. 42 CFR
Office of the General      § 405(d) & (e)).            testimony of witnesses          Court. 42 U.S.C.              42 CFR § 405.1857. The        § 405.1857.
  Counsel                                              and/or the pr oduction of       1395oo(e) (incorporating      written request must state
                                                       evidence relating to any        by reference 42 U.S.C.        the pertinent facts which
                           42 CFR Chapter IV,
                                                       matter at issue in Board        § 405(e)).                    the party expects to
Center for Medicare &      CMS, Subch apter B,
                                                       hearings on intermediary                                      establish by the witnesses
                           Medicare Program, Part
  Medicaid Services                                    determin ations (a s defined                                  or documents and wheth er
                           405, Federal Health
Provider Reimbursement                                 in 42 CFR                                                     such fa cts could be
                           Insurance for the Aged &
                                                       § 405.1801(a)(1)) with                                        established by other
  Review Board             Disabled, Subpar t R,
                                                       respect to payments to                                        means. Id.
                           Provider Reimbursement
                                                       providers and hospitals in
                           Determinations and
                                                       the Medicare Program
                           Appeals, §§ 405.1835(a),
                                                       where the amount in
                           405.1857.
                                                       contr oversy equa ls or
                                                       exceeds $10,000. 42
                                                       U.S.C. § 1395oo(e)
                                                       (incorpor ating by reference
                                                       42 U.S.C. § 405(d); 42
                                                       CFR §§ 405.1857,
                                                       405.1835(a).
Department of           Social Securit y Act        In a hearing with respect to    In event of refusal to        A party must file a            The subpoena must be
                        § 1881, 42 U.S.C.           an appeal of the                obey, court order             written request for a          reasonably necessary for
Health and Human
                        § 1395rr (incorporating     termination of Medicare         obtain ed through petition    subpoena with the              the full presentation of the
Services*                                           coverage of a supplier’s        to enforce filed in the       administrative law judge       case. 42 CFR § 405.2182
                        by reference Social
                        Security Act § 205, 42      ESRD services because the       appropr iate U.S. Dist rict   at least 5 days prior to the   (incorporatin g by
Office of the General   U.S.C. § 405).              supplier no longer meets        Court. 42 U.S.C.              date set for the hearing.      reference 42 CFR Part
  Counsel                                           the conditions for coverage     §§ 1320a-7, 1320a-7a          42 CFR § 405.2182              498); 42 CFR § 498.58(a).
                                                    of its services, an             (both i ncorporating by       (incorporatin g by
                        42 CFR, Chapter IV,
                                                    administrative law judge        reference Social Security     reference 42 CFR Part
Departmental Appeals    CMS, Subch apter B,
                                                    may issu e subpoenas upon       Act § 205(d) & (e), 42        498); 42 CFR
Board                   Medicare Program, Part
                                                    his own motion or at the        U.S.C. § 405(d) & (e)),       § 498.58(b).
                        405, Federal Health
                                                    request of a party. 42 CFR      1396q.
                        Insurance for the Aged &
                                                    § 405.2182 (incorporating
                        Disabl ed, Subpart U,
                                                    by reference 42 CFR Part
                        Conditions for Coverage
                                                    498); 42 CFR § 498.58(a).
                        of Suppliers of End Stage
                        Renal Disease (ESRD)
                        Services, § 405.2182.

Department of           Social Securit y Act        In a hearing with respect to    In event of refusal to        A party must file a            The subpoena must be
                        §§ 1102, 1871, 42 U.S.C.    an appeal of the Secretary’s    obey, court order             written request for a          reasonably necessary for
Health and Human
                        §§ 1302, 1395hh.            decisi on n ot to cer tify a    obtain ed through petition    subpoena with the              the full presentation of the
Services*                                           rural health clinic or his      to enforce filed in the       administrative law judge       case. 42 CFR
                                                    refusa l to enter into or       appropr iate U.S. Dist rict   at least 5 days prior to the   § 405. 2402( f)
                        42 CFR, Chapter IV,
Office of the General                               renew an agreement with a       Court. 42 U.S.C.              date set for the hearing.      (incorporatin g by
                        CMS, Subch apter B,
  Counsel                                           rural health clinic, an         §§ 1320a-7, 1320a-7a          42 CFR § 405.2402( f)          reference 42 CFR Part
                        Medicare Program, Part
                                                    administrative law judge        (both i ncorporating by       (incorporatin g by             498); 42 CFR § 498.58(a).
                        405, Federal Health
                                                    may issu e subpoenas upon       reference Social Security     reference 42 CFR Part
Departmental Appeals    Insurance for the Aged &
                                                    his own motion or at the        Act § 205(d) & (e), 42        498); 42 CFR
Board                   Disabled, Subpart X,
                                                    request of a party. 42 CFR      U.S.C. § 405(d) & (e)),       § 498.58(b).
                        Rural Health Clinic and
                                                    § 405. 2402( f)                 1396q.
                        Federally Qual ified
                                                    (incorpor ating by reference
                        Health Center Services,
                                                    42 CFR Part 498); 42 CFR
                        § 405.2402(f).
                                                    § 498.58(a).

Department of           Social Securit y Act        In a hearing with respect to    In event of refusal to        A party must file a            The subpoena must be
Health and Human        §§ 1102, 1871, 42 U.S.C.    an appeal by a rural health     obey, court order             written request for a          reasonably necessary for
                        §§ 1302, 1395hh.            clinic of the term ination of   obtain ed through petition    subpoena with the              the full presentation of the
Services*
                                                    an agr eement between           to enforce filed in the       administrative law judge       case. 42 CFR
                                                    CMS and the rural health        appropr iate U.S. Dist rict   at least 5 days prior to the   § 405.2404(b)(3)
                        42 CFR, Chapter IV,
Office of the General                               clinic, an administ rative      Court. 42 U.S.C.              date set for the hearing.      (incorporatin g by
                        CMS, Subch apter B,
  Counsel                                           law judge may issue             §§ 1320a-7, 1320a-7a          42 CFR § 405.2404(b)(3)        reference 42 CFR Part
                        Medicare Program, Part
                                                    subpoen as upon his own         (both i ncorporating by       (incorporatin g by             498); 42 CFR § 498.58(a).
                        405, Federal Health
                                                    motion or at the r equest of    reference Social Security     reference 42 CFR Part
                        Insurance for the Aged &
Department of Health and   Disabled, Subpart X,       a party. 42 CFR                Act § 205(d) & (e), 42        498); 42 CFR
  Human Services           Rural Health Clinic and    § 405.2404(b)(3)               U.S.C. § 405(d) & (e)),       § 498.58(b).
                           Federally Qual ified       (incorpor ating by reference   1396q.
Departmental Appeals
                           Health Center Services,    42 CFR Part 498); 42 CFR
Board
                           § 405.2404(b)(3).          § 498.58(a).


Department of              Social Securit y Act       In a hearing with respect to   In event of refusal to        A party must file a            The subpoena must be
                           §§ 1102, 1871, 42 U.S.C.   an appeal of the failur e of   obey, court order             written request for a          reasonably necessary for
Health and Human
                           §§ 1302, 1395hh.           CMS to enter into an           obtain ed through petition    subpoena with the              the full presentation of the
Services*                                             agreement with an entity       to enforce filed in the       administrative law judge       case. 42 CFR
                                                      with respect to federally      appropr iate U.S. Dist rict   at least 5 days prior to the   § 405.2430(d)
                           42 CFR, Chapter IV,
Office of the General                                 qualified h ealth ser vice     Court. 42 U.S.C.              date set for the hearing.      (incorporatin g by
                           CMS, Subch apter B,
  Counsel                                             centers, a n administr ative   §§ 1320a-7, 1320a-7a          42 CFR § 405.2430(d)           reference 42 CFR Part
                           Medicare Program, Part                                                                                                 498); 42 CFR § 498.58(a).
                                                      law judge may issue            (both i ncorporating by       (incorporatin g by
                           405, Federal Health
                                                      subpoen as upon his own        reference Social Security     reference 42 CFR Part
Departmental Appeals       Insurance for the Aged &
                                                      motion or at the r equest of   Act § 205(d) & (e), 42        498); 42 CFR
Board                      Disabled, Subpart X,
                                                      a party. 42 CFR                U.S.C. § 405(d) & (e)),       § 498.58(b).
                           Rural Health Clinic and
                                                      § 405.2430(d)                  1396q.
                           Federally Qual ified
                                                      (incorpor ating by reference
                           Health Center Services,
                                                      42 CFR Part 498); 42 CFR
                           § 405.2430(d).
                                                      § 498.58(a).

Department of              Social Securit y Act       In a hearing with respect to   In event of refusal to        A party must file a            The subpoena must be
Health and Human           §§ 1102, 1871, 42 U.S.C.   an appeal of the               obey, court order             written request for a          reasonably necessary for
                           §§ 1302, 1395hh.           termination by CMS of an       obtain ed through petition    subpoena with the              the full presentation of the
Services*                                             agreement with a federally     to enforce filed in the       administrative law judge       case. 42 CFR
                                                      qualified health center, an    appropr iate U.S. Dist rict   at least 5 days prior to the   § 405.2436(c)(3)
                           42 CFR, Chapter IV,
Office of the General                                 administrative law judge       Court. 42 U.S.C.              date set for the hearing.      (incorporatin g by
                           CMS, Subch apter B,
  Counsel                                             may issu e subpoenas upon      §§ 1320a-7, 1320a-7a          42 CFR § 405.2436(c)(3)        reference 42 CFR Part
                           Medicare Program, Part
                                                      his own motion or at the       (both i ncorporating by       (incorporatin g by             498); 42 CFR § 498.58(a).
                           405, Federal Health
                                                      request of a party. 42 CFR     reference Social Security     reference 42 CFR Part
Departmental Appeals       Insurance for the Aged &
                                                      § 405.2436(c)(3)               Act § 205(d) & (e), 42        498); 42 CFR
Board                      Disabled, Subpart X,
                                                      (incorpor ating by reference   U.S.C. § 405(d) & (e)),       § 498.58(b).
                           Rural Health Clinic and
                                                      42 CFR Part 498); 42 CFR       1396q.
                           Federally Qual ified
                                                      § 498.58(a).
                           Health Center Services,
                           § 405.2436(c)(3).

Department of              Social Securit y Act       In th e appea l/review of a    In the event of refusal to    A party wishing to obtain      The hearing officer may
Health and Human           § 1862(b), 42 U.S.C.       determination by CMS that      obey, court order             a subpoena must file with      issue subpoenas if th ey
                           § 1395y(b)(3)(C),          a group h ealth pl an does     obtain ed through petition    the hearing officer a          are reasonably necessary
Services                                                                                                           written request for a          for full presentation of the
                           (5)(C)(ii), (6)(B)         not conform to the             to enforce filed in the
                           (incorporatin g by         requirements of 42 U.S.C.      appropr iate U.S. Dist rict   subpoena at least 10 da ys     case. 42 CFR
Office of the General      reference 42 U.S.C.        § 1395y(b) with respect to     Court. 42 U.S.C.              before the hearing. 42         § 411.121(f).
  Counsel                  § 1320a-7a,                 Medicare as a secondary          § 1395y(b)(3)(C),             CFR § 411.121(f)(2).
                           incor porating by           payer, the h earing officer      (5)(C)(ii), (6)(B)            The written r equest must
                           reference 42 U.S.C.         may issu e – on his own          (incorporatin g by            identify the witnesses or
Departmental Appeals
                           § 405(d)&(e)).              motion or upon the r equest      reference 42 U.S.C.           documen ts to be
Board
                                                       of any party – subpoenas         § 1320a-7a(j),                produced, identifying the
                                                       for the attendance and           incor porating by             pertinen t facts to be
                           42 CFR, Chapter IV,
                                                       testimony of witnesses           reference 42 U.S.C.           established by the
                           CMS, Subch apter B,
                                                       and/or the pr oduction of        § 405(d)&(e)).                testimony or documents
                           Medicare Program, Part
                                                       documents relating to                                          sought. 42 CFR
                           411, Exclusions from
                                                       matters at issue. 42 CFR                                       § 411.121(f)(3).
                           Medicare and
                                                       § 411.121(f)(1).
                           Limitations on Medicare
                           Payment, Subpart E,                                                                        The subpoenas are issued
                           Limitations on Payment                                                                     at the hearing officer’s
                           for Services Covered                                                                       discretion. 42 CFR
                           under Group Health                                                                         § 411.121(f)(4).
                           Plans: General
                           Provisions, § 411.121(f).

Department of              Social Securit y Act        In review of the                 In event of refusal to        A party must issue a           The Board may issue
                           § 1886, 42 U.S.C.           redesignation of a hospital      obey, court order             predecision request for        subpoenas if they are
Health and Human
                           § 1395ww(d)(10)(G)(ii)      – from a rural area to urban     obtain ed through petition    information or data. 42        reasonably necessary for
Services*                                              area, from one rural area to     to enforce filed in the       CFR § 412.268(a). Only         full presentation of the
                           (incorporatin g by
                           reference Social Security   another rural area, and          appropr iate U.S. Dist rict   when this request has          case, and only after a
Center for Medicare &      Act § 205(d) & (e), 42      from one urban area to           Court. 42 U.S.C.              failed to produce the          predecision request for
                           U.S.C. § 405(d) & (e)).     another urban area – for         § 1395ww(d)(10)(G)(ii)        necessary evidence, can        information or data has
  Medicaid Services
                                                       purposes of using the other      (incorporatin g by            the par ty submit a written    failed to produce the
Medicare Geographic                                                                                                   request to the Medicare        necessary evidence. 42
                                                       area’s standardized amount       reference 42 U.S.C.
  Classificat ion Review   42 CFR Chapter IV,                                                                                                        CFR § 412.268(a).
                                                       for inpatient operating          § 405(d) & (e)).              Geogra phic Classification
                           CMS, Subchapter B
                                                       costs, wa ge index value, or                                   Review Board for
                           Medicare Program, Part
                                                       both – the Medicare                                            issuance of a subpoena
                           412, Prospective
                                                       Geogra phic Classification                                     for attendance and
                           Payment Systems for
                                                       Review Board may issue                                         testimony of witnesses or
                           Inpatient Hospital
                                                       subpoen as – on its own                                        production of documents.
                           Services, Subpart L, the
                                                       motion or at the r equest of                                   42 CFR § 412.268(a).
                           Medicare Geographic
                                                       a party – for th e attenda nce                                 The r equest must i dentify
                           Classificat ion Review
                                                       and testi mony of witnesses                                    the individual or
                           Board Composition and
                                                       and/or pr oduction of                                          documen ts that ar e to be
                           Procedures, § 412.268.
                                                       documents relevant and                                         produced and must state
                                                       material to an y matter of                                     the pertinent facts that the
                                                       issue. 42 CFR                                                  party expects to establish
                                                       § 412.268(a).                                                  by the requested
                                                                                                                      witnesses or documents,
                                                                                                                      and whether these facts
                                                                                                                could be establi shed by
                                                                                                                other evidenced without
                                                                                                                the use of a subpoena. 42
                                                                                                                CFR § 412.268(b).

Department of           Social Securit y Act       In a hearing with respect to   In event of refusal to        A party must file a            The subpoena must be
                        §§ 1102, 1832, 1833,       an appeal by an ambulatory     obey, court order             written request for a          reasonably necessary for
Health and Human
                        1871, 42 CFR §§ 1302,      surgical center (“ASC” ) of    obtain ed through petition    subpoena with the              the full presentation of the
Services*               1395k, 1395l, 1395hh.      a decision by CMS refusing     to enforce filed in the       administrative law judge       case. 42 CFR § 416.26(f)
                                                   to enter into an agreement     appropr iate U.S. Dist rict   at least 5 days prior to the   (incorporatin g by
Office of the General                              with the ASC or                Court. 42 U.S.C.              date set for the hearing.      reference 42 CFR Part
                        42 CFR Chapter IV,                                                                                                     498); 42 CFR § 498.58(a).
  Counsel                                          terminating such an            §§ 1320a-7, 1320a-7a          42 CFR § 416.26(f)
                        CMS, Subchapter B
                                                   agreement, an                  (both i ncorporating by       (incorporatin g by
                        Medicare Program, Part
                                                   administrative law judge       reference Social Security     reference 42 CFR Part
Departmental Appeals    416, Ambulatory
                                                   may issu e subpoenas upon      Act § 205(d) & (e), 42        498); 42 CFR
Board                   Surgical Services,
                                                   his own motion or at the       U.S.C. § 405(d) & (e)),       § 498.58(b).
                        Subpart B, General
                                                   request of a party. 42 CFR     1396q.
                        Conditions and
                                                   § 416.26(f) (incorporating
                        Requirements,
                                                   by reference 42 CFR Part
                        § 416.26(f).
                                                   498); 42 CFR § 498.58(a).

Department of           Social Securit y Act       In a hearing with respect to   In event of refusal to        A party must file a            The subpoena must be
                        §§ 1102, 1832, 1833,       an appeal by an ambulatory     obey, court order             written request for a          reasonably necessary for
Health and Human
                        1871, 42 CFR §§ 1302,      surgical center (“ASC” ) of    obtain ed through petition    subpoena with the              the full presentation of the
Services*                                          a decision by CMS              to enforce filed in the       administrative law judge       case. 42 CFR
                        1395k, 1395l, 1395hh.
                                                   terminating an agreement       appropr iate U.S. Dist rict   at least 5 days prior to the   § 416.35(b)(3)
Office of the General                              with the ASC, an               Court. 42 U.S.C.              date set for the hearing.      (incorporatin g by
                        42 CFR Chapter IV,
  Counsel                                          administrative law judge       §§ 1320a-7, 1320a-7a          42 CFR § 416.35(b)(3)          reference 42 CFR Part
                        CMS, Subchapter B
                                                   may issu e subpoenas upon      (both i ncorporating by       (incorporatin g by             498); 42 CFR § 498.58(a).
                        Medicare Program, Part
                                                   his own motion or at the       reference Social Security     reference 42 CFR Part
Departmental Appeals    416, Ambulatory
                                                   request of a party. 42 CFR     Act § 205(d) & (e), 42        498); 42 CFR
Board                   Surgical Services,
                                                   § 416.35(b)(3)                 U.S.C. § 405(d) & (e)),       § 498.58(b).
                        Subpart B, General
                                                   (incorpor ating by reference   1396q.
                        Conditions and
                                                   42 CFR Part 498); 42 CFR
                        Requirements,
                                                   § 498.58(a).
                        § 416.35(b)(3).

Department of           Social Securit y Act       The Provider                   In the event of refusal to    A party wishing to obtain      The Board m ay issue a
Health and Human        §§ 1102, 1814, 1861,       Reimbursemen t Review          obey, court order             the issuan ce of a             subpoena where
                        1862, 1871, 42 U.S.C.      Board has the authority to     obtain ed through petition    subpoena sha ll file a         reasonably necessary for
Services
                        §§ 1302, 1395f, 1395x,     issue subpoenas requiring      to enforce filed in the       written request at least 10    the full pr esentation of a
                        1395y (i ncorporating by   the attendance and             appropr iate U.S. Dist rict   days before the hearing.       party’s case. 42 CFR
Office of the General   reference 42 U.S.C.        testimony of witnesses         Court. 42 U.S.C.              42 CFR § 418.311               § 418.311 (incorporating
  Counsel               § 405(d) & (e)), 1395hh.   and/or the pr oduction of      §§ 1395y, 1395oo(e)           (incorporatin g by             by reference 42 CFR Part
Center for Medicare &    42 CFR, Chapter IV,          evidence relating to any       (both i ncorporating by       reference 42 CFR Part          405, Subpart R); 42 CFR
  Medicaid Services      CMS, Subch apter B,          matter at issue in hearin gs   reference 42 U.S.C.           405, Subpart R); 42 CFR        § 405.1857.
                         Medicare Program, Part       with respect to payments to    § 405(e)).                    § 405.1857. The wri tten
Provider Reimbursement
                         418, Hospice Car e,          hospices (with respect to                                    request must state the
  Review Board           Subpar t G, Pa yment for     amounts in controversy that                                  pertinent facts which the
                         Hospice Care, § 418.311.     exceed $10,000) under the                                    party expects to establish
                                                      Medicare Program. 42                                         by the witnesses or
                                                      CFR § 418.311                                                documents an d whether
                                                      (incorpor ating by reference                                 such fa cts could be
                                                      42 CFR Part 405, Subpart                                     established by other
                                                      R); 42 CFR § 405.1857.                                       means. Id.

Department of            Social Securit y Act         In a hearing with respect to   In event of refusal to        A party must file a            The subpoena must be
Health and Human         §§ 1102, 1871, 42 U.S.C.     an appeal by a provid er of    obey, court order             written request for a          reasonably necessary for
                         §§ 1302, 1395hh.             a decision by CMS              obtain ed through petition    subpoena with the              the full presentation of the
Services*                                                                            to enforce filed in the       administrative law judge       case. 42 CFR § 420.3(a)
                                                      termin ating the provider
                                                      agreement for failure to       appropr iate U.S. Dist rict   at least 5 days prior to the   (incorporatin g by
                         42 CFR Chapter IV,
Office of the General                                 comply with the disclosure     Court. 42 U.S.C.              date set for the hearing.      reference 42 CFR Part
                         CMS, Subch apter B,
  Counsel                                             of informati on                §§ 1320a-7, 1320a-7a          42 CFR § 420.3(a)              498); 42 CFR § 498.58(a).
                         Medicare Program, Part
                                                      requirements set forth in 42   (both i ncorporating by       (incorporatin g by
                         420 , Pr ogr am Integrity:
                                                      CFR Part 420 Subpart C,        reference Social Security     reference 42 CFR Part
Departmental Appeals     Medicare, Subpart A,
                                                      an administra tive law judge   Act § 205(d) & (e), 42        498); 42 CFR
Board                    General Provisions,
                                                      may issu e subpoenas upon      U.S.C. § 405(d) & (e)),       § 498.58(b).
                         § 420.3(a).
                                                      his own motion or at the       1396q.
                                                      request of a party. 42 CFR
                                                      § 420.3(a) (incorporating
                                                      by reference 42 CFR Part
                                                      498); 42 CFR 498.58(a).

Department of            Social Securit y Act         In a hearing with respect to   In event of refusal to        A party must file a            The subpoena must be
Health and Human         §§ 1814, 1815, 1820,         an appeal by a                 obey, court order             written request for a          reasonably necessary for
                         1835, 1842, 1848, 1870,      nonparticipating hospital      obtain ed through petition    subpoena with the              the full presentation of the
Services*                                             that pr ovides emergency       to enforce filed in the       administrative law judge       case. 42 CFR
                         42 U.S. C. §§ 1395f,
                         1395g, 1395i-4, 1395n,       services of a determi nation   appropr iate U.S. Dist rict   at least 5 days prior to the   § 424.104(d)
Office of the General    1395u, 1395w-4, 1395gg.      by CMS that the hospital       Court. 42 U.S.C.              date set for the hearing.      (incorporatin g by
  Counsel                                             does not qualify to claim      §§ 1320a-7, 1320a-7a          42 CFR § 424.104(d)            reference 42 CFR Part
                                                      reimbursement, an              (both i ncorporating by       (incorporatin g by             498); 42 CFR § 498.58(a).
                          42 CFR Chapter IV,
                                                      administrative law judge       reference Social Security     reference 42 CFR Part
Departmental Appeals     CMS, Subch apter B,
                                                      may issu e subpoenas upon      Act § 205(d) & (e), 42        498); 42 CFR
Board                    Medicare Program, Part
                                                      his own motion or at the       U.S.C. § 405(d) & (e)),       § 498.58(b).
                         424, Condi tions for
                                                      request of a party. 42 CFR     1396q.
                         Medicare Payment,
                                                      § 424.104(d) (incorporating
                         Subpart G, Special
                                                      by reference 42 CFR Part
                         Conditions: Emer gency
                        Ser vices Furnished by a    498); 42 CFR § 498.58(a).
                        Nonparticipating
                        Hospital, § 424.104(d).

Department of           Social Securit y Act        In a hearing with respect to   In event of refusal to        A party must file a            The subpoena must be
                        § 1102, 42 U.S.C. §1302.    an appeal by a nursing         obey, court order             written request for a          reasonably necessary for
Health and Human
                                                    facility (NF) of (1) a         obtain ed through petition    subpoena with the              the full presentation of the
Services*                                           determin ation by a State,     to enforce filed in the       administrative law judge       case. 42 CFR
                        42 CFR Chapter IV,                                                                                                      § 431.153(g)(1) & (h)
                                                    denying or terminating         appropr iate U.S. Dist rict   at least 5 days prior to the
                        CMS, Subchapter C,                                                                                                      (incorporatin g by
Office of the General                               participation in Medicaid      Court. 42 U.S.C.              date set for the hearing.
                        Medical Assist ance                                                                                                     reference 42 CFR Part
Counsel                                             and the basis of the           §§ 1320a-7, 1320a-7a          42 CFR § 431.153(g)(1)
                        Programs, Part 431, State                                                                                               498); 42 CFR § 498.58(a).
                                                    determination is also a        (both i ncorporating by       & (h) (incorporatin g by
                        Organization and
                                                    basis for denial or            reference Social Security     reference 42 CFR Part
Departmental Appeals    General Administration,
                                                    termination of the NF’s        Act § 205(d) & (e), 42        498); 42 CFR
Board                   Subpart D, Appeals
                                                    participation in Medicare      U.S.C. § 405(d) & (e)),       § 498.58(b).
                        Process, § 431.153(g) &
                                                    (in which the NF is            1396q.
                        (h).
                                                    participating or seeking to
                                                    participate), or (2) a
                                                    determination by CMS that
                                                    the NF is not in substantial
                                                    compliance, terminating
                                                    the NF’s Medicaid provider
                                                    agreement or imposing
                                                    alternative remedies, an
                                                    administrative law judge
                                                    may issu e subpoenas upon
                                                    his own motion or at the
                                                    request of a party. 42 CFR
                                                    § 431.153(g)(1) & (h)
                                                    (incorpor ating by reference
                                                    42 CFR Part 498); 42 CFR
                                                    § 498.58(a).
Department of           Social Securit y Act         In proceedings to impose         In event of refusal to
Health and Human        §§ 1102, 1871, 1894,         civil m onetary fines for        obey, court order
                        1905, 1934, 42 U.S.C.        violations with respect to       obtain ed through petition
Services*                                            enrollment, disenrollment,       to enforce filed in the
                        §§ 1302, 13 95, 1395eee,
                        1396d, 1396u-4.              excessive premiums,              appropr iate U.S. Dist rict
Office of the General                                misr epresentations, or          Court. 42 CFR § 460.46
Counsel                                              falsificati ons of               (making Social Security
                        42 CFR Chapter IV,
                                                     information, an                  Act § 1128A, 42 U.S.C.
                        CMS, Subchapter E,
                                                     administrative law judge         § 1320a-7a (other than
Departmental Appeals    Programs of All-
                                                     has the authority to issue       (a) & (b) applicable); 42
Board                   Inclusive Care for the
                                                     subpoenas requiring the          U.S.C. § 1320a-7a(j)
                        Elderly, Part 460,
                                                     attendance of witnesses at       (incorporatin g by
                        Programs of All-
                                                     hear ings and the production     reference Social Security
                        Inclusive Care for the
                                                     of documents at or in            Act §205(d) & (e), 42
                        Elderly (PACE), Subpart
                                                     relation to hearings. 42         U.S.C. § 405(d) & (e)).
                        D, Sanctions,
                                                     CFR § 460.46 (making
                        Enforcement Actions &
                                                     Social Securit y Act
                        Terminations, § 460.46.
                                                     § 1128A, 42 U.S.C.
                                                     § 1320a-7a (other than (a)
                                                     & (b) applicable); 42
                                                     U.S.C. § 1320a-7a(j)
                                                     (incorpor ating by reference
                                                     Social Securit y Act
                                                     §205(d) & (e), 42 U.S.C.
                                                     § 405(d) & (e)).


Department of           Social Securit y Act         In a hearing with respect to     In event of refusal to        A party must file a            The subpoena must be
Health and Human        §§ 1102, 1861, 1871, 42      an appeal by an entity of a      obey, court order             written request for a          reasonably necessary for
                        U.S.C. §§ 1302, 1395x,       determinat ion by CMS,           obtain ed through petition    subpoena with the              the full presentation of the
Services*                                            denying or terminating the       to enforce filed in the       administrative law judge       case. 42 CFR § 485.74
                        1395hh.
                                                     provider’s participation in      appropr iate U.S. Dist rict   at least 5 days prior to the   (incorporatin g by
Office of the General                                the Medicare progr am as a       Court. 42 U.S.C.              date set for the hearing.      reference 42 CFR Part
                        42 CFR Chapter IV,
Counsel                                              comprehensive outpatient         §§ 1320a-7, 1320a-7a          42 CFR § 485.74                498); 42 CFR § 498.58(a).
                        CMS, Subchapter G,
                                                     rehabilitation facility          (both i ncorporating by       (incorporatin g by
                        Standar ds &
                                                     (“CORF”), an                     reference Social Security     reference 42 CFR Part
Departmental Appeals    Certification, Part 485,
                                                     administrative law judge         Act § 205(d) & (e), 42        498); 42 CFR
Board                   Condi tions of
                                                     may issu e subpoenas upon        U.S.C. § 405(d) & (e)),       § 498.58(b).
                        Participation: Specialized
                                                     his own motion or at the         1396q.
                        Provider s, Subpar t B,
                                                     request of a party. 42 CFR
                        Condi tions of
                                                     § 485. 74 (in corpor atin g by
                        Participation:
                                                     reference 42 CFR Part
                        Compr ehensive
                                                     498); 42 CFR § 498.58(a).
                        Outpa tient Rehabilitation
                        Facilities, § 485.74.

Department of           Social Securit y Act        In a hearing with respect to   In event of refusal to        A party must file a            The subpoena must be
                        §§1102, 1138, 1871, 42      an appeal by an                obey, court order             written request for a          reasonably necessary for
Health and Human
                        U.S.C. §§ 1302, 1320b-8,    organization of a              obtain ed through petition    subpoena with the              the full presentation of the
Services*                                           determinat ion by CMS,         to enforce filed in the       administrative law judge       case. 42 CFR
                        1395hh.
                                                    denying the organization’s     appropr iate U.S. Dist rict   at least 5 days prior to the   § 486. 316(b)
Office of the General                               application to be the          Court. 42 U.S.C.              date set for the hearing.      (incorporatin g by
                        42 CFR, Chapter IV,
Counsel                                             designated organ               §§ 1320a-7, 1320a-7a          42 CFR § 486.316(b)            reference 42 CFR Part
                        CMS, Subchapter G,
                                                    procuremen t orga nization     (both i ncorporating by       (incorporatin g by             498); 42 CFR § 498.58(a).
                        Standards and
                                                    (“OPO”) for its ser vice       reference Social Security     reference 42 CFR Part
Departmental Appeals    Certification, Part 486,
                                                    area, an administrative law    Act § 205(d) & (e), 42        498); 42 CFR
Board                   Conditions for Coverage
                                                    judge may issue subpoenas      U.S.C. § 405(d) & (e)),       § 498.58(b).
                        of Specialized Ser vices
                                                    upon his own motion or at      1396q.
                        Furnish ed by Suppliers,
                                                    the request of a party. 42
                        Subpar t G, Conditions of
                                                    CFR § 486.316(b)
                        Coverage: Organ
                                                    (incorpor ating by reference
                        Procurement
                                                    42 CFR Part 498); 42 CFR
                        Organiz ations,
                                                    § 498.58(a).
                        § 486.316(b).

Department of           Social Securit y Act        In a hearing with respect to   In event of refusal to        A party must file a            The subpoena must be
                        §§ 1102, 1138, 1871, 42     an appeal by an organ          obey, court order             written request for a          reasonably necessary for
Health and Human
                        U.S.C. §§ 1302, 1320b-8,    procuremen t orga nization     obtain ed through petition    subpoena with the              the full presentation of the
Services*                                           (“OPO”) of a determi nation    to enforce filed in the       administrative law judge       case. 42 CFR
                        1395hh.
                                                    by CMS, terminating an         appropr iate U.S. Dist rict   at least 5 days prior to the   § 486.325(c)
Office of the General                               agreement, an                  Court. 42 U.S.C.              date set for the hearing.      (incorporatin g by
                        42 CFR, Chapter IV,                                                                                                     reference 42 CFR Part
Counsel                                             administrative law judge       §§ 1320a-7, 1320a-7a          42 CFR § 486.325(c)
                        CMS, Subchapter G,                                                                                                      498); 42 CFR § 498.58(a).
                                                    may issu e subpoenas upon      (both i ncorporating by       (incorporatin g by
                        Standards and
                                                    his own motion or at the       reference Social Security     reference 42 CFR Part
Departmental Appeals    Certification, Part 486,
                                                    request of a party. 42 CFR     Act § 205(d) & (e), 42        498); 42 CFR
Board                   Conditions for Coverage
                                                    § 486.325(c) (incorporating    U.S.C. § 405(d) & (e)),       § 498.58(b).
                        of Specialized Ser vices
                                                    by reference 42 CFR Part       1396q.
                        Furnish ed by Suppliers,
                                                    498); 42 CFR § 498.58(a).
                        Subpar t G, Conditions of
                        Coverage: Organ
                        Procurement
                        Organiz ations,
                        § 486.325(c).

Department of           Social Securit y Act        In a hearing with respect to   In event of refusal to        A party must file a            The subpoena must be
Health and Human        §§ 1102, 1128, 1871, 42     an appeal by an in stitution   obey, court order             written request for a          reasonably necessary for
                        U.S.C. §§ 1302, 1320a-7,    or agency of a                 obtain ed through petition    subpoena with the              the full presentation of the
Services*
                        1395hh.                     determination by CMS (1)       to enforce filed in the       administrative law judge       case. 42 CFR § 488. 24(c)
                                                    that it does not qualify for   appropr iate U.S. Dist rict   at least 5 days prior to the   (incorporatin g by
Office of the General   42 CFR, Chapter IV,        participation or coverage        Court. Social Security        date set for the hearing.      reference 42 CFR Part
Counsel                 CMS, Subchapter G,         because it is not in             Act § 1128, 42 U.S.C.         42 CFR § 488.24(c)             498); 42 CFR § 498.58(a).
                        Standards and              compliance with the              § 1320a-7 (incorporating      (incorporatin g by
                        Certification, Part 488,   conditions of particip ation     by reference Social           reference 42 CFR Part
Departmental Appeals
                        Survey, Certification &    or conditions of coverage,       Security Act § 205, 42        498); 42 CFR
Board
                        Enforcement Procedures,    or (2) terminating a             U.S.C. § 405).                § 498.58(b).
                        Subpart A, General         provid er’s a greem ent for
                        Provisions, § 488.24(c).   that reason, an
                                                   administrative law judge
                                                   may issu e subpoenas upon
                                                   his own motion or at the
                                                   request of a party. 42 CFR
                                                   § 488.24(c) (incorporating
                                                   by reference 42 CFR Part
                                                   498); 42 CFR § 498.58(a).

Department of           Social Securit y Act       In a hearing with respect to     In event of refusal to        A party must file a            The subpoena must be
                        §§ 1102, 1819, 1871,       an appeal by certain             obey, court order             written request for a          reasonably necessary for
Health and Human
                        1919, 42 U.S.C. §§ 1303,   providers (St ate-operat ed      obtain ed through petition    subpoena with the              the full presentation of the
Services*                                          facilities, skilled nursing      to enforce filed in the       administrative law judge       case. 42 CFR
                        1395i-3, 1395hh, 1396r.
                                                   facilities (SNFs) and dually     appropr iate U.S. Dist rict   at least 5 days prior to the   § 488.330(e)(3)
Office of the General                              participating SNFs, and          Court. 42 U.S.C.              date set for the hearing.      (incorporatin g by
                        42 CFR, Chapter IV,
Counsel                                            other facili ties subject to a   §§ 1320a-7, 1320a-7a          42 CFR § 488.330(e)(3)         reference 42 CFR Part
                        CMS, Subchapter G,
                                                   CMS val idation survey or        (both i ncorporating by       (incorporatin g by             498); 42 CFR § 498.58(a).
                        Standards and
                                                   CMS review of a State’s          reference Social Security     reference 42 CFR Part
Departmental Appeals    Certification, Part 488,
                                                   findi ngs) of a denial of        Act § 205(d) & (e), 42        498); 42 CFR
Board                   Survey, Certification &
                                                   particip ation or                U.S.C. § 405(d) & (e)),       § 498.58(b).
                        Enforcement Procedures,
                                                   certi ficati on of               1396q.
                        Subpart E, Sur vey &
                                                   noncompliance leading to
                        Certification of Long-
                                                   an enforcement remedy
                        term Care Facil ities,
                                                   (including termination of
                        §488.330(e)(3).
                                                   the provider agreement, but
                                                   except State monitoring),
                                                   an administra tive law judge
                                                   may issu e subpoenas upon
                                                   his own motion or at the
                                                   request of a party. 42 CFR
                                                   § 488.330(e)(3)
                                                   (incorpor ating by reference
                                                   42 CFR Part 498); 42 CFR
                                                   § 498.58(a).

Department of           Social Securit y Act       In a hearing with respect to     In event of refusal to        A party must file a            The subpoena must be
Health and Human        §§ 1102, 1819, 1871,        a State’s denial of              obey, court order             written request for a          reasonably necessary for
                        1919, 42 U.S.C. §§ 1302,    particip ation , termination     obtain ed through petition    subpoena with the              the full presentation of the
Services*
                        1395i-3, 1395hh, 1396r.     of provid er agreement, or       to enforce filed in the       administrative law judge       case. 42 CFR
                                                    certi ficati on of               appropr iate U.S. Dist rict   at least 5 days prior to the   § 488.330(e)(4)
Office of the General                               noncompliance leading to         Court. 42 U.S.C.              date set for the hearing.      (incorporatin g by
Counsel                 42 CFR, Chapter IV,
                                                    an alternative remedy            §§ 1320a-7, 1320a-7a          42 CFR § 488.330(e)(4)         reference 42 CFR Part
                        CMS, Subchapter G,
                                                    (except State monitoring)        (both i ncorporating by       (incorporatin g by             431); 42 CFR
                        Standards and
Departmental Appeals                                with respect to a non-State      reference Social Security     reference 42 CFR Part          § 431.153(g)(1) & (h)
                        Certification, Part 488,
Board                                               operated Medicaid nursing        Act § 205(d) & (e), 42        431); 42 CFR                   (incorporatin g by
                        Survey, Certification &
                                                    facili ty (FN) wh ich h as not   U.S.C. § 405(d) & (e)),       § 431.153(g)(1) & (h)          reference 42 CFR Part
                        Enforcement Procedures,
                                                    received a CMS validation        1396q.                        (incorporatin g by             498); 42 CFR § 498.58(a).
                        Subpart E, Sur vey &
                                                    survey or a CMS r eview of                                     reference 42 CFR Part
                        Certification of Long-
                                                    the State’s findings, an                                       498); 42 CFR
                        term Care Facil ities,
                                                    administrative law judge                                       § 498.58(b).
                        §488.330(e)(4).
                                                    may issu e subpoenas upon
                                                    his own motion or at the
                                                    request of a party. 42 CFR
                                                    § 488.330(e)(4)
                                                    (incorpor ating by reference
                                                    42 CFR Part 431);
                                                    § 431.153(g)(1) & (h)
                                                    (incorpor ating by reference
                                                    42 CFR Part 498); 42 CFR
                                                    § 498.58(a).

