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 AUTHORITIES 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 o f 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 o f 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 AUTHORITIES 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 o f 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 o f 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 o f 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. RECOMMENDATIONS REGARDING NECESSARY STEPS TO ENSURE THAT ADMINISTRATIVE SUBPOENAS ARE USED AND ENFORCED CONSISTENTLY AND FAIRLY BY EXECUTIVE BRANCH AGENCIES.

Table:

Frequency Data. Department of 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 study 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 President ial 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

15 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 ident ified 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-pro tective statutes, pro hibiting certain disclosures and requiring notice under cert ain 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 t o these various authorities would be neither prudent no r practical. As various agencies referr ed t o 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 descript ion of the authorities pro vided 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 AUTHORITIES 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, wit h 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 administrative 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 authorities authorize the 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).

3See 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 o r forbid delegat ion 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

4See, e.g., Exec. Order No. 12,580, Section 2(j), 52 Fed. Reg. 2923 ( Jan. 29, 1987) (delegating to heads of Executive departments and agencies the auth ority originally delegated 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)).

5The Consumer Product Safety Commission, for instance, may 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., Appendix A, Department of Energy (DOE) authority under the Federal Ener gy Administration 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).

7See, e.g., 11 C.F.R. § 111.12 (requiring that Federal Election Commission members authorize the Chairman or Vice Ch airman of the Com mission to issue specific subpoenas, whether subpoenas duces tecum or those requiring); 16 C.F.R. § 2.7(d) (stating that Federal Trade 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 lawfully authorized purpose and sought information relevant to the agency's inquiry: United States v. LaSalle Nat'l Bank, 437 U.S. 298, 313 (1978); United States v. Powell, 379 U.S. 48, 57 (1964); Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 209 (1946).

9See 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.) (holding that disclosures sought by the Department of Agriculture 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. 654 (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 Fo urt h 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 do es not already have the information it is seeking with the subpoena, and (4) t he 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 purpo se 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 does, in fact, exist. The Supreme Court has stated in United States v. Morton Salt15 that, in evaluating the appropriateness of an administrative 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 administrative subpoena authorities. 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 have excluded 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. Tex. 1981) (stating that “th e agency's order sh ould only be affirmed if a rational basis exists, but such must be supplied by the agency, not the court”).

12Endicott Johnson Corp. v. Perkins, 317 U.S. 501, 509 (1943).

13327 U.S. 186 (1946).

14Id. at 201.

15338 U.S. 632, 51 (1950).

16Id. 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) freedo m of associat ion, (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 court s 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

17United 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.

18Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 208 (1946).

19See Graham Hughes, “Administrative Subpoenas and the Grand Jury: Converging Streams of Civil and Criminal Compulsory Process,” 47 VAND. L. REV. 573, 589 (1994).

20United 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 as to whether the constraints of due process preclude federal agencies from possessing the power to enforce their own subpoenas. Federal courts have generally 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 isonment in order to compel th e performance 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 has not tested the outer limits of Interstate Commerce Commission v. Brimson by conferring direct administrative subpoena enforcement authority on a federal agency, the Court h as not had occasion to specifically 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 office 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 t he agency directly or through a Unit ed 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 instance, the Secretary 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 the 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 Commission is similar ly auth orized under 2 U.S.C. §437d(b) to petition a district court directly for en forcement of certain administrative subpoenas (authorizing the Federal Election Commission to petition the appropriate 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).

22See, e.g., U.S. Department of Agriculture, “Procedures Related to Administrative Hearings under the Program Fraud Civil Remedies Act of 1986" (PFCRA), 7 C.F.R. §§ 1.304, 1.319, 1.322, 1.323, 1.328 (authorized by 31 U.S.C. §3804(a)).

23 See, e.g., Foreign Shipping Pr actices Act, 46 App. 46 U.S.C. 1710a (authority to make information 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] Branch attorney will review the referral and proposed pleadings, and then 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 States 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.

25Wearly 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 Statutes 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,

26United States v. Security State Bank and Trust, 473 F.2d 638, 642 (5th Cir. 1973).

27Wearly, 616 F.2d at 665.

28United 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).

29United States v. LaSalle Nat’l Bank, 437 U.S. 298, 316 (1978).

30Cobbledick v. United States, 309 U.S. 323, 330 (1940) (recognizing the immediate reviewable 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.

31See 42 U.S.C. §9604(e) (authorizing the court to assess civil penalties of up to $25,000 for each day of continued noncompliance with subpoena issued un der CERCLA authority); 15 U.S.C. §50 (FTC statute, incorporated by reference into several other agencies’ subpoena authorities (See, e.g., 33 U.S.C. §944, Department of Labor authority) authorizing punishment for noncomplian ce by “a fine of not less than $1,000 nor more then $5,000, or by imprisonment for not more than one year, or by both such fine and imprisonment”).

32See, 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) and (2) (including 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 Interior, 43 U.S.C. §§102-106 (stating that 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 may be subject to contempt proceedings in federal district court and “shall 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 through 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 particular 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 t he 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 court 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 that a person failing 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 statute provides that the judge or commissioner shall, “upon such hearing. . . have power to make 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).

35Section 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 tment of Interior noted in its submission to the Office of Lega l Policy at the Depar tment of Justice that the issue as to whether the FOGRMA enforcement provisions apply to situations of noncompliance with RSFA subpoenas has not been litigated. See App endix A, U.S. Departmen t of I nterior 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 o rder 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 the processes of 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 noted 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

36See Therese Maynard, “SEC v. Jerry T. O’Brien, Inc.: Has the Supreme Court Overruled United States v. Powell?,” 18 LOY. L.A. L. REV. 643, n. 112 (1985) (providing a description of the enforcement process).

37See 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).

38See id.

39See id.

40See id. at 540.

41Wearly v. FTC, 616 F.2d 662, 665 (3d Cir. 1980).

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

43Id.

44Oklahoma 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 requirements imposed in an agency’s organic statutes, (2) privacy-protective constraints internal to the statute authorizing t he subpoena power, (3) generally applicable privacy-protective statutes, and (4) agency-promulgated guidelines limiting or directing subpoena issuance. See discussion of various statutory/regulatory privacy-pro tective 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 aut hority in judiciary.

While the privacy interests of an individual or entity are protected by maintaining administrative subpoena enforcement authority in the federal courts, the co urt s 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

45Id. at 203.

46 Each of these actions meant to peripherally encourage complian ce with a subpoena request are, 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”).

48See 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 administrative 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 administrative 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 noted 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).

50See Appendices A, B, C infra. See also In re Subpoena Duces Tecum, 228 F.3d at 348; United States v. Bell, 564 F.2d 953, 959 (Temp. Emer. Ct. App. 1977) (stating th at “[b]ifurcation of the power, on the one han d 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”).

51Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 201 (1946).

52See id. at 202.

53See 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) (stating that “‘[b]ad faith’" connotes a conscious decision by an agency to pursue a groundless 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 administrat ive 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 restricting 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 administrat ive subpoena authority co ntain internal privacy limitations.59 Other authorizing statutes contain internal notification requirements.60 Many of these internal statutory constraints are referenced in the attached

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

56Id. at 208.

57Id.

58Consider, 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).

59See, 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 Commission may issue order s, wher e appr opria te, to protect the con fidentiality of trade secrets).

60See, e.g., 7 U.S.C. §2(h)(5)(C)(i) (providing administrative subpoena authority to the Commodity Futures Trading Commission and requiring 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 r eference 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).

61Subsection (b) sets forth twelve circumstances un der which records concerning an individual can be disclosed without the individual's prior written consent. The law enforcement exception states that

[n]o agency shall disclose any record which is contained in a system of records by any mean s of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record 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, and if the head of the agency or instrumentality has made a written 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 cert ain 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.

62Law enfor cement recor ds exempted from the disclosure r equir ements of FOIA include recor ds or information that:

(A) could reasonably be expected to interfere with enforcement 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, including a State, 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 authority in the course of a criminal investigation or by an agency conducting a lawful national secur ity intelligence investigation, information furnished by a confidential source, (E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of th e law, or (F) could reasonably be expected to endanger the 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, nothwithstanding 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. Development 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 aut hority. 69

65An agency issuing an administrative subpoena to a financial 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. Together with this n otice, the customer must also 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 records being sought are relevant to a legitimate law en forcement inquiry, an d (3) there is rea son to believe 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.

6712 U.S.C. §3417(a).

6812 U.S.C. §3417(b).

69The Act provides for customer challenges (motion to quash, application to enjoin) to government access to financial records (see 12 U.S.C. §3410) and 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 administrative 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 States 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 disclosure, as well as discretionary punitive damages where a violation is found to h ave been "willful 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) (discussing time limitations on a party’s ability to seek injunction of intended government access).

70The governmental entity bears the initial burden in a challenge presented during an enforcement action. The government’s initial burden in enforcement action s, however, is ligh t, only requiring “a prim a facie recital of jurisdiction and statement of the basis for enforcement.” John W. Bagby, “Administrative Investigations: Preserving a Reasonable Balance Between Agency Powers and Target Rights,” 23 AM. BUS. L. J. 319, 324 (1985).

7112 U.S.C. § 3402.

72 12 U.S.C. §§ 3405(1).

73 See, e.g., United States v. Wilson, 571 F. Supp. 1417 (S.D.N.Y. 1983) (rejecting the challenge 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 or 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 or 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 perso nnel 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 investigations, 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 Secret ary 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 administrative 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 the

74The 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 Depart ment 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 administrative 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 information 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 Electronic 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 communications 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 to 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 reporting 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 the 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 institutions 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 contents 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 ident ifiable 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 parents or the 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 regulations and guidelines are included in the appendices where provided by the agency holding the subpoena aut hority.

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

In addition to being governed by statutory issuance standards, 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.

84See 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); Girardier v. Webster College, 563 F.2d 1267, 1276-77 (8th Cir .1977); Girardier 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).

85See 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 guidelines for FBI issuance of administrative subpoenas authorized 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 investigate 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 investigation.91 See 5 U.S.C.A.

875 U.S.C. App. 3 §§ 2 (1), 4(a)(1).

88See, id. at § 3 (a). The Inspectors General in certain "federal entities" are appointed by the head of the agency. See, id. at § 8G(c).

89Id. at § 3(a).

90See 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").

91Federal 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 Attorney 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 court s 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 court s have also held that an Inspector General is authorized to continue using civil subpoena authority for civil and administrative 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

92While the admin istrative subpoena authority held by Inspectors Gen eral is generally not limited 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).

93See 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 upheld the use of the admin istrative subpoena authority even where th e Inspector General of the Department of Defense was in cooperation with the FBI and the Antitrust Division of the Department of Justice. The cour t stated th at “so long as the Inspector Gen eral's subpoenas seek information 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 United States Attorneys from conducting joint investigation s with an In spector General or from using in a gran d jury in vestigation information obtain ed by an IG investigation by the Department of Justice, even if the IG serves as a source of information 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.

94See United States v. Art Metal-U.S.A., Inc., 484 F.Supp. 884, 886 (D.N.J. 1980).

95Since 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, do es 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).

97See 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). The court in this case established a three prong test to determine whether an administrative subpoena was issued in bad faith: (1) whether the agency intentionally or knowingly misled the subject of the subpoena; (2) whether the subject was actually misled; and (3) whether the subpoena was the result of improper access to the party'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 made available to any auditor or monitor 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 Corporation, except for reports or records subject to the attorney-client privilege. (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 statutes are generally applicable to the Inspector General subpoena authority as well as other subpoena aut horities 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 aut hority, 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 t hat 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., Appendix A for information regarding the Inspectors General at U.S. Department 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).

102Id. 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 institution or an officer or employee thereof is not precluded from notifying a government auth ority that they possess information that may be relevant to a violation of any statute or regulation. Id. at § 3403(c).

103 See, e.g., Appendix A for information regarding Inspectors General at the U.S. Department of Agriculture (Inspector General Directive, IG-8551 (C2-C5)) and Department of Energy (Inspector General Directive, IG-916, June 24, 1986).

104See Burlington Northern RR v. Office of Inspector General, R.R. Retirement Board, 983 F.2d 631, 637 (5th 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 AUTHORITIES 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 attorneys 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 impo sed 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 costs,” the legislative history of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) suggests that Congress granted subpoena authority to the 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

105See, 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 t he 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.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 t he 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 court s 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, therefo re, 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

106In re Administrative Subpoena John Doe, 253 F.3d 256 (6th Cir. 2001).

107Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 209 (1946).

108United States v. Powell, 379 U.S. 48 (1964).

109Id. (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)).

110See, 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).

111See 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) the 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 directed 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 entity (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 to 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 recipient s of all other currently authorized administrat ive subpoenas, are protected in

112In 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 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[.]"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 Attorneys and the Assistant Attorney 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 Attorneys deem appropriate. As the Attorney General has not delegated his authority to issue administrative 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 fo und 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 administrative 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

113See, 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)).

114Id. (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)).

115Order 2486-2001 superceded an earlier order dated April 23, 1997 and issued by former Attorney 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 administrative 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 the 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 to conduct investigations into online child exploitation offenses in an expeditious manner. Section 3486 created a speedy mechanism to identify customers or subscribers of electronic communication services or remote computing services. A timely method was needed because the information maintained by such services is extremely perishable. Many private and commercial online service providers maintain records on Internet usage by their subscribers for very short periods of time, sometimes two days or less. Although an investigative agency can obtain grand jury subpoenas from the appropriate United States Attorney’s Office in exigent circumstances on an expedited basis, more commonly, the agency’s acquisition of grand jury subpoenas takes days or

35 even weeks. As a result, the Internet service provider is often no longer able to provide the needed information. Delegation of administrative subpoena authority to the United States Attorneys, the Assistant Attorney General for the Criminal Division, and the FBI has facilitated the speed of the investigative process necessary to obtaining information that identifies subjects and victimized children. In addition, the prompt exchange of investigative information can be particularly important in cases involving the abuse and exploitation of children. Such an exchange can be easier and broader when the information is obtained by administrative subpoena, as opposed to by grand jury subpoena, in view of the strict constraints on 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 of specified federal kidnaping, child pornography, sex abuse and transportation for illegal sexual activity offenses, where the victim was under eighteen. The statute requires that the underlying investigation must relate to an act or activity involving a violation of 18 U.S.C. §§1201, 2241(c), 2242, 2243, 2251, 2251A, 2252, 2252A, 2260, 2421, 2422, or 2423, when the victim was a minor who had not attained the age of eighteen years. Section 3486(a)(1)(C) limits the scope of information that a governmental entity may request from a provider of electronic communications service or remote computing service provider. A provider receiving a subpoena under section 3486 can be required to disclose only the subscriber or customer’s: (1) name; (2) address; (3) local and long distance telephone toll billing records; (4) telephone number or other subscriber identity; (5) length of service; and (6) the types of services the customer or subscriber utilized, which may be relevant to an authorized law enforcement inquiry. 18 U.S.C. §3486(a)(1)(C)(i). The authority to issue administrative subpoenas to obtain testimony is limited to requiring a custodian of records to give testimony concerning the production and authentication of such records. 18 U.S.C. §3486(a)(1)(C)(ii). 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)(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 jurisdiction of which the investigation is carried on or of which the subpoenaed person is an inhabitant, or in which he carries on business or may be found, to compel 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 electronic communications service or remote computing service pursuant to an administrative subpoena requesting the name, address, local and long distance telephone toll billing records, telephone number or other subscriber number or identity, and length and type of service does not have to provide notice to subscriber or customer. In 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 wit h 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 ent ity issuing a subpoena request under t his 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 Document ary 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 States 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. Attorneys, 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 rat ive 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 Attorneys offices issued seventy-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 impo rtant 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 administrat ive 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 the 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

116These 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 of 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 t o 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

117In re Administrative Subpoena John Doe, 253 F.3d 256 (6th Cir. 2001).

118Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 209 (1946).

119In 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 administrative 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. RECOMMENDATIONS REGARDING NECESSARY STEPS TO ENSURE THAT 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) Attorney 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 Attorney 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 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; h owever, descriptions of administrative law judge subpoenas submitted by individual agencies and entities have 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 Commission Appalachian IG Act & Amend. P.L. Administrative subpoena Courts by showing: Privacy Act of 1978 12 Obtain information from Regional 95-452 P.L. 100-504 5 for documentary evidence. 1. IG authority U.S.S. Sections 3406- non-government agencies. Commission U.S.C. Appendix 3, 2. Relevant to inquiry 3422 Section 4 3. Not to indefinite

Broadcasting Holds no administrative subpoena authori ty. Board of Governors

Chemical Safety and Hazard Investigation Board (CSB) Chemical Safety and Clean Air Act Authority to require by Enforcement proceeding Applicable privacy Issuance standard: Hazard Investigation Amendments of 1990; 42 subpoena attendance and in Federal district court. exemptions of the “reasonableness,” as Board (CSB) U.S.C. 7412(r)(6)(L)(i); testimony of witnesses and Freedom of Infor mation determined by the P.L. 101-549 production of evidence as Act, 5 U.S.C. 552; standards set forth in 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 recommendations, procedures established by and establishment of an internal Board order. reporting regulations).

Chemical Safety and Clean Air Act Authority to require by Enforcement proceeding Applicable privacy Standards and procedures Hazard Investigation Amendments of 1990; 42 order that any person in Federal district court exemptions of the not explicitly provided. Board (CSB) U.S.C. 7412(r)(6)(L)(i); engaged in the production, Freedom of Infor mation P.L. 101-549 processing, handling or Act, 5 U.S.C. 552; storage of extremely Privacy Act of 1974, 5 hazar dous substances U.S.C. 552a. submit written reports 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 privacy Issuance standard: Hazard Investigation Amendments of 1990 42 statute, 42 U.S.C. in Federal district court exemption of the “reasonableness,” as Freedom of Infor mation determined by the Board (CSB) U.S.C. 7607(a)(1) 7412(r)(6)(M), also authorizes the Board to use Act, 5 U.S.C. 552; standards set forth in 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. Administrator 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 established by production of relevant an internal Board order. papers, books, and documents.

This subpoena authority is an essential tool in conducting investigations, 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 authority 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. Commodity Futures Trading Commission

Commodity Futures Commodity Exchange “For th e purpose of Enforcement action in 1. Privacy Act of 1974, 5 1. Th e CFTC’s Division Trading Commission Act (“CEA”), Pub. L. securing effective federal district court. U.S.C. § 552a. of Enforcement (“DOE”) No. 93-463, as amended, enforcement of [the Section 6(c) of the CEA, requests that the CFTC provisions of the CEA and] 7 U.S.C. § 15. issue an “Order of § 6(c), 7 U.S.C. § 15 2. Records Maintained for the purpose of any Investigation” delegating (2000); CFTC Rules on Individuals, 17 C.F.R. investigation or proceeding its subpoena authority to Relating to Part 146 (CFTC’s under [the CEA] . . . any specifically identified Investigations, Part 11, regulations implementing member of the Com mission DOE staff members. 17 C.F.R. Part 11 (2001). the Privacy Act). or any Administrative Law Judge or other officer 2. An order of the CFTC 3. Right to Financial designated by the authorizing one or more Privacy Act, 12 U.S.C. Commission . . . may . . . member s of the CFTC or § 3401 et seq. subpoena witnesses, of its staff to issue compel their attendance . . subpoenas in the course of . and require the production 4. Electronic a par ticular investigation of any books, papers, Communications Privacy shall include (1) a general corresponden ce, Act of 1986 (“ECPA”), description of the scope of memoranda, or other 18 U.S.C. § 2701 et seq. the investigation; (2) the records that the authority under which the Commission deems investigation is being 5. All information and relevant or material to the conducted; and (3) a documents obtained inquiry.” 7 U.S.C. § 15. 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 Commission directs or Procedure No. 6, authorizes the public regarding DOE’s disclosure of the application of the Privacy investigation; (2) the Act, is a non-statutory information or documents procedure. are made a matter of public record during the 4. DOE also has prepared course of an adjudicatory Compliance manuals to proceeding; or (3) provide guidance and disclosure is required by procedures for its staff the Fr eedom of with respect to both the Information Act RFPA and the ECPA. (“FOIA”), 5 U.S.C. § 552, and the rules 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 purposes of FOIA disclosure are set forth in 17 C.F.R. § 145.9. A request for confidential tr eatment of information for purposes of FOIA shall not, however, prevent disclosure for law enforcement purposes 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 purpose 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 Maintained 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 Rules 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 mission 2. Administrative law or any Administrative Law judges and judgment Judge or other officer 3. Right to Financial officers preside over designated by the Privacy Act, 12 U.S.C. adjudicatory proceedings. Commission . . . may . . . § 3401 et seq. Presiding officers are subpoena witnesses, authorized to issue compel their attendance . . 4. Electronic administrative subpoenas. . and require the production Communications Privacy 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 memoranda, or other proceedings, a subpoena records that the 5. If a person has ad testificandum shall be Commission deems requested confidential issued upon a showin g by relevant or material to the treatment of infor mation the requesting party of the inquiry.” 7 U.S.C. § 15. submitted by him or her, general relevance of the either pursuant 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 Enforcement shall notify application for a subpoena him or her, if possible, duces tecum shall issue that the information is to the subpoena if he is be disclosed to parties to satisfied th e application the proceeding and he or complies with 17 C.F.R. § she may apply to the 10.68 and the request is Administrative Law not unreasonable, Judge for an order oppressive, excessive in protecting the information scope or unduly from disclosure, burdensome. No detailed consideration of which or burdensome showing shall be governed by 17 shall be required as 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 purpose 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 Relating to Reparation No. 93-463, as amended, enforcement of [the Section 6(c) of the CEA, Main tain ed on Proceedings are the rules § 6(c), 7 U.S.C. § 15 provisions of the CEA and] 7 U.S.C. § 15. See also Individuals, 17 C.F.R. of practice applicable to (2000); Part 12 Rules for the purpose of any 17 C.F.R. § 12.313(f) Part 146 (CFTC’s reparations applications Relating 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 mission 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 § 3401 et seq. 2. Administrative law Commission . . . may . . . judges and judgment subpoena witnesses, officers preside over 3. Electronic compel their attendance . . reparations proceedings . and require the production Communications Privacy and are authorized to of any books, papers, Act of 1986 (“ECPA”), issue admin istrative corresponden ce, 18 U.S.C. § 2701 et seq. subpoenas. 17 C.F.R. §§ memoranda, or other 12.34, 12.36, 12.101, records that the 12.201, 12.209, 12.304, 4. If any party or person 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 cially sensitive or if he is satisfied the other confidential application complies with information, the party or this rule and the request is person may, in lieu of not unreasonable, serving any such oppressive, excessive in document, file and serve a scope or unduly written 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, oppressive, excessive in scope or unduly burdensome, he may refuse to issue the subpoena, or may issue it only upon such conditions as he determines 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 under 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 administrative §§ 6(c) and 12(f), 7 any member of the 7 U.S.C. § 15. Individuals, 17 C.F.R. subpoenas “for the U.S.C. § 15, 16(f) Commission or any Part 146 (CFTC’s purpose 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 discretion the production of any and “[o]n request from a books, papers, foreig n fu tures au thori ty” 3. Electronic corresponden ce, to provide assistance in Communications Privacy memoranda, or other 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 violate any laws, rules or regulations relating to futures or options matters that the requesting auth ority admin isters 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 assistance may be provided without regard to whether the facts stated in the request would also constitute a violation of the laws of the United States. 7 U.S.C. § 16(f).

3. In deciding whether to provide assistance to a foreig n fu tures au thori 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 prejudice 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 Trading Commission 1978, as amended, Pub. information, documents, obey, enforcement is U.S.C. § 552a. issuance standards, 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, papers, and other appropriate U.S. district connection with the 2. Records Maintained data and documentary court. issuance of administrative 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 assigned under the Inspector General 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 appropriate U.S. district court during the notice period.

4. Electronic Communications Privacy Act of 1986 (“ECPA”), 18 U.S.C. § 2701 et seq. Commodity Futures Commodity Exchange The CFTC, or persons by If the CFTC h as rea son The r ecipient of a This administrative 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 Futures (2000). to any foreign person who by or on behalf of the foreign person, the Modern ization Act of the CFTC believes is CFTC pursuant to 7 subpoena in a manner 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 exemption 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 standards, 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 facility for liquidation trading only. 7 U.S.C. § 2(h)(5)(C)(ii).

Consumer Product Safety Commission 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. §2076(b)(3) [see function of the and .9. §2076(b)(9)] to any Commission” officer or employee of the Commission. “Documentary evidence relating to the execution of [the Commission’s] duties” Corporation for National and Community 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 General Act subpoenas under the Inspector General Act, a subpoena must be 1) Community Service 452, 5 U.S.C. App §§ 3- auth orizes an Office of Inspector General Act, if person is permitted ten issued for a lawful 8. Inspector General “to the person does not days from receipt, or purpose within the 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 mailing of the notice 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 purpose, and 3) not accounts, papers, and other file a Petition for motion to quash it, in the unduly burdensome. See data and documentary Enforcement 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 Financial Privacy Act to Financial Privacy Act, to Financial Privacy Act, subpoena must be 1) Community Service Pub. L. 95-630, 12 states that a “government if the data subject of the a issued for a lawful U.S.C. §§ 3401-3433. authority may obtain records fails to respond, person is permitted ten purpose within the financial records under or files a motion to days from receipt, 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 mailing of the notice of 2) reasonably relevant to administrative subpoena or institution must deliver subpoena, to file a motion that purpose, 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 Certificate of district court. A Privacy 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 th Privacy Act to the pursuant to subsection (5 Cir. 1993). appropriate records (e)(3) of the Privacy Act custodian. of 1974, 5 U.S.C. § 552a(e)(3).

Court Services Holds no administrative subpoena authori ty. and Offender Supervision Agency Defense Nuclear Facilities Safety Board Defense Nuclear 42 U.S.C. §2286b(a), Compel testimony of Federal court in the Personal service Subpoenas may be issued Facilities Safety National Defense witnesses at hearings. distr ict of th e hear ing or only by the Chairman of Board Authorization Act, Fiscal the district where the the Board or by a Board Year 1989, P.L. No. 100- person resides or member designated by the 456. Sept. 29, 1988. transacts business. Chairman.

Department of Holds no administrative 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 case of contumacy or provided by paragraph the Authority, Direction, authority.--(1) The refusal to obey, shall be (1) may not be and Control of the Director of the Defense enforceable by order of an redelegated. Undersecretary of Contract Audit Agency appropriate United States (or an y successor district court. Defense–Comptroller)† 10 U.S.C. §2313(b)(3). agency) may require by subpoena the production 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 currency of certified cost or pricing data required to be submitted pursuant to section 2306a of this title 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). Department of the Holds no administrative subpoena authori ty. Air Force

Department of the Holds no administrative subpoena authori ty. Army Department of Agriculture US Department of Section 14(a)(7) of the The Administrative Law In case of disobedience When the ALJ issues a Subpoenas shall be issued Agriculture* Food Stamp Act of 1977, Judge (ALJ) presiding over to a subpoena, the subpoena under the Food by the ALJ, over the 7 U.S.C. 2023(a)(7), Food Stamp Program Secretary or any 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 any court of shall serve 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 grounds, Division him by section 13(c) and requiring the attendance subpoena, notice of the necessity and reasonable (d) of the Perishable and testimony of names and addresses of scope thereof. Agricultural Commodities witnesses and the the individuals Act of 1930 (7 U.S.C. production of accounts, subpoenaed 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 hearing is carried 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 produce accounts, records, and memoranda if so ordered, 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 contempt thereof. 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 provided for by specific statutes under Proceedings Instituted by to issue subpoenas as under which the the specific statutes under which the subpoena is OGC the Secretary Under authorized by the statute subpoena is issued. which the subpoena is issued. General 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 representative PFCRA, the party who notify the per son to whom Civil Remedies Act investigating an for failing to comply requested the subpoena it is addressed of the OGC (PFCRA) of 1986, 7 individual’s liability under with a lawful subpoena. must serve all other authority under which it is General Law Division C.F.R. §§ 1.304, 1.319, 7 C.F.R. § 1.303 (dealing Sanctions include: parties with notice of the issued and shall iden tify 1.322, 1.323, 1.328, with false statements, etc.), drawing an inference in names and addresses 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 subpoenaed 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 order from documents at depositions introducing evidence 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 not 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 a requesting party, the Agriculture* the USDA Board of Judge hearing an appeal or r efusal to obey a Contract Appeals, 7 pursuant to the Contract 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 General 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 States 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 Attorney 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 delegation A failure to obey such an from the Secretary to ord er is p unish abl e by a request the appropriate contempt order. United States Attorney to apply to the appropriate United States District Court for the issuance of subpoenas pur suant 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 currence 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 shall be issued General Law Division Federal Crop Insurance production of evidence. and the Department of for documents only if the Reform and Department Justice, may apply to the Director or Hearing of Agriculture United States District Officer determine that the Reorganization Act of Court in the jurisdiction appellan t or the agency 1994.` where the person resides has established that to have the subpoena production 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 shall be issued for appearance of a witness only if the Director or Hearing Officer determines that the appellan t or the agency has established that either a representative of the Department or a private individual possesses information that is pertinent and necessary for disclosure of all relevant facts which could impact the final determination, that information 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 During in vestigation s or Agriculture Inspection Service by subpoena the atten dance invoke the aid of the required. administrative (APHIS) and testimony of witnesses appropriate U.S. District proceedings. and the production of Court to enforce OGC books, papers, and subpoenas. The Horse Protection Marketing Division documents relating to any Act, 15 U.S.C. 1821- matter under investigation 1831, (Section 6(d)(1) or the subject of a (15 U.S.C. 1825)) proceedings. US Department of APHIS Incorporates Section 9 of The Secretary may Service of a subpoena is During in vestigation s or Agriculture the Federal Trade invoke the aid of the required. administrative Commission Act (15 appropriate U.S. District proceedings. The Animal Welfare Act, U.S.C. 48) which Court to enforce 7 U.S.C. 2131-2159, OGC authorizes the Secretary to subpoenas. (Section 16(c), 7 U.S.C. require by subpoena the Marketing Division 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 designated place of hearing. US Department of Grain Inspection packers The Administrator may The Administrator may Service of a subpoena is During in vestigation s or Agriculture and Stockyards require by subpoena the invoke the aid of the required. administrative 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 Marketing 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 designated place of the United States courts hearing. of other territories and possessions of the United States to enforce subpoenas. US Department of Agricultural Marketing This section adopts The Secretary may Service of the subpoena is During in vestigation s or Agriculture Service (AMS) section s 48, 49 and 50 of invoke the aid of the required. administrative Title 15 (Federal Trade appropriate U.S. District proceedings. Commission Act) which Court to enforce Agricultural Marketing OGC may require by subpoena subpoenas. Agreement Act of 1937, the attendance and Marketing Division 7 U.S.C. 601-670, 7 testimony of witnesses and U.S.C. 610(h). the production of documents relating to any matter under investigation or the 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 Commodity Promotion, by subpoena the atten dance invoke the aid of the required. administrative Research and and testimony of witnesses appropriate U.S. District proceedings. Information Act of 1996, and the production of Court to enforce OGC 7 U.S.C. 7411-7425, documents relating to any subpoenas. Marketing Division 7 U.S.C. 7420. matter under investigation or the 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 Cotton Research and by subpoena the atten dance invoke the aid of the required. administrative Promotion Act, 7 U.S.C. and testimony of witnesses appropriate U.S. District proceedings. 2101-2118, 7 U.S.C. and the production of Court to enforce OGC 2115. documents relating to any subpoenas. Marketing Division matter under investigation or the 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 Dairy Production by subpoena the atten dance invoke the aid of the required. administrative Stabilization Act of and testimony of witnesses appropriate U.S. District proceedings. 1983, 7 U.S.C. 4501- and the production of Court to enforce OGC 4513, 7 U.S.C. 4511. documents relating to any subpoenas. Marketing Division matter under investigation or the 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. administrative Act of 1990, 7 U.S.C. and testimony of witnesses appropriate U.S. District proceedings. 6401-6417, 7 U.S.C. and the production of Court to enforce OGC 6412. documents relating to any subpoenas. Marketing Division matter under investigation or the 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. administrative U.S.C. 1551-1611, 7 and testimony of witnesses appropriate U.S. District proceedings. U.S.C. 1603. and the production of Court to enforce OGC documents relating to any subpoenas. Marketing Division matter under investigation or the 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 During in vestigation s or Agriculture Egg Pr oducts Inspection by subpoena the atten dance invoke the aid of the required. administrative Act, 21 U.S.C. 1031- and testimony of witnesses appropriate U.S. District proceedings. 1056, 21 U.S.C. 1051. and the production of Court to enforce OGC documents relating to any subpoenas.