Department of           Social Securit y Act        In a hearing with respect to     In event of refusal to        A party must file a            The subpoena must be
                        §§ 1861, 1864, 1866,        an appeal of a termination       obey, court order             written request for a          reasonably necessary for
Health and Human
                        1871, 42 U.S.C.             of a provi der agreem ent by     obtain ed through petition    subpoena with the              the full presentation of the
Services*                                           CMS pursuant to 42 CFR           to enforce filed in the       administrative law judge       case. 42 CFR § 489.53(d)
                        §§ 1395k, 1395aa,
                        1395cc, 1395hh.             § 489.53(a) or (b), an           appropr iate U.S. Dist rict   at least 5 days prior to the   (incorporatin g by
Office of the General                               administrative law judge         Court. 42 U.S.C.              date set for the hearing.      reference 42 CFR Part
Counsel                                             may issu e subpoenas upon        §§ 1320a-7, 1320a-7a          42 CFR § 489.53(d)             498); 42 CFR § 498.58(a).
                        42 CFR, Chapter IV,
                                                    his own motion or at the         (both i ncorporating by       (incorporatin g by
                        CMS, Subchapter G,
                                                    request of a party. 42 CFR       reference Social Security     reference 42 CFR Part
Departmental Appeals    Standards and
                                                    § 489.53(d) (incorporating       Act § 205(d) & (e), 42        498); 42 CFR
Board                   Certification, Part 489,
                                                    by reference 42 CFR Part         U.S.C. § 405(d) & (e)),       § 498.58(b).
                        Provider Agreements &
                                                    498); 42 CFR § 498.58(a).        1396q.
                        Supplier Approval,
                        Subpar t E, T ermi nation
                        of Agreement &
                        Reinstatem ent After
                        Termination,
                        § 489.53(d).
Department of           Clinical Laborator ies      In a hearing with respect to    In event of refusal to        A party must file a             The subpoena must be
                        Impr ovement Act of         an appeal of a laboratory       obey, court order             written request for a           reasonably necessary for
Health and Human
                        1988, Public Health         dissatisfied with (a)           obtain ed through petition    subpoena with the               the full presentation of the
Services*                                           suspen sion, limi tati on or    to enforce filed in the       administrative law judge        case. 42 CFR
                        Service Act § 353, 42
                        U.S.C. § 263a; Social       revocation of its CLIA          appropr iate U.S. Dist rict   at least 5 days prior to the    § 493.1844(a)(2)
Office of the General   Security Act §§ 1846,       certi ficate by CMS for         Court. 42 U.S.C.              date set for the hearing.       (incorporatin g by
Counsel                 1861, 1902, 42 U.S.C.       noncompliance with CLIA         §§ 1320a-7, 1320a-7a          42 CFR § 493.1844(a)(2)         reference 42 CFR Part
                        §§ 1395w-2, 1395x,          requirem ents, (b) den ial of   (both i ncorporating by       (incorporatin g by              498, Subpart D); 42 C FR
                        1396a.                      a CLIA certificate, (c)         reference Social Security     reference 42 CFR Part           § 498.58(a).
Departmental Appeals
                                                    imposition of alter native      Act § 205(d) & (e), 42        498, Subpart D); 42 C FR
Board
                                                    sanctions, or (d) den ial or    U.S.C. § 405(d) & (e)),       § 498.58(b).
                        42 CFR Chapter IV,
                                                    cancellat ion of a              1396q.
                        CMS, Subchapter G,
                                                    laboratory’s approval to
                        Standar ds &
                                                    receive Medicare payments
                        Certification, Part 493,
                                                    for services, an
                        Laboratory
                                                    administrative law judge
                        Requirements, Subpart
                                                    may issu e subpoenas upon
                        R, Enforcement
                                                    his own motion or at the
                        Procedures,
                                                    request of a party. 42 CFR
                        § 493.1844(a)(2) & (b).
                                                    § 493. 1844( a)(2) & (b)
                                                    (incorpor ating by reference
                                                    42 CFR Part 498, Subpart
                                                    D); 42 CFR § 498.58(a).

Department of           Clinical Laborator ies      In a hearing with respect to    In event of refusal to        A party must file a             The subpoena must be
                        Impr ovement Act of         an appeal of a prospective      obey, court order             written request for a           reasonably necessary for
Health and Human
                        1988, Public Health         lab dissatisfied with a         obtain ed through petition    subpoena with the               the full presentation of the
Services*                                           reconsider ed or a revised      to enforce filed in the       administrative law judge        case. 42 CFR
                        Service Act § 353, 42
                        U.S.C. § 263a; Social       reconsider ed deter mination    appropr iate U.S. Dist rict   at least 5 days prior to the    § 493.1844(a)(2) & (e)(3)
Office of the General   Security Act §§ 1846,       regarding denial of a CLIA      Court. 42 U.S.C.              date set for the hearing.       (incorporatin g by
Counsel                 1861, 1902, 42 U.S.C.       certificate or of approval      §§ 1320a-7, 1320a-7a          42 CFR § 493.1844(a)(2)         reference 42 CFR Part
                        §§ 1395w-2, 1395x,          for Medi care payment for       (both i ncorporating by       & (e)(3) (in corpor atin g by   498, Subpart D); 42 C FR
                        1396a.                      services, an administ rative    reference Social Security     reference 42 CFR Part           § 498.58(a).
Departmental Appeals                                                                                              498, Subpart D); 42 C FR
                                                    law judge may issue             Act § 205(d) & (e), 42
Board                                                                                                             § 498.58(b).
                                                    subpoen as upon his own         U.S.C. § 405(d) & (e)),
                        42 CFR Chapter IV,
                                                    motion or at the r equest of    1396q.
                        CMS, Subchapter G,
                                                    a party. 42 CFR
                        Standar ds &
                                                    § 493.1844(a)(2), (e)(1) &
                        Certification, Part 493,
                                                    (e)(3) (incorporatin g by
                        Laboratory
                                                    reference 42 CFR Part 498,
                        Requirements, Subpart
                                                    Subpart D); 42 CFR
                        R, Enforcement
                                                    § 498.58(a).
                        Procedures,
                        §493.1844(a)(2), (e)(1) &
                        (e)(3).

Department of           Social Securit y Act        In holding a hearing with       In event of refusal to        A party must file a            The subpoena must be
                        §§ 1128, 1128A, 1156,       respect to an appeal of a       obey, court order             written request for a          reasonably necessary for
Health and Human
                        1866, 1819, 1891, 42        determination that affects      obtain ed through petition    subpoena with the              the full presentation of the
Services*                                           (1) participation in the        to enforce filed in the       administrative law judge       case. 42 CFR
                        U.S.C. §§ 1320a-7 &
                        1320a-7a (both              Medicare program of a (a)       appropr iate U.S. Dist rict   at least 5 days prior to the   § 498.58(a).
Office of the General   incor porating by           prospective provider, (b)       Court. 42 U.S.C.              date set for the hearing.
Counsel                 reference Social Security   provid er, (c) prospective      §§ 1320a-7, 1320a-7a          42 CFR § 498.58(b).
                        Act § 205(d) & (e), 42      supplier, (d) supplier, (e)     (both i ncorporating by
                        U.S.C. § 405(d) & (e)),     physical therapist in           reference Social Security
Departmental Appeals                                                                                              The r equest must i dentify
                        1320c-5, 1395cc, 1395i-     independent practice, (f)       Act § 205(d) & (e), 42
Board                                                                                                             the witnesses or
                        3, 1395bbb.                 chiropractor, (g)               U.S.C. § 405(d) & (e)),
                                                                                                                  documents to be pr oduced
                                                    nonparticipating hospital       1396q.
                                                                                                                  and specify the pertinent
                                                    that fur nishes emergency                                     facts that the party
                        42 CFR Chapter IV,
                                                    services, or (h ) suspended                                   expects to establish by the
                        CMS, Subchapter G,
                                                    or excluded practitioner,                                     witnesses or documents
                        Standards and
                                                    provider, or supplier, or (2)                                 and why those facts could
                        Certification, Part 498,
                                                    particip ation of                                             not be established without
                        Appeal Procedures for
                                                    Intermediate Care                                             the use of a subpoena. 42
                        Determinations that
                                                    Facilities for the Mentally                                   CFR § 498.58(d).
                        Affect Participation in
                                                    Retarded (ICFs/MR) or
                        the Medicare Program
                                                    certain Nursing Faciliti es
                        and for Determinations
                                                    (NFs) in the Medicaid
                        that Affect the
                                                    progr am, a n administr ative
                        Participation of ICFs/MR
                                                    law judge may issue
                        and Certain NFs in the
                                                    subpoen as upon his own
                        Medicaid Program,
                                                    motion or at the r equest of
                        Subpart D, Hearin gs,
                                                    a party. 42 CFR
                        § 498.58(a), (b) & (d).
                                                    §§ 498.58(a), 498.5(a), (b),
                                                    (d), (e), (g)-(k).

Department of           Social Securit y Act        In th e course of a             In the event of refusal to    A party seeking a              A subpoena for the
Health and Human        § 1128A(j), 42 U.S.C.       proceeding by which a           obey, court order             subpoena for the               appearance and testimony
                        § 1320a -7a(j)              party appeals an exclusion,     obtain ed through petition    appearance of a witness at     of a witness at a hearing
Services*                                                                           to enforce filed in the       the hearing and/or the         must be reasonably
                        (incorporatin g by          civil m oney penalty, a nd/or
                        reference Social Security   assessment, an                  appropr iate U.S. Dist rict   production of documents        necessary for the
Office of the General   Act § 205(d) & (e), 42      administrative law judge        Court. 42 CFR                 at or prior to the hearing     presentation of the
Counsel                 U.S.C. § 405(d) & (e)).     has the authority to issue      § 1005.9(i)                   must file a wr itten motion    moving party’s case. 42
                                                    subpoenas requiring the         (incorporatin g by            with the admin istr ative      CFR § 1005.9(a).
                                                    attendance of witnesses at      reference Social Security     law judge at least 30 days
Departmental Appeals    42 CFR, Chapter V,
                                                    hear ings and the production    Act § 205(e), 42 U.S.C.       before th e date fi xed for
Board                   Office of th e Inspector
                                                    of documents at or in           § 405(e)).                    the heari ng. 42 CFR
                        General–Health Ca re,
                           Department of Health &       relation to hearings. 42                                      § 1005.9(a)-(d). The
                           Human Services,              CFR § 1005.4.                                                 written motion m ust
                           Subchapter B, OIG                                                                          specify th e eviden ce to be
                           Authorities, Part 1005,                                                                    produced and designate
                           Appeals of Exclusions,                                                                     the witnesses. 42 CFR
                           Civil Money Penal ties                                                                     § 1005.9(d).
                           and Assessments,
                           §§ 1005.4, 1005.9.
                                                                                                                      The person to whom the
                                                                                                                      subpoena is directed may
                                                                                                                      file a motion to quash the
                                                                                                                      subpoena within 10 da ys
                                                                                                                      of service thereof. 42
                                                                                                                      CFR § 1005.9(h).

Department of              Social Securit y Act         With respect to an              In the event of refusal to
Health and Human           § 1128A(j), 42 U.S.C.        invest igation into false or    obey, court order
                           § 1320a -7a(j)               otherwise improper clai ms,     obtain ed through petition
Services                                                actionable under Social         to enforce filed in the
                           (incorporatin g by
                           reference Social Security    Security Act § 1128A, 42        appropr iate U.S. Dist rict
Office of the General      Act § 205(d) & (e), 42       U.S.C. § 1320a-7a, the          Court where the
Counsel                    U.S.C. § 405(d) & (e)).      Secretary, through the          subpoenaed person is
                                                        Inspector General, has the      found, resid es, or
                                                        authority to issue              transacts business. 42
Office of th e Inspector   42 CFR, Chapter V,
                                                        subpoenas requiring the         U.S.C. § 1320a-7a(j)
General                    Office of In spector
                                                        attendance and testimony        (incorporatin g by
                           General–Health Ca re,
                                                        of witnesses and the            reference 42 U.S.C.
                           Department of Health &
                                                        production of any evidence      § 405(e)); 42 CFR
                           Human Services,
                                                        that r elates to any matter     §§ 1006.4(f), 1006.5.
                           Subchapter B, OIG
                                                        under investigation or in
                           Authorities, Part 1006,
                                                        question. 42 CFR
                           Investigational Inquiries,
                                                        § 1006.1.
                           §§ 1006.1, 1006.4(f),
                           1006.5.
                                                        The Secreta ry is author ized
                                                        to delegate, and has
                                                        delegated, this authority to
                                                        the Inspector General.

Department of              Program Fraud Civil          If the Inspector General, as                                  The subpoena issued by         A party seeking the
Health and Human           Remedies Act of 1986,        the investigating official,                                   the Inspector General          attendance and testimony
                           PL 99-509, §§ 6101-04,       concludes that a subpoena                                     must identify the              of an individual (and the
Services*
                           31 U.S.C. §§ 3801-3812.      pursuant to 31 U.S.C.                                         authority pursuant to          production of documents
                                                        § 3804(a) is warranted,                                       which the subpoena is          by that witness) can
Office of the General                                   relating to an invest igation                                 issued, and identify the
Counsel                    45 CFR Subtitle A,           into the submissi on of                                 records and documents        request th e ALJ to issue a
                           Department of Health &       false, fictit ious, or                                  sought. 42 CFR               subpoena. 45 CFR
                           Human Services,              fraudulen t clai ms or                                  § 79.4(a)(1).                § 79.23(a) & (b). The
Office of th e Inspector
                           Subchapter A, General        written statements to the                                                            motion must be filed at
General
                           Administration, Par t 79,    Department, it has the                                                               least 15 days prior to the
                                                                                                                At the hearing stage, the
                           Program Fraud Civil          authority to issue the                                                               date set for the hearing.
                                                                                                                parties must file motions
Departmental Appeals       Remedies, §§79.4(a),         subpoena. 45 CFR                                                                     45 CFR § 79.23(c).
                                                                                                                for discovery before the
Board                      79.18(b)(5), 79.21,          § 79.4(a).
                                                                                                                ALJ at least 15 da ys
                           79.23, 79.24.                                                                                                     A party or the individual
                                                                                                                before the hear ing, which
                                                        In hearings with respect to                             includes a copy of the       to whom the subpoena is
                                                        program fraud,                                          requested discovery and a    directed may file a m otion
                                                        admin istrat ive law judges                             statement of the scop e of   to quash the subpoena
                                                        can issue subpoenas for the                             the proposed depositions.    within 10 days after
                                                        attendance of witnesses and                             45 CFR § 79.21(c) & (d).     service. 45 CFR
                                                        the production of                                       A party may, within 10       § 79.23(f).
                                                        documents at depositions                                days of service, file an
                                                        or at heari ngs. 45 CFR                                 opposit ion to the motion
                                                                                                                                             The ALJ, pursuant to a
                                                        § 79.18(b)(5).                                          for discovery or a motion
                                                                                                                                             motion for a pr otective
                                                                                                                for a protective order. 45
                                                                                                                                             order, may make any
                                                                                                                CFR § 79.21(d)(2).
                                                                                                                                             order necessa ry to protect
                                                                                                                                             a par ty or per son from
                                                                                                                                             annoyance,
                                                                                                                                             embarrassment,
                                                                                                                                             oppression, or undue
                                                                                                                                             burden or expense. 45
                                                                                                                                             CFR § 79.24(b).

Depa rtment of
Housing a nd
Urban
Deve lopment
US Department of           Interstate Land Sales Full   Empowers the Secretary to       Enforced by action in   Privacy Act, 5 U.S.C.        Discretion of
Housing and Urban          Disclosure Act at 15         invest igate for pur poses of   U.S. District Court.    §552a, as applicable,        administering office.
                           U.S.C. § 1714,               enforcing the Act,                                      although; a 30-day
Development
                           implemented at 24 CFR        prescribing rules or                                    minimum time for
                           part 3800                    recommending legislation.                               response is customary.
                                                        Secretary is authorized to
Finance and Regulatory                                  issue subpoenas for
Enforcement                                             testimony and documents
                                                        in connection with an
                                                     investigation.



US Department of         Real Estate Settlement      Same as above.                  Same as above.            Same as above.                Same as above.
Housing and Urban        Procedures Act at 12
                         U.S.C. §2617,
Development
                         implemented at 24 CFR
                         part 3800
Finance and Regulatory
Enforcement

US Department of         National Manufact ured      Same as above.                  Same as above             Same as above.                Same as above.
Housing and Urban        Housing Construction
                         and Safety Standards
Development
                         Act, 42 U.S.C. §5413,
                         implemented at 24 CFR
Finance and Regulatory   part 3800
Enforcement

US Department of         Inspector General Act of    To require the production       Enforced by action in     Notification is by service    Case law restricts the
Housing and Urban        1978, 5 U.S.C. App. 3,      of all information,             U.S. District Court.      of a copy of the subpoena     authority to issue
                         §6                          documents, reports,                                       on t he respon ding party,    subpoenas to th ose issued
Development                                                                                                    and th e privacy
                                                     records, accounts, papers                                                               in furtherance of a lawful
                                                     and other data and                                        protections include the       investigation of the
Office of In spector                                 documentar y evidence                                     Privacy Act, supra, the       inspector general, and
General                                              necessary to the                                          Right to Fin ancial Privacy   which are reasonably
                                                     performance of the                                        Act, 12 U.S.C. §3401 et       relevant to the inquiry and
                                                     functions of the In spector                               seq., and the Electronic      not over ly broad or
                                                     General under the Act.                                    Communi cations Pr ivacy      burdensome.
                                                                                                               Act, Pub. L. 99-508,
                                                                                                               codified at various
                                                                                                               sections of the United
                                                                                                               States Code.

US Department of         The Fair Housing Act,       Auth ority for issua nce of     Oder of the appropriate   The provisions of the         It has been t he experien ce
Housing and Urban        Sec. 811(a). 42 U.S.C.      subpoenas to same extent        U.S. District Court.      F.R.C.P. apply. The           of this office that the
Development              3611(a) The Fair            as ordered or served in aid                               protections of persons        Departm ent of Justice
                         Housing Act, Sec.           of a civil action in the U.S.                             subject to subpoenas are      believes t hat it can not
                         811(a). 42 U.S.C.           District Court for the                                    set forth at Rule 45(c).      enforce administra tive
                         3611( a), implem ented by   district in which the                                                                   subpoen as th at do n ot
                         regulation at 24 CFR        investigation is taking                                                                 contain the prescr ibed
                         103.215 and 180.545.        place.                                                                                  langua ge of Rule 45(c)
                                                                                                                                             and (d). This office has
                                                                                                                                             consistently required the
                                                                                                                                use of the language of
                                                                                                                                Rule 45(c) and (d) in the
                                                                                                                                administrative subpoenas
                                                                                                                                that it reviews for legal
                                                                                                                                sufficien cy.

US Department of     42 U.S.C. 3612(c)           same as above                    same as above                 same as above   same as above
Housing and Urban
Development



Department of        12 U.S.C. §4588             for use in connection with
Housing and Urban                                administrative proceedings
                                                 related to en forcement of
Development†
                                                 housing goals

Department of        12 U.S.C. § 2617            In order to investigate any
Housing and Urban                                facts, conditions, pra ctices,
                                                 or matters tha t may be
Development (The
                                                 deemed necessa ry or
Secretary)†
                                                 proper to aid in the
                                                 enforcement of the
                                                 provisions of the chapter in
                                                 which the authority is
                                                 granted, or to secure
                                                 information t o serve as a
                                                 basis for recommending
                                                 furth er legislation
                                                 concerning real estate
                                                 settlement practices, the
                                                 Secretary is authorized to
                                                 subpoena the attenda nce
                                                 and testi mony of witnesses
                                                 and the production of
                                                 documents.

Depa rtment of the
Interior
US Department of     Gen erally:                 The statutory provisions         In contract disputes and      None.           The procedural
the Interior         Administrative procedure    referenced above generally       in Indian pr obate, surface                   regulations include
                     Act, 5 U.S.C. § 556(c)(2)   grant authority to presiding     mining, and program                           gener al requir ement s for
                          43 C.F.R. § 4.26            officers to issue subpoenas     fraud cases, t he agency     requesting, issuing, and
Branch of General Legal                               in connection with              can request that the         service of subpoenas.
Services, Division of                                 administr ative proceedings,    Attorney Gener al file a
                          Contract disputes:
General Law                                           in accordance with the          petition in U.S. Dist rict
                          Contract Disputes Act,      agency’s publish ed             Court to enforce a
                          41 U.S.C. § 610             regulations. The                subpoena issued by the
Office of Hearings and    43 C.F.R. §4.120            Depar tmen t of the Interior    presiding officer. In
Appeals                                               has published regulations       public lands cases, the
                                                      to govern proceedings           wilful refusal to comply
                          Indian pr obate cases:
                                                      conducted before                with a subpoen a may be
                          Act of Aug. 1, 1914, 25     admin istrat ive law judges     punished as a
                          U.S.C. § 374                and board s of contract         misdemean or. (See
                          43 C.F.R. § 4.230(b)        appeals judges. These           citations under paragraph
                                                      regulat ions, also referenced   1 above).
                                                      above, describe the
                          Native American Gr aves
                                                      authority of the judges to
                          Protection and
                                                      issue subpoenas to compel
                          Repatriation cases:
                                                      the attendance of
                          25 U.S.C. 3007              witnesses, and to take and
                          32 C.F.R. §229              cause depositions to be
                                                      taken for the purp ose of
                          Public land cases:          taking testimony. Some
                                                      regulations also grant
                          Act of Jan. 31, 1903, 43    subpoena authority to
                          U.S.C. §§ 102-106
                                                      require persons to pr oduce
                          43 C.F.R. §§ 4.423,         documents 43 C.F.R. §§
                          4.433, 4.452-4 &            4.120, 35.18, 35.21.
                          4.472(a)


                          Surface minin g cases:
                          Surface Mining Contr ol
                          and Reclamation Act, 30
                          U.S.C. §§ 1211(c)(1),
                          1271 (c)
                          43 C.F.R. § 4.1121(a)(2)


                          Program fraud cases:
                          Program Fraud Civil
                          Remedies Act, 31 U.S.C.
                          § 3804
                          43 C.F.R. §§ 35.18(b)(5),
                           35.21 & 35.23

US Department of           Compr ehensive                  Authori ty to issue an order     The Secretary may ask       The order may be issued    The Secretary is
                           Environ mental Response,        directing compliance with        the Attorney General to     after such notice and      authorized to issue orders
the Interior
                           Compensation and                a CERCLA section 104(e)          commen ce a civil acti on   opport unity for           "only if there is a
                           Liability Act (CERCLA)          request for i nform ation        to compel compliance        consultation as is         reasonable basis to
Division of Land and       section 104(e), Pub. L.         concerning the                   with a request or order     reasonably appropriate     believe that ther e may be
Water and Division of      No. 96-510, Dec. 11,            identification, nature, and      issued under CERCLA         under the circumstances.   a release or thr eat of
Park s and Wildl ife       1980, 94 Stat 2767, and         quantity of certain              section 104(e)(5)(A).       CERCLA section             release of a hazardous
U.S. Department of the     amendatory acts,                materials, the natur e or                                    104(e)(5)(A).              substance or pollutant or
Interior                   codified at 42 U.S.C.           extent of a release or                                                                  contaminant" from a
                           9604( e)(5) ( “Infor mati on    thr eaten ed release of a                                                               facili ty. CERC LA section
Office of th e Solicitor
                           gatherin g and access,          hazardous substance, or                                                                 104(e)(1), 42 U.S.C.
                           compliance orders”).            information relating to the                                                             section 9604(e)(1). In
                                                           abili ty of a person to pay or                                                          addition, the authority
                                                           to perform a cleanup.                                                                   under section 104(e) may
                           Executive Order 12580,                                                                                                  be exercised only for the
                           52 Fed. Reg. 2923 (Jan.                                                                                                 purposes of determining
                           23, 1987), Sec. 2(j)(1)                                                                                                 the n eed for r esponse, or
                           (delegatin g CERCLA                                                                                                     choosing or taking any
                           section 104(e)(5)(A)                                                                                                    response acti on under
                           complian ce order                                                                                                       CERCLA, or otherwise
                           authority to the Secretary                                                                                              enforcing the provisions
                           of the In terior, to be                                                                                                 of CERCLA. Id.
                           exercised with the
                           concurrence of the
                           Attorney General, with
                           respect to hazardous
                           substance releases where
                           either th e relea se is on or
                           the sole source of the
                           release is from any
                           facility or vessel und er
                           the jurisdiction, custody,
                           or control of the
                           Department of the
                           Interior; and Sec. 2(j)(2)
                           (subject to (j)(1),
                           delegatin g CERCLA
                           section 104(e) authority
                           to the Secretary of the
                           Interior with respect to
                           the same r eleases
                           described in (j)(1)).
                             Through Executive Order
                             12580, supra, Sec. 1(c),
                             and 40 C.F.R. 300.600,
                             the President has
                             designated the Secretary
                             of the Interior as a
                             Federal tr ustee for
                             natura l resources,
                             pursuan t to CERCLA
                             sec. 107(f)(2)(A), 42
                             U.S.C. 9607(f)(2)(A).




US Department of             Courts of Indi an Offenses   The Court shall follow the      Failure to comply may     Compliance with the      Compliance with the
the Interior                 Civil procedure: 25          Federal Rules of Civil          be deemed to be           Federal Rules of Civil   Federal Rules of Civil
                             C.F.R. § 11.503              Procedure in civil cases -      contempt of the court     Procedure - Rule 45      Procedure - Rule 45.
                                                          except where such               from which the subpoena
Bureau of Indian Affairs -                                procedures ar e superseded      issued.
through SOL-DIA              Further, there are           by Court of Indian
                             regulat ions which           Offenses order s or
                             mandate compulsory           inconsistent rules of tribal
                             produ ction of               procedure.
                             documen ts/inform ation
                             to the BIA, th ough they
                             are not technically          The Federal Rules of Civil
                             subpoenas.                   Procedure define subpoena
                                                          authority in Rule 45. A
                             Under th e Indian Trader
                                                          subpoena will serve as a
                             License Statute
                                                          command t o produce
                             regulations:
                                                          evidence or to permit
                                 25 C.F.R. § 140.22 -     inspection or to command
                             Inspection of traders’       an appear ance, and may be
                             prices - traders shall on    issued jointly or separate.
                             request submit business      A subpoena to command
                             information as r equested    atten dance shall issue from
                                                          the court for the district in
                                                          which the hearing or trial is
                                                          to take place. Si milarly,
                                                          one commanding
                                                          production of evidence
                                                          shall issue from the court
                                                     for the district where
                                                     production or inspection is
                                                     to occur.

US Department of the       Royalty Sim plification   RSFA Section                  No specific enforcement        Section 1724(d)(2)(B)(ii)      Only applies to Federal
Interior                   and Fairness Act          1724(d)(2)(B), gives the      authority. However,            provides that a subpoena       Oil and Gas leases.
                           (RSFA), Pub. L. 104-185   DOI the power to issue        RSFA amends the                may only be issued
                           (1996) (as corrected by   administrative subpoenas      Federal Oil and Gas                                           Section 1724(d)(2)(B)(i)
Office of the Solicitor,   Pub. L. 104-200), 30      for a lessee of Federal oil   Managem ent Act                [A]fter the Secretary or a     states only the following
Division of Mineral        U.S.C. § 1724(d).         and gas l eases “to produce   (FOGRMA), and                  delegated State has in         entities may issue a
Resources, (for Minerals                             records necessary to          FOGRMA provides                writing requested the          subpoena: (1) an Assistant
Management Service)                                  determin e the proper         enforcement authority as       records from the lessee or     Secretary; (2) an Acting
                                                     repor ting and paymen t of    follows:                       its designee related to the    Assistant Secretary who is
                                                     an obligation due the                                        obligation which is the        a schedule C em ployee
                                                     Secretary .”                                                 subject of the subpoena        (as defi ned by section
                                                                                   (b) In case of refusal to
                                                                                   obey a subpoena served         and has determined tha t--     213.3301 of title 5, Code
                                                                                   upon any person under                                         of Federal Regulations);
                                                                                   this section , the dist rict                                  (3) the Director or Acting
                                                                                                                  (I) the lessee or its
                                                                                   court of the Unit ed States                                   Director of the respective
                                                                                                                  designee has failed to
                                                                                   for any district in whi ch                                    bureau or agency; or (4) if
                                                                                                                  respond within a
                                                                                   such person is found, re-                                     a State has been delegated
                                                                                                                  reasonable period of time
                                                                                   sides, or transacts                                           authority pursuant to
                                                                                                                  to the Secretary's or the
                                                                                   business, upon                                                section 205, the hi ghest
                                                                                                                  applicable delegated
                                                                                   application by the                                            State official having
                                                                                                                  State's wri tten request for
                                                                                   Attorney General at the                                       ultima te author ity over
                                                                                                                  such r ecords necessa ry for
                                                                                   request of the Secretary                                      the collection of royalties
                                                                                                                  an audit, investigation or
                                                                                   and after notice to such                                      from Federal leases within
                                                                                                                  other inquiry made in
                                                                                   person , sha ll have                                          the State the State. The
                                                                                                                  accordance with the
                                                                                   jurisdiction to issue an                                      auth ority may not be
                                                                                                                  Secretary's or such
                                                                                   order requirin g such                                         delegated to an y other
                                                                                                                  delegated State's
                                                                                   person to appear and                                          person.
                                                                                                                  responsibilities under this
                                                                                   give testimony before the      Act; or
                                                                                   Secretary or to appear                                        Section 1724(d)(2)(B)(ii)
                                                                                   and produce documents                                         provides that a subpoena
                                                                                   before the Secretary.          (II) the lessee or its
                                                                                                                                                 may only be issued during
                                                                                   Any failure to obey such       designee has in writing
                                                                                                                                                 the 7 year limitations
                                                                                   order of the court may be      denied the Secret ary's or
                                                                                                                                                 period provided under
                                                                                   punished by such court         the appl icable delegated
                                                                                                                                                 Section 1724(b).
                                                                                   as contempt thereof and        State's written request to
                                                                                   subject to a penalty of up     produce such records in
                                                                                   to $10,000 a day. 30           the lessee's or its
                                                                                   U.S.C. § 1717. To date,        design ee's possession or
                                                                                   we have not litigated          control necessary for an
                                                                                   whether FOGRMA              audit, in vestigation or
                                                                                   Section 1717 provides       other inquiry made in
                                                                                   subpoena enforcement        accordance with the
                                                                                   authority for RSFA          Secretary's or such
                                                                                   Section 1724(d).            delegated State's
                                                                                                               responsibilities under this
                                                                                                               Act; or


                                                                                                               (III) the lessee or its
                                                                                                               designee has
                                                                                                               unreasonably delayed in
                                                                                                               producing records
                                                                                                               necessary for an audit,
                                                                                                               investigation or oth er
                                                                                                               inquiry made in
                                                                                                               accordance with the
                                                                                                               Secretary's or the
                                                                                                               applicable delegated
                                                                                                               State's r esponsibilit ies
                                                                                                               under this Act after the
                                                                                                               Secretary's or delegated
                                                                                                               State's written request.


                                                                                                                Section 1724(d)(2)(C)
                                                                                                               provides that the
                                                                                                               Secretary or the
                                                                                                               applicable delegated State
                                                                                                               must give th e lessee a
                                                                                                               reasonable period of time
                                                                                                               after a written request to
                                                                                                               provide records prior to
                                                                                                               the issuance of any
                                                                                                               subpoena.


US Department of           Federal Oil and Gas       FOGRMA section 107, 30        FOGRMA section 107,         None.                         Only applies to Indian Oil
the Interior               Managem ent Act           U.S.C. § 1717, gives the      30 U.S.C. § 1717, also                                    and Gas leases.
                           (FOGRMA), Pub. L. No.     DOI various compulsory        provides enforcement
                           97-451, and 30 U.S.C. §   auth orities in connection    authority as follows:
Office of the Solicitor,   1717.                     with its audit and
Division of Mineral                                  enforcement
                                                                                   (b) In case of refusal to
Resources, (for Minerals                             responsibilities, including
                                                                                   obey a subpoena served
Managem ent Service)                                      the power to issue               upon any person under
                                                          administrative subpoenas.        this section , the dist rict
                                                          Section 107 provides in          court of the Unit ed States
                                                          pertinent part:                  for any district in whi ch
                                                                                           such person is found, re-
                                                                                           sides, or transacts
                                                          (a) In carrying out his
                                                                                           business, upon
                                                          duties under this Act the
                                                                                           application by the
                                                          Secretary may conduct any
                                                                                           Attorney General at the
                                                          investigation or oth er
                                                                                           request of the Secretary
                                                          inquiry necessary and
                                                                                           and after notice to such
                                                          appropriate and may
                                                                                           person , sha ll have
                                                          conduct, after notice, any
                                                                                           jurisdiction to issue an
                                                          hearing or audit, necessary
                                                                                           order requirin g such
                                                          and appropriate to carrying
                                                                                           person to appear and
                                                          out his duties under this
                                                                                           give testimony before the
                                                          Act. In connection with
                                                                                           Secretary or to appear
                                                          any such hear ings, inqui ry,
                                                                                           and produce documents
                                                          investigation, or audit, the
                                                                                           before the Secretary.
                                                          Secretary is al so authori zed
                                                                                           Any failure to obey such
                                                          where reasonably necessary
                                                                                           order of the court may be
                                                          -
                                                                                           punished by such court
                                                          ...                              as contempt thereof and
                                                          (3) to require by subpena        subject to a penalty of up
                                                          the attendance and               to $10, 000 a da y.
                                                          testimony of witnesses and
                                                          the production of all books,
                                                          papers, production and
                                                          financial r ecords,
                                                          documents, matter, and
                                                          materials, as the Secretary
                                                          may request;

US Department of               Inspector General Act of   Administrative subpoena          In the event of refusal to     None specific to the         The Office of the
                               1978, Public Law No.       authority is generally           obey, a court order may        Inspector General Act;       Inspector General has
the Interior
                               95-452, 5 U.S.C. App. 3    recognized as limited to         be obtained through            statutory n otifica tion     established within the
                               [This is the same          subpoena duces tecum.            petition to enforce filed      requirements ar e followed   office various policies and
                               auth ority exercised by    The statutory language           in the appr opriate U.S.       for Inspector General        procedures regarding
Office of th e Inspector       other Inspectors           provides as follows:             district court.                subpoenas issued pursuant    subpoena request and
General                        Gen eral]. Specifically,                                                                   to the Right to Financial    issuance.
                               I.G. subpoena authority                                                                    Privacy Act of 1978, 12
Depar tmen t of the Interior                              Each Inspector General . . .
                               stems from 5 U.S.C.                                                                        U.S.C. §§ 3413 & 3421.
                                                          is authorized . . . to require
                               App. 3 § 6(a)(4).
                                                          by subpoena the production
                           The Departmen t of           of all information,
                           Justice authority to         documents, reports,
                           prosecute subpoena           answers, records, accounts,
                           enforcement acti ons on      papers, and
                           behalf of the IGs stems      other data and
                           from DOJ’s charter to        documentar y evidence
                           conduct litigation in        necessary in the
                           which the U.S. is            performance of the
                           interested. That             functions assigned by this
                           authority appears            Act, which subpoena, in
                           generally in 28 U.S.C.       the ca se of contu macy or
                           Ch. 31 and particularly at   refusal to obey,
                           28 U.S.C. §§ 516-519.
                                                        shal l be enfor ceable by
                                                        order of any appropriate
                                                        United States district court:

                                                        Provided, That procedures
                                                        other than subpoenas shall
                                                        be used by th e Inspector
                                                        General to obtain
                                                        documen ts an d infor mati on
                                                        from Federal agencies.


US Department of           Surface Mining Contr ol      SMCR gives both the             The agency has taken the       SMCRA contains no           The standards, qualifiers
                           and Reclamation Act of       Secretary, acting through       position that all              notification requirements   and procedures for
the Interior
                           1977 (SMCRA), Pub. L.        OSM, 30 U.S.C.                  subpoenas (in vestigative,     for subpoenas. However,     investigative subpoenas
                           No, 95-87, 30 U.S.C.         §§1211(c)(1), and               hear ing, and deposi tion      notification is given via   are controlled by an OSM
Office of the Solicitor,   §§1211(c)(1), 1264(e).       regulatory authorities, 30      subpoenas) qualify as          personal service of the     directive dated October
Division of Mineral                                     U.SC § 1264(e), the power       “orders of the Secretary.”     subpoena consistent with    19, 1993 en titled
Resources                                               to issue subpoenas, to          Pursuant to 30 U.S.C. §        Rule 4 of the Federal       “Subpoenas to Compel
                           30 C.F.R. §§764.17,                                                                                                     the Attendance of
.                                                       compel the attendance of        1271(c), the Secretary is      Rules of Civil Procedure.
                           769.17, 775.11(b)(3)(i),                                                                                                Witn esses, t he Production
                                                        witnesses and the               authorized “ to request        Discovery proceedings
                           and 800.40(g)                                                                                                           of Written or Printed
                                                        produ ction of writt en or      the Attorney General to        before th e Office of
                           43 C.F.R. §§                 printed material. The           institute a civil action for   Hearings and Appeals        Material, or Both.”
                           4.1121(a)(2),                Secretary’s regulation at 43    relief...whenever [a]          (“OHA”) are cover ed by     The standards, qualifiers
                           4.1121(a)(3).                C.F.R. §§ 4.1121(a)(2)          permittee or his agent         the Secretary’s             and procedures for
                                                        authorizes ALJs to issue        (A) fails or refuses to        regulations at 43 C.F.R.    hearing subpoenas are
                                                        administrative subpoenas        comply with any order          §4.1130 through 4.1141.     controlled by the ALJ
                                                        for hearings. The               issued by the Secretary        It is our understanding     pursuant to 43 C.F.R. §§
                                                        Secretary’s regulation at       under this Act... or (E)       that documents or           4.1121(a)(2) and
                                                        4.1121(a)(3) gives ALJs         refuses to furnish any         testimony subpoenaed are    4.1121(a)(3).
                                                           authority to “issue             information or report         public records, except
                                                           appropriate orders relating     requested by the              where SMCRA pr ovides
                                                           to discovery.” The              Secretary in further ance     for confidenti ality (such
                                                           Secretary is au thoriz ed       of this Act, or (F) refuses   as “trade secret and
                                                           under 30 U.S.C. §               to permit access to, and      pricing infor mati on
                                                           1211(c)(1) to “make those       copying of, such records      covered at 30 C.F.R. §
                                                           investigations and              as the Secretary              870.16(c), which
                                                           inspections necessary to        determines necessary....”     references protection to
                                                           ensure compliance with          The agen cy has further       the extent auth orized by
                                                           this Act. ” It is th is power   taken the position that       the Privacy Act and the
                                                           that authorizes the             the “any other                Freedom of Infor mati on
                                                           use/issuan ce of                appropriate order”            Act (5 U.S.C. §
                                                           investigative subpoenas.        language of Section           552(a),(b)).
                                                                                           1271(c) is broad enough
                                                                                           to authorize enforcement
                                                                                           of subpoenas to peple
                                                                                           other than per mitt ees or
                                                                                           their agents. However,
                                                                                           to our knowledge no
                                                                                           court has ruled on this
                                                                                           issue.