Marketing Division matter under investigation or the 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 Egg Research and by subpoena the atten dance invoke the aid of the required. administrative Consumer Information and testimony of witnesses appropriate U.S. District 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. Marketing Division matter under investigation or the 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. administrative Consumer Information and testimony of witnesses appropriate U.S. District 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. Marketing Division matter under investigation or the 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 Fresh Cut Flowers and by subpoena the atten dance invoke the aid of the required. administrative Fresh Cut Greens and testimony of witnesses appropriate U.S. District proceedings. Promotion and and the production of Court to enforce OGC Information Act of 1993, documents relating to any subpoenas. Marketing Division 7 U.S.C. 6801-6814, 7 matter under investigation U.S.C. 6809. or the 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 Honey Research, by subpoena the atten dance invoke the aid of the required. administrative Promotion and Consumer and testimony of witnesses appropriate U.S. District proceedings. Information Act, 7 and the production of Court to enforce OGC U.S.C. 4601-4612, documents relating to any subpoenas. Marketing Division 7 U.S.C. 4610a. matter under investigation or the 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. administrative Promotion and Consumer and testimony of witnesses appropriate U.S. District 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. Marketing Division U.S.C. 6208. matter under investigation or the 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 Mushroom Promotion, by subpoena the atten dance invoke the aid of the required. administrative Research and Consumer and testimony of witnesses appropriate U.S. District proceedings. Information Act of 1990, and the production of Court to enforce OGC 7 U.S.C. 6101-6112, 7 documents relating to any subpoenas. Marketing Division U.S.C. 6108. matter under investigation or the 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 National Kiwifruit by subpoena the atten dance invoke the aid of the required. administrative Research, Promotion and and testimony of witnesses appropriate U.S. District proceedings. Information Act, and the production of Court to enforce OGC 7 U.S.C. 7461-7473, 7 documents relating to any subpoenas. Marketing Division U.S.C. 7469. matter under investigation or the 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 Pecan Promotion and by subpoena the atten dance invoke the aid of the required. administrative Research Act of 1990, and testimony of witnesses appropriate U.S. District 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. Marketing Division matter under investigation or the 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 Popcorn Promotion, by subpoena the atten dance invoke the aid of the required. administrative Research and Consumer and testimony of witnesses appropriate U.S. District proceedings. Information Act, and the production of Court to enforce OGC Marketing Division 7 U.S.C. 7481-7491, 7 documents relating to any subpoenas. U.S.C. 7488. matter under investigation or the 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 Potato Research and by subpoena the atten dance invoke the aid of the required. administrative Promotion Act, 7 U.S.C. and testimony of witnesses appropriate U.S. District proceedings. 2612-2627, 7 U.S.C. and the production of Court to enforce OGC 2622. documents relating to any subpoenas. Marketing Division matter under investigation or the 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 Watermelon Research by subpoena the atten dance invoke the aid of the required. administrative and Promotion Act, and testimony of witnesses appropriate U.S. District 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. Marketing Division matter under investigation or the 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 Beef Research and by subpoena the atten dance invoke the aid of the required. administrative Information Act, and testimony of witnesses appropriate U.S. District proceedings. 7 U.S.C. 2901-2911, 7 and the production of Court to enforce OGC U.S.C. 2902. documents relating to any subpoenas. Marketing Division matter under investigation or the 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 Canola and Rapeseed by subpoena the atten dance invoke the aid of the required. administrative Research, Promotion and and testimony of witnesses appropriate U.S. District proceedings. Consumer Information and the production of Court to enforce OGC Act, 7 U.S.C. 7441-7452, documents relating to any subpoenas. Marketing Division 7 U.S.C. 7449. matter under investigation or the 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 Pork Promotion, by subpoena the atten dance invoke the aid of the required. administrative Research and Consumer and testimony of witnesses appropriate U.S. District proceedings. OGC Information Act of 1985, and the production of Court to enforce Marketing Division 7 U.S.C. 4801-4819, 7 documents relating to any subpoenas. U.S.C. 4816. matter under investigation or the 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 Sheep Promotion, by subpoena the atten dance invoke the aid of the required. administrative Research and and testimony of witnesses appropriate U.S. District 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. Marketing Division U.S.C. 7108. matter under investigation or the 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 Soybean Promotion, by subpoena the atten dance invoke the aid of the required. administrative Research and Consumer and testimony of witnesses appropriate U.S. District proceedings. Information Act, and the production of Court to enforce OGC 7 U.S.C. 6301-6311, 7 documents relating to any subpoenas. Marketing Division U.S.C. 6308. matter under investigation or the 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 Wheat and Wheat Foods by subpoena the atten dance invoke the aid of the required. administrative Research Nutrition and and testimony of witnesses appropriate U.S. District proceedings. Education Act, 7 U.S.C. and the production of Court to enforce OGC 3401-3417, 7 U.S.C. documents relating to any subpoenas. Marketing Division 3412. matter under investigation or the 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 Tobacco Inspection Act, by subpoena the atten dance invoke the aid of the required. administrative 7 U.S.C. 511-511q, 7 and testimony of witnesses appropriate U.S. District proceedings. U.S.C. 511n. and the production of Court to enforce OGC documents relating to any subpoenas. Marketing Division matter under investigation or the 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 Agriculture Compr ehensive person to furnish or threatened releases 104(e) infor mation policy for the issuan ce of Environmental Response, information or documents where either the release request may 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 Pollution Con trol 42 U.S.C. § 9604(e), as quantity of hazardous facility under USDA information request Potentially Responsible delegated by Section 2(j) substances generated, jurisdiction, custody, or require recipients to Party (PRP) Search Guide of Executive Order No. treated, stored, or disposed 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 release or concurrence of the need for additional time CERCLA Section 104(e) threatened release of Attorney General, an to respond. An information requests hazardous substances at a administrative order administrative should be tailored to site In Executive Order site; or (c) information directing compliance compliance order under specific needs and to the 12580, the President relating to the ability of a with the request. USDA Section 104(e)(5)(A), particular recipient of the delegated to the respon sible party to pay for may ask the Attorney may be issued “after such request. USDA CERCLA Secretary of Agriculture or to perform a cleanup. General to file a civil notice and opportunity for Section 104(e) the auth ority under This auth ority may be action to compel consultation as is information request letters Section 104(e) of the exercised only for purposes compliance with a reasonably appropriate should be prepared with Compr ehensive of determining the need for request or order issued under the circumstances.” the assistance of the Environmental Response, respon se action, or under Section 104(e). Office of the General Compensation, and choosing or taking any The Court may assess Counsel (OGC). OGC Liability Act (CERCLA), Any records, reports, or response action under civil penalties of up to should also be consulted 42 U.S.C. § 9604(e), to information obtained CERCLA. $25,000 for each day of in reviewing responses to make an administrative from any person under continued CERCLA Section 104(e) investigatory demand Section 104(e) are noncompliance. requests and in the available to th e public, compelling the preparation of any follow- except upon a showing production of documents up Section 104(e) that the information is and information relating requests. to releases and protected from disclosure threatened 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 request 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 CERCLA has an inability to pay its Section 104(e) share of the cleanup costs, information request may the PRP should contact also be protected from the agency. The agency public disclosure under should then send the Privacy Act, 5 U.S.C. appropriate financial § 552a. questions 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 appropriate. US Department of • Poultry Products Administrative subpoena Administrative The Food Safety and The Secretary’s delegatee, subpoenas for testimony Inspection Service will the Administrator of the Agriculture* Inspection Act, P.L. 90- authority is provided by the 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 are issued by production or testimony Inspection Service, makes OGC 15 U.S.C. 46, 48, 49, 50, USDA Administrative on a voluntary basis. the initial decision to • Federal Meat Regulatory Division incorporated by reference Law Judges at the issue an administrative Inspection Act, P.L. 90- into these 3 statutes. request of any party to an investigative subpoena. 201, 21 U.S.C. 601 If the requested administrative The General 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 administrative • 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 Administrative The Privacy Act and the the Administrator of the Law Judges in Trade Secrets Act • EPIA incorporation is Food Safety and administrative 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 the production of enforcement of that documents, the request subpoena by the shall show their Department of Justice in competency, relevancy a Federal district court. and materiality. See 7 C.F.R 1.149. US Department of • Plant Protection Act, Administrative subpoena Administrative The Animal and Plant The Secretary’s delegatee, Health Inspection the Administrator of the Agriculture* P.L., 106-224, 7 U.S.C authority relating to the subpoenas for testimony 7733. administration or and production of Service will first seek Animal and Plant Health enforcement of the Acts documen ts are issued by documen t production or Inspection Service, makes OGC and any matter under USDA Administrative testimony on a voluntary the initial decision to • Title V of the Regulatory Division investigation in connection Law Judges at the basis. issue an administrative Agricultural Risk with the Acts. request of any party to an investigative subpoena. Protection Act of 2000. administrative The General Counsel P.L. 106-224, 7 U.S.C. If the requested 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 administrative are issued by the compel their production. subpoena will be issued Secretary’s delegatee, by USDA Administrative the Administrator of the Law Judges in The Privacy Act and the Animal and Plant Health administrative Trade Secrets 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 the production of enforcement of that documents, the request subpoena by the shall show their Department of Justice in competency, relevancy a Federal district court. and materiality. 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, market agencies; Enforcement in any court except those specific to jurisdiction over person incorporating sections 6 and those with whom it in US for hearing Right to Financial Privacy and activity 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 against, which Programs of Grain 46 and 49), as approved 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 investigated for legal sufficiency by OGC. Trade Practices Division violation of Act. Section 6 Investigatory subpoenas [15 U.S.C. 46]- to gather issued by agency Adm’r and compile information and served by agency re: business, organization investigator. Hearing and conduct. Section 9- subpoenas for witnesses 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 merchants, Section 13(d)[7 U.S.C. No notification Must have statutory Agriculture Commodities Act, 7 dealers and brokers; 499m(d)] -investigatory requirements; time jurisdiction over person U.S.C. 499m (section 13) financial in stitutions. subpoenas enforced in usually provided to amass and activity 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 against, which 7 DFR 47.11 - Hearing Programs of Grain 13(a)- viola tion of section in district court where specific to Right to is basis for authority to and deposition subpoenas Inspection & Packers and 2 or other sections of Act, hearing held. Both Financial Privacy Act subpoena records in and subpoenas duces Stockyards e.g., section 6(c)[7 U.S.C. handled by local AUSA (Pub. L. 95-630) when possession of financial tecum. Administration. 499f(c)] - complaints or Office. seeking financial records institutions. Subpoena notifications of violation; of individual. requests ar e reviewed for Trade Practices 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)- Administrator. Ser ved by appear, depose and produce 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 ser ved by OGC attorn ey. Sec. 13(c) - Atten dance, Subpoenas and subpoenas testimony an d production duces tecum in reparation of documents (ALJ). cases sought by att’y, issued by OGC Presiding Offi cer , 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 procedures subpoena authority is 6(a)(4) (West 1996 & the production of all enforcement of a require that special agents limited to "evidence Supp. 2001), Pub. L. No. information, documents, subpoena in any and auditors maintain all necessary in the Office of Inspector 95-42, 92 Stat. 1101 reports, answers, records, appropriate United States subpoenaed documents performance of the General (1978). accounts, papers, and 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 information 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 the RFPA USDA from disclosure of prohibit release of records "personally identifiable without certification 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 procedures any original 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 restrict 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 Financial Privacy Act internal procedures ("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 Requirements - (Information Services"). Working Papers). US Department of Rules of practice The hearing panel may Agriculture governing proceeding on compel production of petitions to modify or to documentary evidence, be exempted from appearance of witnesses, or Regulatory authority for compact over-order price the giving of testimony by issuing admin istrative regulations promulgated subpoena throughout all subpoenas that could 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 r efusal to obey a Drug Administration and been violated the presiding subpoena issued under Related Agencies officer may subpoena the Act, any person, the Regulatory authority for Appropriations Act, Hass witnesses. Secretary of Agriculture issuing admin istrative Avocado Promotion, may invoke the aid of subpoenas that could not Research, and any court of the United be ascribed to a particular Information, 7 U.S.C. § States within the division within the USDA. 7808 jurisdiction of which the investigation 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† Department of Commerce

US Department of Magnuson-Stevens The MSFCMA provides NOAA’s civil procedure Right to Financial Privacy Under 15 C.F.R § Commerce* Fishery Conservation and that, “[f]or the purposes of regulations, which apply Act (P.L. 95-630) 904.245 (a) “[s]ubpoenas Management Act conducting any hearing in NOAA’s for the attendance and (MSFCMA) [under the civil penalties administrative testimony of witnesses National Oceanic And 16 U.S.C. § 1801 et seq. section ], th e Secretary 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.” Litigation disobedience to a documents...” subpoena, NOAA may These administrative 16 U.S.C. § 1858(e). request the Justice subpoenas 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 the attendance 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 written 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 barred from asserting financial hardship.” This inference may be drawn by the enforcement attorney in assessing 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 concer ning dis covery, the Judge may, in the interest of justice: (1) [i]nfer that the admissi on, 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 admissi on, testimon y, documents or other evidence would h ave shown; (5) [s]trike all or part of a pleading (except a request for hearing), a US Department of Endangered 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 Litigation production of relevant papers, books, and documents, and administer 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 accordance with the procedures National Oceanic And provided 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 Litigation 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 purpose 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 designated by him is empowered to Enforcement and administer oaths and Litigation affirmations, subpoena witnesses, take evidence, and require the production of any books, paper s, or other documents which the Secretary deems relevant or material to the inquiry. Such attendance of witnesses and the production of such documentary evidence may be required from 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 Conventions 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 Management Act (NOAA) (MSFCMA) for violations of the ATCA. 16 U.S.C. § 971(e). Enforcement and Litigation

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 shall 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 Litigation the production of relevant papers, books, and documents, and administer oaths.” 16 U.S.C. § 3373(b). US Department of National Weather The Secretary may require This mechanism has not Commerce Modification Policy Act any person to submit a been used in the recent of 1976, 15 U.S.C. § 330 report before, during, 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 incorporated by Environmental Satellite, records, or for the reference. Specifica lly, Data, and Information attendance and testimony under 15 CFR § 960.15, Service of witnesses for the “As authorized by purpose of conducting a Section 203(a) of the hearing under this section,” Satellite Programs Act, if the Secretary . . . as well as the ability to Counsel determines that the “seize any object, record, licensee has substantially or report pursuant 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, record, or the [NOAA] license, the report was used, is being Secretary . . . may used, or is likely 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. District 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 terminate, modify, or suspend the license, and/or to terminate 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 violation. Each day of operation in violation constitutes a separate violation. All civil penalties [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 has not Commerce been used in the recent past.

NOAA

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

NOAA

US Department of High Seas Fishing 16 U.S.C. § 5507 This mechanism has not Commerce Compliance been used in the recent past.

NOAA

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

NOAA

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

Department of 15 U.S.C. §155 (a) Subpoena for (b) Aid of Federal district court Commerce† attendance of witness and 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 authorized under his direction. The direction, (1) the by him, the registrar or statute states that the attendance 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 China, or, if the witness the requirements 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 actual residence or place of by such court as a sojourn of such witness, contempt thereof. and (2) th e taking of a deposition before any 15 U.S.C. §155(b). designated person having power to administer oaths. 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 , employee, or agent of the United States auth orized in writing by him, may administer oaths and examine any witness. Any witn ess summoned or whose deposition is taken under this 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 registrar 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, shall be liable to 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 Commerce 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 Department of Education Department of Section 490A of the Education Department may Education Department is None specified in statute Authority to issue Education Higher Education Act of by this authority require to request the attorney itself; nothing in the subpoenas has been 1965(HEA), Pub. L. 89- any person to pr oduce general to seek statute preempts delegated 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 participation subpoena in federal requirements of the Right and Oversight Division, 244, the 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). These Department seeks records concurrence of the Office implementing this programs include the Pell from a financial of General Counsel. No authori ty. Grant, Supplemental institution of a customer specific standards have Educational Opportunity protected that Act. been adopted for issuance; Grant, College Work Information pertaining to in the only instance we Study, Perkins Loan, an individual may be are aware of in which the Federal Family Education 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 Education 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 production of information the student 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 appropriate 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), Department of Energy Department of Federal Energy Adminis- Collect, assemble, evalu- There is no administra- The Administrator has Certain DOE officials Energy tration Act of 1974. ate, and analyze energy tive appeal of a sub- authority not to disclose may sign, issue an d serve information by categorical poena. some collected informa- subpoenas of persons and groupings. tion that would otherwise documents. 10 CFR §§ P.L. 93-275. 10 CFR § 205.8(b)(6). 15 U.S.C. § 772(a). be available under FOIA. 205.8(a), 205.8(b). 15 U.S.C. § 773(b). Functions transferred to Any appropriate United the Secreta ry of Energy, Power to requir e by sub- Sta tes dis trict court may, 42 U.S.C. §§ 7151(a), poena the attendance and in case of contumacy or DOE regulations contain testimony of witnesses, and refusal to obey a 7293. instructions on how sub- the production of all infor- subpoena, issue an order poenas are to be mation, documents, requiring th e recipient 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, papers, and 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 than $ 2,500 for each violation. Willful violaters shall be fined not more than $ 5,000 for each violation.

Department of Energy Supply and Envi- Request, acquire, and col- Violaters shall be sub- The Administrator has Certain DOE officials Energy ronm ental Coordination lect such energy informa- ject to a civil penalty of authority not to disclose may sign, issue an d serve Act of 1974 (ESECA). tion as determined to be not more than $ 2,500 for some collected informa- subpoenas of persons and necessary to assist in the each violation. Willful tion that would otherwise documents. formulation of energy be available under FOIA. P.L. 93-319: violaters shall be fined (10 CFR §§ 205.8(a), policy or to carry out the not more than $ 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)) §§ 12(a), 12(b) (enforce- Allocation Act of 1973 [15 DOE regulations contain ment). U.S.C. §§ 751 et seq.]. instructions on how subpoenas are to be In case of a refusal to obey a subpoena or order delivered. 10 CFR § 15 U.S.C. §§ 796, 797. The Federal Energy Ad- of the Federal Energy 205.8(c). ministrator is authorized to Administrator, the sign and issue subpoenas Functions transferred to Administrator may for the attendance and the Secreta ry of Energy, request any United States testimony of witnesses and 42 U.S.C. §§ 7151(a), district court within the the production of books, 7293. jurisdiction of which any records, papers, and other 15 U.S.C. §§ 796, 797. inquiry is carried on to 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 any failure to obey 207.8. answers in writing to the order of the court interrogator ies, requests 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 agent or agents, Department shall be sub- may sign, issue an d serve shall have the same powers ject to the supervision 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 Commission 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 hearings conducted 42 U.S.C. §§ 7191, et for the purpose of examina- in Security Clearance seq. tion, and the right to copy 42 U.S.C. § 7255. any documentary evidence The Board [of Contract cases under 10 CFR Part of any person, partnership, Appeals] may apply 710, the individual is re- or corporation being in- through the Attorney 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; and the commis- United States 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 and 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 required 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 the attendance and testimony of witnesses and the production of documentary evidence. 15 U.S.C. §49. The Hearing Officer shall have all powers necessary to regulate the conduct of proceedings concerning 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 Energy 1954 (AEA). rized to make such studies Appeals] may apply may sign, issue an d serve and investigations, obtain through the Attorney subpoenas of persons and such information, and hold General to an appropriate documents. 10 CFR §§ 42 U.S.C. §§ 2011, such meetings or hearings United States District 205.8(a), 205.8(b). et seq., Aug. 30, 1954, ch as it may deem necessary Court for an order requir- 1073, Title I, 68 Stat. ing a person, who has or proper to assist in exer- In all hearings conducted 921, et seq. failed to obey a subpoena cising any authority pro- in Security Clearance issued by the Board, to vided in this Act, or in the cases under 10 CFR Part produce evidence or to 42 U.S.C. § 2201 administration or enforce- 710, the individual is re- give testimony, or both, (subpoena authority). ment of this Act or any sponsible for producing 41 U.S.C. § 610. 10 CFR regulations or orders issued witnesses in his own be- thereunder. For such pur- § 1023.4. The word half, including requesting poses the Commission is “commission” in the the issuance of subpoenas, authorized by subpoena to AEA referred to the if necessary, or presenting require any person to Atomic Energy Commis- other proof before the appear and testify, or to sion (AEC). The AEC Hearing Officer to support appear and produce docu- was abolished in 1974 his defense to the allega- ments, or both, at any (42 U.S.C. § 5814(a)), tions contained in the designated place. 42 U.S.C. and its functions were notification letter. 10 § 2201(c). transferred to the CFR § 710.26. 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 certain other 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 and all its func- atten d the hearing 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 Natural Gas Act Any member of the Com- Any appropriate United DOE regulations contain Certain DOE officials mission, or any officer Sta tes dis trict court may, instructions on how sub- may sign, issue an d serve Energy June 21, 1938, ch 556, designated by it, is em- in case of contumacy or poenas are to 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. attendance, take eviden ce, requiring th e recipient of 929. and require the production the subpoena to appear of any books, papers, cor- before the Commission respondence, memoranda, and to give testimony 15 U.S.C. §§ 717, et seq. contr acts, agreements, 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 Secretary may pre- Any appropriate United DOE regulations contain Certain DOE officials Energy scribe such procedures as States district court or instructions on how sub- may sign, issue an d serve deemed necessary or de- certain other Federal poenas are to be subpoenas of persons and June 10, 1920, ch 285, sirable for the exer cise of courts may enjoin delivered. documents. 10 CFR §§ Part III, § 314, as added the authority delegated by violations and enforce 205.8(a), 205.8(b). Aug. 26, 1935, ch 687, 10 CFR § 205.8(c). E.O. 10485. compliance with the Title II, § 213, 49 Stat. Federal Power Act or any 861. Further, the Secretary has authority 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 injunction 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, pursuant to section and Right to Financial procedures for issuing (IG Act). subpoena the production of 6(a)(4). Privacy Act procedures subpoenas are contained all information, documents, are consistent with in IG Directive, IG-916. Office of Inspector reports, answers, records, Inspector General General Section 6(a)(4), accounts, papers, and 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 contumacy or refusal to obey, shall be enforceable by order 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. §6(a)(4). Department of Natural Gas Policy Act The Secretary or his dele- The appropriate United DOE regulations contain Certain DOE officials Energy of 1978 (NGPA). gate may sign and issue Sta tes dis trict court may, instructions on how sub- may sign, issue an d serve subpoenas for the attend- upon petition of the poenas are to be subpoenas of persons and ance and testimony of wit- Attorney General at the delivered. documents. 10 CFR §§ Sec. 304, nesses and the production request of th e Secreta ry, 10 CFR § 205.8(c). 205.8(a), 205.8(b). P.L. 94-586, § 11, 90 of books, records, papers, in the case of refusal to Stat. 2914, Oct. 22, 1976. and other documents. obey a subpoena or 15 U.S.C. § 3364(a)(1)(A). order, issue an order 15 U.S.C. §§ 3361, et requiring compliance 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) contempt thereof. 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 order 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, and terminate 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 also provided. 15 U.S.C. §§ 3414(b), 3414(c). Department of The Defense Pr oduction While this Act is in effect In case of contumacy DOE regulations contain The production of a per- Energy Act of 1950 (DPA). and for a per iod of two by, or r efusal to obey a instructions on how sub- son’s books, records, or years thereafter, the Secre- subpoena served upon, poenas are to be other documentary evi- tary may subpoena such any person, the district delivered. dence shall not be Sept. 8, 1950, ch 932, information or make such court of the United States required at any place Title VII, § 705, 64 Stat. (10 CFR § 205.8(c)) inspection of the books, for any district in which other than the place where 816. records, and other writings, such person is found or such person usually keeps 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 necessary or appr o- dent, shall have jurisdic- or other document issued priate, in his discretion, to tion to issue an order re- with respect thereto, such 10 CFR § 205.8 the enforcement or the quiring such person to person furnishes a true administration of the DPA appear and give copy of such books, Ex. Or. No. 11790 of and the regulations 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 person 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 stipulation 761 note, provided that contempt thereof. with the Secretary as to the Secretary of Energy (50 U.S.C. Appx the information contained is authorized to exercise § 2155(a)) in such books, records, or the authority vested in other documentary evi- the President by this dence. Willful performance of section as it relates to the (50 U.S.C. Appx any act prohibited or production, conservation, § 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 ratification, or other tion, or order thereunder, may sign, issue an d serve action of the Pr esiden t or shall upon conviction 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, imprisonment 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, 1994). Ex Order 12919, in section 902, also delegates to the Secretary of Energy the subpoena power with respect to section 101 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, correspondence, 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 information Department of the Interior† Department of Health and Human Services Department of Inspector General Act, Administrative subpoena In the event of refusal to None specific to the OIG has established Health and Human Public Law 95-452, authority, generally obey, court order Inspector General Act; within OIG various policies and procedures Services Appendix (the same recognized as limited to obtain ed through petition statutory notification auth ority possessed by subpoena duces tecum to enforce filed in the requirements followed for regarding subpoena other Inspectors (statutory language: “[Each appropriate U.S. District Inspector General request and issuance. General). Inspector General...is Court. subpoenas issued pursuant Office of th e Inspector auth orized... ] to require by to the Right of Financial General subpoena the production of Privacy Act. all information, documents, reports, answer, records, accounts, papers, and other data and documentary evidence necessary in the performance of the functions assigned by this Act, which subpoena, in the case of contumacy or refusal to obey, shall enforceable by order of any appropriate United States district court: provided, that procedures other than subpoenas shall be used by the Inspector General to obtain information from Federal agencies.”). Department of Food, Drug, and In a hearing to assess a In the event of refusal to The presiding officer in a Health and Cosmetic Act § 303(f), civil money penalty for obey a subpoena in a hearing to assess civil hearing to assess civil money pen alties for Human Services 21 U.S.C. § 333(f). violations with respect to adulterated food, the money pen alties for violations with respect to 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 and may issue a petition to enforce filed 21 U.S.C. § 333(f)(2)(C) subpoena to compel in the appropriate U.S. (incorporatin g by Food & Drug testimony or production of District Court. 21 U.S.C. reference 21 U.S.C. Administration documents from any § 333(f)(2)(C) § 346a(g)(B)). Office of the person. 21 U.S.C. (incorporatin g by Administrative § 333(f)(2)(C) reference 21 U.S.C. Law Judge (incorporating 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 Human Services 21 U.S.C. § 335a(i). with respect to debarment, tempor ary den ial of approval, or suspen sion of Office of the General any corporation, Counsel partner ship, association , or individual, the Secretary may issue subpoenas Food & Drug requiring the attendance Administration and testimony of witnesses Office of the and the production of Administrative 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 Human Services § 307(b)(1)(A), 21 with respect to the U.S.C. § 335b(b)(1)(A). potential imposition of Office of the General civil money penalties for, Counsel among other things, false statements, misrepresentations, the Food & Drug payment of bribes or illegal Administration gratuities in connection Office of the with an abbreviated drug Administrative application, the Secretary Law Judge can issue subpoenas requiring the attendance and testimony 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 Human Services § 335c(b). with respect to the withdrawal of approval of Office of the General an abbreviated drug Counsel application as a result of, among other things, bribery, payment of illegal Food & Drug gratuities, or an applicant’s Administration demonstrated inability to Office of the produce the drug for which Administrative the application has been Law Judge submitted, the Secretary can issue subpoenas requiring the attendance Office of th e Inspector and testimony 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 Health and Human Act §§ 303, 307, 21 with respect to the sanction a person, required to request imposition of civil money including a party or its documents at least 60 Services U.S.C. §§ 333, 335b; 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 the attendance and an inference in favor of Counsel 300aa-28. A party wishing to testimony of witnesses and the person requesting the procure the attendance the production of evidence information; (2) 21 CFR Chapter I, FDA, and testimony of an Food & Drug relating to the matter under prohibiting th e party not Subchapter A, General, individual at a hearing Administration 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) Administrative introducing evidence, or §§ 17.19, 17.23, 17.27, is required to request that relying on t estimony, Law Judge 17.28, 17.35. the presiding officer issue regarding the a subpoena at least 20 information sought; and days prior to the hearing. (3) striking pleadin 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, oppressive, 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 motion 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 Health and Human Standards Act, Public with respect to th e decision obey, court order written request for a reasonably necessary for Health Service Act of the Division of obtain ed through petition subpoena with the the full presentation of the Services* § 354(d)(2)(B), 42 Mammography Quality and to enforce filed in the administrative law judge case. 21 CFR U.S.C. § 263b(d)(2)(B). Radiation Programs appropriate U.S. District 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 incorporating by (incorporatin g by 498, Subpart D); 42 CFR HHS, Subchapter I, adverse accreditation or reference Social Security reference 42 CFR Part § 498.58(a). Department of Health and Mammography Quality reaccreditation decision Act § 205(d) & (e), 42 498, Subpart D); 42 CFR Standards Act, Part 900, Human Services that precludes certification U.S.C. § 405(d) & (e)), § 498.58(b). Mammography, Subpart Food & Drug or recertification of a 1396q. B, Quality Standards & mammography facility, an Administration Certification, The r equest must identify administrative law judge Office of the § 900.15(d)(4). the witnesses or may issue subpoenas upon documents to be produced Administrative 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 (incorporating 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 CFR § 498.58(d). Department of Indian Self- With respect to hearings Health and Human Determination & before an ALJ on appeals Education Act, 25 U.S.C. of, among other things, Services § 450f et seq., including denials of certain contracts 25 U.S.C. §§ 450f(b)(3), and refusals to waive 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- Determination and Department of the Interior 25 CFR Chapter V, BIA Education Act, Indian & IHS, Part 900, Interior Board of Indian tribes, tribal organizations, Contracts Under the Appeals and the government agency Indian Self- all have the right to compel Interior Board of Contract Determination & the presence of witnesses Appeals Education Assistance or the production of Act, Subpart L, Appeals, documen ts or both by § 900.164. subpoena at h earings or depositions. 25 CFR § 900.164. Department of Health Insurance The Secretary has the In the event of refusal to Notice by service of the The Department is in the Health and Human Portability and authority to issue obey, court order subpoena. 42 U.S.C. process of developing obtain ed through petition § 1320d-5(a)(2) standards and procedures Services Accountability Act subpoenas in investigating (“HIPAA”), Pub. L. No. matters and holding to enforce filed in the (incorporatin g by for the issuance of 104-191, 42 U.S.C. hearings under the appropriate U.S. District reference Social Security administrative subpoenas Office of the General § 1320d-5(a)(2) Administrative Court. 42 U.S.C. Act § 1128A, 42 U.S.C. under the Administrative Simplification provisions Counsel ((incorporatin g by Simplification provisions § 1320d-5(a)(2) § 1320a-7a); 42 U.S.C. 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 regulations adopted under reference Social Security § 1320d- § 1320a-7a(j) U.S.C. § 405(d) & (e)). the Admin istrative Act § 205(d) & (e), 42 5(a)(2)(incorporating by (incorporatin g by Simplification provisions reference Social Security of HIPAA until 2003 at U.S.C. § 405(d) & (e)). reference Social Security 45 CFR § 160.310(c)(3) Act § 205(d) & (e), 42 the earliest.) Act § 1128A, 42 U.S.C. requires the protection of U.S.C. § 405(d) & (e)). § 1320a-7a); 42 U.S.C. any protected health § 1320a-7a(j) information obtained by (incorporating by reference the Secretary to ascertain Social Security Act compliance with the § 205(d) & (e), 42 U.S.C. Administrative § 405(d) & (e)). Simplification provisions of HIPAA and 45 CFR With respect to the privacy Parts 160 and 164. provisions, the Secretary has delegated that authority to the Office for Civil Rights. Department of Social Security Act In any hearing, In the event of refusal to Health and Human § 1918, 42 U.S.C. investigation, or other obey, court order obtain ed through petition Services § 1396q (incorporating proceeding relating to by reference Social grants to States for medical to enforce filed in the Security Act § 205(d) & assistance programs, the appropriate U.S. District 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 the attendance by reference Social and testimony 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 matter under investigation or in question. 42 U.S.C. § 1396q (incorporatin 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 may issue a Health and Human § 1878, 42 U.S.C. Reimbursement Review obey, court order the issuan ce of a subpoena where obtain ed through petition subpoena shall file a reasonably necessary for Services § 1395oo(e) Board has the authority to (incorporatin g by issue subpoenas requiring to enforce filed in the written request at least 10 the full presentation of a reference 42 U.S.C. the attendance and appropriate U.S. District 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 production 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 CMS, Subch apter B, Center for Medicare & hearings on intermediary establish by the witnesses Medicare Program, Part Medicaid Services determin ations (as defined or documents and wheth er 405, Federal Health in 42 CFR such facts could be Provider Reimbursement 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) (incorporating by reference 42 U.S.C. § 405(d); 42 CFR §§ 405.1857, 405.1835(a). Department of Social Security Act In a hearing with respect to In event of refusal to A party must file a The subpoena must be Health and Human § 1881, 42 U.S.C. an appeal of the obey, court order written request for a reasonably necessary for § 1395rr (incorporating termination of Medicare obtain ed through petition subpoena with the the full presentation of the Services* by reference Social coverage of a supplier’s to enforce filed in the administrative law judge case. 42 CFR § 405.2182 Security Act § 205, 42 ESRD services because the appropriate U.S. District 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 incorporating by (incorporatin g by 42 CFR, Chapter IV, administrative law judge reference Social Security reference 42 CFR Part CMS, Subch apter B, Departmental Appeals may issue subpoenas upon Act § 205(d) & (e), 42 498); 42 CFR Medicare Program, Part Board 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 Disabled, 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 Security 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 Secretary’s obey, court order written request for a reasonably necessary for §§ 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 refusal to enter into or appropriate U.S. District 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, rural health clinic, an §§ 1320a-7, 1320a-7a 42 CFR § 405.2402(f) reference 42 CFR Part Counsel Medicare Program, Part administrative law judge (both incorporating by (incorporatin g by 498); 42 CFR § 498.58(a). 405, Federal Health may issue subpoenas upon reference Social Security reference 42 CFR Part Insurance for the Aged & Departmental Appeals his own motion or at the Act § 205(d) & (e), 42 498); 42 CFR Disabled, Subpart X, Board request of a party. 42 CFR U.S.C. § 405(d) & (e)), § 498.58(b). Rural Health Clinic and § 405.2402(f) 1396q. Federally Qualified (incorporating by reference Health Center Services, 42 CFR Part 498); 42 CFR § 405.2402(f). § 498.58(a). Department of Social Security 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 termination of obtain ed through petition subpoena with the the full presentation of the Services* an agreement between to enforce filed in the administrative law judge case. 42 CFR CMS and the rural health appropriate U.S. District at least 5 days prior to the § 405.2404(b)(3) 42 CFR, Chapter IV, Office of the General clinic, an administrative Court. 42 U.S.C. date set for the hearing. (incorporatin g by CMS, Subch apter B, law judge may issue §§ 1320a-7, 1320a-7a 42 CFR § 405.2404(b)(3) reference 42 CFR Part Counsel Medicare Program, Part subpoenas upon his own (both incorporating by (incorporatin g by 498); 42 CFR § 498.58(a). 405, Federal Health motion or at the request 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 Qualified (incorporating 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 Security 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 failure of obey, court order written request for a reasonably necessary for §§ 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 appropriate U.S. District at least 5 days prior to the § 405.2430(d) 42 CFR, Chapter IV, Office of the General qualified health service Court. 42 U.S.C. date set for the hearing. (incorporatin g by CMS, Subch apter B, centers, an administrative §§ 1320a-7, 1320a-7a 42 CFR § 405.2430(d) reference 42 CFR Part Counsel Medicare Program, Part law judge may issue (both incorporating by (incorporatin g by 498); 42 CFR § 498.58(a). 405, Federal Health subpoenas upon his own reference Social Security reference 42 CFR Part Insurance for the Aged & Departmental Appeals motion or at the request of Act § 205(d) & (e), 42 498); 42 CFR Disabled, Subpart X, Board a party. 42 CFR U.S.C. § 405(d) & (e)), § 498.58(b). Rural Health Clinic and § 405.2430(d) 1396q. Federally Qualified (incorporating by reference Health Center Services, 42 CFR Part 498); 42 CFR § 405.2430(d). § 498.58(a). Department of Social Security 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 appropriate U.S. District 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, may issue subpoenas upon §§ 1320a-7, 1320a-7a 42 CFR § 405.2436(c)(3) reference 42 CFR Part Counsel Medicare Program, Part his own motion or at the (both incorporating 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 Insurance for the Aged & Departmental Appeals § 405.2436(c)(3) Act § 205(d) & (e), 42 498); 42 CFR Disabled, Subpart X, Board (incorporating by reference U.S.C. § 405(d) & (e)), § 498.58(b). Rural Health Clinic and 42 CFR Part 498); 42 CFR 1396q. Federally Qualified § 498.58(a). Health Center Services, § 405.2436(c)(3). Department of Social Security Act In th e appeal/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 Services § 1395y(b)(3)(C), a group health plan does obtain ed through petition the hearing officer a are reasonably necessary (5)(C)(ii), (6)(B) not conform to the to enforce filed in the written request for a for full presentation of the (incorporatin g by requirements of 42 U.S.C. appropriate U.S. District subpoena at lea st 1 0 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 hearing officer (5)(C)(ii), (6)(B) The written request must reference 42 U.S.C. may issue – on his own (incorporatin g by identify the witnesses or Departmental Appeals § 405(d)&(e)). motion or upon the request reference 42 U.S.C. documen ts to be Board of any party – subpoenas § 1320a-7a(j), produced, identifying the for the attendance and incorporating 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 production 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 Security Act In review of the In event of refusal to A party must issue a The Board may issue Health and Human § 1886, 42 U.S.C. redesignation of a hospital obey, court order predecision request for subpoenas if they are – from a rural area to urban obtain ed through petition information or data. 42 reasonably necessary for Services* § 1395ww(d)(10)(G)(ii) (incorporatin g by area, from one rural area to to enforce filed in the CFR § 412.268(a). Only full presentation of the reference Social Security another rural area, and appropriate U.S. District 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 information or data has Medicaid Services U.S.C. § 405(d) & (e)). another urban area – for § 1395ww(d)(10)(G)(ii) necessary evidence, can purposes of using the other (incorporatin g by the party submit a written failed to produce the Medicare Geographic area’s standardized amount reference 42 U.S.C. request to the Medicare necessary evidence. 42 42 CFR Chapter IV, Classification Review for inpatient operating § 405(d) & (e)). Geographic Classification CFR § 412.268(a). CMS, Subchapter B costs, wage index value, or Review Board for Medicare Program, Part both – the Medicare issuance of a subpoena 412, Prospective Geographic Classification for attendance and Payment Systems for Review Board may issue testimony of witnesses or Inpatient Hospital subpoenas – on its own production of documents. Services, Subpart L, the motion or at the request of 42 CFR § 412.268(a). Medicare Geographic a party – for the attendance The r equest must identify Classification Review and testimony 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 established by other evidenced without the use of a subpoena. 42 CFR § 412.268(b). Department of Social Security 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, 1832, 1833, an appeal by an ambulatory obey, court order written request for a reasonably necessary for 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 appropriate U.S. District 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, terminating such an §§ 1320a-7, 1320a-7a 42 CFR § 416.26(f) 498); 42 CFR § 498.58(a). Counsel CMS, Subchapter B agreement, an (both incorporating by (incorporatin g by Medicare Program, Part administrative law judge reference Social Security reference 42 CFR Part 416, Ambulatory Departmental Appeals may issue subpoenas upon Act § 205(d) & (e), 42 498); 42 CFR Surgical Services, Board 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 Security 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, 1832, 1833, an appeal by an ambulatory obey, court order written request for a reasonably necessary for 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 to enforce filed in the administrative law judge case. 42 CFR terminating an agreement appropriate U.S. District 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, administrative law judge §§ 1320a-7, 1320a-7a 42 CFR § 416.35(b)(3) reference 42 CFR Part Counsel CMS, Subchapter B may issue subpoenas upon (both incorporating 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 416, Ambulatory Departmental Appeals request of a party. 42 CFR Act § 205(d) & (e), 42 498); 42 CFR Surgical Services, Board § 416.35(b)(3) U.S.C. § 405(d) & (e)), § 498.58(b). Subpart B, General (incorporating by reference 1396q. Conditions and 42 CFR Part 498); 42 CFR Requirements, § 498.58(a). § 416.35(b)(3). Department of Social Security Act The Provider In the event of refusal to A party wishing to obtain The Board may issue a Health and Human §§ 1102, 1814, 1861, Reimbursement Review obey, court order the issuan ce of a subpoena where Services 1862, 1871, 42 U.S.C. Board has the authority to obtain ed through petition subpoena shall file a reasonably necessary for §§ 1302, 1395f, 1395x, issue subpoenas requiring to enforce filed in the written request at least 10 the full presentation of a 1395y (incorporating by the attendance and appropriate U.S. District 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 production of §§ 1395y, 1395oo(e) (incorporatin g by by reference 42 CFR Part Center for Medicare & 42 CFR, Chapter IV, evidence relating to any (both incorporating by reference 42 CFR Part 405, Subpart R); 42 CFR Medicaid Services CMS, Subch apter B, matter at issue in hearings 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 written Provider Reimbursement 418, Hospice Care, hospices (with respect to request must state the Review Board Subpar t G, Payment 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 (incorporating by reference such facts could be 42 CFR Part 405, Subpart established by other R); 42 CFR § 405.1857. means. Id. Department of Social Security 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 provider 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* terminating the provider to enforce filed in the administrative law judge case. 42 CFR § 420.3(a) agreement for failure to appropriate U.S. District 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, of information §§ 1320a-7, 1320a-7a 42 CFR § 420.3(a) 498); 42 CFR § 498.58(a). Counsel Medicare Program, Part requirements set forth in 42 (both incorporating by (incorporatin g by 420 , Pr ogr am Integ rity: CFR Part 420 Subpart C, reference Social Security reference 42 CFR Part Medicare, Subpart A, Departmental Appeals an administrative law judge Act § 205(d) & (e), 42 498); 42 CFR General Provisions, Board may issue 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 Security 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 appea l 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* 42 U.S.C. §§ 1395f, that pr ovides emergency to enforce filed in the administrative law judge case. 42 CFR 1395g, 1395i-4, 1395n, services of a determination appropriate U.S. District 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 incorporating by (incorporatin g by 498); 42 CFR § 498.58(a). 42 CFR Chapter IV, administrative law judge reference Social Security reference 42 CFR Part CMS, Subch apter B, Departmental Appeals may issue subpoenas upon Act § 205(d) & (e), 42 498); 42 CFR Medicare Program, Part Board his own motion or at the U.S.C. § 405(d) & (e)), § 498.58(b). 424, Conditions for request of a party. 42 CFR 1396q. Medicare Payment, § 424.104(d) (incorporating Subpart G, Special by reference 42 CFR Part Conditions: Emergency Ser vices Furnished by a 498); 42 CFR § 498.58(a). Nonparticipating Hospital, § 424.104(d). Department of Social Security 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, 42 U.S.C. §1302. an appeal by a nursing obey, court order written request for a reasonably necessary for 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, denying or terminating appropriate U.S. District at least 5 days prior to the § 431.153(g)(1) & (h) CMS, Subchapter C, Office of the General participation in Medicaid Court. 42 U.S.C. date set for the hearing. (incorporatin g by Medical Assistance Counsel and the basis of the §§ 1320a-7, 1320a-7a 42 CFR § 431.153(g)(1) reference 42 CFR Part Programs, Part 431, State determination is also a (both incorporating by & (h) (incorporatin g by 498); 42 CFR § 498.58(a). 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 issue subpoenas upon his own motion or at the request of a party. 42 CFR § 431.153(g)(1) & (h) (incorporating by reference 42 CFR Part 498); 42 CFR § 498.58(a). Department of Social Security Act In proceedings to impose In event of refusal to Health and Human §§ 1102, 1871, 1894, civil monetary fines for obey, court order 1905, 1934, 42 U.S.C. violations with respect to obtain ed through petition Services* §§ 1302, 1395, 1395eee, enrollment, disenrollment, to enforce filed in the 1396d, 1396u-4. excessive premiums, appropriate U.S. District Office of the General misrepresentations, or Court. 42 CFR § 460.46 Counsel falsifications 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 Security Act Terminations, § 460.46. § 1128A, 42 U.S.C. § 1320a-7a (other than (a) & (b) applicable); 42 U.S.C. § 1320a-7a(j) (incorporating by reference Social Security Act §205(d) & (e), 42 U.S.C. § 405(d) & (e)).