US Department of           Compr ehensive                  Authori ty to collect           Section 122(e)(3)(B)          Section 122 pr ovides        Section 122(e)(3)(A)
the Interior               Environ mental Response,        infor mati on necessar y or     provides that “in the         generally for notice to      requires the development
                           Compensation and                appropriate to prepare non-     event of con tuma cy or       respon sible parties of      of guidelines for
                           Liability Act (CERCLA)          binding preliminary             failure or refusal of any     their potential liability    preparing nonbinding
Office of th e Solicitor   section 122(e)(3)(B), 42        allocations of responsibility   person to obey any such       under CERCLA.                prelimin ary allocati ons of
                           U.S.C. secti on                 in CE RLA acti ons, or for      subpoena,” any district                                    responsibility. The
                           9622(e)(3)(B)(“Collectio        otherwise implementing          court in which venue is                                    President may provide a
                           n of Information”).             section 122 of CERCLA           proper shall h ave                                         nonbinding preliminary
                           Executive Order 12580,          (“Settlements”). Authority      jurisdiction to order any                                  alloca tions of
                           52 Fed. Reg. 2923 (Jan.         to requir e the atten dance     such person to comply                                      responsibil ity, after
                           23, 1987), section 4(b)         and testi mony of witnesses     with such subpoena.                                        completion of the
                           (delegatin g CERCLA             and the production of                                                                      remedial
                           section 122 authority to        reports, papers, documents,                                                                investigation/feasibility
                           the Secretary of the            answers to questions, and                                                                  study, “when it would
                           Interior with respect to        other information that                                                                     expedite settlements
                           releases or th reatened         Interior deems necessary.                                                                  under this section and
                           relea ses at fa cilit ies not   Section 122(e)(3)(B).                                                                      remed ial a ction.” Sect ion
                           on the Nat ional Pr iorities                                                                                               122(e)(3)(A). The non-
                           List (NPL) where the                                                                                                       binding allocation shall
                           release is on or the sole                                                                                                  not be admissible as
                           source of the release is                                                                                                   evidence in any
                    from any facilit y under                                                                                              proceeding, and no court
                    the jurisdiction, custody                                                                                             shall have jurisdiction to
                    or control of the                                                                                                     review the nonbinding
                    Department of the                                                                                                     alloca tion of
                    Interior). The authority                                                                                              respon sibility. Sect ion
                    may be exercised only                                                                                                 122(e)(3)(C). Interior can
                    with the con curr ence of                                                                                             only exercise this
                    the Attorney General.                                                                                                 authority with the
                                                                                                                                          concurrence of the
                                                                                                                                          Attorney General.
                                                                                                                                          Executive Order 12580,
                                                                                                                                          section 4(b).

Department of the   16 U.S. C. § 470ff          Archaeologi cal resources
Interior†                                       protection

Department of the   43 U.S.C. § 1619            Alaska native claims
Interior†                                       settlement

Department of the   25 U.S.C. § 3007            Native Americans Gr aves
Interior†                                       Protection and Repatr iati on

Department of the   30 U.S.C. § 1735            Upon written request of
Interior†                                       any State, the Secretary is
                                                authorized to delegate
                                                authority to any State with
                                                respect to all Federal land
                                                within the State.

Department of       42 U.S.C. § 6381            Energy database and
Energy &                                        energy infor mati on
Department of the
Interior†

Depa rtment of
Labor
Department of       Employee Retirement         “For the purposes of any        If a subpoena needs          29 CFR Parts 70-71           The Secreta ry may not
Labor               Income Security Act, P.     invest igation pr ovided for    enforcement, it is           (general DOL regulations     subpoena the books and
                    L. 93-406, 29 U.S.C.        in this title, the provisions   referred to the Offi ce of   governing privacy and        records of any employee
                    1134(c)                     of §§9 and 10 (relating to      the Solicitor who then       disclosure of inform ation   benefit plan more than
                                                the atten dance of witnesses    takes the appropriate        or material s)               once in a 12-m onth period
and the production of          steps to file an action in   In most cases, the             unless the Secretary has
books, records, and            the appr opriate Uni ted     subpoenas will demand          reason to believe that a
documents) of the Federal      States District Court.       production of documents        violation of ERISA may
Trade Commission Act (15       Generally, the               within thirty days. In         exist. (29 U.S.C.
U.S.C. 49, 50) ar e hereby     Department simply seeks      some circumstances, the        1134(b).)
made applicable (without       to compel the respondent     time period is sh orter or
regard to any limitation in    to appear for the            longer, e. g., statute of
                                                                                           The Secreta ry of Labor
such sections respecting       deposition or comply         limitation s considerations,
                                                                                           has delega ted the
persons, part nerships,        with the r equest for        the respondent is
                                                                                           authority to issue
banks, or common carr iers)    documents contained in       represented by an
                                                                                           subpoenas to the Assistant
to the jurisdiction, powers,   the admin istr ative         attorney who agrees to
                                                                                           Secretary of Pension and
and duties of the Secretary    subpoena.                    take service, and sets a
                                                                                           Welfare Benefits. The
or any officers design ated                                 particul ar da te for
                                                                                           Assistant Secretar y has re-
by him.”                                                    complian ce. PWBA does
                                                                                           delegated this authority to
                                                            not “n otify tar gets” or
                                                                                           the Direct or of
                                                            potential defendants that
                                                                                           Enforcement and to the
                                                            administrative subpoenas
                                                                                           Regional Directors of the
                                                            have been served on
                                                                                           Pension and Welfare
                                                            others.
                                                                                           Benefit s Admi nist ration
                                                                                           (PWBA).
                                                            PWBA abides by the
                                                            requirements set forth
                                                                                           PWBA Regional
                                                            under the Right to
                                                                                           Directors execute and
                                                            Finan cial Privacy Act
                                                                                           issue a dmin istr ative
                                                            where appropriate, (e.g.,
                                                                                           subpoenas. They may
                                                            not involving th e assets of
                                                                                           also re-delegate that
                                                            an employee benefit
                                                                                           authority to other regional
                                                            plan –an entity not
                                                                                           office personnel.
                                                            covered by the RFPA)
                                                            and by any other privacy
                                                            or confidentiality             The Office of the Solicitor
                                                            requirements that may          of Labor reviews all
                                                            apply.                         subpoen as, except for
                                                                                           accommodation
                                                                                           subpoenas. All
                                                                                           subpoenas, including
                                                                                           accommodation
                                                                                           subpoen as, must be
                                                                                           approved by Office of the
                                                                                           Solicitor, if someone
                                                                                           other than a Regional
                                                                                           Director or Associate
                                                                                                                                         Regional Director signs
                                                                                                                                         them. Attorneys with the
                                                                                                                                         Office of th e Solicitor
                                                                                                                                         either conduct depositions
                                                                                                                                         that are noticed pursuant
                                                                                                                                         to a subpoena ad
                                                                                                                                         testificandum or assist the
                                                                                                                                         invest igators in doing so.


                                                                                                                                         Chapter 33 of the PWBA
                                                                                                                                         Enforcement Manual sets
                                                                                                                                         forth detailed procedur es
                                                                                                                                         and instructions for
                                                                                                                                         issuing subpoenas
                                                                                                                                         (http://www.dol.gov/dol/p
                                                                                                                                         wba/public/pr ograms/oem
                                                                                                                                         anual/chap33.htm).

Department of   Fair Labor Standards Act      “For the purpose of any        “And i n case of             CFR Parts 70-71 (general       DOL Employment
                (FLSA), [June 25, 1938,       hear ing or investigation      disobedi ence to a           DOL regulations                Standards
Labor
                ch. 676, Sec. 9, 52 Stat.     provided for in this           subpoena the                 governing privacy and          Administration’s Wage
                1065; 1946 Reorg. Plan        chapter, the provisi ons of    [Secretary/Administrator/    disclosure of inform ation     and Hour Division’s Field
                No. 2, Sec. 1(b), eff. July   sections 49 and 50 of title    Committees] may invoke       or material s)                 Operations Handbook,
                16, 1946, 11 F.R. 7873,       15 (relating to the            the aid of an y court of                                    Section 86b
                60 Stat. 1095], 29 U.S.C.     attendance of witnesses and    the United States in
                                                                                                          Other privacy/n otifica tion
                209                           the production of books,       requiring th e attenda nce
                                                                                                          requirements, including
                                              papers, and documents),        and testimony of
                                                                                                          the Right to Financial
                                              are made applicable to the     witnesses and the
                                                                                                          Privacy Act, Trade
                                              jurisdiction, powers, and      production of
                                                                                                          Secrets Act, or HHS
                                              duties of the Administrator,   documentary evidence.
                                                                                                          Medical Privacy
                                              the Secretary of Labor, and    Any of the district courts
                                                                                                          regulations, may apply in
                                              the industry committees.”      ... m ay, in case of
                                                                                                          some cases.
                                              29 U.S.C. 209                  contumacy or refusal to
                                                                             obey a subpoena ... issue
                                                                             an order requiring such
                                              “The Administrator or his
                                                                             person , par tner ship, or
                                              designat ed represen tatives
                                                                             corporation to appear
                                              may investiga te and ga ther
                                                                             before the
                                              data regar ding the wages,
                                                                             [Secretary/Administrator/
                                              hours, and other conditions
                                                                             Committees], or to
                                              and practices of
                                                                             produce documentary
                                              employment in any
                                                                             evidence ..., or to give
                                              industry subject to this
                                                                             evidence touching the
                                        chapter, and may enter and       matter in question; and
                                        inspect such places and          any failure to obey such
                                        such records (and make           order of the court may be
                                        such transcriptions              punished by such court
                                        thereof), question such          as a contempt thereof..”
                                        employees, and investigate       15 U.S.C. 49,
                                        such facts, conditions,          incorporated into 29
                                        practices, or matters as he      U.S.C. 209.29
                                        may deem necessa ry or
                                        appropriate to determine
                                        whether any person has
                                        violat ed any provision of
                                        this chapter, or which may
                                        aid in th e enforcement of
                                        the provisions of this
                                        chapter.” (29 U.S.C. 211)

Department of   Family Medica l Leave   “For the purposes of any         “And i n case of             29 CFR Parts 70-71
Labor           Act, P. L. 103-3, 29    invest igation pr ovided for     disobedi ence to a           (general DOL regulations
                U.S.C. 2616             in this section, the             subpoena the                 governing privacy and
                                        Secretary shall have the         [Secretary/Administrator/    disclosure of inform ation
                                        subpoena authority               Committees] may invoke       or material s)
                                        provid ed for un der section     the aid of an y court of
                                        209 of th is tit le.” [Section   the United States in
                                                                                                      Other privacy/n otifica tion
                                        209 refers to the Fa ir Labor    requiring th e attenda nce
                                                                                                      requirements, including
                                        Standa rds Act, di scussed       and testimony of
                                                                                                      the Right to Financial
                                        above.]                          witnesses and the
                                                                                                      Privacy Act, Trade
                                                                         production of
                                                                                                      Secrets Act, or HHS
                                                                         documentary evidence.
                                        Employers are required to                                     Medical Privacy
                                                                         Any of the district courts
                                        keep certain records and to                                   regulations, may apply in
                                                                         ... m ay, in case of
                                        disclose them to the                                          some cases.
                                                                         contumacy or refusal to
                                        Secretary upon her request.
                                                                         obey a subpoena ... issue
                                        29 C.F.R. 825.500
                                                                         an order requiring such
                                                                         person , par tner ship, or
                                                                         corporation to appear
                                                                         before the
                                                                         [Secretary/Administrator/
                                                                         Committees], or to
                                                                         produce documentary
                                                                         evidence ..., or to give
                                                                         evidence touching the
                                                                         matter in question; and
                                                                            any failure to obey such
                                                                            order of the court may be
                                                                            punished by such court
                                                                            as a contempt thereof..”
                                                                            15 U.S.C. 49,
                                                                            incorporated into 29
                                                                            U.S.C. 209.

Department of   Federal Em ployees          “The Secretary of Labor, on     5 U.S.C. 8125 states that     29 CFR Parts 70-71              Federal (FECA)
                Compensation Act,           any matter within his           if a per son "disobeys or     (general DOL regulations        Procedure Manual, Part 2
Labor
                ch. 458, 39 Stat. 742       jurisdiction under this         resists a la wful order or    governing privacy and           -- Claims, Hearings and
                (1916), 5 U.S.C. 8126,      subchapter, may -               process in proceedings        disclosure of informati on      Review of the record
                20 CFR 10.619          ·    (1) issue subpoenas for and     under this subcha pter        or material s)                  Chapters 2-1601-6(f) & 2-
                                            compel the attendance of        before th e Secret ary of                                     1608-8(e) (January 1999)
                                            witnesses                       Labor" the Secreta ry or                                      (copy
                                                                                                          20 CFR 10.10
                                            within a radius of 100          his representative must                                       atta ched).[http://www.n fo
                                            miles...(4) require the         “certify the facts to the                                     web.com/cgi-bin/om_isap
                                            produ ction of books, papers,   district court having         Other priva cy/noti ficati on   i.dll?clientID=14985&inf
                                            documents, and                  jurisdiction in the place     requirements, including the     obase=dol-14&softpage=r
                                            other evidence. “               where he is sitting. The      Right to Financial Privacy      ef_MainView]
                                                                            court must, in a summary      Act, Trade Secrets Act, or
                                                                            manner, hear evidence as      HHS Medical Privacy
                                                                            to the acts com plained of    regulations, may apply in
                                                                            and if th e evidence          some cases.
                                                                            warrants, punish the
                                                                            individual in the same
                                                                            manner and to the same
                                                                            extent as for a contempt
                                                                            committed before the
                                                                            court or commit the
                                                                            individual on the same
                                                                            conditions as if the
                                                                            forbidden act had
                                                                            occurred with reference
                                                                            to the process of or in the
                                                                            presence of the court.”

Department of   Federal Mine Safety and     “For the purpose of making      “In case of contumacy in      No overriding standards
Labor           Health Act of 1977, P. L.   any investigation of any        refusal to obey a             or procedures. Specific
                95-164, 30 U.S.C. §         accident or other               subpoena served upon          procedures ar e sometimes
                813(b) , 30 CFR §44.26      occurrence relating to          any person under this         developed for purposes of
                                            health or safety in a coal or   section, the district court   specific hearings.
                                            other mine, the Secretary       of the United States for
may, after notice, hold        any distri ct in which
public hearings, and may       such person is found or
sign and issue subpoenas       resides or transacts
for the attendance and         business, upon
testimony of witnesses and     application by the United
the production or relevant     States and after notice to
papers, books, and             such person, sha ll have
documents, and adm inister     jurisdiction to issue an
oaths.”                        order requirin g such
                               person to appear and
                               give testimony before the
Federal courts have long
                               Secretary to appear and
recognized that the
                               produce documents
subpoena power of the
                               before th e Secret ary or
Secretary under this and
                               both, any failure to obey
the predecessor Federal
                               such order of the court
Coal Mine Health and
                               may be punished by such
Safety Act of 1969 (P. L.
                               court as a contempt
91-173) is limited to public
                               thereof.” (30 U.S.C. 813)
hearing settings, United
                               29 CFR Parts 70-71
States v. Blue Diamond
                               (general DOL regulations
Coal Co. 667 F2d 510, 519
                               governing privacy and
(6th Cir. 1981); UMWA v.
                               disclosure of inform ation
Martin, 785 F. Supp.
                               or materials)
1025,1027 footnote 1
(DDC. 1992). Thus, it is
clear both from the            Other
wording of the statute and     priva cy/noti ficati on
the court interpretations      requirements, including
that the subpoen a power of    the Right to Financial
the Mine Act is limited to     Privacy Act, Trade
investigatory public           Secrets Act, or HHS
hearings being con ducted      Medical Privacy
by the Secretary.              regulations, may apply in
                               some cases.
Department of   Inspector General Act of   The Act gives the Inspector    Enforcement is by the       No noti ficati on              Only th e Inspector
Labor           1978, P. L. 95-452, 5      General authority to           Attorney General, at the    requirements in the IG         General or the Deputy
                U.S.C. App. 3, section 6   subpoena documents,            request of the Inspector    Act.                           Inspector General at the
                                           reports, answers, records,     General, in US Distr ict                                   Depar tmen t of Labor have
                                           accounts, pa pers and other    Court. No specific                                         authority to issue
                                                                                                      The Right to Financial
                                           data and documentary           sanctions.                                                 subpoenas. OIG has
                                                                                                      Privacy Act and certain
                                           evidence necessary to carry                                                               internal pr ocedures
                                                                                                      Medical Pr ivacy
                                           out its functi ons. It does                                                               relating to issuance of
                                                                                                      provisions may apply to
                                           not provide testimonial                                                                   subpoenas; these are
                                                                                                      Inspector General
                                           subpoena authori ty.                                                                      currently undergoing
                                                                                                      subpoenas. These contain
                                           Addition ally it provides                                                                 revisi on an d are not
                                                                                                      notification provisions.
                                           that procedures other than                                                                available. OIG has no
                                           subpoenas be used to                                                                      regulat ions or publi shed
                                           obtain information and                                                                    procedures.
                                           documents from Federal
                                           agencies.




Department of   Labor Management           “For the purpose of any        Enforcement is by the       29 CFR Parts 70-71             Employment Standards
Labor           Reporting and Disclosure   invest igation pr ovided for   Attorney General, at the    (general DOL regulations       Administ ration/Office of
                Act, P. L. 86-257, 29      in this chapter, the           request of the Secretary    governing privacy and          Labor Management
                U.S.C. 521(b).             provisions of sections 49      of Labor, in US Distr ict   disclosure of inform ation     Stan dards’ Operation
                                           and 50 of title 15 (relating   Court. 29 U.S.C. 521,       or material s)                 Manual, Chapter 39 [copy
                                           to the attendance of           incorporating 15 U.S.C.                                    attached]
                                           witnesses and the              49.
                                                                                                      Other privacy/n otifica tion
                                           production of books,
                                                                                                      requirements, including
                                           papers, and documents),
                                                                                                      the Right to Financial
                                           are made applicable to the
                                                                                                      Privacy Act, Trade
                                           jurisdiction, powers, and
                                                                                                      Secrets Act, or HHS
                                           duties of the Secreta ry or
                                                                                                      Medical Privacy
                                           any officer s designated by
                                                                                                      regulations, may apply in
                                           him.”
                                                                                                      some cases.


Department of   Longsh ore an d Harbor     “The deputy commissioner       Section 27(b) of the        29 CFR Parts 70-71             District Director: The
Labor           Worker s Compensat ion     or Board sha ll have power     Longshore Act, 33           (general DOL regulations       Longsh ore an d Harbor
                Act, ch. 509, 44 Stat.     to preserve an d enforce       U.S.C. § 927(b), sets       governing privacy and          Worker s' Compensa tion
1424 (1927), 33 U.S.C.       order dur ing an y such        forth the enforcement         disclosure of inform ation     Act Procedure Manual,
927(a)                       proceedings; to issue          mechanisms and                or material s)                 Part 3--Case Evaluation,
                             subpoenas for, to              sanctions available for                                      Procedures for reporting
                             administer oaths to, and to    those individuals who                                        Fraud and Abuse Chapter
Coverage of the LHWCA                                                                     Other privacy/n otifica tion
                             compel the attendance and      fail to comply with a                                        3-700(5)(e)(3); Part 4--
has been exten ded under                                                                  requirements, including
                             testimony of witnesses, or     subpoena. Sect ion 27 (b)                                    Case Adjudication,
other federal statutes to                                                                 the Right to Financial
                             the production of books,       directs the "deputy                                          Authority of the District
cover other in jured                                                                      Privacy Act, Trade
                             papers, documents, and         commissioner" and the                                        Director Chapter 4-
employees including:                                                                      Secrets Act, or HHS
                             other evidence, or the         Board to certify the facts                                   400(11); Part 5--Medical,
certain persons empl oyed                                                                 Medical Privacy
                             taking of depositions          to the district court                                        Policy on medical fees 5-
at military, air and naval                                                                regulations, may apply in
                             before any designat ed         having jurisdiction in the                                   500(4)(c)(1).
bases outside the United                                                                  some cases.
                             individual competent to        place he is sitting. The                                     [http://www2.dol.gov/dol/
States pursuant to the                                      district court will "in a                                    esa/public/regs/complianc
                             administer oaths; to
Defense Base Act, ch.                                       summary manner hear           No specifi c notificati on     e/owcp/l spm01 .pdf]
                             examine witnesses; and to
357 55 Stat. 622 (1941),                                    evidence as to the acts       procedures for di strict
                             do all things conformable
42 U.S.C. § 1651 et seq.;                                   complained of and if the      director [deputy
                             to law wh ich may be                                                                        OALJ: 29 CFR 18.24
civili an em ployees of                                     evidence so warrants,         commissioner] subpoenas.
                             necessary to enable him                                                                     (general ALJ subpoena
milita ry exchanges under
                             [effectively] to discharge     punish such person in the                                    regulations)
the Nonap propria ted
                             the duties of his office.”1    same manner and to the        For ALJ subpoenas: If a
Fund In strumen talities                                    same extent as for a
Act ch. 444, 66 Stat. 139                                                                 party's written applicati on
                                                            contempt committed                                           OALJ subpoena guidance:
(1952), 5 U.S.C. § 8171      Prior to 1972, hearing                                       for a subpoena is
                                                            before th e court, or                                        OALJ subpoena guidance:
and; employees working       authority was vested in the                                  submitted three working
                                                            commit such person                                           http://www.oalj.dol.gov/s
on the Outer Continental     Deputy Commissioner. In                                      days or less before the
                                                            upon the same conditions                                     ubpoenas.htm
Shelf pursuant to the        1972, the LHWCA was                                          hearing to which it
                                                            as if doing of the            relates, a subpoena shall      Board: 29 C.F.R. §
Outer Continental Shelf      amended to provide for the
                                                            forbidden act had             issue a t the discr etion of   802.103Fr equency of Use:
Lands Act. ch. 345, 67       transfer of the hearing
                                                            occurred with reference       the Chief Ad ministr ative
Stat. 462 (1953), 43         authority from the Deputy                                                                   District Director: DOL’s
                                                            to the process of or in the   Law Judge or presiding
U.S.C. § 1331 et seq.        Commission er to the Office                                                                 Employment Standards
                                                            presence of the court."       admin istrat ive law judge,
We are not treatin g these   of Administrative Law                                                                       Administ ration/Office of
                                                            33 U.S.C. § 927(b).           as app ropriate. A motion
as sepa rate statutes for    Judges. Pub. L. No. 92-                                                                     Worker s Compensat ion
purposes of this study.      576, 86 Stat. 1251(1972),                                    to quash or limit the          Progr ams/Bran ch of
The Black Lung Benefits      33 U.S.C. § 919(d). As         The ALJ regulation s also     subpoena must be filed         Hearings and Review
Act also incor porates       such, an administrative law    provide for san ctions for    within ten days of receipt     does not maintain
certain LHWCA                judge has all the powers       individuals who do not        of a subpoena but no la ter    statistics on subpoena
provisions and is            and duties provi ded to a      comply with subpoenas.        than the date of the           requests or denials.
discussed separately         “deputy commissioner”          29 C.F.R. §§ 18.6(d)(2),      hear ing. The person
above.                       under section 27 of the Act.   18.24(d). Under § 18.1        against whom the
                                                                                          subpoena is directed may       The Office of
                             See Percoats v. Marine         of the regulations,
                                                                                          file a m otion to quash or     Administrative Law
                             Termi nal Corp., 15 BRBS       however, “to the extent
                                                                                          limit the subpoena,            Judges estimates that
                             151, 153-154 (1982). This      that these rul es may be
                                                                                          setting forth the reasons      7065 subpoenas are issued
                             necessarily includes the       inconsistent with a rule
                                                                                          why the subpoena should        in a typical year.
                             auth ority, under section      of special application as
27(a), to issue subpoenas.      provided by statute,         be withdrawn or why it         Benefits Review Board:
In li ght of this transfer of   executive order, or          should be limited in           The Board is an appellate
authority, the Benefits         regulation, the latter is    scope. A response to the       tribunal. It does not, in
Review Board, which             controlling.” 29 C.F.R. §    motion to quash or limit       practice, issue subpoenas.
handles appeals of Black        18.1. Because § 27(b) of     must be filed with in ten
Lung and Longsh ore cases,      the Act appears to be        days of service. The ALJ
has held that t he distr ict    such a “rule of special      must rule on th e motion
directors do not have the       application,”                immediately after the
power to issue subpoenas.       enforcement of               response is due and his
Main e v. Brady Hamilton        subpoenas would appear       order must specify the
Stevedore Co., 18 BRBS          to be controlled by the      date, if any, for
129 (1986). Th e Board so       procedures outlined in       compliance with the
ruled, reasoning that the       section 27(b), not those     specifications of the
Deputy Commissioner’s           discussed in sections        subpoena. Sservice of the
subpoena power, un der          18.6(d)(2).                  subpoen a may be
section 27(a), was an                                        accomplish ed by certified
adjunct of the Deputy                                        mail or by any per son
                                The Board regulations
Commissioner’s hearing                                       who is not less than 18
                                simply repeat the
authority. Thus, the Board                                   years of age. A witness,
                                statutory language of §
concluded that when the                                      other than a wit ness for
                                27(b) in setting forth the
hearing authority was                                        the Federal Government,
                                procedures i t will follow
transferred to the Offi ce of                                may not be required to
                                if any person in
Administrative Law                                           atten d a deposition or
                                proceedings before the
Judges, so necessarily was                                   hearing unless the
                                Board disobeys or resists
the subpoena power. Id.                                      mileage an d witness fee
                                any lawful order or
 (The Board did                                              applicable to witnesses in
                                process. 29 C.F.R. §
nevertheless hold in Maine                                   courts of the Unit ed
                                802.103(b).
that a party may avail itself                                States for each date of
of discovery while the case                                  attendance is paid in
is pending before the                                        advance of the date of the
Distr ict Director by                                        proceeding. 29 C.F.R. §
applying to the chief                                        18.24. To the extent that
administrative law judge to                                  any sit uation is n ot
request a subpoena while                                     provided for or controlled
the case is pending before                                   by these rules, or by any
the district director. Id.)                                  statute, ex ecutive order or
The Director, OWCP,                                          regulati on, the Rules of
however, disagrees with                                      Civil Procedure for the
the Board’s Maine                                            District Courts of the
decision, believing that,                                    United States will apply.
notwithstanding the                                          29 C.F.R. § 18.1(a).
transfer of hearing
auth ority to the Offi ce of
                                            Administrative Law                                            For Benefits Review
                                            Judges, the subpoena                                          Board: No specific
                                            power also is a necessary                                     notificati on procedure.
                                            component in the District
                                            Director’s exercise of his
                                            investigative authority
                                            under section 19 and thus
                                            section 27(a)’s subpoena
                                            power also continues to
                                            reside with the distr ict
                                            director.


Department of   Longsh ore an d Harbor      The Secretary of Labor is       The aid of an y court of      29 CFR Parts 70-71
Labor           Worker s Compensat ion      also charged with the           the Un ited States can be     (general DOL regulations
                Act (LHWCA)                 administration of a “special    invoked in requiring the      governing privacy and
                33 U.S.C. 944, 20 C.F. R.   fund” under § 44 of the         attendance and testimony      disclosure of inform ation
                § 702. 147(b)               Act, finan ced by covered       of witnesses and the          or materials)
                                            employers and i nsurance        production of
                                            carriers, which makes           documentar y evidence,
                                                                                                          Other privacy/n otifica tion
                                            payments in certain cases       and individuals,
                                                                                                          requirements, including
                                            includi ng, cases in which      partner ships or
                                                                                                          the Right to Financial
                                            an employer is awarded          corpor ation s "may be
                                                                                                          Privacy Act, Trade
                                            “special fund” relief           punished by such court
                                                                                                          Secrets Act, or HHS
                                            because its liability has       as a contempt thereof."
                                                                                                          Medical Privacy
                                            been augmented by an            15 U.S.C. § 49. Any
                                                                                                          regulations, may apply in
                                            injured worker’s pre-           person who disobeys an
                                                                                                          some cases.
                                            existing disability, and        order of a district court
                                            cases where compensa tion       to comply with a
                                            awards can not be satisfied     subpoena will "be
                                            because of the insolvency       puni shed by a fi ne of not
                                            of the employer. 33 U.S.C.      less th an $1,000 nor
                                            944. A separ ate gr ant of      more than $5,000, or by
                                            subpoena auth ority is given    impr isonm ent for not
                                            to the Secretary to             more than one year, or
                                            administer the special fund.    by both such fine and
                                            Section 44(c) provides that     imprisonment." 15
                                            “for the purpose of any         U.S.C. § 50.
                                            hear ing or investigation
                                            related to determ inations or
                                            the enforcement of the
                                            provisions of [§ 44], the
                                            provisions of section 9 and
                                           10 (relating to the
                                           attendance of witnesses and
                                           the production of books,
                                           paper s, an d documents) of
                                           the Federal Trade
                                           Commi ssion Act of
                                           September 16, 1914, as
                                           amended (U.S.C., title 15,
                                           secs. 49 and 50) ar e hereby
                                           made applicable to the
                                           jurisdiction, powers, and
                                           duties of the Secreta ry of
                                           Labor.” Section 49
                                           provides the authority to
                                           issue subpoenas for the
                                           atten dance of witnesses or
                                           the su bmissi on
                                           documentar y evidence
                                           from any person,
                                           partner ship or corp oration
                                           being investigated against.
                                           15 U.S.C. § 49. Such
                                           auth ority also applies for
                                           hear ings and the takin g of
                                           depositions during the
                                           course of an investigation.
                                           Id.

Department of   McNamara-O’Hara            “Enforcemen t of chapter       “In case of cont umacy,       29 CFR Parts 70-71
Labor           Service Contract Act, P.   Sections 38 and 39 of this     failure, or refusal of any    (general DOL regulations
                L. 89-286, 41 U.S.C.       title [Walsh-Healey Act]       person to obey such an        governing privacy and
                353(a), 29 CFR 6.4,        shall govern the Secretary's   order, any District Court     disclosure of inform ation
                6.6(b)                     authority to enforce this      of the United States or of    or materials). 29 CFR 6.4
                                           chapter, ma ke rules,          any Ter ritory or
                                           regulations, issue orders,     possession within the
                                                                                                        DOL Employment
                                           hold hearings, and m ake       jurisdiction of which the
                                                                                                        Standards
                                           decisions based upon           inquiry is carr ied on, or
                                                                                                        Administration’s Wage
                                           findings of fact, and take     within the jur isdiction of
                                                                                                        and Hour Division’s Field
                                           other appr opria te action     which said person who is
                                                                                                        Operations Handbook,
                                           hereunder.”(41 U.S.C.          gui lty of con tumacy,
                                                                                                        Section 86b.
                                           353(a))                        failure, or refusal is
                                                                          found, or resides or
                                                                          transacts business, upon
                                           “...The Secreta ry of Labor
                                         or his authoriz ed             the application by the
                                         repr esentatives shal l have   Secretary of Labor or
                                         power to make                  representative design ated
                                         investigations and findings    by him, shal l have
                                         as provided in sections 35     jurisdiction to issue to
                                         to 45 of this title...” (41    such person an order
                                         U.S.C. 38, incor porated by    requiring such person to
                                         41 U.S.C. 353(a))              appear before him or
                                                                        representative design ated
                                                                        by him, to produce
                                         “Upon h is own motion or
                                                                        evidence if, as, a nd when
                                         on application of any
                                                                        so order ed, an d to give
                                         person affected by any
                                                                        testimony relating to the
                                         ruling of any agency of the
                                                                        matter under
                                         United States in relation to
                                                                        investigation or in
                                         any proposal or contract
                                                                        question; and any failure
                                         involving any of the
                                                                        to obey such order of the
                                         provisions of sections 35 to
                                                                        court may be punished
                                         45 of this tit le, an d on
                                                                        by said court as a
                                         compla int of a breach or
                                                                        contempt thereof[.]” (41
                                         violation of any
                                                                        U.S.C. 39, incorporated
                                         repr esentation or
                                                                        by 41 U.S.C. 353(a))
                                         stipulation as provided in
                                         said sections, the Secretary
                                         of Labor, or an impartial
                                         represen tative design ated
                                         by him, shall have the
                                         power to hold hearings and
                                         to issue orders requiring
                                         the attendance and
                                         testimony of witnesses and
                                         the production of evidence
                                         under oath.” (41 U.S.C. 39,
                                         incorporated by 41 U.S.C.
                                         353(a))


Department of   Migrant and Seasonal     “The Secretary may issue       “And i n case of             15 U.S.C. 49,
Labor           Farm worker Protection   subpenas requiring the         disobedi ence to a           incorporated into 29
                Act, P. L. 97-470, 29    attendance and testimony       subpoena the [Secretary]     U.S.C. 1862(b).29 U.S.C.
                U.S.C. 1862(b), 20 CFR   of witnesses or the            may invoke the aid of        186 2(b) (confidentiality)
                636.7.                   production of any evidence     any court of the Uni ted
                                         in connection with su ch       States in requiring the
                                                                                                     29 CFR Parts 70-71
investigations. The              attendance and testimony      (general DOL regulations
Secretary may administer         of witnesses and the          governing privacy and
oaths, examin e witnesses,       production of                 disclosure of inform ation
and receive evidence. For        documentary evidence.         or material s)
the purpose of any hearing       Any of the district courts
or investigation pr ovided       ... m ay, in case of
                                                               Other privacy/n otifica tion
for in this chapter, the         contumacy or refusal to
                                                               requirements, including
authority contained in           obey a subpoena ... issue
                                                               the Right to Financial
sections 49 and 50 of title      an order requiring such
                                                               Privacy Act, Trade
15 [Federal Trade                person , par tner ship, or
                                                               Secrets Act, or HHS
Commission Act], relating        corporation to appear
                                                               Medical Privacy
to the attendance of             before th e [Secretary], or
                                                               regulations, may apply in
witnesses and the                to produce documentary
                                                               some cases.
production of books,             evidence ..., or to give
papers, and documents,           evidence touching the
shall be available to the        matter in question; and
Secretary. The Secretary         any failure to obey such
shall conduct investigations     order of the court may be
in a manner which protects       punished by such court
the confidentiality of any       as a contempt thereof..”
complainant or other party
who provides inform ation
to the Secret ary in good
faith.” 29 U.S.C. 1862(b).


“To carry out th is chapter
the Secreta ry, either
pursuant to a com plaint or
other wise, sh all, as may be
appropr iate, in vestigate,
and in con necti on
therewith , enter a nd inspect
such places (including
housing and vehicles) and
such records (and make
transcriptions thereof),
question such persons and
gather such information to
determine compliance with
this chapter, or regulations
prescribed under this
chapter.” 29 U.S.C.
                                            1862(a).

Department of   Occupational Safety and     “In making his inspections        “In case of a contumacy,     29 CFR Parts 70-71              OSHA Fiel d Inspection
Labor           Health Act, P. L. 91-596,   and in vestigation s under        failure, or refusal of any   (general DOL regulations        Reference Manual,
                29 U.S. C. 657(b)           this Act the Secretary may        person to obey such an       governing privacy and           Chapter II, section A. 2. c.
                                            require the attendance and        order, any district court    disclosure of inform ation      3
                                            testimony of witnesses and        of the United States or      or material s)                  (htt p://www.osha-slc.gov/
                                            the production of evidence        the United States courts                                     Firm_osha_data/100006.h
                                            under oath.”                      of any ter ritory or                                         tml)
                                                                                                           29 CFR 1903.9 (Trade
                                                                              possession, within the
                                                                                                           Secrets)
                                                                              jurisdiction of which                                        OSHA Instruction ADM
                                                                              such person is found, or
                                                                                                                                           4.4 AUG 19 1991
                                                                              resides or transacts         29 CFR 1913.10 (Rul es of
                                                                                                                                           (htt p://www.osha-slc.gov/
                                                                              business, upon the           Agency Practice and
                                                                                                                                           OshDoc/Directive_data/A
                                                                              application by the           Procedure Concerning
                                                                                                                                           DM_4_4.html)
                                                                              Secretary, sh all h ave      OSHA Access to
                                                                              jurisdiction to issue to     Employee Medical
                                                                              such person an order         Records)
                                                                              requiring such person to
                                                                              appear to produce
                                                                              evidence if, as, a nd when
                                                                              so order ed, an d to give
                                                                              testimony relating to the    Other privacy/n otifica tion
                                                                              matter under                 requirements, including
                                                                              investigation or in          the Right to Financial
                                                                              question, and any failure    Privacy Act, Trade
                                                                              to obey such order of the    Secrets Act, or HHS
                                                                              court may be punished        Medical Privacy
                                                                              by said court as a           regulations, may apply in
                                                                              contempt thereof.”           some cases.

Department of   Program Fraud Civil         The Inspector General is          Enfor ced by petit ion of    No specifi c notificati on      None
Labor           Remedies Act, P.L. 99-      the "investigating official"      the Attorney General         procedures. Subpoenas
                509, 31 U.S.C. 3804, 29     and can require the               who can seek an order        for records may be
                CFR 22.4, 22.23             production of material            from the District Court      subject to the n otifica tion
                                            similar to that which ca n be     where the person             provisions of the Right to
                                            obtained under the IG Act -       receiving the subpoena       Financial Privacy Act and
                                            - that i s, records, data, etc.   resides or conducts          Medical Privacy Acts
                                            but not testimony. Under          business.                    when they apply.
                                            the PFCRA, there is a
                                            further limitation -- the
                                                                              A failure to obey the
                                            only data
                                                                              order of the court is
                                            which can be subpoenaed           contempt.
                                          is that which is not
                                          otherwise reasonably
                                          available to the authori ty.


                                          Addition ally the Act
                                          provides authority to the
                                          presiding officer of an
                                          Administrative hearing to
                                          subpoena documents and
                                          testimon y.


Department of   Trade Act of 1974, P.L.   The Secretary of Labor         “If a person refuses to       Subpoenas under this         In practice, subpoenas are
                93-618, 19 U.S.C. 2321,   may require by subpoena        obey a subpena issued         section must be served       used only as a last resort,
Labor
                29 CFR 90.14              the atten dance of witnesses   under subsection (a) of       either in person or by       when repeated requests
                                          and the production of          this section , a United       certified mail, return       for necessary business
                                          evidence necessary to          States district court         receipt requested, and the   data have been refused or
                                          make a determination           within the jur isdiction of   compliance date for the      left unanswered by a firm
                                          whether t o certify a worker   which the relevant            subpoenas must be no less    whose data OTAA seeks.
                                          group as eligible to apply     proceeding under this         than seven (7) da ys from    Typically, OTAA
                                          for assistance under the       part is cond ucted may,       the date of service.         precedes the servin g of a
                                          TAA and NAFTA-TAA              upon petition by the                                       subpoena with the
                                          programs. 19 U.S.C.            Secretary, issue an order                                  delivery to the firm in
                                                                                                       In practice, DOL’s
                                          2321(a).                       requiring compli ance                                      question of a “pr e-
                                                                                                       Employment and Training
                                                                         with such subpena.” 19                                     subpoena” letter, warning
                                                                                                       Admini strati on’s Office
                                                                         U.S.C. 2321(b).                                            the firm that a subpoena
                                                                                                       of Trade Adjustment
                                                                         Enforcement is through                                     will be served if the firm
                                                                                                       Assistance (OTAA) uses
                                                                         DOJ. No specified                                          does not provide the
                                                                                                       this subpoena authority to
                                                                         sanctions.                                                 necessar y data by a
                                                                                                       obtain confidential
                                                                                                                                    specific date. If the firm
                                                                                                       business data necessary
                                                                                                                                    continues to refuse to
                                                                                                       for determining whether a
                                                                                                                                    provide the data or leaves
                                                                                                       firm, for whose
                                                                                                                                    the pre-subpoena letter
                                                                                                       employees a petition for
                                                                                                                                    unanswered, then OTAA
                                                                                                       certification under TAA
                                                                                                                                    serves a subpoena on the
                                                                                                       or NAFTA-TAA has been
                                                                                                                                    firm. The U.S.
                                                                                                       filed, has been impacted
                                                                                                                                    Departm ent of Justice
                                                                                                       by imports or ha s shifted
                                                                                                                                    seeks en forcement on
                                                                                                       produ ction to Can ada or
                                                                                                                                    behalf of DOL.
                                                                                                       Mexico.