Department of Social Security 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, determination by CMS, obtain ed through petition subpoena with the the full presentation of the Services* 1395hh. denying or terminating the to enforce filed in the administrative law judge case. 42 CFR § 485.74 provider’s participation in appropriate U.S. District at least 5 days prior to the (incorporatin g by Office of the General the Medicare program 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 incorporating by (incorporatin g by Standards & (“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 Conditions of may issue subpoenas upon U.S.C. § 405(d) & (e)), § 498.58(b). Participation: Specialized his own motion or at the 1396q. Providers, Subpar t B, request of a party. 42 CFR Conditions of § 485.74 (in corporatin g by Participation: reference 42 CFR Part Compr ehensive 498); 42 CFR § 498.58(a). Outpatient Rehabilitation Facilities, § 485.74. Department of Social Security 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, 1138, 1871, 42 an appeal by an obey, court order written request for a reasonably necessary for U.S.C. §§ 1302, 1320b-8, organization of a obtain ed through petition subpoena with the the full presentation of the Services* 1395hh. determination by CMS, to enforce filed in the administrative law judge case. 42 CFR denying the organization’s appropriate U.S. District 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 organization (both incorporating by (incorporatin g by 498); 42 CFR § 498.58(a). Standards and (“OPO”) for its service 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 Services upon his own motion or at 1396q. Furnished by Suppliers, the request of a party. 42 Subpar t G, Conditions of CFR § 486.316(b) Coverage: Organ (incorporating by reference Procurement 42 CFR Part 498); 42 CFR Organizations, § 498.58(a). § 486.316(b). Department of Social Security 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, 1138, 1871, 42 an appeal by an organ obey, court order written request for a reasonably necessary for U.S.C. §§ 1302, 1320b-8, procuremen t organization obtain ed through petition subpoena with the the full presentation of the Services* 1395hh. (“OPO”) of a determination to enforce filed in the administrative law judge case. 42 CFR by CMS, terminating an appropriate U.S. District 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, Counsel administrative law judge §§ 1320a-7, 1320a-7a 42 CFR § 486.325(c) reference 42 CFR Part CMS, Subchapter G, may issue subpoenas upon (both incorporating by (incorporatin g by 498); 42 CFR § 498.58(a). 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 Services by reference 42 CFR Part 1396q. Furnished by Suppliers, 498); 42 CFR § 498.58(a). Subpar t G, Conditions of Coverage: Organ Procurement Organizations, § 486.325(c). Department of Social Security 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 institution 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 appropriate U.S. District 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 participation 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 provider’s agreement for Provisions, § 488.24(c). that reason, an administrative law judge may issue 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 Security 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, an appeal by certain obey, court order written request for a reasonably necessary for 1919, 42 U.S.C. §§ 1303, providers (State-operated obtain ed through petition subpoena with the the full presentation of the Services* 1395i-3, 1395hh, 1396r. facilities, skilled nursing to enforce filed in the administrative law judge case. 42 CFR facilities (SNFs) and dually appropriate U.S. District 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 facilities subject to a §§ 1320a-7, 1320a-7a 42 CFR § 488.330(e)(3) reference 42 CFR Part CMS, Subchapter G, CMS validation survey or (both incorporating 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, findings) of a denial of Act § 205(d) & (e), 42 498); 42 CFR Board Survey, Certification & participation or U.S.C. § 405(d) & (e)), § 498.58(b). Enforcement Procedures, certification of 1396q. Subpart E, Sur vey & noncompliance leading to Certification of Long- an enforcement remedy term Care Facilities, (including termination of §488.330(e)(3). the provider agreement, but except State monitoring), an administrative law judge may issue subpoenas upon his own motion or at the request of a party. 42 CFR § 488.330(e)(3) (incorporating by reference 42 CFR Part 498); 42 CFR § 498.58(a). Department of Social Security 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 the full presentation of the Services* 1919, 42 U.S.C. §§ 1302, participation , termination obtain ed through petition subpoena with the 1395i-3, 1395hh, 1396r. of provider agreement, or to enforce filed in the administrative law judge case. 42 CFR certification of appropriate U.S. District 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 42 CFR, Chapter IV, Counsel an alternative remedy §§ 1320a-7, 1320a-7a 42 CFR § 488.330(e)(4) reference 42 CFR Part CMS, Subchapter G, (except State monitoring) (both incorporating by (incorporatin g by 431); 42 CFR Standards and with respect to a non-State reference Social Security reference 42 CFR Part § 431.153(g)(1) & (h) Departmental Appeals Certification, Part 488, operated Medicaid nursing Act § 205(d) & (e), 42 431); 42 CFR (incorporatin g by Board Survey, Certification & facility (FN) which 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 Facilities, administrative law judge § 498.58(b). §488.330(e)(4). may issue subpoenas upon his own motion or at the request of a party. 42 CFR § 488.330(e)(4) (incorporating by reference 42 CFR Part 431); § 431.153(g)(1) & (h) (incorporating by reference 42 CFR Part 498); 42 CFR § 498.58(a). Department of Social Security Act In a hearing with respect to In event of refusal to A party must file a The subpoena must be Health and Human §§ 1861, 1864, 1866, an appeal of a termination obey, court order written request for a reasonably necessary for 1871, 42 U.S.C. of a provider agreement by obtain ed through petition subpoena with the the full presentation of the Services* §§ 1395k, 1395aa, CMS pursuant to 42 CFR to enforce filed in the administrative law judge case. 42 CFR § 489.53(d) 1395cc, 1395hh. § 489.53(a) or (b), an appropriate U.S. District 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 issue 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 incorporating 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, Termination of Agreement & Reinstatement After Termination, § 489.53(d). Department of Clinical Laboratories In a hearing with respect to In event of refusal to A party must file a The subpoena must be Health and Human Improvement Act of an appeal of a laboratory obey, court order written request for a reasonably necessary for 1988, Public Health dissatisfied with (a) obtain ed through petition subpoena with the the full presentation of the Services* Service Act § 353, 42 suspen sion, limitation or to enforce filed in the administrative law judge case. 42 CFR U.S.C. § 263a; Social revocation of its CLIA appropriate U.S. District at least 5 days prior to the § 493.1844(a)(2) Office of the General Security Act §§ 1846, certificate 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, requirements, (b) denial of (both incorporating by (incorporatin g by 498, Subpart D); 42 CFR 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 CFR Board sanctions, or (d) denial or U.S.C. § 405(d) & (e)), § 498.58(b). 42 CFR Chapter IV, cancellation of a 1396q. CMS, Subchapter G, laboratory’s approval to Standards & receive Medicare payments Certification, Part 493, for services, an Laboratory administrative law judge Requirements, Subpart may issue 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) (incorporating by reference 42 CFR Part 498, Subpart D); 42 CFR § 498.58(a). Department of Clinical Laboratories In a hearing with respect to In event of refusal to A party must file a The subpoena must be Health and Human Improvement Act of an appeal of a prospective obey, court order written request for a reasonably necessary for 1988, Public Health lab dissatisfied with a obtain ed through petition subpoena with the the full presentation of the Services* Service Act § 353, 42 reconsidered or a revised to enforce filed in the administrative law judge case. 42 CFR U.S.C. § 263a; Social reconsidered deter mination appropriate U.S. District 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 Medicare payment for (both incorporating by & (e)(3) (incorporatin g by 498, Subpart D); 42 CFR 1396a. services, an administrative reference Social Security reference 42 CFR Part § 498.58(a). Departmental Appeals law judge may issue Act § 205(d) & (e), 42 498, Subpart D); 42 CFR Board subpoenas upon his own U.S.C. § 405(d) & (e)), § 498.58(b). 42 CFR Chapter IV, motion or at the request of 1396q. CMS, Subchapter G, a party. 42 CFR Standards & § 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 Security Act In holding a hearing with In event of refusal to A party must file a The subpoena must be Health and Human §§ 1128, 1128A, 1156, respect to an appeal of a obey, court order written request for a reasonably necessary for 1866, 1819, 1891, 42 determination that affects obtain ed through petition subpoena with the the full presentation of the Services* U.S.C. §§ 1320a-7 & (1) participation in the to enforce filed in the administrative law judge case. 42 CFR 1320a-7a (both Medicare program of a (a) appropriate U.S. District 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 provider, (c) prospective §§ 1320a-7, 1320a-7a 42 CFR § 498.58(b). Act § 205(d) & (e), 42 supplier, (d) supplier, (e) (both incorporating by reference Social Security U.S.C. § 405(d) & (e)), physical therapist in The r equest must identify Departmental Appeals Act § 205(d) & (e), 42 1320c-5, 1395cc, 1395i- independent practice, (f) the witnesses or Board U.S.C. § 405(d) & (e)), 3, 1395bbb. chiropractor, (g) documents to be produced 1396q. nonparticipating hospital and specify the pertinent that furnishes emergency 42 CFR Chapter IV, facts that the party services, or (h) suspended CMS, Subchapter G, expects to establish by the or excluded practitioner, Standards and witnesses or documents provider, or supplier, or (2) Certification, Part 498, and why those facts could participation of Appeal Procedures for not be established without Intermediate Care Determinations that the use of a subpoena. 42 Facilities for the Mentally Affect Participation in CFR § 498.58(d). Retarded (ICFs/MR) or the Medicare Program certain Nursing Facilities and for Determinations (NFs) in the Medicaid that Affect the progr am, an administrative Participation of ICFs/MR law judge may issue and Certain NFs in the subpoenas upon his own Medicaid Program, motion or at the request of Subpart D, Hearings, a party. 42 CFR § 498.58(a), (b) & (d). §§ 498.58(a), 498.5(a), (b), (d), (e), (g)-(k).