                                                                                                       29 CFR Part 90, provides
                                                                                                       for confi dentiali ty of
business data, which
would include any data
obtained via a subpoena.
Specifically, 29 CFR
90.16(c) and (f) provide
that published notices of
affirmati ve and negative
determinat ions,
respectively, shall
exclude confidential
business information, as
identified by the
certifying officer (who is
a staffer in the ETA
Division of Trade
Adjustment Assistance).
Also, 29 CFR 90.32(b)
states that confidential
business information is
not available to the
public. Finally, 29 CFR
90.33 add resses
confidential business
information in detail.
This pr ovision defines
confidential business
information as trade
secrets and commercial
and financial information,
which are obtained from a
person an d are privileged
or confidential, as set
forth in 5 U. S.C. 552(b)
and 29 CFR Parts 70-71.
Paragra ph (b) of 29 CFR
90.33 requires that
confidential business
information be clearly
identified as such on each
page of a document
contain ing such
information. Fin ally,
paragra ph (c) of 29 CFR
                                                                                                    90.33 states that the
                                                                                                    certifying officer is
                                                                                                    entitled to refuse to
                                                                                                    accept certa in inform ation
                                                                                                    as confidential, but that
                                                                                                    the supplier is entitled to
                                                                                                    notice of the refusal and
                                                                                                    the right to withdraw the
                                                                                                    information if the
                                                                                                    certifying officer ma kes
                                                                                                    such a refusal.


                                                                                                    Other privacy/n otifica tion
                                                                                                    requirements, including
                                                                                                    the Right to Financial
                                                                                                    Privacy Act, Trade
                                                                                                    Secrets Act, or HHS
                                                                                                    Medical Privacy
                                                                                                    regulations, may apply in
                                                                                                    some cases.


Department of   Uniformed Ser vices        “In carrying out any         Enforcement is by the       29 CFR Parts 70-71             VETS USERRA
Labor           Employment and             investigation under this     Attorney General, at the    (general DOL regulations       Operations Manua l, pages
                Reemployment Rights        chapter, the Secretary may   request of the Secretary    governing privacy and          VI-5-9, VI-17-19.
                Act of 1994, P.L. 103-     require by subpoena the      of Labor, in US Distr ict   disclosure of inform ation
                353, 38 U.S.C. 4326(b).    attendance and testimony     Court.                      or material s)
                                           of witnesses and the
                                           production of documents
                                                                                                    Other privacy/n otifica tion
                                           relating to any matter
                                                                                                    requirements, including
                                           under investigation.”
                                                                                                    the Right to Financial
                                                                                                    Privacy Act, Trade
                                                                                                    Secrets Act, or HHS
                                                                                                    Medical Privacy
                                                                                                    regulations, may apply in
                                                                                                    some cases.

Department of   Veterans Employment        “In carrying out any         Enforcement is by the       29 CFR Parts 70-71
Labor           Opportunities Act of       investigation under this     Attorney General, at the    (general DOL regulations
                1998, Public Law 105-      subsection, the Secretary    request of the Secretary    governing privacy and
                339, 5 U.S.C.. 3330a(b).   may require by subpoena      of Labor, in US Distr ict   disclosure of inform ation
                                           the attendance and           Court. 5 U.S.C.             or material s)
                                           testimony of witnesses and        3330a(b)(3)-(4).   Other privacy/n otifica tion
                                           the production of                                    requirements, including
                                           documents relating to any                            the Right to Financial
                                           matter under                                         Privacy Act, Trade
                                           investigation."                                      Secrets Act, or HHS
                                                                                                Medical Privacy
                                                                                                regulations, may apply in
                                                                                                some cases.

Department of   29 U.S.C. § 1401           “Any ar bitration
Labor†                                     proceedings under this
                                           section shall, to the extent
                Arbitra tion of disputes
                                           consistent with t his title, be
                between employees and
                                           conducted in the same
                plan sponsor s of
                                           manner, subject to the
                multiemployer plans
                                           same limi tations, carried
                under ERISA
                                           out with the same powers
                                           (including subpena power),
                                           and enforced in United
                                           States courts as an
                                           arbitration proceeding
                                           carried out under title 9"

Department of   29 U.S.C. § 2004           Employee Polygraph
Labor†                                     Protection

Department of   30 U.S.C. § 813            Mineral Lands and Mining
Labor†                                     Inspections (mandatory
                                           safety and health stan dards)
      Appendices A, B, and C

           Accompanying
      Report to Congress on the
        Use of Administrative
       Subpoena Authorities by
Executive Branch Agencies and Entities
         Pursuant to Public Law 106-544
               Appendix A2:
  Administrative Subpoena Authorities Held by
Agencies Other Than the Departments of Justice and
                    Treasury


               Accompanying a
           Report to Congress on the
   Use of Administrative Subpoena Authorities
   by Executive Branch Agencies and Entities
               Pursuant to Public Law 106-544
                                                                       Appendix A


   Administrative Subpoena Authorities Held by Agencies Other Than the Departments of Justice and Treasury
           P.L. 106-544, Section 7(a), Executive Branch Study on Administrative Subpoena Authority,
                                             Scope and Protections

† Denotes supplemental entry derived from independent research, not submitted by the relevant agency or department
* Denotes Administr ative Law Judge authority (For purposes of this report , “administr ative subpoena” authori ty has been defined to include all powers,
regardless of name, that Congr ess has granted to federal agencies to make an administ rative or civil in vestigatory deman d compel ling document production or
testimony. Civil compulsory process authorities with provision for judicial enforcement are included. Grand jury subpoenas, administra tive law judge
subpoenas, and investigative authorities requiring judicial approval are not within the scope of the report; however, descriptions of administrative law judge
subpoenas submitted by individual agencies and entities have been included as submitted.)


  Name of Submitting            Source and              Scope of Authority             Enforcement              Notification Req.        Issuance Standards
   Agency or Entity          Common Name of                Description                 Mechanism                  and Privacy             and Qualifiers or
                            Authority (Including                                       Description                Protections                Procedures
                            Act Name, P.L. and
                            U.S.C. & CFR cites)

 Depa rtment of             Holds no
                            admini strative
 State                      subpoena authority,
                            excluding Inspector
                            General
                            admini strative
                            subpoena authority.



 Department of              22 U.S.C. §4833            In any case of ser ious     The Board may             Specific
State^   injury, loss of life, or   request the Attorney   confidentiality
         significant dest ruction   General’s assistance   protections are
         of property at , or        in seeking an          required under the
         related to, a United       enforcement order      statute.
         States Government          from a U.S. district
         mission abroad, and in     court.
         any case of seri ous
         breach of security
         involving intelligence
         activities of a foreign
         government directed
         at a U.S. government
         mission abroad, in
         certain circ umstances,
         the Secretary of State
         is authorized to
         convene and
         Accountability Review
         Board.

         The Board is
         authorized to issue a
         subpoena for the
         attendance and
         testimony of any
         person and the
         production of
         documentary of other
         evidence from any
         such person if the
         Board finds that such a
         subpoena is necessary
         in the inter ests of
         justice for the
         development of
         relevant evidence.
Depa rtment of
Trans portation
US Department of   14 CFR 302.25,         The administrative law     Any party may make      An application shall      The subpoena power
                   Subpoenas in an oral   judge or the DOT           an appl ication for     contain a statement       can be valuable in
Transportation*
                   evidentiary hearing.   decision maker             subpoena without        or showing of general     obtaining evidence in
                   Require the            considering an             notice . Any pe rson    relevance and             aviation enforcement
                   attendance of a        application for a          who objects to the      reasonable scope of       proceedings pursuant
                   witness at a hearing   subpoena shall issue       public disclosure of    the evidence sought       to 14 CFR 302
                   or the production of   the subpoena if the        documents or oral       that, in the case of      Subpart D. The
                   documentary            application complies       testimony covered by    evidence, shall           subpoena power is
                   evidence.              with section 302.25.       a subpoena may file     describe the              used sparingly.
                                          Any person upon            a motion requesting     documentary or
                                          whom a subpoena is         confidential            tangible evidence to
                                          served has seven days      treatment pursuant      be subpoenaed with
                                          to file a motion to        to [CFR 302.12.         as much particularity
                                          quash or modify the        Under that rule,        as is feasible, or, in
                                          subpoena with the          requests for            the case of a witness,
                                          administrative law         confidential            the name of the
                                          judge or, in the event     treatment are judged    witness and a general
                                          that an administra tive    in accordance with      description of the
                                          law judge has not been     the standards of        maters concerning
                                          assigned or is             disclosure found in     which the witness will
                                          unavailable, to the        the Freedom of          be asked too testify.
                                          DOT de cisionmaker or      Information Act (5      The pe rson
                                          the Chief                  U.S.C. section 552).    considering the
                                          Administrative Law         The Right to            application shall issue
                                          Judge for action. If       Financial Privacy       the subpoena if the
                                          the person to whom         Act may or may not      application complies
                                          the motion has been        apply. Pursuant to      with 14 CFR 302.25.
                                          addre ssed has not         14 CFR 302.27, any
                                          acted by the return        person appearing as
                                          date, such date shall be   a witness response to
                                          stayed pendi ng his or     a subpoena is
                                          her final action. The      entitled to counsel
                                          DOT decisionmaker          and must be
                                          may at any time            tender ed the same
                                           review, upon his or her      mileage and
                                           own initiative, the          attendance fees as
                                           ruling of the                are paid to witness
                                           administrative law           for such service in
                                           judge or Chief               the courts of the
                                           Administrative Judge         United States.
                                           denying a motion to
                                           quash. In such cases,
                                           the DOT
                                           decisionmaker may
                                           order that the return
                                           date of a subpoena be
                                           stayed pendi ng action
                                           thereon.

US Department of   14 CFR 305.7,           Require the attendance       The Deputy General       Any issued subpoena       No set standard,
Transportation     Issuance of             of a per son to testify or   Counsel, the DOT         shall briefly advise      subject to the general
                   Investi gation          the production of            decisionmaker, Chief     the person required       style of
                   subpoenas in            documentary evidence.        Administrative Law       to testify or to submit   reasonableness that
                   informal, non-                                       Judge or the             documentary               request be within the
                   adjudicatory,                                        administrative law       evidence of the           scope of the order
                   nonpublic                                            judge designated to      purpose of the            initiating the
                   investigati ons for                                  preside at the           Investigation and         investigation.
                   determining whether                                  reception of evidence    have attached a copy
                   formal enforcement                                   may issue the            of the order initiating
                   action should be                                     subpoena. The            the investigation.
                   instituted with                                      person upon whom         The investigation at
                   respect to alleged                                   an investigative         which the person
                   violations of DOT                                    subpoena is served       apears shall be
                   orders, rule s or                                    has seven days to file   attended only by the
                   statutory provisions.                                a motion to quash or     witness and his or her
                                                                        modify the subpoena      counsel, the
                                                                        with the official who    administrative law
                                                                        issued the subpoena.     jude, and department
                                                                        If the person to who     empoyees concerned
                                                                        the motion has been      with the conduct of
                                                                        addre ssed has not       the investigation.
acted by the return      Unless DOT
date, such date shall    detrmines otherwise,
be stayed pending his    all orders instituting
or her final action.     the investig ation
A subpoena will be       whch do not disclose
quashed or modified      the identify of the
if the evidence whose    parti cular persons or
production is            firms under
required is not          investigation shall be
reasonably relevant      published in the
to the matter under      Federal Register.
investigation or the     Except as otherwise
demand made does         required by law, the
not describe with        remainderof the
sufficient               record of suh
particularity the        proceedings shall
information sought,      constitute internal
or the subpoena is       DOT documents,
unlawful or unduly.      which shall not be
The DOT                  available to the
decisionmaker may        general public. The
at any time review,      use of such records in
upon his or her own      formal hearings
initiative, the ruling   subject to 14 CFR
of the administrative    Part 302 shall be
law judge or Chief       subject to aviation
Administrative Law       requesting
Judge denying a          confidential
motion to quash. In      treatments pursuant
such cases, the DOT      to 14 CFR 302.12. If
decisionmaker may        no corrective action is
order that the return    found to be
date of a subpoena       warranted after the
be stayed pending        completion of the
action thereon.          investigation, all
                         documentary
                         evidence will be
                                                                                         returned to the
                                                                                         person that produced
                                                                                         it. 14 CFR 305.7
                                                                                         requires that
                                                                                         witnesses subpoenaed
                                                                                         to appear shall be
                                                                                         paid attendance and
                                                                                         mileage fees a la 14
                                                                                         CFR 302.27.

US Department of   49 U.S.C. 46104,   The Se cretary of         If a person disobeys               “            “
Transportation     Evidence           Transportation may        a subpoena, the
                                      subpoena witnesses        Secretary or a party
                                      and records related to    to a proceeding
                                      a matter involved in a    before the Secretary
                                      hearing or                may petition a court
                                      investigation from any    of the United States
                                      place in the United       in the jurisdiction in
                                      States to the             which the proceeding
                                      designated place of the   or Investgation is
                                      hearing or                conducted to enforce
                                      investigation, examine    the subpoena. The
                                      witne sses and receive    court may punish a
                                      evidence at a place the   failure to obey an
                                      Secretary desi gnates.    order of the court to
                                                                comply with the
                                                                subpoena as a
                                                                contempt of court.
                                                                The Secretary may
                                                                designate an
                                                                employee of the
                                                                Department under
                                                                section 3105 of Title
                                                                5 to carry out the
                                                                powers granted by
                                                                this action.
US Department of   49 U.S.C. 41708,        The Se cretary of          Order of the             Order issued by the      To the extent that the
Transportation     Reports.                Transportation may         Department.              Department and           Secretary finds it
                                           require an air carrier                              served on the carrier    necessary to issue the
                                           or foreign air carrier                              or person. The           order to carry out 49
                                           to file reports with the                            carr ier or person       U.S.C. Subpart VII.
                                           Department under                                    may file motion
                                           oath, to provide                                    requesting
                                           specific answers to                                 confidential
                                           questions, and to file                              treatment pursuant to
                                           agreements between                                  14 CFR 302.12. The
                                           carriers related to                                 Right to Financial
                                           transportation.                                     Privac y Act ma y or
                                                                                               may not apply.

US Department of   Inspector General        Administrative            In the e vent of         None specific to         Subpoena records
Transportation     Act of 1978, as         authority Subpoenas        refusal to obey, court   Inspector General        within purview of
                   amende d, Pub.L . No.   duces tecum to             order obtained           Act of the Motor         audit and
                   95-452, 5 U.S.C.        acquire, with respect      through Petition to      Carrier Safety           investigati ve function
                   app.3                   to the programs and        Enforce filed in         Improvement Act,         of DIG. A level of
                                           operations of the          appropriate district     however, the right to    review has been
                                           Depar tment of             court.                   Financial Privacy        established to make
                                           Transportation, all                                 Act. Publ. L. No, 95-    that determination as
                                           information                                         630, 12 U.S.C. §3401.    well as a
                                           documents, reports,                                 Et seq., requires        determination that
                                           answers, records,                                   certain steps be taken   the records and
                                           accounts, papers and                                with respec t to a       information sought
                                           other data and                                      subpoena for             via subpoe na is not
                                           documentary evidence                                financial recor ds of    overbroad;
                                           necessary in the                                    an individual.           oppressive, and
                                           performance of the                                  Likewise, the Stored     otherwise meets with
                                           functions assigned by                               Wire and Electric        all legal requirements
                                           the Inspector General                               Communications and       as well as a
                                           Act, which subpoena,                                Transaction Records      determination that
                                           in the case of                                      Access Act. Pub.L.       the re cords or
                                           conformacy or refusal                               No. 99-508, 18 U.S.C.    information cannot be
                                           to obey, shall be                                   §2701, et sew.           obtained otherwise.
                                           enforceable by order                                Requires certain
                                             of any appropriate                                 safeguards before
                                             United States District                             accessing stored
                                             Court. Authority                                   communications
                                             extends to grantees,                               (telephone toll
                                             contractors, recipients                            records, for example).
                                             of DOT funds,
                                             individuals or entities
                                             collading with a DOT
                                             employee to violate the
                                             law, and pursuant to
                                             the Motor Carrier
                                             Safety Improvement
                                             Act., PublL. No. 106-
                                             159, 5 U.S.C. app. 3, 1,
                                             mode 1, any individual
                                             or entity regulated by
                                             the Department.

US Department of     Marine Casualty         46 U.S.C. 6304 and 46      Through local US        Actual service of        Issued by local
Transportation       Investigation and       CFR 4.07-5                 Atty petition to        subpoena                 U.S.C.G Officer in
                     Lice nse suspe nsion                               enforce filed in        w/compliance win a       Charge Marine
                     proceedings                                        appropriate USDC        “reasonable time”.       Inspec tion
US Coast Guard, G-
                                                                                                                         representative in aid
LMI
                                                                                                                         of marine casualty
                                                                                                                         investigati on or
                                                                                                                         Mari ner License or
                                                                                                                         Document suspensi on
                                                                                                                         or revoc ation
                                                                                                                         proceeding.

US Department of     Ports and Waterways     33 U.S.C. 1227(b)          Same as above           Same as above.
Transportation       Safety Act vi olation                              although this           There are no
                     Investigations                                     authority has           regulations in place
                                                                        seldom, if ever, been   implementing the
US Coast Guard, G-
                                                                        utilized be cause of    statute.
LMI
                                                                        the la ck of
                                                                        implementing
                                                                        regulations
US Department of     Outer Continental     Same as above. There       Reasonable time for
Transportation       Shelf Lands Act       are no implementing        compliance after
                     casualty              regulations. Local US      actual notice through
                     investigations        atty petition to USDC      service of subpoena
US Coast Guard, G-
                     Certain Alaska        for enforcement.           on responsible
LMI
                     Cruise Ship                                      official of cruiseship
                     Operations                                       owner/operator’s
                                                                      agent for ser vice of
                                                                      process or Master of
                                                                      vessel involved.

US Department of     Certain Alaska        Title XIV, Sec.                                     Because this statute is
Transportation       Cruse Ship            1409(a)(9) of P, Law                                so new, we are
                     Operations            106-554, 114 Stat.                                  unaware if any
                                           2763, and 33 CFR                                    subpoena have been
US Coast Guard, G-
                                           159.321(a)(2)(ii).                                  issued under it at this
LMI
                                                                                               time.

Coast Guard†         33 U.S.C. § 1227      In the case of any
                                           incident, accident, or
                                           act involving the loss
                                           or destruction of, or
                                           damage to, any
                                           structure subject to
                                           this Act, or which
                                           affects or may affect
                                           the safety or
                                           environmental quality
                                           of the ports, harbors,
                                           or navig able water s of
                                           the United States, the

US Department of     49 U.S.C. §46104(a)   Administrator may          49 U.S.C. §46104(b).
Transportation                             subpoena witnesses         Petition U.S. District
                                           and records related to     Court to enforce
Feder al Avia tion                         a matter involved in a     subpoena. This is
Administration                             hearing or                 the ave nue of
                                           investigation.            enforcement for all
                                                                     FAA subpoenas.

US Department of     14 C.F.R. § 13.57     Party to a proceeding     Same as above.         In application to
Transportation                             under 14 C.F.R. part                             Hearing Offic er must
                                           13, subpart D, may                               show general
Feder al Avia tion                         apply for subpoena                               relevance and
Administration                             requring the                                     reasonable scope.
                                           production of
                                           documents or tangible
                                           evidence at a hearing,
                                           or for the purpose of
                                           taking depositions.

US Department of     14 C.F.R. § 13.11     In formal FAA fact-       Same as above.         Subpoena issued by
Transportation                             finding investigation                            clerk subject to
                                           under 14 C.F.R. part                             motion to quash.
Feder al Avia tion                         13, subpart F,
Administration                             Presiding Officer may
                                           issue a subpoena
                                           directing any person to
                                           appear to testify or
                                           produce documents
                                           relating to any matter
                                           under investigation.

US Department of     49 U.S.C. § 5121(a)   The Secretary may         49 U.S.C. § 5122(a).
Transportation                             issue subpoenas,          Bring action in
                                           conduct hearings,         appropriate U.S.
Feder al Avia tion                         require the production    District Court to
Administration                             of records and            enforce subpoena.
                                           property.
US Department of     49 U.S.C. §47122(b)     In conducting an          Enforce under 49
Transportation                               investigation or public   U.S.C. §46104(b).
                                             hearing under
Feder al Avia tion                           subchapter I of Part B,
Administration                               the Secretary has the
                                             same authority that he
                                             has under 49 U.S.C.
                                             46104(a).

US Department of     No common names         As the delegate of the    FHA may seek            Under 49 C.F.R. §
Transportation       49 U.S.C. §20107(a),    Secretary of              enforcement by the      209.7(d), service of a
                     formerly § 208 of the   Transportation the        Attorney Ge neral of    subpoena to a person
Federal Railroad     Federal Railroad        administrator of FRA      subpoena in Federal     is made by; handling
Administration       Safety Act of 1970,     is charged with           District Court, as      it to the person;
                     P,L. 91-458, P.L.       enforcing the Federal     authorized by 49        leaving it at his or her
                     103-372,                railroad safety laws,     U.S.C. §§ 2011(a)(3)    office with the person
                     (superseding 45         and is authorized to      and 201.12(a)(3), and   in charge; leaving it
                     U.S.C. §437); 49        conduct investigations,   40 C.F.R. §209.7(i).    at his or her dwelling
                     C.F.R. §§1.49(m) and    make reports, issue                               or usual abode with
                     209.7(a), 209.8(a),     subpoenas, require the                            someone of suitable
                     209.315, and 240.409.   production of                                     agent and discretion;
                                             documents take                                    mailing it by
                                             depositions and                                   registered or certified
                                             prescribe record                                  mail to a last known
                                             keeping and reporting                             address; or giving
                                             requirements.                                     actual notice. Service
                                                                                               to an entity other
                                                                                               than a person is made
                                                                                               by handing a copy to
                                                                                               a register ed age nt or
                                                                                               company official;
                                                                                               mailing it by
                                                                                               registered or certified
                                                                                               mail to a last known
                                                                                               address; or giving
                                                                                               actual notice. Under
                                                                                               49 C.F.R. § 209.11, a
                                                                                              party may request
                                                                                              confidential
                                                                                              treatment of any
                                                                                              document provided to
                                                                                              FHA.

US Department of   No common names;         As the delegate of the    Under its general       Same notification and   When necessary to
                   49 U.S.C. §20902(b),     Secretary of              authority under the     privacy protections     carry out and
Transportation
                   formerly §3 of the       Transportation the        railroad safety laws,   discussed above. See    investigate an
                   Accidents Report Act     Administrator of FRA      FRA may seek            49 C.F.R. §§209.7(d)    accident or incident,
Federal Railroad                                                      enforcement by the      and 209.11.             either because it
                   (superseding 45          is charged with
Administration                                                        Attorney Ge neral of                            resulted in the death
                   U.S.C. §40); P.L.        enforcing the Federal
                   103-272; 49 U.S.C.       railroad safety laws,     a subpoena in                                   of a railroad
                   §103(c)(1); 49 C.F.R.    including investigating   Federal District                                employee or the
                   §§1.49, 209.7( a), and   accidents and             Court, as authorized                            injury of five or more
                   225.31(b).               incidents, and is         by 49 U..S.C.                                   persons or because it
                                            authorized to             §§20111(a)(3) and                               appeared that an
                                            subpoena witnesses,       20112(a)(3), and 49                             investigation would
                                            require the production    C.F.R. §209.7(i).                               substantially serve to
                                            of records, exhibits,                                                     promote railroad
                                            and other evidence,                                                       safety, FRA may
                                            administer oaths, and                                                     authorize the issuance
                                            take testimony.                                                           of subpoenas to
                                                                                                                      require the
                                                                                                                      production of records
                                                                                                                      and the giving of
                                                                                                                      testimony.

US Department of   No common name;          In enforcing the          Under 49 U.S.C. §       Some notification and   Under 49 C.F.R. §
Transportation     hazardous materials      hazardous materials       5122, the FRA           privacy protections     209.7, the Chief
                   transportation laws,     laws, to the extent       Administrator, as the   discussed above. See    Counsel may issue a
                   P. L. 93-633, P.L.       necessary, as the         delegate of the         49 C.F.R. §§209.7(d)    subpoena in any
Federal Railroad                                                                              and 209.11 and          matter related to
                   103- 272, 49 U.S.C. §    delegate of the           Secretary of
Administration                                                                                209.115.                enforcement of the
                   5121 (formerly the       Secretary of              Transportation, may
                   Hazardous Materials      Transportation, the       seek enforcement by                             railroad safety laws.
                   Transportation Act,      FRA Administrator         the Attorney General                            In hearings involving
                   49 U.S.C. app. §         may investigate, make     of a subpoena in                                hazardous materials
                   1808); 49 C.F.R. §§      reports , issue           Federal District                                penalties, the
1.49, 209.7(a) a nd   subpoenas, conduct      Court.   presiding officer may
209.115.              hearings, require the            issue subpoenas upon
                      production of records            the written request of
                      and property, take               a party to the
                      depositions, and                 proceeding who
                      conduct research,                makes an adequate
                      development,                     showing that the
                      demonstration, and               information sought
                      training activitie s.            will materially advise
                                                       the proceeding.
                                                       Under 49 U.S.C.
                                                       §5121(c) and 49
                                                       C.F.R. §1.49, the FRA
                                                       Administrator, as the
                                                       delegate of the
                                                       Secretary of
                                                       Transportation, may
                                                       authorize inspectors
                                                       to enter upon, inspect,
                                                       and examine, at
                                                       reasonable times and
                                                       in a reasonable way,
                                                       the records and
                                                       properties of shippes
                                                       and railroads to the
                                                       extent such records
                                                       and properties relate
                                                       to the manufacture,
                                                       fabrication, marking,
                                                       reconditioning,
                                                       repair, testing, or
                                                       distribution of
                                                       packages or contain
                                                       ers for use by any
                                                       shippe r or
                                                       manufacturer in the
                                                       transportation of
                                                                                                                         hazardous materials
                                                                                                                         in commerce.

US Department of   49 U.S.C. Chapter          Agency may require        Civil Action by DOJ   Service-persona l or       Information will be
Transportation     301, Motor Vehicle        that a manufacturer of     at request of DOT     by registered letter       needed to further
                   Safety Section 30117      a motor vehicle or                                                          investigati on or
National Highway                             motor vehicle                                    Subject to Privacy         proceeding
Traffic Safety                               equipment provide                                Act, FOIA
Administration                               technical infor mation                           exemptions and the
                                             related to performance                           provisions of 49
                                             and safety                                       U.S.C. 30167 deali ng
                                                                                              with di sclosure of
                                                                                              information by the
                                                                                              government.

US Department of    49 U.S.C. 30166          Agency may conduct         Civil action by DOJ   Give reasonable            To determine in
Transportation     Reports including         an inspection or           at request of DOT     notice of inspe ction or   manufacture is
                   document production       investigation relating                           request.                   complying with safety
National Highway   and Special Orders        to motor vehicle safety.                                                    requirements.
Traffic Safety     that are comparable
Administration     to subpoenas.




US Department of   49 U.S.C. Chapter         Agency may require         Civil action by DOJ   Give reasonable            To ensure compliance
Transportation     323, Consumer             manufacturer to            at request of DOT.    notice. Privacy Act,       with consumer with
                   Information Section       provide information                              FO:IA and provisions       consumer information
National Highway   32307 - Invest igati ve   regarding damage                                 of 18 U.S.C. 1905          requirements relating
Traffic Safety     Powers                    sU.S.C.eptibility,                                                          to motor vehicles.
Administration                               crashworthiness,
                                             damage repair costs
                                             and vehicle operation
                                             costs.

US Department of   49 U.S.C. Chapter         Agency may require         Civil action by DOJ   Given reasonable           To ensure compliance
Transportation     325, Bumper               manufacturer of            at request of DOT     notice, agency may         with bumper
National Highway   Standa rds Section      passenger motor                                 require manufacturer      standards established
Traffic Safety     32505 . Information     vehicles or equipment                           to provide documents      by this Chapter
Administration     and compliance          to provide infor mation                         or make reports.
                   requirements            on bumper standards                             Privacy Act, FOIA,
                                                                                           and provisions of 18
                                                                                           U.S.C. 1905

US Department of   49 U.S.C. Chapter       Agency may conduct        Civil action by DOJ   Given reasonable          To ensure industry
Transportation     327, Odometers          investigations, conduct   at request of DOT     notice agency may         compliance with
                   Section 32706           inspections or require                          enter premises,           odometer standards
National Highway                           reports dealing with                            inspect records or
Traffic Safety                             motor vehicle                                   require reports that
Administration                             odometers.                                      relate to odome ters of
                                                                                           motor vehicles.


US Department of   49 U.S.C. Chapter       Agency may inspect        Civil action by DOJ   given reasonable          To ensure industry
Transportation     329, Automobile Fuel    and copy records,         at request of DOT     notice agency may         compliance with
                   Economy Secti on        require repots and                              enter premises,           automobile fuel
National Highway   32910 Administrative    answers under oath.                             inspect records or        economy standards.
Traffic Safety                                                                             require reports that
Administration                                                                             relate to fuel
                                                                                           standards.




US Department of   49 U.S.C. Chapter       Agency may require        Civil Action by DOJ   Service-persona l or      Information will be
Transportation     301, Motor Vehicle      that a manufacturer of    at request of DOT     by registered letter.     needed to further
                   Safety Section 30117-   a motor vehicle or                              Subject to Privacy        investigati on or
National Highway                           motor vehicle                                   Act, FOIA                 proceeding
Traffic Safety                             equipment provide                               exemptions and the
Administration                             technical infor mation                          provisions of 49
                                           related to performance                          U.S.C. 30167 deali ng
                                           and safety                                      with di sclosure of
                                                                                           information by the
                                                                                           government.
US Department of    49 U.S.C. 30166       Agency may conduct        Civil action by DOJ   Give reasonable            To determine in
Transportation     Reports including      an inspection or          at request of DOT     notice of inspe ction or   manufacturer is
                   document production    investigation relating                          request                    complying with
National Highway   and Special Orders     to motor vehicle safety                                                    safety requirements.
Traffic Safety     that are comparable
Administration     to subpoenas.




US Department of   49 U.S.C. Chapter      Agency may require        Civil action by DOJ   Give reasonable            To ensure compliance
Transportation     323, Consumer          manufacture to            at request of DOT     notice. Privacy Act,       with consumer
                   Information Section    provide information                             FOIA and provisions        information
National Highway   32307 Investi gative   regarding damage                                of 18 U.S.C. 1905.         requirements relating
Traffic Safety     Powers                 sU.S.C.eptibility,                                                         to motor vehicles.
Administration                            crashworthiness,
                                          damage repair costs
                                          and vehicle operation
                                          costs.

US Department of   49 U.S.C. Chapter      Agency may require        Civil action by DOJ   Give reasonable            To ensure compliance
Transportation     325, Bumper            manufacturer of           at request of DOT.    notice, agency may         with bumper
                   Standa rds Section     passenger motor                                 require manufacturer       standards established
National Highway   32505 . Information    vehicles or equipment                           to provide documents       by this Chapter.
Traffic Safety     and compliance         to provide infor mation                         or make reports.
Administration     requirements           on bumper standards.                            Privacy Act, FOIA,
                                                                                          and provisions of 18
                                                                                          U.S.C. 1905.


US Department of   49 U.S.C. Chapter      Agency may conduct        Civil action by DOJ   Given reasonable           To ensure industry
Transportation     327, Odometers         investigations, conduct   at request of DOT     notice agency may          compliance with
                   Section32706           inspections or require                          enter premises,            odometer standards.
National Highway                          reports dealing with                            inspect records or
Traffic Safety                            motor vehicle                                   require reports that
Administration                            odometers.                                      relate to odome ters of
                                                                                          motor vehicles.
US Department of        49 U.S.C. Chapter     Agency may inspect        Civil action by DOJ       Given reasonable          To ensure industry
Transportation         329, Automobile Fuel   and copy records,         at request of DOT.        notice agency may         compliance with
                       Economy Secti on       require reports and                                 enter premises,           automobile fuel
National Highway       32910 Administrative   answers under oath.                                 inspect records or        economy standards.
Traffic Safety                                                                                    require reports that
Administration                                                                                    relate to fuel
                                                                                                  standards.


US Department of       Section 214 of the     MARAD is authorized       MARAD may invoke          No notification           Subpoena and
Transportation         Merchant Mar ine       to issue a subpoena       the aid of any district   requirement but 46        testi fication -upon
                       Act, 1936, as          and testificandum or      court of the Untied       CFR 201.124               request of an
Marit ime              amended, 46 App.       subpoena duces tecum      States within the         provide s for             interested party (46
Administration         U.S.C. 1124;46 CFR     for the purpose of        jurisdiction in which     opportunity to            CFR 201.121);
                       201.121-127            investigation which is    the person re sides or    request quashi ng of      subpoena duces
                                              necessary and proper      carries out business.     subpoena. Elicited        tecum-not
                                              in carrying out the       A failure to obey an      information may be        unreasonable,
                                              Merchant Marine Act.      order of the court        treated as                oppressive, excessive
                                                                        may be punished by        confidential under 46     in scope or unduly
                                                                        the court as              CFR 201.151.              burdensome (46 CFR
                                                                        contempt.                                           201.123)

US Department of       Hazardous Materials    To require the            Civil action by DOJ       Service in person (or     A showing that the
Transportation         Transportation Act     attendance of witnesses   at the request of         on a duly authorized      information will
                       as codified by P.L.    or the producti on of     DOT.                      representative) or by     materially advance a
                       103-272 at 49 U.S.C.   documentary or other                                certified or registered   proceeding under, or
Research and Special
                       5101, 5121. 49         tangible evidenc e, or                              mail. Agency may          a dete rmination of
Programs
                       C.F.R. 107.13,         both.                                               treat any document        compliance with, the
Administration
                       107.305                                                                    provided confidential     hazardous material
                                                                                                  after a request and       transportation law.
                                                                                                  showing that it is        Within 10 days a
                                                                                                  exempt from               person receiving a
                                                                                                  disclosure under          subpoena may apply
                                                                                                  FOIA or otherwise.        to quash or modify
                                                                                                                            the subpoena.

US Department of       Pipeline Safety Act    To require the            Civil action by DOJ       Service in person (or     A showing that the
Transportation         as codified by P.L.     attendance of witnesses    at the request of       on a duty authorized      information will
                       103-272 at 49 U.S.C.    or the producti on of      DOT.                    representative) or by     materially advance a
Research and Special   60101, 60117 49         documentary or other                               certified or registered   proceeding or
Programs               C.F.R. 190.7, 190.203   tangible evidenc e, or                             mail. Agency may          determine the
Administration                                 both.                                              treat any document        appropriate action to
                                                                                                  provided confidential     be taken under the
                                                                                                  after request and         pipeline safety law.
                                                                                                  showing it is exempt      Within 10 days, a
                                                                                                  from disclosure under     person receiving a
                                                                                                  FOIA or otherwise.        subpoena may apply
                                                                                                                            to quash or modify
                                                                                                                            the subpoena.

US Department of       49 U.S.C. §502          Grants FMCSA right         If a witness does not   Reasonable notice         Notice shall state the
Transportation                                 to inquire into, and       obey a subpoena, the    must be given in          name of the witness
                                               report on the              agency, or a party      writing before taki ng    and the time and
                                               management of the          before the agency,      a deposition.             place of the
Feder al Motor
                                               business of the motor      may petition the                                  deposition.
Carrier Safety
                                               carr ier; or a per son     district court to                                  Testimony taken
Administration
                                               controlling, controlled    enforce the                                       under oath.
(designee of the
                                               by, or under common        subpoena. The court                               Person taking the
Secretary)
                                               control with those         can enforce a refusal                             deposition shall
                                               carriers to the extent     to obey an order of                               prepare a transcr ipt
                                               that the business of the   the court as an                                   of the testimony
                                               person is related to the   contempt of court.                                taken.
                                               management of the                                                            Transcript shall be
                                               business of that                                                             subscribed by the
                                               carrier; and obtain                                                          deponent.
                                               from those carriers
                                               and persons                                                                  Testimony of a
                                               information the                                                              witness who is in a
                                               secretary determines                                                         foreign country may
                                               to be necessary.                                                             be taken by the
                                               FMCSA may subpoena                                                           FMCSA and filed
                                               witness and records                                                          promptly.
                                               related to a proceeding                                                      Witness summoned
                                               or investigation.                                                            before the agency is
                                    FMCSA may take                                                               entitl ed to the sa me
                                    testimony of a witness                                                       fees and mileage paid
                                    by deposition and may                                                        for those services in
                                    order the witness to                                                         the courts of the U.S.
                                    produce records.

US Department of   49 U.S.C. §504   Authorizes the             Provides for a legal    Secretary may             On demand and
                                    Secretary to prescr ibe    right of entry to       prescr ibe the time       display of proper
Transportation
                                    the for m and type of      permit an inspection,   period for records to     credentials, an
                                    records to be              enforced by court of    be preserved.             employee may inspect
Feder al Motor
                                    maintained.                competent                                         records and
Carrier Safety
                                                               jurisdiction.           Report of an accident     equipment of a
Administration
                                    Authorizes employees                               or of an investigation    carr ier, lessor , or
                                    to inspect and copy                                of the accident ca nnot   association.
                                    records, and inspect                               be admitted as
                                    the equipment of a                                 evidence or used in a     A contract for DOT
                                    carr ier, lessor , or                              civil action for          has the same right of
                                    association.                                       damage s related to a     inspection of
                                    Employees are also                                 matter mentioned in       equipment and
                                    authorized to inspect                              the re port or            recor ds of a motor
                                    and copy any record of                             investigation.            carrier as an FMCSA
                                    a person controlling,                                                        employee.
                                    controlled by, or under                            Courts have held that
                                    common control, with                               in closely regulated
                                    a carrier, if the                                  industries, there is a
                                    secretary considers                                diminished
                                    inspection relevant to                             expectation of
                                    that pe rson’s r elation                           privacy and
                                    to, or transaction with,                           warrantless searches
                                    that carrier.                                      within the trucking
                                                                                       industry have been
                                                                                       upheld and codified
                                                                                       at section 504.

                                                                                       Merely the showing
                                                                                       of a legitimate
                                                                                       investigatory
                                                                                          purposeand the need
                                                                                          to conduct the
                                                                                          inspection is sufficient
                                                                                          to warrant the
                                                                                          issuance of an
                                                                                          injunction mandating
                                                                                          the inspection.

US Department of   49 U.S.C. §507      Authorizes the          In a civil action          Process may be             A person
Transportation                         Secretary to bring a    under this provision,      served without regard      participating with the
                                       civil enforcement       trial is in the judicial   to territorial limits of   carr ier i n a violation
Feder al Motor                         action against a        district where the         the district or of the     can be joined in the
Carrier Safety                         carrier to enforce      carrier operat es.         State in which the         civil act ion without
                                       chapter 5 and the                                  action is brought.         regard to the
Administration
                                       regulations under it.                                                         residence of the
                                       The Attorney General                                                          person.
                                       is authorized to
                                       institute ac tions on
                                       request of the
                                       Secretary.

US Department of   49 U.S.C. §523(c)   Prohibits an FMCSA      Subject to fines of
Transportation                         employee who makes      not more than
                                       na inspection under     $500, imprisonment
Feder al Motor                         §504 to knowingly       for not more than 6
Carrier Safety                         discl ose information   months, or both.
Administration                         acquired during that
                                       inspection.

US Department of   49 U.S.C. §5121     Grants the Secretary    After notice and an        An officer or
Transportation                         authority to            opportuni ty for           employee, or agent
                                       investigate, make       hearing, the               shall display proper
Feder al Motor                         reports, issue          Secr etar y may i ssue     credentials when
Carrier Safety                         subpoenas, conduct      an order requiring         requested Provides
Administration                         hearings, require the   compliance wth this        for notice and
                                       reproduction of         chapter or a               hearing.
                                       records and property,   regulation
                                       take depositions and    prescribed in this
                                      conduct research,            chapter.
                                      development,
                                      demonstration, and
                                      training activitie s,
                                      relating to the
                                      transportation of
                                      hazardous materials.

US Department of   49 U.S.C. §5122    The Attorney General
Transportation                        may, upon the request
                                      of the Secretary, br ing
Feder al Motor                        civil action an
Carrier Safety                        appropriate district
Administration                        court of the U.s. to
                                      enforce chapter 51 or a
                                      regulation prescribed
                                      or order issued under
                                      this chapter.

US Department of   49 U.S.C. §14122   Secretary can                If violator refuses      Upon the display of      Time period of
Transportation                        presc ribe the for m of      acce ss, cannot          proper credential s,     prese rvation of
                                      records required to be       subpoena records.        the Secretary or         records is determine
                                      compiled by carriers         The enforcement          employee designee        by the Secretary or
Feder al Motor
                                      and brokers and may          mechanism would be       may inspect, copy,       designee.
Carrier Safety
Administration                        inspect them.                to obtain an             and examine any
                                                                   injunction in district   records, Lands,
                                                                   court ordering           buildings, and
                                                                   production of            equipment of a
                                                                   records [49 U.S.C.       carrier or broker.
                                                                   14701].

US Department of   49 U.S.C. §14702   This provision enables       Trial is in the          Process may be           A person
Transportation                        the Secretary to bri ng      judicial district in     served without regard    participating with a
                                      a civil action to            which the carrier        to the territorial       carr ier i n a violation
Feder al Motor                        enforce 49 U.S.C.            operates.                limits of the district   can be joined in the
Carrier Safety                        §1410 3, or this par t, or                            or State in which the    civil act ion without
Administration                        a regulation or order                                 action is instituted.    regard to the
                                      of the Secretary when                                                          residence of the
                                      violated by a carrier                                                         person.
                                      or broker, or by a
                                      foreign motor carrier
                                      or foreign motor
                                      private carrier.

US Department of   49 U.S.C. §14909   Criminal provision for
Transportation                        failing to obey a
                                      subpoena or
Feder al Motor                        requirement of the
Carrier Safety                        Secretary to appear
Administration                        and testify or produce
                                      records.

US Department of   49 U.S.C. §31133   Secretary may conduct       Secretary may                                     Secretary shall
Transportation                        inspections and             delegate to a State                               consult with
                                      investigations; compile     receiving a grant                                 employers and
                                      statistics; make            under section 31102                               employees and their
Feder al Motor
                                      reports, issue              of this title those                               authorized
Carrier Safety
                                      subpoenas; require          duties and powers                                 representatives in
Administration
                                      production of records       related to                                        connection with
                                      and property; take          enforcement                                       inspections and
                                      depositions; hold           (including                                        investigations and
                                      hearings; prescri be        conducting                                        offer them a r ight of
                                      record keeping and          investigations) of this                           accompaniment.
                                      reporting                   subchapter and
                                      requirements; conduct       regulations
                                      or make contra cts for      prescribed under this
                                      studies, development,       subchapter that the
                                      testing, evaluation, and    Secretary considers
                                      training; and perform       appropriate.
                                      other acts the
                                      Secretary considers
                                      appropriate.

US Department of   49 U.S.C. §31143   §31143(a) requires the                                Secretary required to
Transportation                        Secretary to conduct                                  give the compliant
                                      timely investigat ions of                             timely notice of the
Feder al Motor                           nonfrivolous written      findings of the
Carrier Safety                           complaints alleging       investigation.
Administration                           that a substantial
                                         violation of a            The Secretary may
                                         regulation prescribed     disclose the identity
                                         under this subchapter     of a complaint only if
                                         is occurring or has       disclosure is
                                         occurred within the       necessary to
                                         prior 60 days.            prosecute a violation.

                                                                   If disclosure is
                                                                   necessary, the
                                                                   Secretary shall take
                                                                   ever practical mea ns
                                                                   within the Secretary’s
                                                                   authority to ensure
                                                                   that the complaint it
                                                                   not subject to
                                                                   harrassment,
                                                                   intimidation,
                                                                   disciplinary acti on,
                                                                   discr imination or
                                                                   financial loss because
                                                                   of disclosure.

US Department of   49 U.S.C. §31306(c)   Secretary is required     §31306(c)(7) provides
Transportation                           to develop drug and       for the confidentiality
                                         alcohol testing           of test results and
Feder al Motor                           requirements that         medical information
Carrier Safety                           promote, to the           (except information
Administration                           maximum extent            about alcohol or a
                                         practicable, individual   controlled substance
                                         privacy in the            of employees, except
                                         collection of specimens   that this clause does
                                         [§31306(c)(L)].           not prevent the use of
                                                                   test results for the
                                                                   orderly imposition of
                                                                                 appropriate sanctions
                                                                                 under this section.
                                                                                 §31306(c)(8) ensures
                                                                                 that employees are
                                                                                 selected for tests by
                                                                                 nondiscriminatory
                                                                                 and impartial
                                                                                 methods, so that no
                                                                                 employee is harassed
                                                                                 by being treated
                                                                                 differently from other
                                                                                 employees in similar
                                                                                 circumstances.

Department of      46 U.S.C. Appx §   Creation and functi on
Transportation†    1124               of maritime agencies

Department of      33 U.S.C. § 1907   Investigations in
Transportation†                       violation of the
                                      MARPO L protoc ol

Depa rtment of
Veter ans
Affairs
Department of      38 U.S.C. §5711.                            Order of U.S.     Right to Financial
Veterans Affairs                                               District Court.   Privacy Act, 12
                                                                                 U.S.C. §§3401-3422.
Department of       Inspector General                                Order of U.S.            Right to Financial        Internal guidelines.
Veterans Affairs    Act (P.L. 95-452); 5                             District Court.          Privacy Act, 12
                    U.S.C. App. §6(a)(4)                                                      U.S.C. §§3401-3422.




Environmental       Holds no
                    admini strative
Protec tion         subpoena authority,
Agency              excluding the
                    Inspector General
                    authority. No
                    unique, agency-
                    specific IG Act
                    authority held.

Environmental       Federal Water          Owner or operator of      Negligent and            Information obtained      EPA may require
Protection Agency   Pollution Control      any point source may      knowing violations       under CWA § 308 is        submission of this
                    Act (“Clean Water      be required to: (i)       subject to criminal      not publicly available    information whenever
                    Act” or “CWA”),        establish and maintain    penalties (CWA §         if EPA determines         requi red to carry out
                    P.L. 92-500, as        records; (ii) make        309(c)(1-3)).            “that records,            the objective of this
                    amended, 33 U.S.C. §   reports; (iii) install,   Violations also          reports, or               statute, incl uding but
                    1318(a)(A), CWA §      use, and maintain         subject to judicial      information, or           not limi ted to:
                    308(a)(A).             monitoring equipment;     civil penalties not to   particular part           developing a
                                           (iv) sample effluents;    exceed $27,500 per       thereof (other than       limitation, prohibition
                                           and (v) provide such      day for each             effluent data), ...       or effluent standard,
                                           other information as      violation (CWA §         would divulge             pretreatment
                                           EPA “may reasonably       309(b), (d)).            methods or processes      standard or standard
                                           require.”                 Violations also          entit led to protection   of performance;
                                                                     subject to               as trade secrets....”     determining whether
                                                                     administrative civil     (i.e. protected under     a person is in
                                                                     penalties not to         Section 1905 of Title     violation of such
                                                                     exceed $11,000 per       18), CWA § 308(b).        standard or
                                                                     day up to $137,500                                 limitation; any
                                                                (CWA § 309(g)(1-2).                                requirement under
                                                                                                                   the statute; or
                                                                                                                   carrying out specific
                                                                                                                   liste d provisions of
                                                                                                                   the statute.

Environmental       Federal Water          Authorizes EPA to    Negligent and            Information obtained      EPA may require
                    Pollution Control      have access to and   knowing violations       under CWA § 308 is        submission of this
Protection Agency
                    Act (“Clean Water      copy records and     subject to criminal      not publicly available    information whenever
                    Act” or “CWA”),        inspect equipment    penalties (CWA §         if EPA determines         requi red to carry out
                    P.L. 92-500, as        required by CWA §    309(c)(1-3)).            “that records,            the objective of this
                    amended, 33 U.S.C. §   308(a)(A).           Violations also          reports, or               statute, incl uding but
                    1318(a)(B), CWA §                           subject to judicial      information, or           not limi ted to:
                    308(a)(B).                                  civil penalties not to   particular part           developing a
                                                                exceed $27,500 per       thereof (other than       limitation, prohibition
                                                                day for each             effluent data), ...       or effluent standard,
                                                                violation (CWA §         would divulge             pretreatment
                                                                309(b), (d)).            methods or processes      standard or standard
                                                                Violations also          entit led to protection   of performance;
                                                                subject to               as trade secrets....”     determining whether
                                                                administrative civil     (i.e. protected under     a person is in
                                                                penalties not to         Section 1905 of Title     violation of such
                                                                exceed $11,000 per       18), CWA § 308(b).        standard or
                                                                day up to $137,500                                 limitation; any
                                                                (CWA § 309(g)(1-2).                                requirement under
                                                                                                                   the statute; or
                                                                                                                   carrying out specific
                                                                                                                   liste d provisions of
                                                                                                                   the statute.
Environmental          Federal Water          EPA (and the U.S.         Subpoenas may be         Notice is provided        EPA (and the U.S.
Protection             Pollution Control      Army Cor ps of            issued by an             prior to seeking          Army Cor ps of
                       Act (“Clean Water      Engineer s) “may issue    Administrative Law       federal court             Engineer s) may issue
Agency*                                                                 Judge or other           enforcement of the        subpoena.
                       Act” or “CWA”),        subpoenas for the
                       P.L. 92-500, as        attendance and            Presiding Officer (40    subpoena.
                       amended, 33 U.S.C. §   testimony of witnesses    C.F.R. § 22.21(b))                                 Subpoenas may be
Office of Regulatory   1319(g)(10), CWA §     and the production of     and are enforceable                                issued by an
Enforcement            309(g)(10).            relevant papers, books,   through contempt                                   Administrative Law
                                              or documents in           proceedings in                                     Judge or other
                                              connection with”          federal district court                             Presiding Officer (40
                                              administrative civil      (CWA § 309(g)(10)).                                C.F.R. § 22.21(b)).
                                              penalty hearings
                                              pursuant to CWA §
                                              309(g).

Environmental          Oil Pollution Act/     EPA (and the U.S.         Subpoenas may be         Notice is provided        EPA (and the U.S.
Protection             Federal Water          Coast Guard) “may         issued by an             prior to seeking          Coast Guard) may
                       Pollution Control      issue subpoenas for the   Administrative Law       federal court             issue subpoena.
Agency*                                                                                          enforcement of the
                       Act (“Clean Water      attendance and            Judge or other
                       Act” or “CWA”),        testimony of witnesses    Presiding Officer (40    subpoena.                 Subpoenas may be
                       P.L. 92-500, as        and the production of     C.F.R. § 22.21(b))                                 issued by an
Office of Regulatory
                       amended, 33 U.S.C. §   relevant papers, books,   and are enforceable                                Administrative Law
Enforcement
                       1321(b)(6)(I), CWA §   or documents in           through contempt                                   Judge or other
                       311(b)(6)(I).          connection with”          proceedings in                                     Presiding Officer (40
                                              administrative civil      federal district court                             C.F.R. § 22.21(b)).
                                              penalty hearings          (CWA §
                                              pursuant to CWA §         309(b)(6)(I)).
                                              311(b)(6).

Environmental          Public Health          To determine              Failure or refusal to    Consultation with         Information may be
Protection Agency      Service Act (“Safe     compliance with the       comply with a            State required if State   requested, on a case-
                       Drinking Water Act”    SDWA, “[e]very            requirement under        has primary               by-case basis, to
                       or “SDWA”), P.L.       person who is subject     this provision is        enforcement               determine compliance
                       93-523, as amended,    to a national primary     subject to a judicial    responsibility (SDWA      with the statute.
                       42 U.S.C. § 300j-      drinking water            civil penalty not to     § 1445(a)(1)(B)).
Office of Regulatory
                       4(a)(1)(B), SDWA §     regulation” may be        exceed $27,500           Information obtained
Enforcement
                       1445(a)(1)(B).         required to “provide      (SDWA § 1445(c)).        under SDWA § 1445
                                              such information as       Any person who           is not publicly
                                             [EPA] may reasonably     violates, or fails or   available i f EPA
                                             require.”                refuses to comply       determines that the
                                                                      with an                 information “would
                                                                      administrative order    divulge trade secrets
                                                                      requiring compliance    or secret processes.”
                                                                      with SDWA § 1445 is     (SDWA § 1445(d)).
                                                                      subject to
                                                                      administrative civil
                                                                      penalties of not more
                                                                      than $25,000 per day
                                                                      of violation (SDWA §
                                                                      1414(g)(3)).

Environmental          Public Health         To assist EPA in         Failure or refusal to    Consultation with        Information may be
Protection Agency      Service Act (“Safe    developing national      comply with a           suppliers of water        requested to assist the
                       Drinking Water Act”   drinking water           requirement under       and State (if State has   Administrator in
                       or “SDWA”), P.L.      regulations, “[e]very    this provision is       primary enforcement       developing
                       93-523, as amended,   person who is subject    subject to a judicial   responsibility) is        regulations.
                       42 U.S.C. § 300j-     to a national primary    civil penalty not to    required (SDWA §
Office of Regulatory
Enforcement            4(a)(1)(C), SDWA §    drinking water           exceed $27,500          1445(a)(1)(C)).
                       1445(a)(1)(C).        regulation” may be       (SDWA § 1445(c)).       Information obtained
                                             required to “provide     Any person who          under SDWA § 1445
                                             such information as      violates, or fails or   is not publicly
                                             [EPA] may reasonably     refuses to comply       available i f EPA
                                             require.”                with an                 determines that the
                                                                      administrative order    information “would
                                             Before exercising this   requiring compliance    divulge trade secrets
                                             authority, EPA must      with SDWA § 1445 is     or secret processes.”
                                             “seek to obtain the      subject to              (SDWA § 1445(d)).
                                             information by           administrative civil
                                             voluntary submission”    penalties of not more
                                             (SDWA § 1445(c)).        than $25,000 per day
                                                                      of violation (SDWA §
                                                                      1414(g)(3)).

Environmental          Public Health         Authorizes EPA to        Failure or refusal to   Before exercising this    May exercise this
Protection Agency      Service Act (“Safe    inspect, audit, and      allow EPA to            authority, EPA must       authority to
                       Drinking Water Act”   examine certain          exercise this           provide written           determine
                       or “SDWA”), P.L.       records, files, r eports,   authority is subject     notice to the supplier    compliance, and to
                       93-523, as amended,    records, etc. possessed     to a judicial civil      of water or other         examine/audit
Office of Regulatory   42 U.S.C. § 300j-      by “any suppli er of        penalty not to exceed    person and to the         records of a grantee
Enforcement            4(b)(1), SDWA §        water or other person       $27,500 (SDWA §          State (if the State has   which are required to
                       1445(b)(1).            subject to (A) a            1445(c)).                primary enforcement       be maintained or
                                              national primary            Any person who           responsibility)           which are pertinent to
                                              drinking water              violates, or fails or    (SDWA § 1414(b)(1-        any financial
                                              regulation,... (B) an       refuses to comply        2)).                      assistance under the
                                              applicable                  with an                  Information obtained      subchapter.
                                              underground inj ection      administrative order     under SDWA § 1445
                                              control progr am, or        requiring compliance     is not publicly
                                              (C) a requirement to        with SDWA § 1445 is      available i f EPA
                                              monitor an                  subject to               determines that the
                                              unregulated                 administrative civil     information “would
                                              contaminant pursuant        penalties of not more    divulge trade secrets
                                              to [SDWA § 1445(a)],        than $25,000 per day     or secret processes.”
                                              or person in charge of      of violation (SDWA §     (SDWA § 1445(d)).
                                              the property....”           1414(g)(3)).

Environmental          Underground            EPA may issue               Subpoenas may be                                   Subpoenas may be
Protection             Injection Cont rol     subpoenas “compelling       issued by an                                       issued i n connection
                       (“UIC”) -              attendance and              Administrative Law                                 with administrative
Agency*                                       testimony of witnesses      Judge or other                                     proceedings under
                       Public Health
                       Service Act (“Safe     and subpoenas duces         Presiding Officer (40                              Section 1423.
                       Drinking Water Act”    tecum,” in connection       C.F.R. § 22.21(b))
Office of Regulatory
                       or “SDWA”), P.L.       with administrative         and are enforceable
Enforcement
                       93-523, as amended,    hearings pursuant to        (with sanctions) in
                       42 U.S.C. § 300h-      SDWA § 1423(c).             federal district court
                       2(c)(8), SDWA §                                    (SDWA § 1423
                       1423(c)(8).                                        (c)(8)).

Environmental          Marine Protection,     EPA (or the U.S. Army
Protection Agency      Research, and          Corps of Engineers)
                       Sanctuaries Act        may require MPRSA
                       (“MPRSA”), P.L. 92-    permit applicants “to
Office of Regulatory   532, Title I, as       provide such
Enforcement            amended, 42 U.S.C. §   information as [EPA
                       1414(e), MPRSA §       or the Corps] may
                       104(e).                consider necessary to
                                              review and evaluate
                                              such application”
                                              (MPRSA § 104(e)).

Environmental          Shore Protection Act   EPA (and the U.S.         Subpoenas under this
Protection Agency      (“SPA”)                Dept. of                  section are
                       P.L. 100-688, as       Transportation) may       enforceable (with
                       amended, 33 U.S.C. §   issue subpoenas           contempt sanctions if
                       2606.                  compelling “the           a court order is
Office of Regulatory                          attendance and            disobeyed) in federal
Enforcement                                   testimony of witnesses,   district court (SPA §
                                              including parties in      2606(c)).
                                              interest, and the
                                              production of any
                                              evidence....” (SPA §
                                              2606(a)).

Environmental          Solid Waste Disposal   Authorizes EPA to         No specific
Protection Agency      Act, 42 U.S.C.A.       require persons to        enforcement
                       6901 to 6992K, (also   present information in    authority in RCRA
                       cited as Resource      connection with EPA's
Office of Regulatory   Conservation and       investigati on of
Enforcement            Recovery Act;          employment shifts and
                       includes amendments    losses allegedly
                       in 1996, 1992, 1988,   attributable to the
                       1984, 1980, 1976);     admini stration or
                                              enforcement of RCRA
                       § 7001(e), 42 U.S.C.   (including individual
                       6971(e)                allegations of
                                              discharge, layoff or
                                              discrimination)

Environmental          Solid Waste Disposal   Section 3007(a)           EPA issues              Section 3007(b) states
Protection Agency      Act, 42 U.S.C.A.       authorizes any officer,   information request     that all records,
                       6901 to 6992K, (also   employee or               letters under RCRA      reports or
                       cited as Resource      representative of EPA     § 3007(a). RCRA §       information obtained
                       Conservation and       duly designated by the    3008(a); 42 U.S.C. §    shall be available to
Office of Regulatory   Recovery Act;          Administrator, or any       6928(a) authorizes       the publ ic, e xcept on
Enforcement            includes amendments    duly designated             enforcement by EPA       a showing by the
                       in 1996, 1992, 1988,   officer, e mployee or       for failure to provide   person that if made
                       1984, 1980, 1976);     representative of a         a complete and           public such
                                              State having an             truthful response to     information would
                       Section 3007, 42       authorized hazardous        an information           divulge information
                       U.S.C. 6927            waste program to:           request, subjecting      entit led to protection
                                              request information         respondent to            under se ction 1 905 of
                                              from any person who         $27,500 in penalties     Title 18. If that
                                              generates, stores,          per day of               showing is made, the
                                              treats, transports,         noncompliance for        information will be
                                              dispose s of, or            each violation.          treated as
                                              otherwise handles or                                 confidential except
                                              has handled hazardous                                that it may be
                                              waste; enter any place                               disclosed to other
                                              where haz ardous                                     U.S. employees
                                              wastes have be en or                                 carrying out this
                                              are generate d, stored,                              statute. See RCRA §
                                              treated, dispose d of, or                            3007(b) and 40 C.F.R.
                                              transported from; and                                260.2
                                              to copy all records
                                              relating to such
                                              wastes; to inspect and
                                              obtain samples of such
                                              wastes and samples of
                                              any containe rs or
                                              labeling for such
                                              wastes.

Environmental          Solid Waste Disposal   Authorizes EPA to           Authorizes               Requires public           After EPA determines
Protection Agency      Act, 42 U.S.C.A.       issue orders as “may        enforcement in           meeting and               that the handling,
                       6901 to 6992K, (also   be necessary to protect     judici al civil action   opportunity to            storage, treatment,
                       cited as Resource      public health and the       brought by EPA for       comment whenever          transportation or
Office of Regulatory   Conservation and       environment”                willful violation,       US or EPA proposes        disposal of any solid
Enforcement            Recovery Act;          including ordering:         failure or refusal to    to settle any claim       or hazardous waste
                       includes amendments    (a) sampling, testing,      comply with EPA          arising under RCRA        may present an
                       in 1996, 1992, 1988,   and analysis; and (2)       order. Subjects          §7003, 42 U.S.C. §        imminent and
                       1984, 1980, 1976);     monitoring, (3)           violator to judicial     6873                      substantial
                                              submission of reports     civil penalty of                                   endangerme nt, EPA
                       Section 7003, 42       on above activities and   $5,500 per day of                                  may issue orders as
                       U.S.C. 6973            on progress of cleanup.   violation.                                         “may be necessary to
                                                                                                                           protect human health
                                                                                                                           and the
                                                                                                                           environment.”

Environmental          Solid Waste Disposal   Authorizes EPA to         EPA issues orders                                  EPA may require
Protection Agency      Act, 42 U.S.C.A.       require persons to        under RCRA §                                       submission of
                       6901 to 6992K, (also   require owne r or         7003(a), 42 U.S.C. §                               information upon
                       cited as Resource      operator of a facility    6934(a). Violations                                determination that:
                       Conservation and       or site to: (1) make      subject to judicial                                (1) the presence of
Office of Regulatory
                       Recovery Act;          reports; (2) conduct      civil penalties not to                             any hazardous waste
Enforcement
                       includes amendments    monitoring and            exceed $5,500 per                                  at a facility or site
                       in 1996, 1992, 1988,   testing; and (3)          day during which                                   where it is, or has
                       1984, 1980, 1976);     conduct analyses as       person fails or                                    been stored, treated,
                       § 3013(a), 42 U.S.C.   EPA deems                 refuses to comply                                  or disposed of, or (2)
                       6934(a)                “reasonable to            with EPA order                                     the release of any
                                              ascertain the nature      under RCRA §                                       such waste from such
                                              and extent” of a          3013(e), 42 U.S.C.                                 a facility or site, “may
                                              hazard.                   6934(e).                                           present a substantial
                                                                                                                           hazard to human
                                                                                                                           health or the
                                                                                                                           environment.”

Environmental          SWDA, also known       Section 9005              Failure to comply        Information obtained      Information may be
Protection Agency      as RCRA (same cite     authorizes any officer,   may result in EPA        shall be available to     requested for the
                       as above);             employee or               issuing an order for     the publ ic, e xcept on   purposes of
                                              representative of EPA     compliance.              a showing by the          developing or
Office of Regulatory   Section 9005, 42       duly designated by the                             person that if made       assisting in the
Enforcement            U.S.C. 6991d           Administrator, or any                              public such               development of any
                                              duly designated                                    information would         regulation;
                                              officer, e mployee or                              divulge information       conducting a study;
                                              representative of a                                entit led to protection   taking corrective
                                              State acting pursuant                              under se ction 1 905 of   action; or enforcing
                                              to Section 9003b(h)(7)                             Title 18. If that         provisions of the
                                              or with an approved                                showing is made, the      statute.
                                    program to request                            information will be
                                    information from any                          treated as
                                    owner or operator of                          confidential except
                                    an underground                                that it may be
                                    storage tank (UST)                            disclosed to other
                                    relating to such tank,                        U.S. employees
                                    their associated                              carrying out this
                                    equipment, and their                          statute.
                                    contents; to enter any
                                    establishment or other
                                    place where an UST is
                                    located; to inspect and
                                    obtain samples of any
                                    regulated substances
                                    contained in such tank;
                                    to conduct monitoring
                                    and sampling of the
                                    tanks, associated
                                    equipme nt, contents or
                                    surrounding soils, air,
                                    surface wate r or
                                    groundwater; and to
                                    take corrective action.

                                    This authority also
                                    authorizes EPA to
                                    request the
                                    owner/operator to
                                    conduct monitoring or
                                    testing and permit
                                    EPA access to copy
                                    recor ds and ha ve
                                    acce ss for correc tive
                                    action.

Environmental       Comprehensive   CERCLA 104(e)             EPA may (pursuant   A recipient of a       EPA can exercise
Protection Agency   Environmental   authorizes the            to CERCLA           104(e)(2) request is   these authorities only
                 Response,            President to require       104(e)(5)(A)) issue an   not required to          for the purposes of
Office of Site   Compensation and     persons to furnish,        order directing          furnish information      determining the need
Remediation      Liability Act        upon reasonable            compliance with the      unless EPA has           for response, or
Enforcement      (CERCLA, also        notice , infor mation or   request.                 provided “reasonable     choosing or taking
U.S. EPA         known as             documents relating to:                              notice.”                 any re sponse action
                 “Superfund”), P.L.   the identificati on,       Under CERCLA                                      under CERCLA, or
                 99-499, 42 U.S.C.    nature , and quantity of   104(e)(5)(B), the        Similarly, EPA may       otherwise enforcing
                 9604(e)              materials which have       President may ask        issue an order           the provisions of
                                      been or are generat ed,    the Attorney General     pursuant to CERCLA       CERCLA.
                                      stored, or di sposed of    to commence a civil      104(e)(5)(A) “after
                                      at a vessel or facility;   action to compel         such notice and          EPA can only request
                                      the nature or extent of    compliance with a        opportuni ty for         information from a
                                      a release or threatened    104(e )(2) r equest or   consultation as is       person “who has or
                                      release of a hazardous     104(e)(5)(A) order.      reasonably               may have information
                                      substance or pollutant                              appropriate under        rele vant to” one of
                                      or conta minant at or      Where there i s a        the circumstances.”      the prescribed
                                      from a vessel or           reasonable basis to                               categories.
                                      facility; or information   believe that there       Considered public
                                      relating to the ability    may be a rele ase or     information unless       EPA’s ability to
                                      of a per son to pay for    threat of a release of   party can make a         obtain financial
                                      or to perform a            a hazardous              showing that is          information about a
                                      cleanup.                   substance or             satisfactory to the      PRP from a source
                                                                 pollutant or             President that the       other than a PRP
                                                                 contaminant, the         information is           itself is limited by the
                                                                 court shall enjoin       protected under 1905     Right to Financial
                                                                 interference with        of Title 18 or other     Privacy Act, 12
                                                                 such requests or         applicable statutes.     U.S.C. 3401, et. seq.
                                                                 orders or direct         Speci fic informat ion
                                                                 compliance with such     as listed in
                                                                 requests or orders       104(e )(7)(F) is not
                                                                 unless under the         protected from public
                                                                 circumstances of the     release.
                                                                 case the demand for
                                                                 information or
                                                                 documents is
                                                                 arbitrary and
                                                                 capricious, an abuse
                                                                    of discretion, or
                                                                    otherwise not in
                                                                    accordance with law.
                                                                    The court may assess
                                                                    a civil penalty not to
                                                                    excee d $27, 500 for
                                                                    each day of
                                                                    noncompliance
                                                                    against any person
                                                                    who unreasonably
                                                                    fails to comply with a
                                                                    request or order.

Environmental       Comprehensive        Authorizes EPA to          No specific
Protection Agency   Environmental        require persons to         enforcement
                    Response,            present information in     authority in
                    Compensation and     connection with EPA's      CERCLA.
                    Liability Act        investigati on of
Office of Site      (CERCLA, also        employment shifts and
Remediation         known as             losses allegedly
Enforcement         “Superfund”), P.L.   attributable to the
U.S. EPA            99-499, 42 U.S.C.    admini stration or
                    9610(e)              enforcement of
                                         CERCLA (including
                                         individual allegations
                                         of discharge , layoff or
                                         discrimination)

Environmental       Comprehensive        CERCLA 122(e)(3)(B)        If a respondent to       EPA can exercise this
Protection Agency   Environmental        provides that the          such a subpoena          authority only in
                    Response,            President may by           refuses to appear to     order to “collect
                    Compensation and     subpoena require the       testify or provide       information
                    Liability Act        attendance and             documentary              necessary or
Office of Site
                    (CERCLA, also        testimony of witnesses     evidence, or refuses     appropriate for
Remediation
                    known as             and the production of      to answer any or all     performing the
Enforcement
                    “Superfund”), P.L.   reports, papers,           of the questions put     allocation under”
U.S. EPA
                    99-499, 42 U.S.C.    documents, answers to      to him, EPA may          CERCLA
                    9622(e)(3)(B)        questions, and other       commence                 122(e )(3)(A) “or for
                                            information that the      enforcement             otherwise
                                            Preside nt deems          proceedings in U.S.     implementing”
                                            necessary.                district court. The     CERCLA section 122
                                                                      statute provides that   (which relates to
                                                                      in the event of         CERCLA
                                                                      contumacy or failure    settlements).
                                                                      or refusal of any
                                                                      person to obey any
                                                                      such subpoena, any
                                                                      district court of the
                                                                      United States in
                                                                      which venue is
                                                                      proper shall have
                                                                      jurisdiction to order
                                                                      any such person to
                                                                      comply with such
                                                                      subpoena. Any
                                                                      failure to obey such
                                                                      an order of the court
                                                                      is punishable by the
                                                                      court as a contempt
                                                                      thereof.

Environmental          Comprehensive        CERCLA 109(a)(5)          If a respondent to      Notice is provided   EPA can exercise
Protection Agency      Environmental        and 109(b) authorize      such a subpoena         prior to seeking     these authorities for
                       Response,            the Presi dent to issue   refuses to appear to    enforcement of a     the purpose of
                       Compensation and     subpoenas for the         testify or provide      subpoena.            obtaining testimony
                       Liability Act        attendance and            documentary                                  and documentation
Office of Regulatory   (CERCLA, also        testimony of witnesses    evidence, or refuses                         relevant to issues in
Enforcement            known as             and the production of     to answer any or all                         hearings on
                       “Superfund”), P.L.   documents and in          of the questions put                         admini strative
                       99-499, 42 U.S.C.    connection with           to him, EPA may                              penalties proposed for
                       9609(a)(5) and       hearings on               commence                                     violations of
                       9609(b).             admini strative           enforcement                                  CERCLA 103.
                                            penalties proposed for    proceedings in U.S.
                                            violations enumerated     district court. The
                                            in Sec. 109(a)(1)(A)-     statute provides that
                                              (E), (b)(1)-(5).          in the event of
                                                                        contumacy or failure
                                                                        or refusal of any
                                                                        person to obey any
                                                                        such subpoena, any
                                                                        district court of the
                                                                        United States in
                                                                        which venue is
                                                                        proper shall have
                                                                        jurisdiction to order
                                                                        any such person to
                                                                        comply with such
                                                                        subpoena. Any
                                                                        failure to obey such
                                                                        an order of the court
                                                                        is punishable by the
                                                                        court as a contempt
                                                                        thereof.


Environmental          Section 11(c) of the   Authorizes                If there is             None in statute or      For purposes of
Protection Agency      Toxic Substances       Administrator of EPA      noncompliance with      regulations, although   carrying out the
                       Control Act (TSCA),    to issue subpoenas to     a subpoena, United      information provided    statute.
                       15 U.S.C. 2610(c),     require attendance and    States can go to US     under subpoena could
Office of Regulatory   Public Law 94-469      testimony of witnesses    District Court to get   be entitled to
Enforcement            (October 11, 1976),    and/or production of      order requiring         protection as
                       and 40 C.F.R. 750.5.   reports, documents,       compliance. Failure     confidential business
                                              answers to questions,     to comply with          information under
                                              and othe r infor mation   District Court order    TSCA section 14 (15
                                              Administrator de ems      is subject to           U.S.C. 2613).
                                              necessary for carry ing   contempt of court.      (Information
                                              out Administrator's                               provided under
                                              responsibilities under                            subpoena is entitled
                                              TSCA.                                             to same l evel of
                                                                                                protection under
                                                                                                section 14 as any
                                                                                                other material
                                                                                                  provided to EPA
                                                                                                  pursuant to TSCA.)

Environmental          Air Pollution           The Administrator         EPA may enter the        Records are available   For the purposes of
                       Prevention and          may require a person      facility at reasonable   to the public except    developing or
Protection Agency
                       Control; Section 114    who owns or operates      times, upon showing      upon a showing          assisting in
                       of the Clean Air Act    any emission source,      proper credential s,     satisfactory to the     development of any
                       (CAA),                  who manufactures          to inspect records.      Administrator that      implementation plan,
Office of Regulatory
                       42 U.S.C. §7414,        emissi on control         EPA may issue a          they are protected      standard of
Enforcement
                       Pub.L. 91-604           equipment or process      compliance order if      under Section 1905 of   performance, or
                                               equipment, who the        information request      Title 18.               emission standard
                                               Administrator believes    is not responded to.                             under specific
                                               may have information      EPA may also issue                               provisions of the
                                               necessary for the         civil penalties and                              statute; for the
                                               purposes set forth in     seek a subpoena to                               purpose of
                                               this subsection, or who   compel production of                             development of any
                                               is subject to any         the documents.                                   regulation under
                                               requirement of this                                                        speci fic pr ovisions of
                                               statute, with one                                                          the statute; for
                                               exception, on a one-                                                       determining
                                               time, periodic, or                                                         compliance with any
                                               continuous basis to                                                        of these standards or
                                               establish and maintain                                                     requirements; or
                                               records; make reports;                                                     carrying out any
                                               keep records; submit                                                       provision of this
                                               compliance                                                                 statute, except for a
                                               certificati ons; and                                                       provisi on of
                                               provide such other                                                         subchapter II with
                                               information as the                                                         respe ct to a
                                               Administrator may                                                          manufacturer of new
                                               reasonably require.                                                        motor vehicle s or
                                                                                                                          engines.

Environmental          Air Pollution           Every manufacturer of     EPA may enter the        Records are available   Information that the
Protection Agency      Prevention and          new motor vehicles or     facility at reasonable   to the public except    Administrator may
                       Control; Section 208    new motor vehicle         times, upon showing      upon a showing          reasonably require to
                       of the Clean Air Act,   engines, engine parts     proper credential s,     satisfactory to the     determine whether
                       42 U.S.C. §7542,        or components, and        to inspect records.      Administrator that      the person is in
Office of Regulatory   Pub.L. 89-272          persons subject to the    EPA may issue civil      they are protected      compliance or to
Enforcement                                   requirements of this      penalties and seek       under Section 1905 of   other wise carry out
                                              part or subpart C of      injunctive relief to     Title 18.               the provision of this
                                              this subchapter, shall    compel production of                             part and part C.
                                              establish and maintain    the required
                                              records and provide       information.
                                              information the
                                              Administrator may
                                              reasonably require to
                                              determine whether the
                                              person is in
                                              compliance or to
                                              otherwise carry out the
                                              provision of this part
                                              and part C.

Environmental          Air Pollution          Authorizes EPA to         No specific
Protection Agency      Prevention and         require persons to        enforcement
                       Control ; Sect ion     present information in    authority in CAA
                       321(b) of the Clean    connection with EPA's
Office of Regulatory   Air Act, 42 U.S.C.     investigati on of
Enforcement            §7621(b), Pub.L. 89-   employment shifts and
                       272                    losses allegedly
                                              attributable to the
                                              admini stration or
                                              enforcement of CAA
                                              (including individual
                                              allegations of
                                              discharge, layoff or
                                              discrimination)

Environmental          Sec. 307(a) of the     The Administrator         Power to subpoena        Except for emission     Subpoenas may be
Protection Agency      Clean Air Act, 42      may issue subpoenas       witnesses and to issue   data, upon a showing    issued only in
                       U.S.C. 7607, Pub.L.    for the attendance and    subpoenas duces          satisfactory to the     connection with any
                       89-272.                testimony of witnesses    tecum.                   Administrator by        determination under
Office of Regulatory                          and the production of                              such owne r or          section 110(f) [42
Enforcement                                   relevant papers, books,                            operator that such      U.S.C. § 7410(f)], or
                                              and documents, and he                              papers, books,          for purposes of
may administer oaths.   documents, or             obtaining information
                        information or            under se ction
                        particular part           202(b)(4) or 211(c)(3)
                        thereof, if made          [42 U.S.C. §§
                        public, would divulge     7521( b)(4) or
                        trade secrets or secret   7545(c)(3)], [or] any
                        processes of such         investigation,
                        owner or operator,        monitoring, reporting
                        the Administrator         requirement, entry,
                        shall consider such       compliance
                        recor d, report, or       inspection, or
                        information or            admini strative
                        parti cular portion       enforcement
                        thereof confidential      proceeding under the
                        in accordance with        Act (i ncluding but not
                        the purposes of           limited to section 113,
                        section 1905 of title     section 114, section
                        18 of the United          120, section 129,
                        States Code, except       section 167, section
                        that such paper,          205, section 206,
                        book, document, or        section 208, section
                        information may be        303, or section 306 [42
                        disclosed to other        U.S.C. §§ 7413, 7414,
                        officers, employees,      7420, 7429, 7477,
                        or authorized             7524, 7525, 7542,
                        representatives of the    7603, or 7606].
                        United States
                        concerned with
                        carrying out this Act,
                        to persons carrying
                        out the National
                        Academy of Sciences'
                        study and
                        investigati on
                        provided for in
                        section 202(c) [42
                        U.S.C. § 7521(c)], or
                                                                                                when relevant in any
                                                                                                proceeding under this
                                                                                                Act.