Department of Social Security 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* (incorporatin g by civil money penalty, and/or to enforce filed in the the hearing and/or the must be reasonably reference Social Security assessment, an appropriate U.S. District 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 written motion moving party’s case. 42 subpoenas requiring the (incorporatin g by with the admin istrative CFR § 1005.9(a). attendance of witnesses at reference Social Security law jud ge a t 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 fixed for Board Office of th e Inspector of documents at or in § 405(e)). the hearing. 42 CFR General–Health Care, Department of Health & relation to hearings. 42 § 1005.9(a)-(d). The Human Services, CFR § 1005.4. written motion must Subchapter B, OIG specify th e evidence to be Authorities, Part 1005, produced and designate Appeals of Exclusions, the witnesses. 42 CFR Civil Money Penalties § 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 Security Act With respect to an In the event of refusal to Health and Human § 1128A(j), 42 U.S.C. investigation into false or obey, court order obtain ed through petition Services § 1320a-7a(j) otherwise improper claims, (incorporatin g by actionable under Social to enforce filed in the reference Social Security Security Act § 1128A, 42 appropriate U.S. District 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, resides, 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 Inspector attendance and testimony (incorporatin g by General–Health Care, of witnesses and the reference 42 U.S.C. Department of Health & production of any evidence § 405(e)); 42 CFR Human Services, that relates 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 Secretary is authorized 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 investigation issued, and identify the Counsel 45 CFR Subtitle A, into the submission of records and documents request the ALJ to issue a Department of Health & false, fictitious, or sought. 42 CFR subpoena. 45 CFR Human Services, fraudulen t claims 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, Part 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 lea st 1 5 da ys 79.23, 79.24. before the hearing, which A party or the individual 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 administrative law judges statement of the scope 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 hearings. 45 CFR opposition 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 necessary to protect a par ty or person from annoyance, embarrassment, oppression, or undue burden or expense. 45 CFR § 79.24(b). Department of Housing and Urban Development 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 investigate for pur poses of U.S. District Court. §552a, as applicable, administering office. Development U.S.C. § 1714, enforcing the Act, although; a 30-day implemented at 24 CFR prescribing rules or minimum time for part 3800 recommending legislation. response is custom ary. 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 Development U.S.C. §2617, implemented at 24 CFR part 3800 Finance and Regulatory Enforcement US Department of National Manufactured Same as above. Same as above Same as above. Same as above. Housing and Urban Housing Construction Development and Safety Standards 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 Development §6 documents, reports, on t he res pon ding party, subpoenas to those issued records, accounts, papers and the privacy in furtherance of a lawful and other data and protections include the investigation of the Office of Inspector documentar y evidence Privacy Act, supra, the inspector general, and General necessary to the Right to Financial Privacy which are reasonably performance of the Act, 12 U.S.C. §3401 et relevant to the inquiry and functions of the Inspector seq., and the Electronic not overly broad or General under the Act. Communications Privacy burdensome. Act, Pub. L. 99-508, codified at various sections of the United States Code. US Department of The Fair Housing Act, Authority for issuance of Oder of the appropriate The provisions of the It has been the experience 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 Department of Justice Housing Act, Sec. of a civil action in the U.S. subject to subpoenas are believes that it can not 811(a). 42 U.S.C. District Court for the set forth at Rule 45(c). enforce administrative 3611(a), implem ented by district in which the subpoenas that do not regulation at 24 CFR investigation is taking contain the prescribed 103.215 and 180.545. place. language 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, practices, or matters that 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 to serve as a basis for recommending furth er legislation concerning real estate settlement practices, the Secretary is authorized to subpoena the attendance and testimony of witnesses and the production of documents. Department 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 probate, surface regulations include Act, 5 U.S.C. § 556(c)(2) grant authority to presiding mining, and program gener al requir ements for 43 C.F.R. § 4.26 officers to issue subpoenas fraud cases, the agency requesting, issuing, and Branch of General Legal in connection with can request that the service of subpoenas. administrative proceedings, Attorney General file a Services, Division of Contract disputes: General Law in accordance with the petition in U.S. District Contract Disputes Act, agency’s published 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 Department of the Interior presiding officer. In Appeals has published regulations public lands cases, the to govern proceedings wilful refusal to comply Indian probate cases: conducted before with a subpoen a may be Act of Aug. 1, 1914, 25 administrative law judges punished as a U.S.C. § 374 and boards of contract misdemeanor. (See 43 C.F.R. § 4.230(b) appeals judges. These citations under paragraph regulations, also referenced 1 above). above, describe the Native American Graves 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 purpose 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 produce 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 mining 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 Authority to issue an order The Secretary may ask The order may be issued The Secretary is the Interior Environmental Response, directing compliance with the Attorney General to after such notice and authorized to issue orders Compensation and a CERCLA section 104(e) commence a civil action opportunity for "only if there is a Liability Act (CERCLA) request for information 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 there may be Water and Division of No. 96-510, Dec. 11, identification, nature, and issued under CERCLA under the circumstances. a release or threat of Parks and Wildlife 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 facility. CERCLA section Office of th e Solicitor 9604(e)(5) (“Information threatened release of a gathering and access, hazardous substance, or 104(e)(1), 42 U.S.C. compliance orders”). information relating to the section 9604(e)(1). In ability 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 response, or (delegatin g CERCLA choosing or taking any section 104(e)(5)(A) response action under compliance 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 the release is on or the sole source of the release is from any facility or vessel under the jurisdi cti on, custody, or control of the Department of the Interior; and Sec. 2(j)(2) (subject to (j)(1), delegating CERCLA section 104(e) authority to the Secretary of the Interior with respect to the same releases 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 natural resources, pursuant to CERCLA sec. 107(f)(2)(A), 42 U.S.C. 9607(f)(2)(A).

US Department of Courts of Indian 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 regulations which Offenses orders or mandate compulsory inconsistent rules of tribal production of procedure. documen ts/information to the BIA, though they are not technically The Federal Rules of Civil subpoenas. Procedure define subpoena authority in Rule 45. A Under the Indian Trader subpoena will serve as a License Statute command to 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 requested atten dance shall issue from the court for the district in which the hearing or trial is to take pl ace. 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 Simplification 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 Management Act states only the following Division of Mineral [A]fter the Secretary or a U.S.C. § 1724(d). and gas leases “to produce (FOGRMA), and entities may issue a Resources, (for Minerals delegated State has in records necessary to FOGRMA provides subpoena: (1) an Assistant Management Service) writing requested the determin e the proper enforcement authority as records from the lessee or Secretary; (2) an Acting reporting 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 employee Secretary .” (b) In case of refusal to subject of the subpoena (as defined by section obey a subpoena served and has determined that-- 213.3301 of title 5, Code upon any person under of Federal Regulations); (3) the Director or Acting this section, the district (I) the lessee or its Director of the respective court of the United States designee has failed to bureau or agency; or (4) if for any district in which respond within a a State has been delegated such person is found, re- reasonable period of time authority pursuant to sides, or transacts to the Secretary's or the section 205, the highest business, upon applicable delegated State official having application by the State's written request for ultimate authority over Attorney General at the such r ecords necessa ry for the collection of royalties request of the Secretary an audit, investigation or from Federal leases within and after notice to such other inquiry made in the State the State. The person , shall have accordance with the auth ority may not be jurisdiction to issue an Secretary's or such delegated to an y other order requiring such delegated State's person. person to appear and 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 (II) the lessee or its before the Secretary. may only be issued during designee has in writing Any failure to obey such the 7 year limitations denied the Secretary's or order of the court may be period provided under the applicable delegated punished by such court 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 other inquiry made in accordance with the Secretary's or the applicable delegated State's responsibilities 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 the 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 Management 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 Management Service) the power to issue upon any person under administrative subpoenas. this section, the district Section 107 provides in court of the United States pertinent part: for any district in which 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 other request of the Secretary inquiry necessary and and after notice to such appropriate and may person , shall have conduct, after notice, any jurisdiction to issue an hearing or audit, necessary order requiring 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 h ear ings, inqui ry, and produce documents investigation, or audit, the before the Secretary. Secretary is also authorized 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 records, 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 the Interior 1978, Public Law No. authority is generally obey, a court order may Inspector General Act; Inspector General has 95-452, 5 U.S.C. App. 3 recognized as limited to be obtained through statutory notification established within the [This is the same subpoena duces tecum. petition to enforce filed requirements are followed office various policies and auth ority exercised by The statutory language in the appropriate 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]. Specifica lly, to the Right to Financial issuance. I.G. subpoena authority Privacy Act of 1978, 12 Department of the Interior Each Inspector General . . . stems from 5 U.S.C. is authorized . . . to require U.S.C. §§ 3413 & 3421. App. 3 § 6(a)(4). by subpoena the production The Department of of all information, Justice authority to documents, reports, prosecute subpoena answers, records, accounts, enforcement actions 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 case of contumacy or Ch. 31 and particularly at refusal to obey, 28 U.S.C. §§ 516-519. shall be enfor ceable by order of any appropriate United States district court:

Provided, That procedures other than subpoenas shall be used by the Inspector General to obtain documen ts and infor mation 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 the Interior and Reclamation Act of Secretary, acting through position that all notification requirements and procedures for 1977 (SMCRA), Pub. L. OSM, 30 U.S.C. subpoenas (investigative, for subpoenas. However, investigative subpoenas No, 95-87, 30 U.S.C. §§1211(c)(1), and hearing, and deposition 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 entitled 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, compel the attendance of 1271(c), the Secretary is Rules of Civil Procedure. the Attendance of . 769.17, 775.11(b)(3)(i), witnesses and the authorized “ to request Discovery proceedings Witnesses, the Production and 800.40(g) production of written or the Attorney General to before th e Office of of Written or Printed 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 provides to discovery.” The Secretary in furtherance for confidentiality (such Secretary is authorized of this Act, or (F) refuses as “trade secret and under 30 U.S.C. § to permit access to, and pricing information 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 agency has further the extent auth orized by this Act.” It is this power taken the position that the Privacy Act and the that authorizes the the “any other Freedom of Infor mation 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 permittees or their agents. However, to our knowledge no court has ruled on this issue. US Department of Compr ehensive Authority to collect Section 122(e)(3)(B) Section 122 pr ovides Section 122(e)(3)(A) the Interior Environmental Response, information necessary or provides that “in the generally for notice to requires the development Compensation and appropriate to prepare non- event of con tumacy 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 allocations of U.S.C. section in CE RLA actions, 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 require the attendance such person to comply responsibility, after 23, 1987), section 4(b) and testimony 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 releases at facilities not Section 122(e)(3)(B). remedial action.” Section on the National Priorities 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 facility 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. Section may be exercised only 122(e)(3)(C). Interior can with the con currence 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 Archaeological 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 Graves Interior† Protection and Repatr iation 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 information Department of the Interior† Department 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. investigation 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 Office of governing privacy and records of any employee 1134(c) of §§9 and 10 (relating to the Solicitor who then disclosure of information benefit plan more than the atten dance of witnesses takes the appropriate or materials) 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 appropriate United 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 shorter or longer, e.g., statute of regard to any limitation in to appear for the The Secreta ry of Labor limitations considerations, such sections respecting deposition or comply has delegated the the respondent is persons, partnerships, with the request for authority to issue represented by an banks, or common carriers) documents contained in subpoenas to the Assistant attorney who agrees to to the jurisdiction, powers, the admin istrative Secretary of Pension and take service, and sets a and duties of the Secretary subpoena. Welfare Benefits. The particular da te for or any officers designated Assistant Secretary has re- compliance. PWBA does by him.” delegated this authority to not “n otify tar gets” or the Director of potential defendants that Enforcement and to the administrative subpoenas Regional Directors of the have been served on Pension and Welfare others. Benefits Administration (PWBA). PWBA abides by the requirements set forth PWBA Regional under the Right to Directors execute and Financial Privacy Act issue admin istrative 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. subpoenas, except for accommodation subpoenas. All subpoenas, including accommodation subpoenas, 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 investigators in doing so.

Chapter 33 of the PWBA Enforcement Manual sets forth detailed procedures and instructions for issuing subpoenas (http://www.dol.gov/dol/p wba/public/programs/oem anual/chap33.htm). Department of Fair Labor Standards Act “For the purpose of any “And in case of CFR Parts 70-71 (general DOL Employment Labor (FLSA), [June 25, 1938, hear ing or investigation disobedience to a DOL regulations Standards ch. 676, Sec. 9, 52 Stat. provided for in this subpoena the governing privacy and Administration’s Wage 1065; 1946 Reorg. Plan chapter, the provisions of [Secretary/Administrator/ disclosure of information and Hour Division’s Field No. 2, Sec. 1(b), eff. July sections 49 and 50 of title Committees] may invoke or materials) Operations Handbook, 16, 1946, 11 F.R. 7873, 15 (relating to the the aid of any court of Section 86b the United States in 60 Stat. 1095], 29 U.S.C. attendance of witnesses and Other privacy/notification requiring the attendance 209 the production of books, requirements, including and testimony of papers, and documents), the Right to Financial witnesses and the are made applicable to the Privacy Act, Trade production of jurisdiction, powers, and Secrets Act, or HHS documentary evidence. duties of the Administrator, Medical Privacy Any of the district courts the Secretary of Labor, and regulations, may apply in ... may, in case of the industry committees.” 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 designated representatives corporation to appear may investigate and gather before the data regarding 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 violated any provision of this chapter, or which may aid in the enforcement of the provisions of this chapter.” (29 U.S.C. 211) Department of Family Medical Leave “For the purposes of any “And in case of 29 CFR Parts 70-71 Labor Act, P. L. 103-3, 29 investigation pr ovided for disobedience 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 information subpoena authority Committees] may invoke or materials) provided for un der section the aid of any court of the United States in 209 of th is title.” [Section Other privacy/notification requiring the attendance 209 refers to the Fair Labor requirements, including and testimony of Standards Act, discussed the Right to Financial witnesses and the above.] 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 ... may, 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 Employees “The Secretary of Labor, on 5 U.S.C. 8125 states that 29 CFR Parts 70-71 Federal (FECA) Labor Compensation Act, any matter within his if a person "disobeys or (general DOL regulations Procedure Manual, Part 2 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 information Review of the record 20 CFR 10.619 • (1) issue subpoenas for and under this subchapter or materials) Chapters 2-1601-6(f) & 2- compel the attendance of before the Secretary of 1608-8(e) (January 1999) Labor" the Secretary or (copy witnesses 20 CFR 10.10 within a radius of 100 his representative must attached).[http://www.nfo miles...(4) require the “certify the facts to the web.com/cgi-bin/om_isap Other privacy/notification production of books, papers, district court having i.dll?clientID=14985&inf requirements, including the documents, and jurisdiction in the place 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 complained of regulations, may apply in and if the 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 district 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, shall have documents, and administer jurisdiction to issue an oaths.” order requiring 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 the Secretary 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 information 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 privacy/notification the court interpretations requirements, including that the subpoena power of the Right to Financial the Mine Act is limited to Privacy Act, Trade investigatory public Secrets Act, or HHS hearings being conducted 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 notification 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 Department of Labor have accounts, papers 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 procedures Medica l Pr iva cy out its functions. 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 Additionally it provides revision and are not notification provisions. that procedures other than available. OIG has no subpoenas be used to regulations or published 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 investigation pr ovided for Attorney General, at the (general DOL regulations Administration/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 District disclosure of information Standards’ Operation and 50 of title 15 (relating Court. 29 U.S.C. 521, or materials) Manual, Chapter 39 [copy to the attendance of incorporating 15 U.S.C. attached] witnesses and the 49. Other privacy/notification 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 Compensation or Board shall have power Longshore Act, 33 (general DOL regulations Longsh ore an d Harbor Act, ch. 509, 44 Stat. to preserve and enforce U.S.C. § 927(b), sets governing privacy and Worker s' Compensation 1424 (1927), 33 U.S.C. order during any such forth the enforcement disclosure of information Act Procedure Manual, 927(a) proceedings; to issue mechanisms and or materials) 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/notification compel the attendance and fail to comply with a 3-700(5)(e)(3); Part 4-- has been extended under requirements, including testimony of witnesses, or subpoena. Section 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 injured 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 employed 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 designated 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 administer oaths; to district court will "in a esa/public/regs/complianc Defense Base Act, ch. examine witnesses; and to summary manner hear No specific notification e/owcp/lspm01.pdf] 357 55 Stat. 622 (1941), do all things conformable evidence as to the acts procedures for district 42 U.S.C. § 1651 et seq.; to law which may be complained of and if the director [deputy civilian employees of OALJ: 29 CFR 18.24 necessary to enable him evidence so warrants, commissioner] subpoenas. military exchanges under (general ALJ subpoena [effectively] to discharge punish such person in the the Nonappropriated regulations) the duties of his office.”1 same manner and to the Fund Instrumentalities For ALJ subpoenas: If a same extent as for a party's written application Act ch. 444, 66 Stat. 139 contempt committed OALJ subpoena guidance: Prior to 1972, hearing for a subpoena is (1952), 5 U.S.C. § 8171 before the court, or OALJ subpoena guidance: authority was vested in the submitted three working and; employees working commit such person http://www.oalj.dol.gov/s Deputy Commissioner. In days or less before the on the Outer Continental upon the same conditions ubpoenas.htm Shelf pursuant to the 1972, the LHWCA was hearing to which it as if doing of the Board: 29 C.F.R. § amended to provide for the relates, a subpoena shall Outer Continental Shelf forbidden act had transfer of the hearing issue at the discretion of 802.103Fr equency of Use: Lands Act. ch. 345, 67 occurred with reference authority from the Deputy the Chief Administrative District Director: DOL’s Stat. 462 (1953), 43 to the process of or in the Commissioner to the Office Law Judge or presiding Employment Standards U.S.C. § 1331 et seq. presence of the court." of Administrative Law administrative law judge, Administration/Office of We are not treating these 33 U.S.C. § 927(b). as separate statutes for Judges. Pub. L. No. 92- as appropriate. A motion Worker s Compensation purposes of this study. 576, 86 Stat. 1251(1972), to quash or limit the Progr ams/Branch of The Black Lung Benefits 33 U.S.C. § 919(d). As The ALJ regulations also subpoena must be filed Hearings and Review Act also incorporates 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 later statistics on subpoena provisions and is and duties provided 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 under section 27 of the Act. 18.24(d). Under § 18.1 against whom the above. The Office of See Percoats v. Marine of the regulations, subpoena is directed may Administrative Law Terminal Corp., 15 BRBS however, “to the extent file a motion to quash or Judges estimates that 151, 153-154 (1982). This that these rules may be limit the subpoena, 7065 subpoenas are issued necessarily includes the inconsistent with a rule setting forth the reasons in a typical year. auth ority, under section of special application as why the subpoena should 27(a), to issue subpoenas. provided by statute, be withdrawn or why it Benefits Review Board: In light 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 within ten Lung and Longshore cases, the Act appears to be days of service. The ALJ has held that the district such a “rule of special must rule on the 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). The 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). subpoena may be section 27(a), was an accomplished by certified mail or by any per son adjunct of the Deputy The Board regulations who is not less than 18 Commissioner’s hearing simply repeat the years of age. A witness, authority. Thus, the Board statutory language of § other than a witness for concluded that when the 27(b) in setting forth the the Federal Government, hearing authority was procedures it will follow may not be required to transferred to the Office of if any person in atten d a deposition or Administrative Law proceedings before the hearing unless the Judges, so necessarily was Board disobeys or resists mileage an d witness fee the subpoena power. Id. any lawful order or applicable to witnesses in (The Board did process. 29 C.F.R. § courts of the United nevertheless hold in Maine 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 situation 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, executive order or The Director, OWCP, regulation, 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 Office of Administrative Law For Benefits Review Judges, the subpoena Board: No specific power also is a necessary notification 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 district director.

Department of Longsh ore an d Harbor The Secretary of Labor is The aid of any court of 29 CFR Parts 70-71 Labor Worker s Compensation also charged with the the United 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 information § 702.147(b) Act, finan ced by covered of witnesses and the or materials) employers and insurance production of documentary evidence, carriers, which makes Other privacy/notification and individuals, payments in certain cases requirements, including partner ships or including, cases in which the Right to Financial corporation s "may be an employer is awarded Privacy Act, Trade punished by such court “special fund” relief Secrets Act, or HHS as a contempt thereof." because its liability has Medical Privacy 15 U.S.C. § 49. Any been augmented by an regulations, may apply in person who disobeys an injured worker’s pre- some cases. existing disability, and order of a district court cases where compensation to comply with a awards cannot be satisfied subpoena will "be because of the insolvency punished by a fine 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 imprisonment 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 determinations 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, and documents) of the Federal Trade Commission 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 submission documentar y evidence from any person, partner ship or corporation 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 “Enforcement 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 information 6.6(b) authority to enforce this of the United States or of or materials). 29 CFR 6.4 chapter, make rules, any Ter ritory or regulations, issue orders, possession within the DOL Employment hold hearings, and make jurisdiction of which the Standards inquiry is carr ied on, or decisions based upon Administration’s Wage findings of fact, and take within the jurisdiction of and Hour Division’s Field other appropria te action which said person who is Operations Handbook, gui lty of con tumacy, hereunder.”(41 U.S.C. Section 86b. 353(a)) failure, or refusal is found, or resides or transacts business, upon “...The Secreta ry of Labor or his authorized the application by the representatives shall have Secretary of Labor or power to make representative designated investigations and findings by him, shall have as provided in sections 35 jurisdiction to issue to to 45 of this title...” (41 such person an order U.S.C. 38, incorporated by requiring such person to 41 U.S.C. 353(a)) appear before him or representative designated by him, to produce “Upon his own motion or evidence if, as, and 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 title, an d on by said court as a complaint of a breach or contempt thereof[.]” (41 violation of any U.S.C. 39, incorporated representation or by 41 U.S.C. 353(a)) stipulation as provided in said sections, the Secretary of Labor, or an impartial representative designated 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 in case of 15 U.S.C. 49, Labor Farm worker Protection subpenas requiring the disobedience to a incorporated into 29 Act, P. L. 97-470, 29 attendance and testimony subpoena the [Secr eta ry] 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 United in connection with such 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, examine witnesses, production of disclosure of information and receive evidence. For documentary evidence. or materials) the purpose of any hearing Any of the district courts ... may, in case of or investigation provided Other privacy/notification contumacy or refusal to for in this chapter, the requirements, including obey a subpoena ... issue authority contained in the Right to Financial an order requiring such sections 49 and 50 of title Privacy Act, Trade person , par tner ship, or 15 [Federal Trade Secrets Act, or HHS corporation to appear Commission Act], relating Medical Privacy before the [Secretary], or to the attendance of regulations, may apply in to produce documentary witnesses and the 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 information to the Secretary in good faith.” 29 U.S.C. 1862(b).

“To carry out this chapter the Secretary, either pursuant to a complaint or other wise, sh all, as may be appropriate, investigate, and in connection therewith , enter and 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 Field Inspection Labor Health Act, P. L. 91-596, and investigations 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 information 3 testimony of witnesses and of the United States or or materials) (http://www.osha-slc.gov/ the production of evidence the United States courts Firm_osha_data/100006.h under oath.” of any territory 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 29 CFR 1913.10 (Rules of resides or transacts (http://www.osha-slc.gov/ Agency Practice and business, upon the OshDoc/Directive_data/A Procedure Concerning application by the 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, and when so order ed, an d to give testimony relating to the Other privacy/notification 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 Enforced by petition of No specific notification 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 notification similar to that which can be where the person provisions of the Right to obtained under the IG Act - receiving the subpoena Financial Privacy Act and - that is, 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 ava ilabl e to the au thori ty.

Additionally 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 Labor 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, 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 jurisdiction of compliance date for the left unanswered by a firm whether to 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) days from Typically, OTAA for assistance under the part is cond uct ed m ay, 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 compliance question of a “pre- Employment and Training with such subpena.” 19 subpoena” letter, warning Administration’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 Department of Justice by imports or has shifted seeks enforcement on production to Canada or behalf of DOL. Mexico.

29 CFR Part 90, provides for confidentiality 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 affirmative and negative determinations, 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 addresses confidential business information in detail. This provision defines confidential business information as trade secrets and commercial and financial information, which are obtained from a person and are privileged or confidential, as set forth in 5 U.S.C. 552(b) and 29 CFR Parts 70-71. Paragraph (b) of 29 CFR 90.33 requires that confidential business information be clearly identified as such on each page of a document containing such information. Fin ally, paragraph (c) of 29 CFR 90.33 states that the certifying officer is entitled to refuse to accept certain information as confidential, but that the supplier is entitled to notice of the refusal and the right to withdraw the information if the certifying officer makes such a refusal.

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

Department of Uniformed Services “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 Manual, 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 District disclosure of information 353, 38 U.S.C. 4326(b). attendance and testimony Court. or materials) of witnesses and the production of documents Other privacy/notification 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 District disclosure of information the attendance and Court. 5 U.S.C. or materials) testimony of witnesses and 3330a(b)(3)-(4). Other privacy/notification 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 arbitration Labor† proceedings under this section shall, to the extent Arbitration of disputes consistent with this title, be between employees and conducted in the same plan sponsor s of manner, subject to the multiemployer plans same limitations, 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 standards) 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 Administrative Law Judge authority (For purposes of this report, “administrative subpoena” authority has been defined to include all powers, regardless of name, that Congr ess has granted to federal agencies to make an administrative or civil in vestigatory 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; 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) Department of Holds no administrative State subpoena authority, excluding Inspector General administrative subpoena authority.

Department of 22 U.S.C. §4833 In any case of serious The Board may Specific State^ injury, loss of life, or request the Attorney confidentiality significant destruction 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 serious breach of security involving intelligence activities of a foreign government directed at a U.S. government mission abroad, in certain circumstances, 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 interests of justice for the development of relevant evidence. Department of Transportation US Department of 14 CFR 302.25, The administrative law Any party may make An application shall The subpoena power contain a statement can be valuable in Transportation* Subpoenas in an oral judge or the DOT an application for 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 administrative 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 decisionmaker or Information Act (5 The person 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. addressed has not 14 CFR 302.27, any acted by the return person appearing as date, such date shall be a witness response to stayed pending his or a subpoena is her final action. The entitled to counsel DOT decisionmaker and must be may at any time tendered 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 pending 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 person to testify or Counsel, the DOT shall briefly advise subject to the general Investigation 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 investigations 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 addressed 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 investigation A subpoena will be whch do not disclose quashed or modified the identify of the if the evidence whose particular 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 Secretary 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 witnesses and receive court may punish a evidence at a place the failure to obey an Secretary designates. 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 Secretary 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 carrier 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. Privacy Act may or may not apply.

US Department of Inspector General Administrative In the event of None specific to Subpoena records Transportation Act of 1978, as authority Subpoenas refusal to obey, court Inspector General within purview of amended, 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 investigative 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 Department 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 respect to a information sought other data and subpoena for via subpoena is not documentary evidence financial records 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 License suspension enforce filed in w/compliance win a Charge Marine proceedings appropriate USDC “reasonable time”. Inspection US Coast Guard, G- representative in aid LMI of marine casualty investigation or Mariner License or Document suspension or revocation proceeding. US Department of Ports and Waterways 33 U.S.C. 1227(b) Same as above Same as above. Transportation Safety Act violation although this There are no Investigations authority has regulations in place seldom, if ever, been implementing the US Coast Guard, G- utilized because of statute. LMI the lack 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 service 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 navigable waters 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 Federal Aviation a matter involved in a subpoena. This is Administration hearing or the avenue 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 Officer must 13, subpart D, may show general Federal Aviation 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. Federal Aviation 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. Federal Aviation 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 Federal Aviation 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 General 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 agent 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 Transportation 49 U.S.C. §20902(b), Secretary of authority under the privacy protections carry out and 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 (superseding 45 is charged with enforcement by the and 209.11. either because it Administration U.S.C. §40); P.L. enforcing the Federal Attorney General of resulted in the death 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 103- 272, 49 U.S.C. § delegate of the Secretary of and 209.11 and matter related to Administration 5121 (formerly the Secretary of Transportation, may 209.115. enforcement of the 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) and 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 activities. 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 shipper 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-personal 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 investigation or National Highway motor vehicle Subject to Privacy proceeding Traffic Safety equipment provide Act, FOIA Administration technical information exemptions and the related to performance provisions of 49 and safety U.S.C. 30167 dealing with disclosure 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 inspection 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- Investigative 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 Standards 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 information 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 odometers 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 Section 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-personal 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 investigation or proceeding National Highway motor vehicle Act, FOIA Traffic Safety equipment provide exemptions and the Administration technical information provisions of 49 related to performance U.S.C. 30167 dealing and safety with disclosure 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 inspection 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 Investigative 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 Standards 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 information 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 odometers 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 Section 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 Marine to issue a subpoena the aid of any district requirement but 46 testification -upon Act, 1936, as and testificandum or court of the Untied CFR 201.124 request of an interested party (46 Maritime amended, 46 App. subpoena duces tecum States within the provides for 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 resides or request quashing 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 production of DOT. representative) or by materially advance a certified or registered proceeding under, or Research and Special 103-272 at 49 U.S.C. documentary or other mail. Agency may a determination of Programs 5101, 5121. 49 tangible evidence, or treat any document compliance with, the Administration C.F.R. 107.13, both. 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 production 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 evidence, 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 taking and the time and management of the before the agency, a deposition. place of the Federal Motor business of the motor may petition the deposition. Carrier Safety carrier; or a person 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 transcript 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 entitled to the same 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 Transportation Secretary to prescribe right of entry to prescribe the time display of proper the form and type of permit an inspection, period for records to credentials, an be preserved. employee may inspect Federal Motor records to be enforced by court of records and Carrier Safety maintained. competent Report of an accident equipment of a Administration jurisdiction. Authorizes employees or of an investigation carrier, lessor, or to inspect and copy of the accident cannot association. records, and inspect be admitted as the equipment of a evidence or used in a A contract for DOT carrier, lessor, or civil action for has the same right of association. damages related to a inspection of Employees are also matter mentioned in equipment and authorized to inspect the re port or records 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 relation 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 carrier in a violation Federal Motor action against a district where the the district or of the can be joined in the civil action without Carrier Safety carrier to enforce carrier operates. State in which the regard to the Administration chapter 5 and the action is brought. regulations under it. residence of the The Attorney General person. is authorized to institute actions 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 Federal Motor §504 to knowingly for not more than 6 Carrier Safety disclose 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 opportunity for employee, or agent investigate, make hearing, the shall display proper Federal 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 activities, 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, bring Federal 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 prescribe the form of access, cannot proper credentials, preservation of records required to be subpoena records. the Secretary or records is determine employee designee by the Secretary or Federal Motor compiled by carriers The enforcement may inspect, copy, designee. Carrier Safety and brokers and may mechanism would be 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 bring judicial district in served without regard participating with a a civil action to which the carrier to the territorial carrier in a violation Federal Motor enforce 49 U.S.C. operates. limits of the district can be joined in the Carrier Safety §14103, or this part, or or State in which the civil action 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 Federal 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 employees and their Federal Motor statistics; make under section 31102 authorized Carrier Safety reports, issue of this title those representatives in Administration subpoenas; require duties and powers production of records related to connection with and property; take enforcement inspections and depositions; hold (including investigations and hearings; prescribe conducting offer them a right of record keeping and investigations) of this accompaniment. reporting subchapter and requirements; conduct regulations or make contracts 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 investigations of timely notice of the Federal 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 means within the Secretary’s authority to ensure that the complaint it not subject to harrassment, intimidation, disciplinary action, discrimination 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 Federal 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 function Transportation† 1124 of maritime agencies Department of 33 U.S.C. § 1907 Investigations in Transportation† violation of the MARPOL protocol Department of Veterans 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 administrative Protection 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, including but 1318(a)(A), CWA § use, and maintain subject to judicial information, or not limited 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 entitled 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 listed provisions of the statute. Environmental Federal Water Authorizes EPA to Negligent and Information obtained EPA may require Protection Agency Pollution Control have access to and knowing violations under CWA § 308 is submission of this 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, including but 1318(a)(B), CWA § subject to judicial information, or not limited 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 entitled 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 listed 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 Corps of issued by an prior to seeking Army Corps of Agency* Act (“Clean Water Engineer s) “may issue Administrative Law federal court Engineer s) may issue Act” or “CWA”), subpoenas for the Judge or other enforcement of the subpoena. 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* Act (“Clean Water attendance and Judge or other enforcement of the 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. § 1445(a)(1)(B)). Office of Regulatory 42 U.S.C. § 300j- drinking water civil penalty not to Information obtained Enforcement 4(a)(1)(B), SDWA § regulation” may be exceed $27,500 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 if 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. required (SDWA § Office of Regulatory 42 U.S.C. § 300j- to a national primary civil penalty not to 1445(a)(1)(C)). Enforcement 4(a)(1)(C), SDWA § drinking water exceed $27,500 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 if 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, reports, 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 supplier 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 injection administrative order under SDWA § 1445 control progr am, or requiring compliance is not publicly (C) a requirement to with SDWA § 1445 is available if 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 Control subpoenas “compelling issued by an issued in connection (“UIC”) - attendance and Administrative Law with administrative Agency* Public Health testimony of witnesses Judge or other proceedings under 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 investigation of Enforcement Recovery Act; employment shifts and includes amendments losses allegedly in 1996, 1992, 1988, attributable to the 1984, 1980, 1976); administration 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 public, except on Enforcement includes amendments duly designated enforcement by EPA a showing by the in 1996, 1992, 1988, officer, employee 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 entitled to protection request information respondent to under se ction 1905 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 disposes 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 hazardous U.S. employees wastes have been or carrying out this are generated, stored, statute. See RCRA § treated, disposed 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 containers 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 judicial 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 endangerment, 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 owner or 7003(a), 42 U.S.C. § information upon cited as Resource operator of a facility 6934(a). Violations determination that: subject to judicial (1) the presence of Office of Regulatory Conservation and or site to: (1) make civil penalties not to any hazardous waste Enforcement Recovery Act; reports; (2) conduct 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 public, except 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, employee or divulge information conducting a study; representative of a entitled to protection taking corrective State acting pursuant under se ction 1905 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 equipment, contents or surrounding soils, air, surface water 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 records and have access for corrective 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 response action “Superfund”), P.L. the identification, 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 generated, the Attorney General pursuant to CERCLA CERCLA. stored, or disposed 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 opportunity for information from a a release or threatened 104(e)(2) request 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 relevant to” one of or contaminant at or Where there is 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 release or information unless EPA’s ability to of a person 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 Specific information 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 exceed $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 investigation 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. administration 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 documentary necessary or Office of Site Liability Act attendance and evidence, or refuses appropriate for Remediation (CERCLA, also testimony of witnesses performing the Enforcement known as and the production of to answer any or all allocation under” U.S. EPA “Superfund”), P.L. reports, papers, of the questions put 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 President 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 administrative 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). administrative 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 other information District Court order TSCA section 14 (15 Administrator deems is subject to U.S.C. 2613). necessary for carrying contempt of court. (Information out Administrator's provided under responsibilities under subpoena is entitled TSCA. to same level 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 Protection Agency Prevention and may require a person facility at reasonable to the public except developing or Control; Section 114 who owns or operates times, upon showing upon a showing assisting in of the Clean Air Act any emission source, proper credentials, satisfactory to the development of any to inspect records. Administrator that implementation plan, Office of Regulatory (CAA), who manufactures EPA may issue a they are protected standard of Enforcement 42 U.S.C. §7414, emission control 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 specific provisions 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 certifications; and provision of provide such other subchapter II with information as the respect to a Administrator may manufacturer of new reasonably require. motor vehicles 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 credentials, 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; Section present information in authority in CAA 321(b) of the Clean connection with EPA's Office of Regulatory Air Act, 42 U.S.C. investigation of Enforcement §7621(b), Pub.L. 89- employment shifts and 272 losses allegedly attributable to the administration 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 owner 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 record, report, or inspection, or information or administrative particular portion enforcement thereof confidential proceeding under the in accordance with Act (including 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 investigation 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* Rodenticide Act, 7 EPA decisions to States district court. principles of the Administrative Law U.S.C. 136d(d), cancel, suspend, or Federal Rules of Civil Judge (1) that such Pub.L. 92-516, 86 deny registration or Procedure in making discovery shall not in Office of General Stat. 984, and 40 change the any order for the any way unreasonably Counsel Pesticides C.F.R. 164.70. classification of a protection of the delay the proceeding, and Toxic Substances pesticide product may witness or the content (2) that the Law Office issue a subpoena to of documents information to be 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 probative 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 Protection Agency of the Federal Food, public hearings on enforced by a federal shall be governed by shall be governed by 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 making any order for making any order for Office of General 346a(g)(2)(B) as suspend or revoke a the protection of the the protection of the Counsel Pesticides amended by the Food tolerance or exemption witness or the content witness or the content and Toxic Substances Quality Protection from the requirement of documents of documents Law Office Act (FQPA) of 1996, of a tolerance for a 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 administrative Administration subpoena authority, excluding IG authority. No unique, agency- specific authority under the IG Act. Farm Credit Administration 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 presiding 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 relevance 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. administrative 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 parties, administrative 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 subject 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 Communication s Commission Federal Communications Act Production of U.S. district courts All applicable laws, Discretion of Communications of 1934, as amended, information and have authority to including subpoena authorized Commission 47 U.S.C. §151 et seq. documents related to enforce a rules 47 C.F.R. §§ Commission agency imple mentation Commission 1.331 et seq., an personnel, subject to 47 U.S.C § 409(e) and enforcement of the administrative 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 administrative 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 administrative 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 obtain 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 laws. Communications Act, 5 U.S.C. app. § information and Commission 6 documents related to agency programs/operations from entitites/persons other than federal agencies Federal Deposit Insurance Corporation 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 dissemination of to section 10(c) Corporation Deposit Insurance criminal penalties. subpoenaed investigations, 12 Act (FDI Act), 12 information is subject C.F.R. § 308.144-150 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 dissemination of established a policy governing requests Corporation (OIG) of the FDIC is subpoena all enforces subpoenas subpoenaed authorized to issue information and through actions information is subject for and the issuance administrative documentary evidence brought in U.S. to various laws of administrative 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) Act 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 Corporation designees; The 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 Commission Federal Election Subpoenas for The Commission may For refusals to obey Subpoenas that seek The Commission Commission desposition and authorize its Chairman any order or financial information reviews 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 approve written answers. requring any person to petition a United Privacy Act of 1978, their issuance. Federal 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 Amendments 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 Commission Federal 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 Election Commission 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 System 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 Management Act of 1978. Agency (Exercises authority similar to those of other Inspector 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 officers or tecum, but the the Federal Home § 4641. Under that conducted or where directors of a Bank or Finance Board has Loan Bank Act (Act), authority and section 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. amended by section 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 administrative subpoena or specific authority, the Modernization Act of enforcement 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 records 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 revoke, quash, or such actions and notice to a Bank, the the same modify subpoenas and power to order and Office of Finance, or administrative 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 Federal Home production of tecum. See 12 U.S.C. Finance. The Loan Banks (12 documents provided for § 4641(c). The Finance Board’s civil Banks) and the in this section may be proposed rule sets administrative Office of Finance, required from any out this authority. subpoenas are not and their executive 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 Oversight 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 discovery of Federal Housing privileged matter (§ Enterprises Financial 908.46(d)); motions Safety and Soundness to compel document Act of 1992. Pub. discovery from Law No. 102-550, parties Title XIII, §§ 1371- (§ 908.47(f)); 1379B, 106 Stat. 3986 issuance 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 Maritime Commission 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 opportunity 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 Secretary 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 tariff 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 Marine 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 Commission 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 provision “shall not Act, 46 U.S.C. app. foreign governments, be disclosed to the 1710a.) or any practices of public.” 46 U.S.C. foreign carriers or app. § 1710a(d)(3). other persons providing maritime or maritime-related services in a foreign country result in conditions that ... adversely affect the operation of United States carriers... 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 initiate “actions 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. Inspector General The IG exercises no Federal Maritime unique, agency-specific (IG) subpoenas Commission authority. (Inspector General Act of 1978, as amended; Pub. L. 95- 452; 5 U.S.C. app 3, § 6(a)(4). Federal Holds no administrative Mediation and subpoena authority Conciliation and no unique, Service agency-specific authority under the Inspector General Act.