Environmental          Sec. 12 of Noise       Authority to collect     Statute provides no      Confidential business     None
Protection Agency      Control Act, 42        information from         explicit enforcement     information is
                       U.S.C. 4912, 4915      manufacturer of          mechanism, but does      explicitly protected as
                                              regulated products “as   provide penalties of     provided in 18 U.S.C.
                                              may be reasonably        up to $10,000 and        1905.
                                              required” to determine   imprisonme nt for up
                                              whether manufacturer     to six months for
                                              is in compliance with    false submissions or
                                              Noise Control Act        tampering with
                                                                       required monitoring
                                                                       device.

Environmental          Section 6(d) of the    The Administrative       Subpoena may be          The Administrative        Subpoenas may be
Protection             Federal Insecticide,   Law Judge presiding      enforced by an           Law Judge shall be        issued only upon
                       Fungicide, and         in a public hearing on   appropriate United       guided by the             determination by the
Agency*                                       EPA decisions to         States district court.   principles of the         Administrative Law
                       Rodenticide Act, 7
                       U.S.C. 136d(d),        cancel, suspend, or                               Federal Rules of Civil    Judge (1) that such
                       Pub.L. 92-516, 86      deny regist ration or                             Procedure in making       discovery shall not in
Office of General                                                                                                         any way unreasonably
                       Stat. 984, and 40      change the                                        any order for the
Counsel Pesticides                                                                                                        delay the proceeding,
                       C.F.R. 164.70.         classification of a                               protection of the
and Toxic Substances                                                                                                      (2) that the
                                              pesticide product may                             witness or the content
Law Office                                                                                                                information to be
                                              issue a subpoena to                               of documents
                                              compel testimony or                               produced and shall        obtained is not
                                              production of                                     order the payment of      otherwise obtainable
                                              documents from any                                reasonable fees and       and (3) that such
                                              person.                                           expenses as a             information has
                                                                                                condition to requiring    significant proba tive
                                                                                                testimony of the          value.
                                                                                                witness.                  The Administrative
                                                                                                                          Law Judge shall be
                                                                                                                          guided by the
                                                                                                                          principles of the
                                                                                                                          Federal Rules of Civil
                                                                                                                          Procedure in making
                                                                                                                         any order for the
                                                                                                                         protection of a
                                                                                                                         witness or the content
                                                                                                                         of the documents
                                                                                                                         produced.

Environmental          Section 408(g)(2)(B)   Presiding officer in      Subpoena may be         The presiding officer    The presiding officer
                       of the Federal Food,   public hearings on        enforced by a federal   shall be governed by     shall be governed by
Protection Agency
                       Drug, and Cosmetic     EPA decisions to          district court.         the Federal Rules of     the Federal Rules of
                       Act, 21 U.S.C.         establish, modify,                                Civil Procedure in       Civil Procedure in
                       346a(g)(2)(B) as       suspend or revoke a                               making any order for     making any order for
Office of General
                       amende d by the Food   tolerance or exemption                            the protection of the    the protection of the
Counsel Pesticides
                       Quality Protection     from the requirement                              witness or the content   witness or the content
and Toxic Substances
                       Act (FQPA) of 1996,    of a tolerance for a                              of documents             of documents
Law Office
                       Pub.L. 104-170         pesticide chemical                                produced and shall       produced and shall
                                              residue in food or feed                           order the payment of     order the payment of
                                              may issue a subpoena                              reasonable fees and      reasonable fees and
                                              to compel testimony or                            expenses as a            expenses as a
                                              production of                                     condition to requiring   condition to requiring
                                              documents from any                                testimony of the         testimony of the
                                              person.                                           witness.                 witness.

Environmental          42 U.S.C. § 11045      Toxic Substances
Protection                                    Control Act - in any
                                              proceeding for the
Agency†
                                              assessment of a civil
                                              penalty

Environmental          42 U.S.C. § 14304      Management of
Protection                                    rechargeable batteries
                                              and batteries
Agency†
                                              containing mercury
                                              generally
Environmental         33 U.S.C. § 1369        State reports on water
Protection                                    quality &
                                              discrimination against
Agency†
                                              persons filing,
                                              instituting, or
                                              testifying in
                                              proceedings under this
                                              chapter prohibited.

Environmental         42 U.S.C. § 300h-2      Safety of public water
Protection                                    systems and protection
                                              of underground
Agency†
                                              sources of drinking
                                              water

Export-Import         Holds no
                      admini strative
Adm inistration       subpoena authority,
                      excluding IG
                      authority. No
                      unique, agency-
                      specific authority
                      under the IG Act.

Farm Cred it
Adm inistration
Farm Credit           Inspector General       Administrative           United States district                          Department of Justice
Administration        Act of 1978, P.L. 95-   subpoena                 court enforcement.                              Monograph.
                      452, 5 U.S.C. app.
Office of Inspector
General

Farm Credit           Farm Credit Act of      In connection with any   FCA may enforce a        The FCA may serve a    In an administrative
Administration        1971, as amended,       enforcement              subpoena or a            subpoena by personal   hearing, the presi ding
                      Pub. L. 92-181, Title   proceeding or            subpoena duces           service or certified   officer may require
                      V, § 5.37, as added     examination or           tecum in the United      mail with a return     FCA to show the
Office of Inspector   Pub. L. 99-205, Title   investigation under the   States District Court    receipt to the last      general rele vance and
General               II, §204, Dec. 23,      Farm Credit Act, the      for the District of      know address of the      reasonable scope of
Farm Credit           1985, 99 Stat. 1702,    FCA or its designated     Columbia, or the         person. 12 C.F.R         the testimony or other
Administration        and amended Pub. L.     representative has the    United States district   §§622.9 and 622.106.     evidence sought as a
                      100-233, Title VIII     power to issue, revoke,   court for the judicial                            condition precedent
                      §805(ee). Jan. 6,       quash or modify           district or the United   Unless ordered by the    to issuing the
                      1988, 101 Stat. 1717    subpoenas and             States court in any      FCA Board or             subpoena. 12 C.F.R.
                                              subpoenas duces           territory in which       required by law, the     §622.9.
                      12 U.S.C. §2273.        tecum.                    the proceeding is        entire record of any
                      12 C.F.R. Part 622.                               being conducted.         admini strative          Any person to whom
                                                                        Such courts have         hearing is for the       a subpoena is directed
                                                                        jurisdiction and         confidential use only    may apply to quash
                                                                        power to order and       of the FCA and its       or modify the
                                                                        require compliance       staff, the presiding     subpoena both in an
                                                                        with the subpoena.       officer, the parti es,   admini strative
                                                                        Any person who           and other                hearing and a formal
                                                                        willfully fails to       appropriate              investigation. The
                                                                        comply with a            supervisory              presiding officer,
                                                                        subpoena shall be        authorities and shall    FCA representative,
                                                                        guilty of a              not be public. 12        or the FCA Board
                                                                        misdemeanor and,         C.F.R. § 622.20.         may deny the
                                                                        upon conviction,                                  application or, after
                                                                        shall be subje ct to a   All information,         notice to the party
                                                                        fine or not more than    documents, or            that issued the
                                                                        $1,000 or to             testimony that the       subpoena and after
                                                                        imprisonment for a       FCA obtains in the       affording that party
                                                                        term of not more         course of a formal       an opportunity to
                                                                        than one year, or        Investigation is         reply, may quash or
                                                                        both.                    confidential. 12         modify the subpoena
                                                                                                 C.F.R. §622.103.         or impose reasonable
                                                                                                                          conditions. 12 C.F.R.
                                                                                                                          §§ 622.9 and 622.106.

Federal
Comm unication
s Com mission
Federal          Communications Act       Production of              U.S. district courts     All applicable la ws,   Discr etion of
Communications   of 1934, as amended,     information and            have authority to        including subpoena      authorized
                 47 U.S.C. §151 et seq.   documents related to       enforce a                rules 47 C.F.R. §§      Commission
Commission
                                          agenc y imple mentat ion   Commission               1.331 et seq., an       personnel, subject to
                 47 U.S.C § 409(e)        and enforcement of the     admini strative          confidentiality/FOIA    requirement in the
                                          Communications Act         subpoena pursuant        rules, 47 C.F.R. §§     case of certain
                 47 C.F.R. §§ 1.331 et    of 1934, as amended,       to 47 U.S.C. § 409(g).   0.441 et seq.           personnel that no
                 seq.                     and orders, rules and                                                       admini strative
                                          regulations of the                                                          subpoena may issue
                 47 C.F.R. §§ 0.10(k),    agency. The federal                                                         without the prior
                 0.11(k)                  courts have recognized                                                      approval of the
                                          the broad                                                                   Commission’s Office
                                          admini strative                                                             of General Counsel
                                          subpoena authority of                                                       See 47 C.F.R. §§
                                          the Commission. See,                                                        1.331 et seq. (Issuance
                                          e.g., Schrieber v. FCC,                                                     by Commissioners
                                          201 F. Supp. 421 (S.D.                                                      and by ALJs in
                                          Calif. 1962), modified                                                      hearing cases)
                                          and aff’d., FCC v.                                                          47 C.F.R. §§ 0.101(k),
                                          Schrieber, 329 F. 2d                                                        0.111(k) (certain
                                          517 (d.C. Cir. 1964);                                                       offic es and bureaus
                                          aff’d., FCCv.                                                               must obtai n prior
                                          Schrieber, 381 U.S.                                                         OGC approval of any
                                          279, (1965); FCC v.                                                         subpoena issuance).
                                          Cohn, 154 F. Supp. 899
                                          (S.D.N.Y. 1957).
Federal                 Inspector General       Production of            U.S. district courts     All applicable la ws.
Communications          Act, 5 U.S.C. app. §    information and
                        6                       documents related to
Commission
                                                agency
                                                programs/operations
                                                from entitites/persons
                                                other than federal
                                                agencies

Fede ral De posit
Insurance
Corpor ation
Federal Deposit         Section 10(c) and       Administrative           8(n) District court      The FDIC’s use and       Procedures applicable
Insurance               8(n) of the Federal     subpoena authority.      enforcement and          disseminati on of        to section 10(c)
                        Deposit Insurance                                criminal penalties.      subpoenaed               investigations, 12
Corporation                                                                                       information is subject   C.F.R. § 308.144-150
                        Act (FDI Act), 12
                        U.S.C. §§1820(c) and                                                      to various laws          (2001).
                        1818(n); 12 U.S.C.                                                        including the Right to
FCIC Compliance         §§821(d)(2)(I)(i) and                                                     Financial Privacy
and Enforcement         823(d)(3)(A), Pub. L.                                                     Act, the Privacy Act
Section                 89-695.                                                                   and the Trade Secrets
                                                                                                  Act.

Federal Deposit         The Office of           The FDIC is              In the case of refusal   The OIG’s use and        The FDIC OIG has
Insurance               Inspector General       authorized to            to obey, the OIG         disseminati on of        established a policy
                        (OIG) of the FDIC is    subpoena all             enforces subpoenas       subpoenaed               governing requests
Corporation                                                              through actions          information is subject   for and the issuance
                        authorized to issue     information and
                        admini strative         documentary evidence     brought in U.S.          to various laws          of administra tive
                        subpoenas pursuant      necessary in the         district court.          including the Right to   subpoenas, FDIC
Deputy Counsel to the   to the Inspector        performance of the                                Financial Privacy        OIG Policy 110.6
Inspector General       General (IG) Ac t of    functions assigned by                             Act, the Electronic      (May 1999).
                        1978, as amended, 5     the IG Act.                                       Communications
                        U.S.C. app. 3 (2001).                                                     Privacy Act, the
                                                                                                  Freedom of
                                                                                                  Information Act, and
                                                                                                  the Privacy Act.
Federal Deposit     12 U.S.C. § 1821(l)       Only w/ appr oval from
Insurance                                     the Board or their
                                              designees; The
Corporation
                                              Corporation may, as
(Resolution Trust
                                              conservator, receiver,
Corporation)†
                                              or exclusive manager
                                              and for purposes of
                                              carrying out any
                                              power, authority, or
                                              duty with respect to an
                                              insured depository
                                              institution, exercise
                                              any power authorized
                                              under section 1818(n)
                                              of this title (including
                                              subpoena authority)

Federal Deposit     12 U.S.C. § 1829b         Recordkeeping -
Insurance                                     provision has been
                                              inter preted to allow
Corporation†
                                              subpoenas.

Federal
Election
Comm ission
Federal Election    Subpoenas for             The Commission may         For refusals to obey    Subpoenas that seek     The Commi ssion
Commission          desposition and           authorize its Chairman     any order or            financial information   revie ws the content of
                    document production       or Vice Chairman to        subpoena, the           may be subject to the   subpoenas and orders
                    and orders to submit      issue an order             Commission may          Right to Financial      and votes to appr ove
                    written answers.          requring any person to     petition a United       Privacy Act of 1978,    their issuance.
                    Feder al Election         submit sworn written       States district court   Pub. L. No. 95-630-,    Motions to quash or
                    Campaign Act              answers to written         seeking a court order   92 Stat. 3697 (1978).   modify subpoenas are
                    Amendme nts of            questions. 2 U.S.C.        that requires           Pursuant to the         also considered by the
                    1974, Pub. L. No. 93-     §437d(a)(1); 11 C.F.R.     compliance. 2 U.S.C.    Privacy Act of 1974,    Commission. 11
                    443, § 208(a), 88 Stat.   § 111.11. The              § 437d(b).              Pub. L. No. 93-579,     C.F.R. § 111.15.
                    1263,                     Commission may also                                88 Stat. 1896 (1974),
                   1282(1974)(amending     compel deposition                                 the Commi ssion
                   Feder al Election       testimony and the                                 published its System
                   Campaign Act of         production of evidence                            of Records at 62 Fed.
                   1971, §311, Pub. L.     relating to the                                   Reg. 65, 694 (1997),
                   No. 93-443,) codified   execution of the                                  which permits release
                   at 2 U.S.C.             Commission’s duties.                              of all records to the
                   §437d(a)(1)-(4); See    2 U.S.C.                                          public once the case
                   also 11 C.F.R, §§       §437d(a)(3),(4); & 11                             has closed, with the
                   111.11 - 111.15,        C.F.R. § 111.12.                                  exception of those
                   9007.1(b)(1)(v), &                                                        records that are
                   9038.1(b)(1)(v).                                                          exempt from
                                                                                             disclosure by the
                                                                                             Freedom of
                                                                                             Information Act. The
                                                                                             System of Records is
                                                                                             currently under
                                                                                             review for potential
                                                                                             revisions.

Federal Election   Inspector General       Essentially a subpoena   For refusals to obey     Same as Federal         The scope of IG
Commission         subpoenas. Inspector    duces tecum for all      an IG Subpoena, the      Elec tion Commi ssion   subpoenas and
                   General Act of 1978,    documentary evidence     IG may petition a        process above, except   methods of service
                   as amended, Pub.L.      necessary for the        United States district   under the Syst em of    are promulgated in 13
                   No, 95-452, 92 Stat.    performance of the       court seeking a court    Records, response to    C.F.R. §§ 101.302-
                   1101 (1978) codified    functions assigned       order that requires      IG subpoenas are not    101.303. Internal
                   at 5 U.S.C. app. 3,     under the IG Act.        compliance. 5 U.S.C.     publicly released.      standards and
                   §6(a)(4).                                        app. 3, §6(a)(4).                                procedures have been
                                                                                                                     issued in an FEC OIG
                                                                                                                     manual.


Federal
Emergency
Management
Agency
Federal           Section 6(a)(4) of the
Emergency         Inspector General
                  Act of 1978.
Management
Agency            (Exercises authority
                  similar to those of
                  other Inspec tor
                  Generals under the
                  Act.)

Federal
Housing
Finance Board
Federal Housing   The source of            Section 2B(a)(5) of the      Under the Act, the       The Finance Board’s       The proposed rule
Finance Board     authority for the        Act incorporates by          Finance Board may        subpoena authority        contains provisions
                  subpoena power of        reference the subpoena       file an action in the    only extends to the 12    addressing the
                  the Federal Housing      authority in section         United States district   Bank s, the Office of     requirements for the
                  Finance Board            1379B of the Safety and      court for the judicial   Finance, and to           issuance of subpoenas
                  (Finance Board) is       Soundness Act, see 12        district where the       persons who are           or subpoenas duces
                  section 2B(a)(5) of      U.S.C.                       proceeding is being      executive officer s or    tecum, but the
                  the Fede ral Home        § 4641. Under that           conducted or where       directors of a Bank or    Finance Board has
                  Loan Bank Act (Act),     authority and sec tion       the witness resides,     the Office of Finance,    not yet adopted a
                  12 U.S.C.                2B(a)(7) of the Act, the     or in the United         in connection with an     final rule on these
                  § 1422b(a)(5), as        Finance Board’s              States District Court    enforcement               matters.
                  amende d by sec tion     proposed rule provides       for the District of      proceeding under
                  606 of the Federal       that in the course of or     Columbia, for            section 2B(a)(5) of the
                  Home Loan Bank           in connection with an        enforcement of any       Act. Apart from this
                  System                   a d m i n i s t r a t i ve   subpoena or              specific authority, the
                  Modernization Act of     e n f o r c e m e n t        subpoena duces           Finance Board does
                  1999 (Modernization      proceeding, the Finance      tecum issued             not have authority to
                  Act), Title VI of the    Board shall have the         pursuant to section      subpoena the
                  Gramm-Leach-Bliley       authority to administer      2B(a)(5). See 12         financial recor ds of
                  Act, Pub. Law No.        oaths and affirmations,      U.S.C.                   any private citizen.
                  106-102, 113 Stat.       to take and pre serve        §§ 1422b(a)(5) and       The subpoena
                  1338 (Nov. 12, 1999).    testimony under oath,        (a)(7). Such courts      provisions in the
                  Section 2B(a)(5) of      to issue subpoenas and       shall have               proposed rule would
the Act confers on      subpoenas duces tecum,      jurisdiction over       allow for adequate
the Finance Board       and to revok e, quash, or   such actions and        notice to a Bank, the
the same                modify subpoenas and        power to order and      Office of Fi nance , or
admini strative         subpoenas duces tecum.      require compliance      any executive officer
enforcement powers      The attendance of           with such subpoenas     or director of a Bank
with respect to the     witnesses and the           and subpoenas duces     or the O ffice of
twelve Fe deral Home    production            of    tecum. See 12 U.S.C.    Finance. The
Loan Banks (12          documents provide d for     § 4641(c). The          Finance Board’s civil
Banks) and the          in this section may be      proposed rule sets      admini strative
Office of Finance,      required from any           out this authority.     subpoenas are not
and the ir exe cutive   place in any State at       See 12 CFR § 908.8,     self-enforcing and, as
officers and            any designated place        65 Fed. Reg. 78994,     stated, the Finance
directors, as those     where such proceeding       79000. The proposed     Board has the
granted to the Office   is being conducted.         rule also establishes   authority under the
of Federal Housing                                  procedures for the      Act to seek
Enterprise Oversi ght                               issuance and            enforcement of such
(OFHEO) with                                        enforcement of          subpoenas in an
respect to the                                      subpoenas,              appropriate district
Federal National                                    including: failure to   court, as set forth in
Mortgage                                            appear at a             the rule.
Association (Fannie                                 proceeding (§
Mae), the Federal                                   908.9(a)(4));
Home Loan                                           authority of the
Mortgage                                            presiding officer to
Corporation                                         issue subpoenas and
(Freddie Mac), or                                   subpoenas duces
their directors or                                  tecum
executive officers,                                 (§908.21(b)(5));
under sections 1371-                                service of subpoenas
1379B of Title XIII                                 (§ 908.26(d));
of the Housing and                                  witnesses fees and
Community                                           expenses
Development Act of                                  (§ 908.29); no
1992, known as the                                  discove ry of
Federal Housing                                     privileged matter (§
Enterprises Financial                               908.46(d)); motions
Safety and Soundness                                to compel document
                   Act of 1992. Pub.                                discove ry from
                   Law No. 102-550,                                 parties
                   Title XIII, §§ 1371-                             (§ 908.47(f));
                   1379B, 106 Stat. 3986                            issuanc e of
                   - 3994 (Oct. 28, 1992)                           protective orders (§
                   (Safety and                                      908.47(g));
                   Soundness Act). See                              enforcement of
                   12 U.S.C. §§ 4631-                               discovery subpoenas
                   4641. The Finance                                (§ 908.7(h));
                   Board has not yet                                document subpoenas
                   adopted any rules                                to non-parties
                   implementing the                                 (§ 908.48), and
                   statutory provisions,                            issuance and
                   but has a proposed                               enforcement of
                   rule outstanding that                            subpoenas requiring
                   addresses, among                                 attendance at a
                   other things, the                                deposition in lieu of
                   agency’s subpoena                                appearance at a
                   authority. See 65                                hearing
                   Fed. Reg. 78994                                  (§ 908.49)). See 65
                   (Dec. 18, 1999)                                  Fed. Reg. 78994 ff.
                   (proposed rule) (to
                   be codified at 12
                   CFR Part 908).



Federal
Ma ritime
Comm ission
Federal Maritime   Subpoena in              In investigations and   In case of refusal to   Notice and               A presiding officer
Commission         investigations and       adjudications under     obey, the Attorney      opportuni ty for         may require the party
                   adjudicatory             the Shipping Act, the   General at the          hearing are required     seeking a subpoena to
                   proceedings              Commission may          request of the          prior to suspension of   show the relevance
                   (Shipping Act of         compel attendance of    Commission may          a tariff, , or request   and scope where it
                   1984, as amended;        witnesses and           seek enforcement by     to the Secre tary of     appears that such
                   Pub. L. 105-258; 46     production of        a U.S. district court.     Treasury. 46 U.S.C.   subpoena may be
                   U.S.C. app. §           evidence.            46 U.S.C. app. §           app. § 1712(b)(2) &   “unreasonable,
                   1711(a)(2); 46 C.F.R.                        1713(c).                   (3).                  oppressive, excessive
                   §502.131.)                                                                                    in scope, or unduly
                                                                In addition, the                                 burdensome.” 46
                                                                Commission may                                   C.F.R. §502.131.
                                                                suspend a common
                                                                carrier’s tar iff or use
                                                                of a tariff for failure
                                                                to supply
                                                                information. 46
                                                                U.S.C. app. §
                                                                1713(b)(2).
                                                                Additional penalties
                                                                of up to $50,000 per
                                                                shipment may apply
                                                                to carriers who
                                                                operate under such a
                                                                suspended tariff. 46
                                                                U.S.C. app. §
                                                                1713(b)(3). The
                                                                Commission may
                                                                also request that the
                                                                vessels of such
                                                                carrier be refused
                                                                clearance by the
                                                                Secretary of the
                                                                Treasury. 46 U.S.C.
                                                                app. § 1713(b)(4).
                                                                Such orders are
                                                                subject to the
                                                                disapproval of the
                                                                President. 46 U.S.C.
                                                                app. § 1712(b).

Federal Maritime   Section 15 reports      The Commission may   In case of refusal to
Commission         (Shipping Act of        require any common   obey, the Attorney
                   1984, 46 U.S.C. app.   carrier to file “any       General at the
                   § 1714)                periodical or special      request of the
                                          report or any account,     Commission may
                                          record, rate or charge,    seek enforcement by
                                          or memorandum of           a U.S. district court.
                                          any facts and              46 U.S.C. app. §
                                          transactions               1713(c).
                                          appertaining to the
                                          business of that
                                          common carrier.”

Federal Maritime   Section 19             In furtherance of the      Failure to file a          Notice and hearing
Commission         information demand.    Commission’s mandate       report, etc. as            before suspension of
                   (Merchant Mar ine      to make rules and          required by the            tariff to enforce
                   Act of 1920, 46        regulations affecting      Commission, results        subpoena.
                   U.S.C. app. § 876.)    shipping in the foreign    in liability for a civil
                                          trade to adjust or meet    penalty of not more        The Commission may
                                          general or special         than $5000 for each        refuse to disclose to
                                          conditions unfavorable     day the information        the public a response
                                          to shipping in the         is not provided . 46       provided under the
                                          foreign trade, the         U.S.C. app. §              terms of 46 U.S.C. §
                                          Commission may             876(f)(4).                 876, notwithstanding
                                          require any person to                                 any other law. 46
                                          file “a report, answers    Failure to comply          U.S.C. § 876(h).
                                          to questions,              with a subpoena may
                                          documentary materials      result, after notice
                                          and other                  and hearing, in
                                          information.” 46           suspension of a
                                          U.S.C. app. § 876(f)(1).   common carrier’s
                                           In addition, the          tariff or use of a
                                          Commission may             tariff, and a penalty
                                          subpoena witnesses         of not more than
                                          and evidence in such       $5000 for each day
                                          proceedings. 46 U.S.C.     the information is
                                          app. § 876(g)(2).          not provided. 46
                                                                     U.S.C. app. §
                                                                     876(g)(4).
                                                                      The Commi ssion
                                                                      may seek
                                                                      enforcement by a
                                                                      U.S. district court.
                                                                      46 U.S.C. app. §
                                                                      876(g)(5).
Federal Maritime   Foreign Shipping      Pursuant to its                                     The Commission may
Commission         Practices Act         authority to investigate                            determine that
                   Information           “whether any laws,                                  information
                   Requests (Foreign     rules, regulations,                                 submitted under this
                   Shipping Practices    policies, or prac tices of                          provisi on “shal l not
                   Act, 46 U.S.C. app.   foreign governments,                                be disclosed to the
                   1710a.)               or any practices of                                 public.” 46 U.S.C.
                                         foreign car rier s or                               app. § 1710a(d)(3).
                                         other persons
                                         providi ng mari time or
                                         maritime-related
                                         services in a foreign
                                         country result in
                                         conditions that ...
                                         adversely affect the
                                         operation of United
                                         States carrier s... and
                                         do not exist for foreign
                                         carriers of that
                                         country in the United
                                         States,” the
                                         Commission may
                                         require any person to
                                         file reports, answers to
                                         questions,
                                         documentary material
                                         or other information.
                                         46 U.S.C. app. §
                                         1710a(d)(1).

                                         In addition, the
                                          Commission may issue
                                          subpoenas to compel
                                          attendance and
                                          testimony of witnesses
                                          and production of
                                          evidence. 46 U.S.C.
                                          app. § 1710a(d)(2).
Federal Maritime   Nonadjudicatory        In connection with        In case of failure to     Such investigatory
Commission         investigations (46     investigations            comply with such          proceedings are
                   C.F.R. Part 502,       undertaken pursuant       processes, the            “nonpublic.” 46
                   Subpart R.).           to the Commission’s       Commission may            C.F.R. § 502.291.
                                          regulatory duties, the    initi ate “a ctions for
                                          Commission may issue      enforcement by the
                                          orders or subpoenas       Commission or the
                                          directing persons to      Attorney General
                                          appear or to produce      and forfeiture of
                                          documents, 46 C.F.R. §    penalties or criminal
                                          502.286, order            actions by the
                                          testimony be take by      Attorney General.”
                                          deposition, § 502.287,    46 C.F.R. § 502.289.
                                          or order filing of a
                                          report or answer to
                                          specific questions, §
                                          502.288.
Federal Maritime   Inspector General      The IG exercises no
                                          unique, agency-specific
Commission         (IG) subpoenas
                                          authority.
                   (Inspector General
                   Act of 1978, as
                   amended; Pub. L. 95-
                   452; 5 U.S.C. app 3,
                   § 6(a)(4).
Federal               Holds no
                      admini strative
Me diation and        subpoena authority
Conciliation          and no unique,
Service               agency-specific
                      authority under the
                      Inspector General
                      Act.

Fede ral M ine
Safety
and Hea lth
Comm ission

Federal Mine Safety     Section 113(e) of the      In connection with           Commission or ALJ           None specifi ed. RFPA      Standards not specified.
and Health Review       Federal Mine Safety        hearings before the          may apply to                generally not applicable   Standard evidentiary
                        and Health Act of 1977,    Commission or an ALJ,        appropriate U.S.            because subpoena are       privileges recognized
Commission                                                                                                  rarely if ever issued to   through case
                        30 U.S.C. §823(e)(1994),   permits agency to compel     district court to enforce
                        Pub. L. 95-164.            the attendance and           Commission or ALJ           financial institutions.    adjudication.
                                                   testimony of witnesses and   order to appear, testify,
                                                   the production of books,     or produce evidence.
                                                   paper s, docume nts or


Federal Mine Safety     29 C.F.R. §2700.60         Permits Commission and       ALJ or General              None specified.            Subpoenas may be
and Health Review                                  ALJs to issue subpoenas,     Counsel at request of                                  issued for relevant, non-
                                                   on their own motion or on    ALJ or direc tion of                                   privileged matter that is
Commission                                                                                                                             admissible evidence or
                                                   application of a party,      Commission, may
                                                   requiring the attendance     initiate proceedings in                                appears likely to lead to
                                                   of witnesses and the         appropriate U.S.                                       the discovery of
                                                   production of documents      district court to enforce                              admissible evidence.
                                                   or physical evidence.        subpoena.                                              Subpoenas must
                                                                                                                                       describe with sufficient
                                                                                                                                       particularity the
                                                                                                                                       evidence required to be
                                                                                                                                       produce d, and must not
                                                                                                                                 be otherwise “invalid”
                                                                                                                                 or “unreasonable.”
                                                                                                                                 Subpoenas may be
                                                                                                                                 served by any person 18
                                                                                                                                 or over or by registered
                                                                                                                                 or certified mail, return
                                                                                                                                 receipt requested. Copy
                                                                                                                                 of subpoena bearing
                                                                                                                                 certificate of service to
                                                                                                                                 be filed with
                                                                                                                                 Commission or ALJ.
                                                                                                                                 Witness fees the same as
                                                                                                                                 the U.S. district courts.
                                                                                                                                 Motions to revok e or
                                                                                                                                 modify subpoenas may
                                                                                                                                 be fil ed within 5 da ys of
                                                                                                                                 service of the subpoena
                                                                                                                                 or at the hearing,
                                                                                                                                 whichever is sooner.

Federal R eserve,
Board of
Gover nors of the
Board of Governors   Federal Reserve Act, 12   Authorizes investigations,   None identified          None stated; RFPA           Investigation may be
of the Federal       U.S.C. § 603              including authority to                                applies to subpoena to      instituted, triggeri ng
                                               “send for persons and                                 financial institution       subpoena authority,
Reserve System                                                                                       seeking customer            whenever the Board
                                               papers, subpoena
                                               witnesses, and administer                             records unless disclosure   “shall ascertain that t he
                                               oaths,” to ensure                                     is exempt under 12          regulations prescribed
                                               compliance with                                       U.S.C. § 3413 or copy of    by it are not being
                                               agreements limiting                                   subpoena is sent first to   complied with.”
                                               activities of Agreement                               customer under 12
                                               corporations                                          U.S.C. § 3405.

Board of Governors   Change in Bank            Authorizes investigations    Judicial enforcement     None stated; RFPA           Subpoenas are
                     Control Act, 12 U.S.C.    of principals who seek to    same as under 1818(n);   applies to subpoena to      authorized in connection
of the Federal   § 1817(j)(15)   acquire control of voting   see below. Also, Board    financial institution        with any investigation to
Reserve System                   stock of a financial        may disapprove            seeking customer             determine rele vant
                                 institution, including      acquisition by any        records unless disclosure    factors under Change in
                                 exercise of authority       person who fails to       is exempt under 12           Bank Control Act, or to
                                 under 1818(n). See below.   furnish information       U.S.C. § 3413 or copy of     make independent
                                                             required by the agency.   subpoena is sent first to    determination of
                                                             12 U.S.C. §               customer under 12            accuracy and
                                                             1817(j)(7)(E).            U.S.C. § 34 05. RFPA         completeness of
                                                                                       exemptions include §         information provided by
                                                                                       3413(b), which exempts       notificant, or any other
                                                                                       from the RFPA                investigation deemed
                                                                                       disclosures to the Board     necessary by the agency
                                                                                       by a financial institution   to determine whether
                                                                                       pursuant to the Board’s      any person has filed
                                                                                       supervisory or               inaccurate, incomplete
                                                                                       regulatory functions         or misleading
                                                                                       with respect to any          information or has
                                                                                       financial institution,       violated, is violating, or
                                                                                       holding company,             is about to violate the act
                                                                                       subsidiary, or               or its regulations. 12
                                                                                       institution-affiliated       U.S.C. § 1817(j)(15)(A).
                                                                                       party thereof; § 3413(d),
                                                                                       which governs records
                                                                                                                    Under Board practice,
                                                                                       and inf ormation
                                                                                                                    subpoena authority is
                                                                                       required to be reported
                                                                                                                    granted to specified
                                                                                       under Fe deral law or
                                                                                                                    Board counsel pursuant
                                                                                       regulation; and §
                                                                                                                    to a forma l Order of
                                                                                       3413(f), which relates to
                                                                                                                    Investigation issued by
                                                                                       subpoenas issued by
                                                                                                                    the Board’s General
                                                                                       administrative law
                                                                                                                    Counsel upon a showing
                                                                                       judges in formal
                                                                                                                    of possible violation of
                                                                                       adjudicatory
                                                                                                                    law, regulation, etc.
                                                                                       proceedings.
Board of Governors of   Federal Deposit            Authorizes ag ency or        U.S. District Courts     None stated; see above   Subpoenas are
the Federal Reserve     Insurance Act, 12          designated representative    may enforce subpoenas    regarding RFPA           authorized “in the
System                  U.S.C. § 1818(n)           to “issue, revoke, quash,    or subpoenas duces                                course of or in
                                                   or modify” subpoenas in      tecum; refusal to                                 connection with any
                                                   connection with              comply is a                                       proceeding under”
                                                   admini strative              misdemeanor                                       sections 1818 or 1820(c)
                                                   enforcement proceedings      punishable by up to                               relating to enforcement
                                                   under 12 U.S.C. § 1818,      $1000 or one year                                 proceedings against
                                                   which include proceedings    imprisonment, or both.                            financial institutions and
                                                   against financial                                                              their institution-
                                                   institutions and their                                                         affiliated parti es and
                                                                                .
                                                   institution-affiliated                                                         claims for insured
                                                   parti es for unsafe or                                                         deposits.
                                                   unsound banking
                                                   practices, bre aches of
                                                                                                                                  Under Board practice,
                                                   fiduciary duty, and
                                                                                                                                  subpoena authority is
                                                   violations of law or
                                                                                                                                  granted to specified
                                                   regulation. Subpoenas
                                                                                                                                  Board counsel pursuant
                                                   may require documents
                                                                                                                                  to a forma l Order of
                                                   from any place within the
                                                                                                                                  Investigation issued by
                                                   jurisdiction of the United
                                                                                                                                  the Board’s General
                                                   States.
                                                                                                                                  Counsel upon a showing
                                                                                                                                  of possible violation of
                                                                                                                                  law, regulation, etc.

Board of Governors      Federal Deposit            Authorizes exerci se of      See above regarding      None stated; see above   As under § 1818(n),
of the Federal          Insurance Act, 12          subpoena powers under        § 1818(n)                regarding RFPA           Board practice requires
                        U.S.C. § 1820(c)           § 1818(n) in connec tion                                                       issuance of a formal
Reserve System
                                                   with bank examinations as                                                      Order of Investigation to
                                                   well as investigations to                                                      authorize issuance of a
                                                   determine compliance                                                           subpoena.
                                                   with banking laws.

Board of Governors      Bank Holding Company       Authorizes exerci se of      Same enforcement         None stated; see above   See above regarding
of the Federal          Act, 12 U.S.C. § 1844(f)   subpoena power in            authority as under       regarding RFPA           Order of Investigation
                                                   connection with any          § 1818(n).
Reserve System
                                                   application, examination,
                                                 investigation, or other
                                                 proceeding under the Act.
                                                 As with subpoenas under
                                                 § 181(n), testimony and
                                                 documents may be
                                                 required from any place
                                                 within the jurisdiction of
                                                 the United States.

Board of Governors    International Banki ng     Authorizes Board or its        Enforceable through         None stated; see above     See above regarding
of the Federal        Act of 1978, 12 U.S.C. §   designated representative      action in United States     regarding RFPA             Order of Investigation
                      3108                       to issue, revok e, quash, or   District Cour t; fine for
Reserve System                                                                  noncompliance is
                                                 modify subpoenas in
                                                 connection with any            imposed “under Title
                                                 application, examination,      18,” or imprisonment
                                                 investigation, or other        of up to one year, or
                                                 proceeding under the Act.      both; each day of
                                                 Production is required         refusal to comply is
                                                 from any place subject to      considered a separate
                                                 the jurisdiction of the        offense
                                                 United States

Board of Governors    Inspector General Act      Administrative subpoena        In the event of refusal     None specific to the       OIG has established
of the Federal        of 1978, Public Law 95-    authority, generally           to obey, court order        Inspector General Act;     within OIG various
                      452, 5 U.S.C. appendix     recognized as limited to       obtained through            statutor y notification    policies and procedures
Reserve System                                                                  petition to enforce filed   requirements followed      regarding subpoena
                      [This is the same          subpoena duces tecum
                      authority exercised by     (statutory language:           in the appropriate U.S.     for Inspector General      request and issuance.
Office of Inspector   other Inspectors                                          District Court              subpoenas issued
                                                  [Each Inspector
General               General.]                                                                             pursuant to the Right to
                                                 General...is authorized... ]
                                                                                                            Financial Privacy Act
                                                 to require by subpena the
                                                 production of all
                                                 information, documents,
                                                 reports, answers, rec ords,
                                                 accounts, papers, and
                                                 other data and
                                                 documentary evidence
                                                 necessary in the
                                              performance of the
                                              functions assigned by this
                                              Act, which subpoena, in
                                              the ca se of contumacy or
                                              refusal to obey, shall be
                                              enforceable by or der of
                                              any appropriate United
                                              States district court:
                                              Provided, That procedures
                                              other than subpoenas
                                              shall be used by the
                                              Inspector General to
                                              obtain documents and
                                              information from Federal
                                              agencies

Federal             Holds no administrative
                    subpoena authority.
Retirement Thrift
Investment Board



Federal Trade
Comm ission
Federal Trade       Section 20 of the         Civil investigati ve           Federal district court.   Strict confidentiality        Requires “reason to
Commission          Federal Trade             demands (CID) to testify       See 16 CFR § 2.13.        protections provided by       believe” that recipient is
                    Commission (FTC) Act,     or produce documentary                                   FTC Act §§ 6(f)               in posse ssion, custody, or
                    Act of September 26,      evidence in FTC                                          (confi dential financial or   control or documentary
                    1914, 38 Stat. 717, as    investigati ons of unfair or                             commercial                    material, or has
                    amended, 15 U.S.C.        deceptive practices in or                                information), 21              information, relevant to
                    § 57b-1; see 16 C.F.R.    affecting commerce or of                                 (information obtained         unfair or deceptive acts
                    § 2.7                     antitrust violations                                     pursuant to compulsory        or practices in or
                                                                                                       process or in lieu            affecting commerce
                                                                                                       thereof). In certain          within the meaning of
                                                                                     cases,other restri ctions   FTC § 5, or relevant to
                                                                                     may also apply, e.g.:       antitrust violations.
                                                                                     Right to Financial          Must be signed by a
                                                                                     Privacy Act (RFPA), 12      Commissioner pursuant
                                                                                     U.S.C. § 3401 et seq.       to a Commission
                                                                                     (customer financial         resolution; authority is
                                                                                     records); Electronic        non-delegable.
                                                                                     Communications              Recipients may file
                                                                                     Privacy Act (ECPA), 18      petit ions to limit or
                                                                                     U.S.C. § 2701 et seq.       quash. See 16 CFR
                                                                                     (stored electronic          § 2.7(d).
                                                                                     communications and
                                                                                     customer records); Fair
                                                                                     Credit Reporting Act
                                                                                     (FCRA), 15 U.S.C.
                                                                                     § 1681 et seq. (consumer
                                                                                     reports), etc.

Federal Trade   Section 9 of the FTC        Subpoenas for testimony     See above.   See above.                  Subpoena must “relat[e]
Commission      Act, 15 U.S.C. § 49; see,   of witnesses and                                                     to a matter under
                e.g., 16 CFR §§ 2.7,        production of                                                        investigation” by the
                2.10, 2.11, 2.12            documentary evidence in                                              FTC and must be signed
                                            FTC investigations other                                             by “a member of the
                                            than those covered by                                                Commission.”
                                            section 20 of the FTC Act                                            Recipients may file
                                            (see below)                                                          petit ions to limit or
                                                                                                                 quash for disposition by
                                                                                                                 a designated
                                                                                                                 Commissioner. See 16
                                                                                                                 CFR § 2.7(d).
                                                                                                                 Subpoenas are also
                                                                                                                 available in agency
                                                                                                                 adjudicatory
                                                                                                                 proceedings. See 16
                                                                                                                 CFR § 3.34.

Federal Trade   Section 6(b) of the FTC     Annual and special          See above.   See above.                  Reports under oath may
                Act; 15 U.S.C. § 46(b)      reports of persons,                                                  be required, via general
Commission                                 partnerships, and                                                                      or special order, to
                                           corporations                                                                           persons, partnerships,
                                                                                                                                  and corporations (except
                                                                                                                                  exempted entities)
                                                                                                                                  engaged in, or whose
                                                                                                                                  business affects,
                                                                                                                                  commerce.

Federal Trade   Section 6(a)(4) of the     Subpoenas for production      Federal district court.     FTC Act § 6(f)               Procedures other than
Commission      Inspector General Act      of information,                                           (confidential                subpoenas must be used
                of 1978, as amended,       documents, reports,                                       commercial or financial      to obtain documents and
                P.L. 95-452, 5 U.S.C.      answers, records,                                         information). In certain     information from
                app.                       accounts, papers, and                                     cases, other restri ctions   Federal agencies.
                                           other data and                                            may also apply: Privacy
                                           documentary evidence                                      Act, 5 U.S.C. 552a
                                                                                                     (agency systems of
                                                                                                     records pertaining to
                                                                                                     individuals); RFPA;
                                                                                                     ECPA; FCRA, etc.


Federal Trade   “Second Request”           Certain mergers and           Under 15 U.S.C.
Commission^     authority under the        acquisitions may not be       19a(g)(2), if a party
                Hart-Scott-Rodino          consummated until the         fails substantially to
                Antitrust                  parties provide the FTC       comply with a second
                Improvements Act of        and the Depar tment of        request, a district court
                1976: Section 7A of the    Justice (DOJ) with            may order compliance,
                Clayton Act, 15 U.S.C.     premerger notification        extend the waiting
                18a as amended by          and observe a waiting         period until there has
                Section 630 of Pub.L.      period. During that           been compliance, and
                No. 106-553, 114 Stat.     waiting period, eithe r the   grant other equitable
                2762(2000). The            FTC or DOJ “may               relief.
                authority to issue         require the submission of
                second requests is found   additional i nformat ion or
                in 15 U.S.C. 18a(c).       documentary material
                Rules implementing the     relevant to the proposed
                Act are found at 16        acquisition” from the
                            C.F.R. Part 801 et seq.     parties. (This is referred
                            See 16 C.F.R. 803.20        to as issuing a “second
                            (“Requests for              request.”)
                            additional i nformat ion
                            or documentary
                            material”)

General Services
Adm inistration
General Services            The Inspector General       The GSA Inspe ctor           Subpoenas issued by        In the exercise of its       GSA OIG subpoenas are
Administration              Act of 1978, Pub. L. 95-    General has the authority    the GSA Inspe ctor         subpoena authority, the      signed by the Inspec tor
                            452, 92 Stat. 1101, as      to requi re the production   General “shall be          GSA OIG complies with        General himself or, in
                            amended,                    of “all information,         enforceable by or der of   the notification and         his absence, by the
                            5 U.S.C. App III.           documents, reports,          any appropriate United     privacy provisions and       Deputy Inspec tor
Personal Property                                       answers, records,            States district court….”   other procedures, when       General, after review
Division (LP)                                           accounts, papers, and                                   applicable, of the Right     and concurrence by the
                                                        other data and                                          to Financial Privacy         Counsel to the Inspector
                                                        documentary evidence                                    Act, 12 U.S.C. §3401 et      General. Legal review is
U.S. General Services                                   necessary in the                                        seq., the Cable Act, 47      based on legal
Administration, Office of                               performance of the                                      U.S.C. §551, the             sufficiency, scope, and, if
the Inspector General                                   functions assigned by this                              Electronic                   appropriate, whether
                                                        Act…”                                                   Communications               other available means of
                                                                                                                Privacy Act, 18 U.S.C.       obtaining the necessary
                                                        The GSA OIG’s authority                                 §2701 et seq., (and          information have been
                                                        extends to the progr ams                                related statutes), and the   explored.
                                                        and operations of GSA.                                  Health Insurance
                                                                                                                Portability and
                                                                                                                Accountabili ty Act of
                                                                                                                1996, 104 Pub. L. 191.

General Services            The Contract Disputes       A Board judge may            If a person who resides,   Every subpoena must be       Board Rule 120(a) states
Administration              Act of 1978, Pub. L. No.    require by subpoena the      is found, or transacts     in the form specified in     the expectation that, in
                            95-563, 92 Stat. 2383, as   attendance of witnesses,     business within the        the appendix to the          Board proceedings,
                            amended, at § 11; 41        and production of books      jurisdiction of a United   Board's rules of             parties are expected to
Personal Property           U.S.C. § 610 (1994).        and papers, for the taking   States district court,     procedure . 48 CFR           cooperate by making
Division (LP)               Board Rule 120, 48          of testimony or evidence     refuses to obey a          6101.20(d) [Rule 120(d)].    witnesses and evidence
                            CFR 6101.20 (2000).   by deposition or in the   subpoena issued by the    The subpoena form is         available without a
U.S. General Services                             hearing of an appeal by   Board, the Board,         GSA Form 9534 (Rev. 1-       subpoena. If one party
Administration, B oard of                         the Board.                through the Attorney      98), 48 CFR Pt. 61, App.     requests a subpoena, the
Contract Appeals                                                            General, may apply to     Board Rule 120 contains      hearing judge usually
                                                                            that court to issue an    the procedures for           consults with the
                                                                            order requiring the       obtaining, serving, and      opposing party before
                                                                            person to appear before   governing proof of           making the
                                                                            the Board, to produce     service of a subpoena;       dete rmination to issue
                                                                            evidence or to give       provides for motions to      the subpoena. In many
                                                                            testimony, or both.       quash or modify a            instances in which
                                                                            Failure to obey the       subpoena; and sets forth     subpoenas are
                                                                            order may be punished     the statutory                requested, the subpoenas
                                                                            by the court as a         enforcement mechanism        are essential to securing
                                                                            contempt of court.        described above. Each        evidence necessary to
                                                                                                      appellant recei ves a        resolve contract
                                                                                                      copy of the Board's rules    disputes. Some requests
                                                                                                      of procedure with the        for Board subpoenas,
                                                                                                      notice of docketing of its   however , do not involve
                                                                                                      appeal. There ar e no        lack of cooperation by
                                                                                                      specific privacy             the parties. A party may
                                                                                                      protections connected to     request a subpoe na on
                                                                                                      a Board subpoena,            behalf of a witness who
                                                                                                      which is part of the         needs to demonstrate to
                                                                                                      record in the appeal.        an empl oyer that he or
                                                                                                      However, Board Rule          she is testifying in an
                                                                                                      112(h)(1) provides that a    admini strative
                                                                                                      party may request that       proceeding. In addition,
                                                                                                      documents be submitted       some federal agencies, as
                                                                                                      under protective order       a standard operating
                                                                                                      or held in camera, and       procedure, require a
                                                                                                      Rule 112(h)(2) states        subpoena before they
                                                                                                      that a party may ask , or    will provide documents
                                                                                                      the Board direct, that       or depositions in an
                                                                                                      testimony be received        appeal.
                                                                                                      under protective order
                                                                                                      or in camera. 48 CFR
                                                                                                      6101.12(h).
Institute of      Holds no administrative
                  subpoena authority.
Mus eum and
Library Studies



Inter-American    Holds no administrative
                  subpoena authority.
Foundation



Foreign Claims
Comm ission
Foreign Claims    22 U.S.C. § 1631h         Debt claims against
Commission†                                 asserted against Bulgaria,
                                            Hungary, or Rumania OR
                                            based upon an obligati on
                                            expressed or payable in
                                            any currency

Foreign Claims    22 U.S.C. § 1623(c)       Settl ement of               Enforceable by U.S.
Commission†                                 International Claims:        district court
                                            Any member or employee
                                            of the commission may, by
                                            designation of the
                                            Chairman of the
                                            Commission, require by
                                            subpoena the attendance
                                            and testimony of witnesses
                                            and the production of all
                                            necessary books, papers,
                                            documents, records,
                                            correspondence and other
                                        evidence.

Comm ission on
Security and
Cooper ation in
Europe
Commission on        22 U.S.C. § 3004   In carrying out this Act . .
Security and                            [the Commission] may
                                        require, by subpena or
Cooperation in
                                        otherwise, the attendance
Europe†                                 and testimony of such
                                        witnesses and the
                                        production of such books,
                                        records, correspondence,
                                        memorandums, papers,
                                        and documents as it
                                        deems necessary

U.S. International
Trade
Comm ission
U.S. International   19 U.S.C. §1333    Subpoenas are authorized       The Commission may       The Commission must         A majority of the
Trade Commission                        for the purposes of            invoke the aid of any    not disclose to             Commission must
                                        carrying out the               district court, which    unauthorized persons        authorize issuance, but
                                        Commission’s functions         may issue an order       confidential business       any member may sign a
                                        and duties in connect ion      requiring compliance,    information or business     subpoena; subpoenas
                                        with any investigation         failure to obey may be   propri etary infor mation   may issue with respect to
                                        authorized by law.             punished as contempt     gathered through            papers, information, and
                                                                       of court.                subpoenas. The              testimony pertaining to
                                                                                                Commission routinely        any Commission
                                                                                                issues orders protecting    investigation.
                                                                                                information obtained,
                                                                                                and issues sanctions
                                                                                                accordingly when such
                                                                                                           information is
                                                                                                           improperly handled.

U.S. International        Inspector General         The Inspector General is    Subpoenas are              Right to Financial         1) Information sought
Trade Commission          subpoena authority is     authorized to require by    enforceable by a United    Privacy Act (12 U.S.C. §   must be within the
                          under the                 subpoena, infor mation      States district court      3401).                     authority of the
                          Inspector General Act.    necessary in the            order. (5 U.S.C., App. 3                              Inspector General.
Office of the Inspector   ( 5 U.S.C. App. 3, §§     performance of the          § 6(a)(4))
General                   3(a), 6(a)(4), 8G(d)      functions assigned by the
                                                                                                                                      2) Information sought is
                          and 8G(g)(1).             Inspector General Act.
                                                                                                                                      reasonably relevant to
                                                    (5 U.S.C. App. 3                                                                  the Inspector General’s
                                                    § 6(a)(4)).                                                                       inquiry.


                                                                                                                                      3) Production of the
                                                                                                                                      information cannot be
                                                                                                                                      unduly burdensome.




United States             19 U.S.C. § 1677f(7)(a)   Disclosure of proprietary
International Trade                                 information under
                                                    protective orders issued
Commission†
                                                    pursuant to the North
                                                    American Free Trade
                                                    Agreement or the United
                                                    States-Canada Agreement

(North American
Free Trade
Agre ement )
(North American           19 U.S.C. § 3433          Authorizing any member
Free Trade                                          of an extraordinary
                                                    challenge committee
Agreement)†
                                                    convened under
                                                    paragraph 13 of article
                                      1904 to summon witnesses
                                      and require the
                                      production of documents,
                                      books, and records

National
Comm ission on
Electr onic Fund
Transfers
National           12 U.S.C. § 2404   To require the attendance    Enforceable by any
Commission on                         and testimony of witnesses   court of the United
                                      and the production of any    States within the
Electronic Fund                                                    judicial district within
                                      evidence that relates to
Transfers†                            any matter under             which the hearing is
                                      investigation by the         conducted or within the
                                      Commission                   judicial district within
                                                                   which such person is
                                                                   found or reside s or
                                                                   transacts business may
                                                                   (upon application by
                                                                   the Commission) order
                                                                   such person to appear
                                                                   before the Commission
                                                                   to produce evidence or
                                                                   to give testimony
                                                                   touching the matter
                                                                   under investigation.
                                                                   Any failure to obey
                                                                   such order of the court
                                                                   may be punished by
                                                                   such court as a
                                                                   contempt thereof.

Legal Services
Corpor ation
Legal Services   Inspector General Act       To require the production   In the c ase of           Because LSC is not a        The LSC OIG has
Corporation      of 1978, as amended, 5      of all information,         contumacy or refusal to   government agency, it is    inter nal procedures for
                 U.S.C. App. 3, § 6(a)(4).   documents, reports,         obey, enforceable by      unclear that the Right to   issuance of OIG
                                             answers, records,           order of any              Financial Privacy Act       subpoenas.
                                             accounts, papers, and       appropriate United        applies to LSC OIG
                                             other data and              States district court.    subpoenas.
                                             documentary evidence
                                             necessary in the
                                                                                                   Certain information
                                             performance of the
                                                                                                   potentially subject to
                                             functions assigned by the
                                                                                                   LSC OIG subpoena is
                                             IG Act.
                                                                                                   protected from further
                                                                                                   disclosure by the OIG,
                                                                                                   see Pub. L. 104-134,
                                                                                                   Sec. 509:
                                                                                                   (h) Notwithstanding
                                                                                                   section 1006(b)(3) of the
                                                                                                   Legal Services
                                                                                                   Corporation Act (42
                                                                                                   U.S.C. 2996e(b)(3)),
                                                                                                   financial re cords, time
                                                                                                   records, retainer
                                                                                                   agreements, cli ent trust
                                                                                                   fund and eligibility
                                                                                                   records, and client
                                                                                                   names, for each
                                                                                                   recipient shall be made
                                                                                                   available to any auditor
                                                                                                   or monitor of the
                                                                                                   recipient, i ncluding any
                                                                                                   Feder al department or
                                                                                                   agency that is auditing
                                                                                                   or monitoring the
                                                                                                   activities of the
                                                                                                   Corporation or of the
                                                                                                   recipient, and any
                                                                                                   independent auditor or
                                                                                                      monitor receiving
                                                                                                      Federal funds to conduct
                                                                                                      such auditing or
                                                                                                      monitoring, including
                                                                                                      any audi tor or monitor
                                                                                                      of the Corporation,
                                                                                                      except for reports or
                                                                                                      records subject to the
                                                                                                      attorney-client privilege.

                                                                                                      (i) The Legal Services
                                                                                                      Corpora tion sha ll not
                                                                                                      discl ose any name or
                                                                                                      document referred to in
                                                                                                      subsection (h), except to
                                                                                                      - (1) a Federal, St ate, or
                                                                                                      local law enforcement
                                                                                                      official; or (2) an official
                                                                                                      of an appropriate bar
                                                                                                      association for the
                                                                                                      purpose of enabling the
                                                                                                      official to conduct an
                                                                                                      investigati on of a rule of
                                                                                                      professional conduct.


U.S. M erit
Systems
Protection Board
U.S. Merit Systems   5 U.S.C. §1204 (Powers   Subpoenas may be issued     If the Board’s subpoena                                    The B oard does not
Protection Board     and functions of the     by any member of the        is not obeyed, the                                         gene rally issue
                     Merit Systems            Board, any administrative   Board may apply to the                                     subpoenas to compel the
                     Protection Board)        law judge appointed by      United States district to                                  appearance of agency
                                              the Board under 5 U.S.C.    order enforcement.                                         witnesses, that is,
                                              §3105, and any Board        The district court may                                     witnesses employed by
                                              employee designated by      punish any failure to                                      the respondent agency.
the Board (generally          obey the order of the       Rather, the agenc y must
administrative judges).       court as a contempt         arrange for the
Under this authority, the     thereof. 5 U.S.C.           appearance of its
Board may require the         §1204(c).                   employees. If the
attendance and                                            employee does not make
presentation of an            The Board generally         an appearance, the
individual’s testimony, the   has fewer than five         administrative judge
production of                 cases a year in which it    may impose sanctions
documentary or other          applies to a district       under 5 C.F.R. §1201.41.
evidence, or the taking of    court for enforcement
depositions from, and         of its subpoena. Upon
responses to written          application to the          Under 5 C.F.R.
interrogatories, by any       Board by the Special        §1201.43, the
such individual.              Counsel, the Board          administrative judge is
                              may also apply to the       granted discretion in
                              district court to enforce   imposing sanctions as
                              a subpoena issued by        necessary to serve the
                              the Special Counsel. 5      ends of justice. In the
                              U.S.C. §1212(b)(3).         case of federal
                              This provision has          employees who are not
                              rarely been employed,       employed by the
                              and had not been            respondent agency, and
                              employed recently           who do not appear in
                                                          response to an order by
                                                          the administrative judge
                                                          for the agency to provide
                                                          the witness pursuant to 5
                                                          C.F.R. §1201.33, the
                                                          Board has determined
                                                          that obtaining a
                                                          subpoena is a better
                                                          course of action than
                                                          imposing sanctions. For
                                                          more details, see
                                                          Chapter 7, “Witnesse s,
                                                          Subpoenas, and Sworn
                                                          Statements,” in the
                                                                                                                                    Merit Systems
                                                                                                                                    Protection Board
                                                                                                                                    Judge’s Handbook.

U.S. Merit Systems     5 U.S.C. §1221             At the request of an
Protection Board †                                employee, former
                                                  employee or applic ant for
                                                  employment . . . seeking
                                                  corrective action . . . the
                                                  board shall issue a
                                                  subpoena for the
                                                  attendance and testimony
                                                  of any person if the Board
                                                  finds that the testimony or
                                                  production requested is
                                                  not unduly burdensome
                                                  and appears reasonably
                                                  calculated to lead to the
                                                  discovery of admissible
                                                  evidence.

U.S. Merit Systems     5 U.S.C. §1507             Allows the Board to           Enforceable in United
Protection Board †                                administer oaths, examine     States district court
                                                  witne sses, and receive
                                                  evidence



National
Aerona utics and
Space
Adm inistration
National Aeronautics   Inspec tor General Act     “production of all            “in the case of            Right to Financial       Request to issue IG
and Space              of 1978, as amended, 5     information, documents,       contumacy or refusal to    Privacy Act, 12 U.S.C.   subpoena is reviewed by
                       U.S.C.A. App. 3, Section   reports, answers, rec ords,   obey, shall be             Section 3401 et seq.     chain of command, by
Administration
                       6(a)(4)                    accounts, papers, and         enforceable by or der of                            IG Counsel, and is
                                                  other data and               any appropriate United                         signed by the IG or
                                                  documentary evidence         States district court”                         designee. DoJ
                                                  necessary in the                                                            monograph is consulted
                                                  performance of the                                                          as well as case law and
                                                  functions assigned by [the                                                  standards in Special
                                                  IG Act}…procedures                                                          Agents' Manual
                                                  other than subpoenas
                                                  shall be used by the
                                                  Inspector General to
                                                  obtain documents and
                                                  information from Federal
                                                  agencies"




National Aeronautics   Program Fraud Civil        Investigative subpoena       Sanctions under 14       Notice under 14 CFR   Standards as set forth in
and Space              Remedies Act, 31           duces tecum, 14 CFR          CFR 1264.128.            1264.103.             the PFCRA and its
                       U.S.C. 3801-3812; 14       1264.103; trial subpoena                                                    implementing
Administration
                       CFR Part 1264              14 CFR 1264.122.                                                            regulations.



National Archives      Holds no administrative
                       subpoena authority,
and Records            excluding IG authority.
Adm inistration        No unique, agency-
                       specific authority under
                       the Inspector General
                       Act. Inspector General
                       Act of 1978, 5 U.S.C.
                       App. 3 sec.8G(d))

National C apitol
Planning
Comm ission
National Capitol   Holds no administrative
Planning           subpoena authority.
Commission



National C redit
Union
Adm inistration


National Credit    Inspec tor General Act     “production of all            “ i n the case of           Right to F i n a n c ial   Decision to issue IG
Union              of 1978, as amended, 5     information, documents,       contumacy or refusal to     Privacy Act, 12 U.S.C.     subpoena is reviewed by
                   U.S.C.A. App. 3, Section   reports, answers, rec ords,   obey,       shall be        Section 3401 et seq.       auditor’s or investigator’s
Administration                                                              enforceable by order of
                   6(a)(4)                    accounts, papers, and                                                                supervisors, by IG
                                              other data and                any appropriate United                                 Counsel, and by the IG.
                                              documentary evidence          States district court”                                 Alte rnati ve means to
                                              necessary in the                                                                     obtain information are
                                              performance of the                                                                   tried first, and sc ope of
                                              functions assigned by [the                                                           subpoena is made as
                                              IG Act}…procedures                                                                   narr ow as possible,
                                              other than subpoenas                                                                 consistent with case needs
                                              shall be used by the
                                              Inspector General to
                                              obtain documents and
                                              information from Federal
                                              agencies.

National Credit    Examination and            The NCUA has the ability      As set forth in the         The NCUA’s regulations     Pursuant to delegated
Union              Investigation Authority.   to issue subpoenas for        above cited statutes, the   set forth that all         authority from the
                   Feder al Credit Union      documents and testimony       NCUA enforces               information and            NCUA Board, the
Administration                                                              compliance with its         documents obtained by      agency’s General
                   Act, as amended, 12        in connection with the
                   U.S.C. §§1784(b),          examination or                subpoenas via               the agency in the course   Counsel may institute
                   1786(p), and               investigation of any          application to the          of any investigation are   formal investigati ve
                   1787(b)(2)(1). (June 26,   federally insured credit      United States District      non-public, unless made    proceedings by the entry
1934, c. 750, Ti tle II,    union. The purpose of          Court. The DOJ files     a matter of public          of an order indicating
§204, as added Oct. 19,     this authority is to           the application to the   record by the NCUA          the purpose of the
1970, Pub.L. 91-468,        determine whether a            United States District   Board (usually in           investigation, and
§1(3), 84 Stat. 1001, and   credit union or an             Court. The DOJ files     connection with the         designating the persons
amended Nov. 10, 1978,      institution-affiliated party   the application on       agency issuing a Notice     conducting the
Pub.L. 95-630, Title V,     (“IAP”) is complying with      behalf of the NCUA, as   of Charges for formal       investigati on. Upon
§502(b), 92 Stat. 3681;     applicable law and             the agency does not      enforcement action).        issuance of the
Oct. 15, 1982, Pub.L.       regulations, and/or to         have independent         While maintaining the       Investigation Order the
97-320, Title I,            determine whether such         litigation authority.    non-public nature of the    designated
§132(a)(1), 96 Stat.        credit union or party has                               testimony or documents      representative has the
1487; Aug. 9, 1989,         violated, is violating or is                            obtained during an          power to issue subpoenas
Pub.L. 101-73, Title IX,    about to violate any                                    investigation, the NCUA     for testimony and
§§915(a), (b), and (c),     provision of the Federal                                will share this             documents. 12 C.F.R.
103 Stat. 486; Nov. 29,     Credit Union Act, the                                   information with other      Parts 747.703 and
1990, Pub.L. 101-647,       NCUA’s Board’s                                          relevant law                747.803.
Title XXV, §2521(a)(2)).    regulations, or other                                   enforcement officials,
Also, the Rules and         rele vant sta tutes or                                  including but not limited
Regulations of the          regulations that may bear                               to the DOJ. 12 C.F.R.
National Credit Union       on a party’s fitness to                                 Part 747.702.
Administration, 12          participate in the affairs                              Moreover, the NCUA
C.F.R. Part 747,            of a credit union. This                                 complies with all
Subparts H and I.           subpoena power extends                                  applicable provision of
                            to any person or entity                                 the Right to Financial
                            with knowledge of the                                   Privacy Act of 1978
                            affairs of a credit union.                              (“RFPA”), 12 U.S.C.
                            This subpoena power                                     §§3401-3422, with
                            extends to any person or                                respect to obtaining
                            entit y with knowledge of                               financial recor ds from
                            the affairs of the federally                            other non NCUA
                            insured credit union,                                   regulated institutions,
                            including the ability to                                and with respect to
                            subpoena personal                                       releasing any
                            financial records and                                   information obtained
                            accounts (after                                         during the course of its
                            compliance with                                         investigation.
                            applicable Right to
                            Financial Privacy Act
                                                 notice requirements).
                                                 This subpoena authority
                                                 also extends to any
                                                 proceeding in connection
                                                 with a claim for insured
                                                 deposits.

National
Foundation on the
Arts a nd
Humanities
National Endowment   Inspector General Act,      General subpoena              U.S. District Court       1. Inspector General Act     1. Audit or inve stigation
for the Arts         Pub. L.95-452, Oct. 12,     authority as ne cessary for                             Sec. 7.                      within IG authority
                     1978, 5 U.S.C. App.,        IG functions.                                           2. Privacy Act               2. Information sought
Inspector General    Section 6.                                                                          3. Fre edom of               reasonably relevant to
                                                                                                         Information Act              audit or investigati on
                                                                                                         4. Right to Financial        3.Demand not
                                                                                                         Privacy Act                  unreasonably broad or
                                                                                                         5. Fair Credit Reporti ng    burdensome
                                                                                                         Act
                                                                                                         6. 26 U.S.C. 6103 (tax
                                                                                                         returns)

National L abor
Relations Board
National Labor       National Labor              In Section 111 of the         The Board’s subpoenas     Each Board subpoena          Any party to a Board
Relations Board      Relations Act (NLRA),       NLRA (29 U.S.C. §161),        are not self-enforcing.   contains language            proceeding may apply to
                     as amended, Section 11      the Board is empowered        In the event that any     notifying the person         the Board for an
                     (29 U.S.C. §161) (July      to issue subpoenas to         person refuses to obey    served of his or her right   admini strative
                     5, 1935, c. 372, §11, 49    obtain and copy               an administrative         pursuant to 29 U.S.C.        subpoena. 29 U.S.C.
                     Stat. 455; June 23,         documentary material,         subpoena issued by the    §161(1) to petition the      §161(1); 29 C.F.R.
                     1947, c. 120, Ti tle I,     and to summon witnesses       Board pursuant to 29      Board to revoke the          §102.31(a). Such parties
                     §101, 61 Stat. 150; June    and take testimony in         U.S.C. §161(1), the       subpoena, and the            to Board proceedings
                     25, 1948, c. 646, §32(b),   order to obtain evidence      Board is authorized by    statutory f ive day ti me    incl ude, without
62 Stat. 991; May 24,       that relates to any matter   29 U.S.C. §161(2) to    limit within which such     limitation, the Regional
1949, c. 139, §127, 63      under investigation or in    apply to any federal    petition must be filed.     Director in whose
Stat. 107; Oct. 15, 1970,   question concerning any      district court for an   The Board will revoke       Region the proceeding is
Pub.L. 91-452, Title II,    representation procee ding   order compelling        the subpoena if the         pending, any person
§234, 84 Stat. 930; June    conducted pursuant to 29     compliance with the     Board concludes that:       filing a charge or
11, 1960, Pub. L. 86-       U.S.C. §159 or any unfair    subpoena.               the evidence sought does    petition under the
507, §1(57), as added       labor practice or                                    not relate to any matter    NLRA, any person
May 21, 1980, Pub. L.       compliance proceeding                                under investigation, the    named as a respondent,
96-245, 94 Stat. 347.)      conducted pursuant to 29                             evidence sought is not      as employer, or as a
Our Inspector General       U.S.C. §160 of the NLRA.                             described with sufficient   party to a contract in
has subpoena authority      Any party to                                         particularity, or the       any Board proceeding,
in accordance with the      representation or unfair                             subpoena is invalid for     any labor organization
Inspector General Act       labor practice                                       any othe r reason           alleged to be subject to
of 1978, as amended, 5      proceedings is permitted                             sufficient in law. 29       unlawful activity, and
U.S.C. app. 3 §6(a)(4).     to make application to the                           U.S.C. §161(1); NLRB        counsel for the Board’s
                            Board for issuance of such                           Rules and Regulations,      General Counsel. 29
Ther e is no unique         subpoenas. The                                       as amended, 29 C.F.R.       C.F.R. §102.8.
authority or procedure      attendance of witnesses                              §102.31(b). If the Board    Applications for
for the Inspec tor          and the production of                                makes appli cation to a     subpoenas filed prior to
General at this Agency.     evidence may be required                             district court for          a hearing shall be filed
                            to be made at any place                              subpoena enforcement,       with the Regional
                            and from any place in the                            the subpoenaed party        Director. Applica tions
                            United States, Territory,                            can proffer legal and       filed during a hearing
                            or Possession                                        factual argument to the     shall be filed with the
                                                                                 court as to why they        administrative law judge
                                                                                 believe the subpoena        (29 C. F.R. §102.31) or
                                                                                 should not be enforced.     hearing officer (29
                                                                                                             C.F.R. §102.66(c)).
                                                                                 In appropriate              There is no right to an
                                                                                 circumstances, the          investigative subpoena
                                                                                 following additional        (as contrasted with a
                                                                                 statutes will provide       hearing subpoena)
                                                                                 protection to the privacy   available to parties other
                                                                                 of persons whose            than the General
                                                                                 evidence is required by     Counsel. The NLRB’s
                                                                                 an NLRB admi nistrative     Regional Directors,
                                                                                 subpoena: The Right to      administrative law
                                            Financial Privacy Act,    judges, and hearing
                                            12 U.S.C. §3401; The      officers grant
                                            Privacy Act, 5 U.S.C.     applications on behalf of
                                            §552a ; The Fr eedom of   the Board.
                                            Information Act, 5
                                            U.S.C. §552.


Fede ral La bor   The Federal Labor
                  Relations Authority
Relations         (FLRA) is an
Authority         independent agency
                  responsible for
                  administering the
                  labor-management
                  relations pr ogram for
                  1.9 million Federal
                  employees world-wide.
                  Its mission is to
                  promote stable and
                  constructive
                  labor-management
                  relations that
                  contribute to an
                  efficient and effective
                  government.
Federal Labor           5 U.S.C. §7132              Any member of the            Enforceable by U.S.
Relations Authority^                                Authority, the General       district court.
                                                    Counsel, or the Panel or     Punishable as
                                                    any Administrative Law       contempt.
                                                    Judge holds the authority
                                                    to issue subpoenas
                                                    requiring the attendance
                                                    and testimony of witnesses
                                                    and the production of
                                                    documentary or other
                                                    evidence from any place
                                                    in the U.S., etc.

Federal Labor           22 U.S.C. § 4107            Authorizes the Board to
                                                    issue subpoenas.
Relations Authority

Foreign Service Labor
Relations Board^

National Science
Foundation

National Science        Antarctic Conservation      Presiding officer may        16 U.S.C. § 2407 (b) sets   Right To Financial         Hearing procedures are
Foundation              Act, 16 U.S.C. § 2401, et   issue subpoenas for          forth that United States    Privacy Act provides       set forth at 45 CFR Part
                        seq., P.L. 95-541           witnesses and documents      may apply to District       that if recipient of       672
                                                    for hearing.                 Court for enforcement.      administrative subpoena
                        a) 16 U.S.C. § 2407                                                                  fails to follow the
                        (45 CFR § 672.3)                                                                     procedures mandated by
                                                    Antarctic          Law                                   the Act upon expi ration
                        b) 16 U.S.C. § 2409         Enforcement Officers may                                 of ten days from the
                        (45 CFR § 672.3)            secure, execute & serve                                  date of service or
                                                    subpoenas.                                               fourteen days from the
                                                                                                             date of mailing of the
notice , the recor ds or     .
information requested in
the subpoena will be
made available. (See 12
U.S.C. § 3405)

Recipient may file a
sworn statement and
motion to quash in an
appropriate court within
ten days from the date
of service of the notice
or fourte en days from
the date of mailing the
notice to challenge the
subpoena. Id.

The Family Educational
And Privacy Rights Act
provides that institutions
that are subject to the
Act will comply with a
lawfully issued subpoena
upon the condition that
parents and the students
are notified of all such
subpoenas in adva nce of
the compliance date by
the educational
institution or agency.
(See 20 U.S.C. §
1232g(b)(2)(B)).

In addition, personal
information shall only
be transferred to a third
party on the condition
                                                                                                  that such party will not
                                                                                                  permit any other party
                                                                                                  to have access to such
                                                                                                  information without the
                                                                                                  written consent of the
                                                                                                  parents or student. (Id.
                                                                                                  at (4)(B) and (7)(D)).




National Science   Inspector General Act        Limited to documentary   16 U.S.C. § 2407 (b)     See above.                 Hearing procedures are
Foundation         of 1978, 5 U.S.C. App.       evidence including       sets forth that United                              set forth at 45 CFR Part
                   3, as amended, at §          information, reports,    States may apply to                                 672.
                   6(a)(4), P.L. 95-452, § 1,   answers, records,        District Court
                   Oct. 12, 1978, 92 Stat.      accounts, papers, and                                                        Guidance and procedures
                  1101, as amended.             other data and                 In the c ase of                                         for the use, approval,
                                                documentary evidence           contumacy or refusal to                                 drafting and enforcement
                                                necessary in the               obey, the subpoena is                                   of OIG subpoenas is
                                                performance of the             enforceable by or der of                                mai n t a i n e d w i thin
                                                functions of the OIG.          any appropriate United                                  NSF/OIG.
                                                However, authority does        States district court.
                                                not allow OIG to compel        (Id., Inspector Generals
                                                testimony. Additionally,       Act at § 6(a)(4)).
                                                OIG doe s not have
                                                authority to subpoena
                                                documents maintained by
                                                the United States
                                                government or its
                                                agencies, including NSF.
                                                (See 5 U.S.C. App. 3 at §
                                                6(a)(4))

National
Trans portation
Safety Board
National          Independent Safety            Under 49 U.S.C. §1113,         As stated in 49 U.S.C.      Protection of trade         In accident investigati on
Transportation    Board Act of 1974, as         the NTSB, through a            §1113(a)(4), the NTSB       secrets is outlined at 49   matters, the NTSB issues
                  amended, 49 U.S.C.            Board member,                  may enforce a               U.S.C. §1114(b) and 49      subpoenas for
Safety Board                                    administrative law judge,      subpoena by initiating      C.F.R. 831.6. In            information necessary to
                  §§1101-1155. Subpoena
                  authority is specifically     or employee designated by      a civil action in Federal   addition, documents         the completion of a
                  found at 49 U.S.C.            the Chairman, may              district court.             obtained during the         thorough investigati on
                  §1113(a); P.L. 93-633,        “require, by subpoena or                                   course of an accident       and fulfillment of its
                  §304(a)(1)(A), (b)(1),        otherwise, necessary                                       investigation that are      statutory mandate to
                  (3), (4), (7)-(9); and P.L.   witnesses and evidence.”                                   deemed pertinent but        determine the probable
                  100-372, §4.                                                                             not appr opriate for        cause or causes of
                                                This authority is utilized                                 public dissemination are    certain tr ansportation
                  49 C.F.R. §§831.9(a);         during the investig ation of                               placed in the “Official     accidents and to conduct
                  821.20(a), and                an accident, eit her at the                                Use Only” docket. This      studies of transportation
                     845.21(c).                field phase or during a                    section of the accident    safety matters.
                                               public hearing; study of                   investigation file
                                               transportation safety                      contai ns material for     As for subpoena issued
                                               issues; and by an                          internal use only, such    in the context of an
                                               administrative law judge,                  as intra- and              aviation enforcement
                                               when necessary, during a                   interagency                case, the law judge
                                               hearing of an FAA                          memorandums and            applies the criteria set
                                               enforcement action.                        correspondence,            forth in 49 C.F.R.
                                                                                          analytical reports and     §821.20(a).
                                                                                          various other ty pes of
                                                                                          documents (whether
                                                                                          prepared by or for the
                                                                                          Board), autopsy
                                                                                          protocols, pre-redacted
                                                                                          material, and other
                                                                                          items exempt from
                                                                                          disclosure under the
                                                                                          Freedom of Infor mation
                                                                                          Act and the Privacy Act
                                                                                          that nevertheless should
                                                                                          be retained by the
                                                                                          Board.

Neighb orhood        Holds no administrative
                     subpoena authority.
Reinve stment
Corpor ation
Nuclear
Regulatory
Comm ission

Nuclear Regulatory   Section 161c. of the      Section 161c. provides:     A. Authority   Any information            A. Subpoenas issued by
                     Atomic Energy Act of                                                 collected by an NRC        NRC Admi nistrative
Commission             1954, 42 U.S.C.   “In the performance of its    Section 233 of the         subpoena may be used in      Tribunals
                       §2201(c).         functions, the Commission     Atomic Energy Act of       two ways. First, it may
                                         is authorized to . . . make   1954, as amended, 42       be used by the NRC           An NRC administrative
                                         such studies and              U.S.C. §2281, provides:    regulatory staff to          tribunal may, at the
Office of Management
                                         investigations, obtain such                              evaluate the activities of   reque st of a party, issue
and Budget
                                         information, and hold         “In case of failure or     licensees or others          a subpoena in a judicial
                                         such meetings and             refusal to obey a          subject to NRC               proceeding. If the
                                         hearings as the               subpoena served upon       jurisdiction in order to     person who is named in
                                         Commission may deem           any person pursuant to     protect the public health    the subpoena refuses to
                                         necessary or proper to        subsection 161c., the      and safety and the           comply, the Commission
                                         assist it in exercising any   district court for any     common defense and           may ask the Department
                                         authority provided in this    district in which the      security, and to enforce     of Justice to seek
                                         Act, or in the                person is found or         the Commission’s             enforcement of the
                                         admini stration or            resides or transacts       regulations and orders.      subpoena, as described
                                         enforcement of this Act,      business, upon             Second, the information      above.
                                         or any r egulations or        application by the         may be used in
                                         orders issued thereunder.     Attorney Ge neral on       connection with              B. Subpoenas Issued by
                                         For such purposes the         behalf of the United       adjudicatory                 the NRC Regulatory
                                         Commission is authorized      States, shal l have        proceedings before the       Staff
                                         to administer oaths or        jurisdiction to issue an   NRC’s administrative
                                         affirmations, and by          order requiring such       tribunals to determine       1. The Exe cutive
                                         subpoena to require any       person to appear and       whether to authorize         Director of Operations
                                         person to appear and          give testimony or to       issuanc e of a li cense or   The Commission has
                                         testify or appear and         appear and produce         license amendment or to      delegated authority to
                                         produce documents, or         documents, or both, in     determine whether to         the Exe cutive Director
                                         both, at any designated       accordance with the        enforce an NRC order.        for Operations (“EDO”)
                                         place.”                       subpoena; and any                                       to issue subpoenas. See
                                                                       failure to obey such       In either case, the          NRC Management
                                         The Atomic Energy Act         order of the court may     information may be           Directive 9.17-0 2 (Sep.
                                         defines the word “person”     be punished by such        protected from               12, 1991). The EDO has
                                         to incl ude a cor porati on   court as a contempt        disclosure under the         the authority to delegate
                                         or other business entity, a   thereof.”                  provisions of 10 C.F.R.      that power to lower
                                         government agency                                        §2.790 and in 10 C.F.R.      officials. Id. at 9.17-04.
                                         (except for the               B. Process                 Part 9. These                The Commission also
                                         Department of Energy),                                   regulations include the      has explicitly delegated
or a state or its agencies   Generally, when the        exemptions from             the authori ty to issue
as well as an individual.    recipient of an NRC        disclosure under the        subpoenas to the
See Section 11s of the       subpoena advises the       Freedom of Infor mation     Director of the Of fice of
Atomic Energy Act, 42        NRC that he or she         Act and other statutes      Nuclear Materials
U.S.C. §2014(s).             intends to defy the        for the protec tion of      Safeguards and Safety
                             subpoena, the NRC          personal, privacy,          (“NMSS”), see NRC
                             must file a request with   proprietary, commercial     Managhement Directive
                             the Departme nt of         and financial               9.26, §0124-0212 (Oct.
                             Justice (Civil Division,   information. Any            27, 1989), subject to
                             Federal Programs           person who submits          review and concurrence
                             Branch), ask ing the       material in response to     from the Office of the
                             Department to file a       an NRC subpoena may         General Counsel, id. at
                             petition to enforce the    request that the material   §0128-0210, (Feb. 27,
                             subpoena. If the           be protected from           1990).
                             Department approves        release under a specific
                             the request, the Federal   category of 10 C.F.R.       2. The Office of
                             Programs Branch            §2.790. If the NRC          Investigations.
                             either handles the         denies that request, the
                             matter itself or refers    person who made the         The Office of
                             the matter to the          request (and submitted      Investigations (“OI”) has
                             appropriate U.S.           the information) may        authority, as stated in
                             Attorney’s Office.         challenge the decision in   the Commissioni’s
                                                        a federal district court.   regulati ons, to issue
                                                        In addition, if the         subpoenas in
                                                        subpoena is issued in an    furtherance of its
                                                        NRC admi nistrative         investigati ons of
                                                        proceeding, the person      potential licensee
                                                        affected may apply for a    wrongdoing. See 10
                                                        protective order under      C.F.R. §1.36(e). The
                                                        10 C.F.R. §2.740(c), to     Director of OI has
                                                        prevent disc losure of      delegated that authority
                                                        that information in the     to the Directors of each
                                                        proceeding.                 of the four OI Regional
                                                                                    Field Offices, subject to
                                                                                    review of the proposed
                                                                                                                                     subpoena by the Office
                                                                                                                                     of the General Counsel.

Nuclear Regulatory     Section 6(a)(4) of the   Section 6(a)(4) gives each   The Inspector General      Generally, an Inspector      In accordance with the
                       Inspector General Act    Inspector General the        Act provides that in the   General subpoena will        Inspector General Act,
Commission
                       of 1978.                 authority to require by      case of contumacy or       not be issued unless         the Inspector General
                                                subpoena the production      refusal to comply with     other means to obtain        may issue a subpoena for
                                                of all information,          an Inspector General       the required                 documents. Infor mation
Office of Management
                                                documents, answers ,         subpoena, the subpoena     information have been        sought must be
and Budget
                                                records, accounts, papers,   shall be enforceable by    exhausted or appear          reasonably related to an
                                                and other data and           order of any               impractical. Whenever        investigation or audit
                                                documentary evidence         appropriate United         the Inspector General        within the Inspector
                                                necessary in the             States District Court.     elects to use a subpoeena    General’s jurisdicti on
                                                performance of the                                      to obtain financial          and must be defined and
                                                functions assigned by the                               records from a financial     limited to that necessary
                                                Inspector General Act.                                  institution, the Inspector   for the investigati on or
                                                Subpoenas shall not be                                  Genereal must comply         audit. Additionally, an
                                                used by Inspector General                               wiwth the Right ot           Inspector General
                                                to obtain documents from                                Financ ial Pr ivacy Act of   subpoena will not be
                                                Federal Agencie s.                                      1978. The Act requires       issued unless other
                                                                                                        government agencies          means to obtain the
                                                                                                        seeking to subpoena          required informat ion
                                                                                                        financial records to         have been exhausted or
                                                                                                        notify the financial         appear impractical. All
                                                                                                        institution’s customer       proposed Inspector
                                                                                                        that a subpoena has          General subpoenas are
                                                                                                        been filed, the purpose      reviewed by the
                                                                                                        of the subpoena, and the     appropriate Assistant
                                                                                                        customer’s right to file a   Inspector General, the
                                                                                                        motion to quash the          Deputy Inspec tor
                                                                                                        subpoena. Any records        General, and the
                                                                                                        collected by an              General Counsel to the
                                                                                                        Inspector General            Inspector General to
                                                                                                        subpoena are used by         ensure compliance with
                                                                                                        Inspector General staff      all legal requirements
                                                                                                       to evaluate the activities   prior to the subpoena
                                                                                                       of NRC employees and         being signed by the
                                                                                                       contractors or the           Inspector General.
                                                                                                       operation of NRC
                                                                                                       programs and
                                                                                                       operations. Any
                                                                                                       documents collected by
                                                                                                       a subpoena issued by the
                                                                                                       Inspector General are
                                                                                                       protected from public
                                                                                                       release or disclosure in
                                                                                                       accordance withe the
                                                                                                       Freedom of Infor mation
                                                                                                       Act or Privacy Act.

Occupational
Safety a nd Health
Review
Comm ission
Occupational Safety   Section 12(h) of the      Permits the Commission        Upon failure to comply   The Act requires that         Section 12(g) of the Act
                      Occupational Safety       in any proceeding before      w/subpoena, the          Commission hearings          permits the Commission
and Health Review
                      and He alth Act of        it to order testimony to be   Commission by its        and records be open to       to make necessary rules
Commission                                      taken by deposition and to    counsel may initiate     the publ ic. Section 15 of   for the orderly
                      1970, 29 U.S.C. §
                      661(b), Pub. L. 91-596    compel the appearance of      enforcement              the Act provides that        transaction of its
                      (“the Act”)29 C.F.R. §    witnesses and the             proceedings in the       the Commission may           proceedings (see scope of
                      2200. 57. Issuance of     production of books,          appropriate district     issue orders where           applicable procedural
                      subpoenas; petitions to   papers, or documents.         court (with assistance   appropriate to protect       rules related to agency’s
                      revoke or modify          Permits Commission            from the U.S.            the confidentiality of       subpoena authority in
                      subpoenas; right to       judge on t he application     Attorney’s office)       trade secrets. The           section below). Unless
                      inspect or copy data.     of any party to issue                                  Commission’s ALJ may         the Commission has
                                                subpoenas requiring the                                revoke or modify a           adopted a different rule,
                                                appearance of witnesses                                subpoena in order to         its proceedings are
                                                or the producti on of                                  protect claims of            conducted in accordance
evidence   privilege. (See 29 C.F.R.   with the Federal Rules
           § 2200.11)                  of Civil Procedure.
                                       The party to whom the
                                       subpoena is issued is
                                       responsible for its
                                       service. A subpoena
                                       may be served by any
                                       person who is not a
                                       party and is not less than
                                       18 years of age. Service
                                       may be made by service
                                       on the person named, by
                                       certified mail return
                                       receipt requested, or by
                                       leaving a copy at
                                       person’s principal place
                                       of business or at the
                                       person’s residence.

                                       Person served with a
                                       subpoena may within 5
                                       days move to revok e or
                                       modify the subpoena.

                                       Persons compelled to
                                       submit data or evidence
                                       are entitl ed to re tain or
                                       procure copies of
                                       transcripts of the data or
                                       evidence submitted by
                                       them.

                                       Other issuance
                                       standards, qualifiers and
                                       procedures are in
                                                                                                                                   accordance with the
                                                                                                                                   Federal Rules of Civil
                                                                                                                                   Procedure.

Offic e of            Holds no administrative
                      subpoena authority.
Governmental
Ethics




Offic e of
Personnel
Management
(OPM)
Office of Personnel   Inspector General Act,    Since the Inspector           Inspector general        The subject of an           There are three criteria
Management (OPM)      section 6(a)(4), which    General Act li mits the       subpoenas are            investigation is notified   that must be met for
                      provides that the         scope of an inspector         enforceable by any       of the issuance of a        issuance and
                      Inspector General may:    general’s audit and           appropriate United       subpoena only when          enforcement of an
                                                investigative authority to    States district court.   financial records are       inspector general
                      “Require by subpoena      programs of his respective                             covered by the Right to     subpoena:
                      the production of all     agency, at OPM our                                     Financial Privacy Act,
                      information,              subpoenas are issued                                   12 U.S.C. §§3401-3422.      1) the audit of
                      documents, reports        primarily in relationship                              Under that Act, absent a    investigation must be
                      answers, records,         to the Federal Employees                               court order pursuant to     within the statutory
                      accounts, papers, and     Health Benefits Program                                §3409, the subject must     authority of the
                      other data and            and the federal ret irement                            be provi ded with prior     Inspector General;
                      documentary evidence      annuity pr ogram.                                      written notice of the
                      necessary in the                                                                 purpose and scope of the    2) the information
                      performance of the                                                               subpoena and the            sought must be
                      functions assigned by                                     opportunity to challenge    reasonably relevant to
                      this Act, which                                           the subpoena in a           the investig ation or
                      subpoena, in the case of                                  federal district court.     audit; and
                      contumacy or refusal to                                   No notice is required if
                      obey, shall be                                            the inspector general is    3) the demand may not
                      enforceable by or der of                                  seeking certain limited     be unreasonably broad
                      any appropriate United                                    identifying information     or burdensome.
                      States district court. . .”                               on the account.
                                                                                                            Prior to issuance, all
                                                                                Once subpoenaed             applications for
                                                                                records are rec eived by    subpoenas are reviewed
                                                                                an inspector general and    by the Assistant
                                                                                become part of a system     Inspec tor General for
                                                                                of records maintained       Investigations (or Audits
                                                                                by his or her respec tive   if issued pursuant to an
                                                                                agency, they are subject    audit), the Assistant
                                                                                to the Privacy Act, 5       Inspec tor General for
                                                                                U.S.C. §552a                Legal Affairs, the
                                                                                exchangeable without        Deputy Inspec tor
                                                                                the subject’s permi ssion   General and the
                                                                                only for a law              Inspector General to
                                                                                enforcement purpose or      assure these criteria
                                                                                routine use prescribed      have been met.
                                                                                by agency regulations.

Office of Personnel   42 U.S.C. § 1973g             Upon the request of the
Management (OPM)                                    applicant or the
                                                    challenger or, on its own
                                                    motion, the Civil Service
                                                    Commission.

Peace Corps
Peace Corps           Holds no administrative
                      subpoena authority,
                      excluding the Inspe ctor
                      General authority
                      grant ed in Section
                      6(a)(4) of the Inspe ctor
                      General Act of 1978.
Pension B enefit      (Peac e Corps Inspec tor
Guaranty              General Exercises
                      authority similar to
Corpor ation          those of other Inspector
                      Generals under the
Pension Benefit       Inspector General Act       May obtain documentary      Enforc ement action        No requirement to         OIG has authority to
                      Act.)
Guaranty              of 1978 as amended, 5       evidence for both           filed in the appropriate   notify individual that    “require by subpoena
                      U.S.C. App. 3               investigations and audit.   U.S. District Court by     OIG is seeking r ecords   [sic] the production of al
Corporation                                                                   DOJ, with assistance                                 information, documents
                                                                              from IG counsel.                                     reports, answers,
Office of Inspector
                                                                                                                                   records, accounts,
General
                                                                                                                                   papers, and other data
                                                                                                                                   and documentary
                                                                                                                                   evidence necessary in
                                                                                                                                   the performance of
                                                                                                                                   functions assigned by
                                                                                                                                   this Act” App. 3,
                                                                                                                                   §6(a)(4)
Pension Benefit   Right to Financial        Financ ial records of         If OIG complies with      OIG must serve the           OIG is entitled to
Guaranty          Privacy Act (RFPA), 12    individuals and               notification and          customer a copy of the       records if there is
                  U.S.C. 3401-3420.         partnerships of 5 or fewer    customer does not file    subpoena and form            “substantial
Corporation
                                            individuals may be            challenge within          documents to challenge       compliance” with the
                                            obtained; written notice to   statutory timeframe,      the subpoena. If a           provisions of RFPA, and
                                            customer and opportunity      OIG entitled to           challenge is fil ed, U.S.    there is a “demonstrable
                                            to challenge subpoena         records.                  District Court judge         reason to believe that the
                                            must precede document                                   must determine whether       law enforcement inquiry
                                            release                       If the financial          OIG entitled to obtain       is legitimate and a
                                                                          institution doe s not     records.                     reasonable belief that
                                                                          comply with the                                        the records are re levant
                                                                          subpoena, DOJ files an                                 to the inquiry” (12
                                                                          enforcement action in                                  U.S.C. §3419(c)).
                                                                          the appropriate U.S.
                                                                          District Court with
                                                                          assistance from IG
                                                                          counsel.




Pension Benefit   Employee Retirement       The corporation may           Administrative            Freedom of Infor mation      PBGC Directive Secti on
Guaranty          Income Security Act of    make investigations it        subpoena requiring        Act (FOIA), 5 U.S.C.         GA 05-1.
                  1974, as amended          deems necessary to            document production       §552 (FOIA) (for
Corporation                                                               for terminating pension   business records PBGC        PBGC Insurance
                                            enforce any provision of
                  29 U.S.C. §1303           ERISA, Title IV, or any       plan participant          mainta ins in a syste m of   Operations Manual.
                                            rule or regulation            records. Enforcement      records).
                                            thereunder.                   action filed in the
                                                                          appropriate District      Privacy Act, 5 U.S.C.
                                            ERISA §4003                   Court.                    §552a (for individual
                                                                                                    records PBGC)
                                                                                                    mainta ins in a syste m of
                                                                                                    records)

Postal R ate
Comm ission
Postal Rate       Holds no administrative
Commission        subpoena authority or
                       authority to issue
                       subpoenas or make
                       judicially enforceable
                       demands compelling
                       document production
                       or testimony.

United States
Postal Service
United States Postal   Deceptive Mail              Authority limited to the       Enforcement by            Postmaster General
Service                Prevention and              investigations of violations   Attorney General in       subpoenas must be
                       Enforcement Act, (PL        of 39 U.S.C. 3005(a), the      district court where      issued only where: (a)
                       106-168), 39 U.S.C.         Postal Service false           recipient resides, does   specific case with
                       3001, et seq. 39 U.S.C. §   representations and            business, or may be       identified entity or
                       3016                        lottery laws. New              found. 39 U.S.C. §        individual (b)
                       39 C.F.R. §§ 913 [issued    sweepstakes and skill          3016(c)                   appropriate supervisory
                       by Office of General        contest restrictions are                                 and legal review of
                       Counsel] and 952.19         incorporated by reference      The Right to Financial    request, and (c) no
                       [Judicial Subpoenas]        in 39 U.S.C. 3001.             Privacy Act, 12 U.S.C.    delegation of authority
                                                                                  § 3405, provides that     below USPS Deputy
                                                                                  certain notice must be    General Counsel.
                                                                                  given when seeking        Judicial Subpoenas
                                                                                  bank records about an     issued where Judicial
                                                                                  individual.               Officer considers
                                                                                  Records obtained by       recor ds rel evant or
                                                                                  means of this authority   material to existing
                                                                                  are exempted from         proceeding.
                                                                                  disclosure under the
                                                                                  FOIA. 39 U.S.C. §
                                                                                  3016(d), 39 C.F.R. §
                                                                                  913.4.
                                                                                  To the extent
                                                                                  applicable here , the
                                                                                  USPS is also
                                                                                  specifically prohibited
                                                                                  from disclosing any
                                                                                  names or addresses of
                                                                                  postal patrons or other
                                                                                  persons under 39
                                                                                  U.S.C. § 412.
United States Postal   The USPS Office of the
Service                Inspector General
                       exercises only the basic
                       subpoena authority
Office of Inspector    found in the Inspector
General                General Act of 1978, 5
                       U.S.C. app. 3.


United States Postal   18 U.S.C. § 3061(1)        Authority of the Postal
Service†                                          Inspector and other Postal
                                                  Service agents to serve
                                                  subpoenas issued under
                                                  the authority of the
                                                  United States in
                                                  investigating criminal
                                                  matters related to the
                                                  postal service and the
                                                  mails

Railroad
Retirement Board
Railroad Retirement    Inspector General Act      “To require by subpoena       The OIG fil es an action    No notification            Limited to
Board                  of 1978                    the production of all         in federal district court   requirements. Records      responsibilities set forth
                       P.L. 95-452, as            information, documents,       for summary                 obtained from              in the Inspector General
                       amended                    reports, answers, rec ords,   enforcement of its          subpoenas are treated in   Act.
                       5 U.S.C. Appx. 3,          accounts, papers, and         subpoena                    accordance with the
                       Section 6(a)(4)            other data and                                            agenc y’s system of
                                                  documentary evidence                                      records.
                                                  necessary in the
                                                  performance of the
                                                  functions assigned by this
                                                  Act, which subpoena, in
                                                  the ca se of contumacy or
                                                  refusal to obey, shall be
                                                  enforceable by or der of
                                                  any district court;
                                                  Provided that procedures
                                                  other than subpoenas
                                                 shall be used by the
                                                 Inspector General to
                                                 obtain documents and
                                                 information from Federal
                                                 agencies.”

Railroad Retirement   Right to Financial         Disclosure of customer’s   The OIG fil es an action    At or before the time of    Limited to
Board                 Privacy Act of 1978,       financial institution      in federal district court   service of an               responsibilities set forth
                      P.L. 95-63,                financial records when     for summary                 administrative subpoena     in the Inspector General
                      12 U.S.C. §3401 et se q.   required in connection     enforcement of its          upon a financial            Act.
                                                 with a law enforcement     subpoena.                   institution for records
                                                 inquiry.                                               covered by the Act, the
                                                                                                        IG must serve upon the
                                                                                                        individual whose
                                                                                                        records are sought a
                                                                                                        customer notice,
                                                                                                        statement of customer
                                                                                                        rights under the RFPA,
                                                                                                        customer consent and
                                                                                                        authorization for access
                                                                                                        to financial records,
                                                                                                        instructions for
                                                                                                        completing and filing
                                                                                                        customer challenge
                                                                                                        motions and sworn
                                                                                                        statement, motion for
                                                                                                        order pursuant to
                                                                                                        customer challenge
                                                                                                        provisions of the RFPA,
                                                                                                        and swor n state ment of
                                                                                                        movant. The customer
                                                                                                        has a 10 days [14 days if
                                                                                                        service by mail] in
                                                                                                        which to give consent or
                                                                                                        to challenge government
                                                                                                        access to their financial
                                                                                                        records.

Securitie s and
Exchange
Comm ission
Securities and   Securities Act of 1933,     Securities Act Se ction        Securities Act Se ction   Every witness in a          Subpoenas are served in
                 Pub. L. No. 73-22 (as       19(b) provides that any        22(b) provides that in    Commission                  accordance with the
Exchange
                 amended), Secs. 19(b),      member of the                  the case of refusal to    investigation testifying    procedures contained in
Commission                                                                  obey a subpoena by any    pursuant to a subpoena      Rule 232 of the
                 20(a), 20(c), and 22(b),    Commission, or any
                 15 U.S.C. 77s(b), 77t(a),   officer designated by the      person, a court may       receives a copy of SEC      Commission’s Rule s of
                 77t(c), and 77v(b); 17      Commission, may                issue an order            Form 1662 - the             Practice , 17 CFR
                 CFR 200.30-4(a)(10);        subpoena witnesses, take       requiring the person to   Commission’s                201.232. See 17 CFR
                 Rule of Practice 232, 17    evidence, and require the      appear before the         “Supplemental               203.8 (“[s]ervice of
                 CFR 201.232; and 17         production of                  Commission, or an         Information Form.”          subpoenas in formal
                 CFR 203.7.                  documentary evidence           examiner designated by    This form provides          investigative proceedings
                                             deemed relevant or             it, to produce or give    information on and          shall be effected in the
                                             material to an                 evidence. Failure to      including Privacy Act       manner prescribed by
                                             investigation under the        obey such an order        notices, the Fifth          Rule [of Practice]
                                             Act. The attendance of         may be punished by        Amendment, the right to     232(c)”).
                                             witne sses and production      contempt.                 counsel, false statements
                                             of documents may be                                      and documents, perjury,     Section 203.7 of the
                                             required from anywhere         In addition, Secti on     transcript availability,    Commission’s Rules
                                             in the United State s or       20(c) provides the U.S.   going off the record and    Relating to
                                             any Territory at any           district courts with      additional procedures       Investigations contains
                                             designated place of            jurisdiction to enforce   for submitting              additional provisions
                                             hearing.                       compliance with any       statements to the           descr ibing the ri ghts of
                                                                            Commission order          Commission.                 witne sses in Commissi on
                                             In addition, under Se ction    issued pursuant to the                                investigations. 17 CFR
                                             20(a), when the                Securities Act.           When the Commission         203.7.
                                             Commission learns that                                   subpoenas “financial
                                             any provision of the                                     records” of a               The Commission has
                                             Securities Act or any rule                               “customer” at a             delegated authority to
                                             or regulation has bee n or                               “financial institution,”    the Director of the
                                             is about to be violated, the                             the Commi ssion             Division of Enforcement
                                             Commission may require                                   provides the required       to institute subpoena
                                             persons to file a statement                              notices under the Right     enforcement proceedings
                                             in writing or under oath,                                to Financial Privacy Act    in federal district court.
                                             as to the facts and                                      (RFPA). The                 17 CFR 200.30-4(a)(10).
                                             circumstances concerning                                 Commission’s Divi sion
                                             the matter under                                         of Enforcement has          Typically, the
                                             investigation.                                           prepared an “RFPA           Commission authorizes
                                                                                                      Manual” to assist its       the issuance of
                                                                                                      staff when preparing        subpoenas by issuing an
                                                                                                      such subpoenas.             “Order Direc ting
                                                                                                      Division policy requires    Private Investigat ion
                                                                                                      that subpoenas and          and Designating Officers
                                                                                                      certificates of             To Take Testimony.”
compliance must be          Generally, such
signed by a staff           authorizations are
member at the GS-15 or      limited to a particular
higher level.               investigation. The
                            Commission order
In order to rely on the     specifically identifies
exemption contained in      each member of the staff
RFPA Section 1113(h), it    authorized to issue a
is the policy of the        subpoena. If additional
Division of Enforcement     staff are subsequently
that Division staff must    added to an
obtain the consent of the   investigation, the order
Division Director.          will be amended to
                            include the names of the
Before noti ce to a         additional staff. Such
customer can be delayed     orders are commonly
pursuant to RFPA            referred to as “formal
Section 1109 or             orders.”
Exchange Act Sect ion
21(h), the staff must       The Commission issued
obtain Commission           324, 345, 282, and 275
consent to seek the         formal orders in fiscal
required court order.       years 2001, 2000, 1999,
                            and 1998 respectively.
Under Secti on 2703 of      Because the number of
the Electronic              subpoenas can vary in
Communications              any individual
Privacy Act (ECPA), 18      investigation, the
U.S.C. 2703, if a           number of subpoenas is
governmental entity uses    a multiple of the number
an administrative           of formal orders.
subpoena to seek the
contents of electronic
communications that
have been in either
elec tronic storage for
over 180 days or in a
remote computing
service, prior notice to
the services’ subscriber
or customer is required.
Under Section 2705,
                                                                                                       there is a procedure for
                                                                                                       delaying the subscriber /
                                                                                                       customer notification
                                                                                                       upon written
                                                                                                       certification by a
                                                                                                       supervisory official.
                                                                                                       The Di vision of
                                                                                                       Enforcement has
                                                                                                       prepared an ECPA
                                                                                                       procedures outl ine for
                                                                                                       use when the
                                                                                                       Commission staff is
                                                                                                       seek ing information or
                                                                                                       records from persons
                                                                                                       who provide
                                                                                                       computerized services to
                                                                                                       the public.



Securities and   Securities Exchange Act     Under Exchange Act            Section 21(c) provides      Same as above               Same as above
Exchange         of 1934, Pub. L. No. 73-    Section 21(b), any            that in the case of         description for the         description for the
                 291 (as amended), Secs.     member of the                 refusal to obey a           Securities Act.             Securities Act
Commission                                                                 subpoena by any
                 21(a) -(c), (e), and (h),   Commission, or any
                 15 U.S.C. 78u(a) - (c),     officer designated by the     person, any court of the
                 and (e); 17 CFR             Commission, may               United States within
                 200.30-4(a)(10); Rule of    subpoena witnesses,           the jurisdiction of the
                 Practice 232, 17 CFR        compel their attendance,      investigati on or
                 201.232; and 17 CFR         take evidence, and require    proceedi ng may issue
                 203.7.                      the production of             an order requiring that
                                             documentary evidence          the person appear
                                             deemed relevant or            before the Commission,
                                             material to an                or a designated
                                             investigation under the       examiner, to produce
                                             Exchange Act. Such            or give evidence.
                                             attendance and                Failure to obey such an
                                             production may be             order may be punished
                                             required from anywhere        by contempt.
                                             in the United States at any
                                             designated place of           Section 21(c) also
                                             hearing.                      provide s that failure or
                                                                           refusal to attend and
                                            In addition, when             justify or to answer any
                                            conducting an                 lawful inquiry or to
                                            investigation under           produce documents in
                                            Section 21(a)(1), the         response to a subpoena
                                            Commission may require        is a misdemeanor
                                            or permit any person to       punishable by fine
                                            file with it a statement in   and/or imprisonment
                                            writing, under oath or        or both.
                                            otherwise, as to all facts
                                            and circumstances
                                            concerning the matter to
                                            be investigated.

                                            Under Section 21(a)(2),
                                            the Commission may use
                                            its subpoena authority
                                            when conducting an
                                            investigation pursuant to
                                            a request from a foreign
                                            securities regulator.

Securities and   Public Utility Holding     Section 18(c) of the Public   Section 25 of the Public   Same as above         Same as above
Exchange         Company Act of 1935,       Utility Holding Company       Utility Holding            description for the   description for the
                 Pub. L. No. 74-333 (as     Act is virtually identical    Company Act provides       Securities Act.       Securities Act.
Commission
                 amended), Sec. 18, 15      to Section 21(b) of the       the U.S. district courts
                 U.S.C. 79r; 17 CFR         Exchange Act.                 with jurisdiction to
                 200.30-4(a)(10); Rule of                                 enforce compliance
                 Practice 232, 17 CFR       In addition, Section 18(a)    with any Commission
                 201.232; and 17 CFR        contains an authority         order issued pursuant
                 203.7.                     provision similar to          to the Act.
                                            Section 21(a) of the
                                            Exchange Act.                 Section 18(d) of the
                                                                          Public Utility Holding
                                                                          Company Act is
                                                                          virtually identical to
                                                                          Section 21(c) of the
                                                                          Exchange Act.

Securities and   Public Utility Holding     Section 18(c) of the Public   Section 25 of the Public   Same as above         Same as above
Exchange         Company Act of 1935,       Utility Holding Company       Utility Holding            description for the   description for the
                 Pub. L. No. 74-333 (as     Act is virtually identical    Company Act provides       Securities Act.       Securities Act.
Commission
                 amended), Sec. 18, 15      to Section 21(b) of the       the U.S. district courts
                 U.S.C. 79r; 17 CFR         Exchange Act.                 with jurisdiction to
                 200.30-4(a)(10); Rule of                                 enforce compliance
                 Practice 232, 17 CFR       In addition, Section 18(a)    with any Commission
                 201.232; and 17 CFR        contains an authority         order issued pursuant
                 203.7.                     provision similar to          to the Act.
                                            Section 21(a) of the
                                            Exchange Act.                 Section 18(d) of the
                                                                          Public Utility Holding
                                                                          Company Act is
                                                                          virtually identical to
                                                                          Section 21(c) of the
                                                                          Exchange Act.

Securities and   Trust Indenture Act of     The authority under           Section 321(a) provides    Same as above         Same as above
Exchange         1939, Pub. L. No. 76-      Section 321(a) of the Trust   that the Commission’s      description for the   description for the
                 253 (as amended), Sec.     Indenture Act is              powers to enforce the      Securities Act.       Securities Act except
Commission                                                                                                                 that the Commission has
                 321, 15 U.S.C. 77uuu;      essentially identical to      Trust Indenture Act
                 17 CFR 203.7; and Rule     that in the Securities Act.   and any rules,                                   not delegated authority
                 of Practice 232, 17 CFR                                  regulations or orders                            to institute subpoena
                 201.232.                                                 issued pursuant to the                           enforcement actions
                                                                          Act are the same as                              under the Trust
                                                                          those in Sections 20 and                         Indenture Act.
                                                                          22(b) of the Securities
                                                                          Act.

Securities and   Investment Company         Section 42(b) of the          Section 42(c) of the       Same as above         Same as above
Exchange         Act of 1940, Pub. L. No.   Investment Company Act        Investment Company         description for the   description for the
                 76-768 (as amended),       is virtually identical to     Act contains               Securities Act.       Securities Act.
Commission                                                                enforcement provisions
                 Sec. 42, 15 U.S.C. 80a-    Section 21(b) of the
                 41; 17 CFR 200.30-         Exchange Act.                 virtually identical to
                 4(a)(10); 17 CFR 203.7;                                  Section 21(c) of the
                 and Rule of Practice       In addition, Section 42(a)    Exchange Act.
                 232, 17 CFR 201.232.       contains an authority
                                            provision similar to but      Section 44 of the
                                            somewhat more limited         Investment Company
                                            than Section 21(a) of the     Act provides the U.S.
                                            Exchange Act.                 district courts with
                                                                          jurisdiction to enforce
                                                                          compliance with any
                                                                          Commission order
                                                                          issued pursuant to the
                                                                          Act.
Securities and   Investment Advisers         Section 209(b) of the         Section 209(c) of the      Same as above               Same as above
Exchange         Act of 1940, Pub. L. No.    Investment Advisers Act       Investment Advisers        description for the         description for the
                 76-768 (as amended),        is virtually identical to     Act contains               Securities Act.             Securities Act.
Commission
                 Sec. 209, 15 U.S. C. 80b-   Section 21(b) of the          enforcement provisions
                 9; 17 CFR 200.30-           Exchange Act.                 virtually identical to
                 4(a)(10); 17 CFR 203.7;                                   Section 21(c) of the
                 and Rule of Practice        In addition, Section 209(a)   Exchange Act.
                 232, 17 CFR 201.232.        contains an authority
                                             provision similar to          Section 214 of the
                                             Section 21(a) of the          Investment Advisers
                                             Exchange Act.                 Act provides the U.S.
                                                                           district courts the
                                                                           jurisdiction to enforce
                                                                           compliance with any
                                                                           Commission order
                                                                           issued pursuant to the
                                                                           Act.

Securities and   Rules 111(b), 180, and      The Commission’s Rules        Subpoenas issued by a      Unless made on the          The standards for
                 232 of the                  of Practice provide that      hearing officer are        record at a hearing,        issuance of subpoenas in
Exchange
                 Commission’s Rule s of      the powers of a hearing       enforceable in federal     requests for issuanc e of   connection with hearings
Commission                                                                 district court under the   a subpoena are required     are contained in Rule
                 Practice , 17 CFR           officer include issuing
                 201.111(b), 201. 180 and    subpoenas authorized by       rele vant provision of     to be made in writing       232(b) of the
                 201.232; and                law and revoking,             the law authorizing the    and served upon each        Commission’s Rule s of
                 Administrative              quashing, or modifying        proceeding. See,           party . Rule 2 32(a) of     Practice. This provision,
                 Procedure Act (APA), 5      any such subpoena. Rule       Securities Act Se ction    the Rules of Practice, 17   based upon Sect ion
                 U.S.C. 555(d) and           of Practice 111(b), 17        22(b); Exchange Act        CFR 201.232(a).             555(d) of the
                 556(c)(2).                  CFR 201.111(b).               Section 21(c); Public                                  Administrative
                                                                           Utility Holding            Any person to whom a        Procedure Act, 5 U.S.C.
                                             In connection with any        Company Act Section        subpoena is directed or     555(d), states: “Where it
                                             hearing, a party may          18(d); Investment          who is an owner, creator    appears to the person
                                             request the issuanc e of      Adviser Act Secti on       or the subject of the       asked to issue the
                                             subpoenas requiring the       209(c); Investment         documents that are to be    subpoena that the
                                             attendance and testimony      Company Act Section        produced may, under         subpoena sought may be
                                             of witnesses at the           42(c); and Trust           certain circ umstances,     unreasonable,
                                             designated time and place     Indenture Act Sect ion     request that the            oppressive, excessive in
                                             of hearing, and subpoenas     321(a).                    subpoena be quashed or      scope, or unduly
                                             requiring the production                                 modified. Such requests     burdensome, he or she
                                             of documentary or other       Contemptuous conduct       are to be made by           may, in his or her
                                             tangible evidence             by any person before       application Rule            discr etion, as a condition
                                             returnable at any             the Commission or a        232(e)(1) , 17 CFR          precedent to the issuance
                                             designated time or place.     hearing officer during     201.232(e)(1). If           of the subpoena, require
                                         17 CFR 201.232(a).       any proceeding is           compliance with the       the person seeking the
                                                                  grounds for (i)             subpoena would be         subpoena to show the
                                                                  exclusi on of that person   unreasonable,             general rele vance and
                                                                  from such hearing, or       oppressive or unduly      reasonable scope of the
                                                                  any portion thereof;        burdensome, the hearing   testimony or other
                                                                  and/or (ii) summary         officer or the            evidence sought. If after
                                                                  suspension of that          Commission shall quash    consideration of all the
                                                                  person from                 or modify the subpoena,   circumstances, the
                                                                  representing others in      or may order return of    person requested to issue
                                                                  the proceeding in which     the subpoena only upon    the subpoena determines
                                                                  such conduct occurred       specified conditions.     that the subpoena or any
                                                                  for the duration, or any    Rule 232(e)( 2), 17 CFR   of its terms is
                                                                  portion, of the             201.232(e)(2).            unreasonable,
                                                                  proceeding . 17 CFR                                   oppressive, excessive in
                                                                  201.180(a). See                                       scope, or unduly
                                                                  generally, Rule 180 of                                burdensome, he or she
                                                                  the Commission’s Rules                                may refuse to issue the
                                                                  of Practice , 17 CFR                                  subpoena, or issue it
                                                                  201.180.                                              only upon such
                                                                                                                        conditions as fairness
                                                                                                                        requires. In making the
                                                                                                                        foregoing determination,
                                                                                                                        the person issuing the
                                                                                                                        subpoena may inquire of
                                                                                                                        the other participants
                                                                                                                        whether they will
                                                                                                                        stipulate to the facts
                                                                                                                        sought to be proved.”

                                                                                                                        Additional procedures
                                                                                                                        for the unavailabili ty of
                                                                                                                        a hearing officer,
                                                                                                                        service, tender of
                                                                                                                        required fees,
                                                                                                                        applications to quash or
                                                                                                                        modify, and witness fees
                                                                                                                        and mileage are set forth
                                                                                                                        in the Rules of Practice
                                                                                                                        at 201.232(a), (c), (d),
                                                                                                                        (e), and (f), respectively.

Securities and   Inspector General Act   Section 6(a)(4) of the   Under Section 6(a)(4)       The Inspector General     It is the practice of the
Exchange          of 1978, Pub. L. No. 95-   Inspector General Act (IG     of the IG Act,             (IG) provides Privacy       IG’s office that each
Commission        452 (as amended), Sec.     Act) provides that the        subpoenas are              Act notices in              subpoena is prepared by
                  6, 5 U.S.C. App. 3.        Inspector General may         enforceable by or der of   conjunction with the        an attorney and
                                             subpoena all information,     any appropriate United     issuance of a subpoena.     reviewed and signed by
                                             documents, reports,           States district court.                                 the Inspector General.
                                             answers, records,                                        When the IG subpoenas
                                             accounts, papers, and                                    “financial records” of a
                                             other data and                                           “customer” at a
                                             documentary evidence                                     “financial institution,”
                                             necessary in the                                         the IG provides the
                                             performance of the                                       required notices under
                                             functions assigned by the                                the Right to Financial
                                             Act.                                                     Privacy Act (RFPA).

Small Business
Adm inistration
Small Business    Inspector General (IG)     Production of all             In case of refusal to      Notifi cation               The scope of IG
Administration    subpoenas (Inspe ctor      information, documents,       obey, enforcement is       requirements of ten days    subpoenas and methods
                  General Act of 1978, as    reports, answers, rec ords,   obtained by order of       from the date of service    of service are
                  amended; Pub. L. 95-       accounts, papers, and         any appropriate U.S.       or fourte en days from      promulgated in 13
                  452; 5 U.S.C. app 3, §     other data and                district court.            the date of mai ling of     C.F.R. §§ 101.302-
                  6(a)(4).                   documentary evidence                                     notice apply when           101.303. Internal
                                             (regardless of medium)                                   records at a financial      standards and
                                             necessary for the                                        institution are sought of   procedures have been
                                             performance of the                                       customers covered by        issued i n a SBA Offi ce of
                                             functions assigned under                                 the Right to Financial      Inspector General
                                             the Inspector General Act                                Privacy Act, 12 U.S.C.      Manual.
                                             (essentially a subpoena                                  §§ 3401, et seq.
                                             duces tecum).                                            Customers have a right
                                                                                                      to challenge in an
                                                                                                      appropriate U.S. district
                                                                                                      court during the notice
                                                                                                      period.

Small Business    SBA Regulations      (13   Upon the request of a         OH A      has     no       A request for the           The Standard for
Administration*   C.F.R. § 134.214)          party or upon the Judge’s     enforcement powers or      issuance of a subpoena      issuance of a subpoena is
                                             own initiative, the Judge     remedies.                  must be filed and served    relevance to the issues to
                                             may issue a subpoena                                     on all parties. It must     be adjudicated. A
                                             requiring a witness to                                   clearly identi fy the       motion to limit or quash
                                             appear and testify or to                                 witness, the documents      the subpoena may be
                                             produce particula