Federal Mine Safety and Health Commission

Federal Mine Safety Section 113(e) of the In connection with Commission or ALJ None specified. RFPA Standards not specified. and Health Review Federal Mine Safety hearings before the may apply to generally not applicable Standard evidentiary Commission and Health Act of 1977, Commission or an ALJ, appropriate U.S. because subpoena are privileges recognized 30 U.S.C. §823(e)(1994), permits agency to compel district court to enforce rarely if ever issued to through case 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. papers, documents 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- Commission on their own motion or on ALJ or direction of privileged matter that is application of a party, Commission, may admissible evidence or 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 produced, 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 filed within 5 days of service of the subpoena or at the hearing, whichever is sooner. Federal Reserve, Board of Governors 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, triggering Reserve System “send for persons and financial institution subpoena authority, papers, subpoena seeking customer whenever the Board witnesses, and administer records unless disclosure “shall ascertain that the 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 relevant 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. § 3405. 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 information subpoena authority is required to be reported granted to specified under Federal law or Board counsel pursuant regulation; and § to a formal 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 agency 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” administrative 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 parties and . institution-affiliated claims for insured parties for unsafe or deposits. unsound banking practices, breaches 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 formal 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 exercise 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 Reserve System U.S.C. § 1820(c) § 1818(n) in connection issuance of a formal 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 exercise 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 Reserve System connection with any § 1818(n). 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 Banking 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 Reserve System 3108 to issue, revok e, quash, or District Court; fine for modify subpoenas in noncompliance is 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 statutor y notification policies and procedures Reserve System 452, 5 U.S.C. appendix recognized as limited to obtained through [This is the same subpoena duces tecum petition to enforce filed requirements followed regarding subpoena authority exercised by (statutory language: in the appropriate U.S. for Inspector General request and issuance. Office of Inspector District Court subpoenas issued other Inspectors [Each Inspector General pursuant to the Right to General.] General...is authorized... ] Financial Privacy Act to require by subpena 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 this Act, which subpoena, in the case of contumacy or refusal to obey, shall be enforceable by order 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 Commission

Federal Trade Section 20 of the Civil investigative 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 possession, custody, or Act of September 26, evidence in FTC (confidential financial or control or documentary 1914, 38 Stat. 717, as investigations 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 restrictions 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 petitions 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) petitions 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 restrictions 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 Department 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, either the grant other equitable 2762(2000). The FTC or DOJ “may relief. authority to issue require the submission of second requests is found additional information 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 information or documentary material”) General Services Administration General Services The Inspector General The GSA Inspector 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 Inspector subpoena authority, the signed by the Inspector 452, 92 Stat. 1101, as to require the production General “shall be GSA OIG complies with General himself or, in amended, of “all information, enforceable by order of the notification and his absence, by the 5 U.S.C. App III. documents, reports, any appropriate United privacy provisions and Deputy Inspector 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 programs related statutes), and the explored. and operations of GSA. Health Insurance Portability and Accountability 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, Board 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; determination 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 receives 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 are no lack of cooperation by specific privacy the parties. A party may protections connected to request a subpoena on a Board subpoena, behalf of a witness who which is part of the needs to demonstrate to record in the appeal. an employer that he or However, Board Rule she is testifying in an 112(h)(1) provides that a administrative 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. Museum and Library Studies

Inter-American Holds no administrative subpoena authority. Foundation

Foreign Claims Commission Foreign Claims 22 U.S.C. § 1631h Debt claims against Commission† asserted against Bulgaria, Hungary, or Rumania OR based upon an obligation expressed or payable in any currency Foreign Claims 22 U.S.C. § 1623(c) Settlement 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. Commission on Security and Cooperation in Europe Commission on 22 U.S.C. § 3004 In carrying out this Act . . Security and [the Commission] may Cooperation in require, by subpena or 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 Commission

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 connection requiring compliance, information or business subpoena; subpoenas with any investigation failure to obey may be proprietary information 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 functions assigned by the 3(a), 6(a)(4), 8G(d) 2) Information sought is Inspector General Act. and 8G(g)(1). 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 Commission† protective orders issued pursuant to the North American Free Trade Agreement or the United States-Canada Agreement (North American Free Trade Agreement) (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 Commission on Electronic 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 Electronic Fund and the production of any States within the evidence that relates to judicial district within 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 resides 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 Corporation Legal Services Inspector General Act To require the production In the case 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 records, time records, retainer agreements, client trust fund and eligibility records, and client names, for each recipient shall be made available to any auditor or monitor 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 Corporation, except for reports or records subject to the attorney-client privilege. (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 enforcement 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.

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 Board does not Protection Board and functions of the by any member of the is not obeyed, the generally 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 agency 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, “Witnesses, 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 applicant 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 witnesses, and receive evidence

National Aeronautics and Space Administration

National Aeronautics Inspector 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 Administration U.S.C.A. App. 3, Section reports, answers, records, obey, shall be Section 3401 et seq. chain of command, by 6(a)(4) accounts, papers, and enforceable by order 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 Administration U.S.C. 3801-3812; 14 1264.103; trial subpoena implementing CFR Part 1264 14 CFR 1264.122. regulations.

National Archives Holds no administrative subpoena authority, and Records excluding IG authority. Administration 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 Capitol Planning Commission National Capitol Holds no administrative Planning subpoena authority. Commission

National Credit Union Administration

National Credit Inspector General Act “production of all “in the case of Right to Financial 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 obey, shall be Administration U.S.C.A. App. 3, Section reports, answers, records, Section 3401 et seq. auditor’s or investigator’s 6(a)(4) accounts, papers, and enforceable by order of supervisors, by IG other data and any appropriate United Counsel, and by the IG. documentary evidence States district court” Alternative 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 narrow 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 information and NCUA Board, the Administration Federal Credit Union documents and testimony NCUA enforces Act, as amended, 12 in connection with the compliance with its documents obtained by agency’s General 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 investigative 1787(b)(2)(1). (June 26, federally insured credit United States District non-public, unless made proceedings by the entry 1934, c. 750, Title 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 investigation. 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 relevant statutes 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 entity with knowledge of financial records 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 and Humanities National Endowment Inspector General Act, General subpoena U.S. District Court 1. Inspector General Act 1. Audit or investigation for the Arts Pub. L.95-452, Oct. 12, authority as necessary 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. Freedom of reasonably relevant to Information Act audit or investigation 4. Right to Financial 3.Demand not Privacy Act unreasonably broad or 5. Fair Credit Reporting burdensome Act 6. 26 U.S.C. 6103 (tax returns) National Labor 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 administrative 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, Title 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 five day time 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 proceeding 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 Inspector and the production of makes application 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. Applications 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 administrative 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.

Federal Labor The Federal Labor Relations Authority Relations (FLRA) is an Authority independent agency responsible for administering the labor-management relations program 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 Relations Authority issue subpoenas.

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 A ntarctic Law the Act upon expiration 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 records 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 advance 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 case 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 order of maintained within 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 Transportation Safety Board National Independent Safety Under 49 U.S.C. §1113, As stated in 49 U.S.C. Protection of trade In accident investigation Transportation Board Act of 1974, as the NTSB, through a §1113(a)(4), the NTSB secrets is outlined at 49 matters, the NTSB issues U.S.C. §1114(b) and 49 subpoenas for Safety Board amended, 49 U.S.C. Board member, may enforce a §§1101-1155. Subpoena administrative law judge, subpoena by initiating C.F.R. 831.6. In information necessary to 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 investigation §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 appropriate for cause or causes of This authority is utilized public dissemination are certain transportation 49 C.F.R. §§831.9(a); during the investigation of placed in the “Official accidents and to conduct 821.20(a), and an accident, either 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 contains 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 types of documents (whether prepared by or for the Board), autopsy protocols, pre-redacted material, and other items exempt from disclosure under the Freedom of Information Act and the Privacy Act that nevertheless should be retained by the Board. Neighborhood Holds no administrative subpoena authority. Reinvestment Corporation Nuclear Regulatory Commission

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 Administrative 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 U.S.C. §2281, provides: regulatory staff to tribunal may, at the Office of Management such studies and evaluate the activities of reque st of a party, issue and Budget investigations, obtain such 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 administration or resides or transacts regulations and orders. subpoena, as described enforcement of this Act, business, upon Second, the information above. or any regulations or application by the may be used in orders issued thereunder. Attorney General on connection with B. Subpoenas Issued by For such purposes the behalf of the United adjudicatory the NRC Regulatory Commission is authorized States, shall 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 Executive subpoena to require any person to appear and whether to authorize Director of Operations person to appear and give testimony or to issuance of a license 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 Executive 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 9.17-02 (Sep. defines the word “person” be punished by such protected from 12, 1991). The EDO has to include a corporation 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 authority 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 Information Director of the Office 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), asking 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. regulations, to issue In addition, if the subpoenas in subpoena is issued in an furtherance of its NRC administrative investigations 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 disclosure 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 Commission Inspector General Act Inspector General the Act provides that in the General subpoena will Inspector General Act, 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 the required documents. Information Office of Management of all information, an Inspector General information have been sought must be and Budget documents, answers , subpoena, the subpoena 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 jurisdiction 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 investigation 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 Financial Privacy Act of subpoena will not be Federal Agencies. 1978. The Act requires issued unless other government agencies means to obtain the seeking to subpoena required information 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 Inspector 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 Information Act or Privacy Act. Occupational Safety and Health Review Commission Occupational Safety Section 12(h) of the Permits the Commission Upon failure to comply The Act requires that Section 12(g) of the Act and Health Review Occupational Safety in any proceeding before w/subpoena, the Commission hearings permits the Commission Commission by its and records be open to to make necessary rules Commission and Health Act of it to order testimony to be 1970, 29 U.S.C. § taken by deposition and to counsel may initiate the public. Section 15 of for the orderly 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 the 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 production 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 revoke or modify the subpoena.

Persons compelled to submit data or evidence are entitled to retain 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. Office of Holds no administrative subpoena authority. Governmental Ethics

Office 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 limits 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 retirement be provided with prior Inspector General; documentary evidence annuity program. 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 investigation 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 order 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 received by subpoenas are reviewed an inspector general and by the Assistant become part of a system Inspector General for of records maintained Investigations (or Audits by his or her respective if issued pursuant to an agency, they are subject audit), the Assistant to the Privacy Act, 5 Inspector General for U.S.C. §552a Legal Affairs, the exchangeable without Deputy Inspector the subject’s permission 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 Inspector General authority granted in Section 6(a)(4) of the Inspector General Act of 1978. Pension Benefit (Peace Corps Inspector Guaranty General Exercises authority similar to Corporation those of other Inspector Generals under the Inspector General Act May obtain documentary Enforcement action No requirement to OIG has authority to Pension Benefit Act.) Guaranty of 1978 as amended, 5 evidence for both filed in the appropriate notify individual that “require by subpoena [sic] the production of al Corporation U.S.C. App. 3 investigations and audit. U.S. District Court by OIG is seeking records 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 Financial 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 Corporation U.S.C. 3401-3420. partnerships of 5 or fewer customer does not file subpoena and form “substantial 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 filed, 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 does not records. reasonable belief that comply with the the records are relevant 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 Information PBGC Directive Section Guaranty Income Security Act of make investigations it subpoena requiring Act (FOIA), 5 U.S.C. GA 05-1. §552 (FOIA) (for Corporation 1974, as amended deems necessary to document production enforce any provision of for terminating pension business records PBGC PBGC Insurance 29 U.S.C. §1303 ERISA, Title IV, or any plan participant maintains in a system 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) maintains in a system of records) Postal Rate Commission 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 records relevant 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 files 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, records, 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 agency’s system of documentary evidence records. necessary in the performance of the functions assigned by this Act, which subpoena, in the case of contumacy or refusal to obey, shall be enforceable by order 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 files 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 seq. 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 sworn statement 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. Securities and Exchange Commission Securities and Securities Act of 1933, Securities Act Se ction Securities Act Se ction Every witness in a Subpoenas are served in Exchange Pub. L. No. 73-22 (as 19(b) provides that any 22(b) provides that in Commission accordance with the amended), Secs. 19(b), member of the the case of refusal to investigation testifying procedures contained in Commission 20(a), 20(c), and 22(b), Commission, or any obey a subpoena by any pursuant to a subpoena Rule 232 of the 15 U.S.C. 77s(b), 77t(a), officer designated by the person, a court may receives a copy of SEC Commission’s Rules 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)”). witnesses and production contempt. counsel, false statements of documents may be and documents, perjury, Section 203.7 of the required from anywhere In addition, Section 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 describing the rights of Commission order Commission. witnesses in Commission 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 been or “financial institution,” the Director of the is about to be violated, the the Commission 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 Division 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 Directing Division policy requires Private Investigation 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 notice 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 Section 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 Section 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 electronic 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 Division of Enforcement has prepared an ECPA procedures outline for use when the Commission staff is seeking 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 21(a) -(c), (e), and (h), Commission, or any subpoena by 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, investigation 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. provides 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 Commission Pub. L. No. 74-333 (as Act is virtually identical Company Act provides Securities Act. Securities Act. 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 Commission 253 (as amended), Sec. Indenture Act is powers to enforce the Securities Act. Securities Act except 321, 15 U.S.C. 77uuu; essentially identical to Trust Indenture Act that the Commission has 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 Securities Act. Securities Act. Commission 76-768 (as amended), is virtually identical to Act contains Sec. 42, 15 U.S.C. 80a- Section 21(b) of the enforcement provisions 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 Commission 76-768 (as amended), is virtually identical to Act contains Securities Act. Securities Act. 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 Exchange 232 of the of Practice provide that hearing officer are record at a hearing, issuance of subpoenas in enforceable in federal requests for issuance of connection with hearings Commission Commission’s Rules of the powers of a hearing Practice, 17 CFR officer include issuing district court under the a subpoena are required are contained in Rule 201.111(b), 201.180 and subpoenas authorized by relevant 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 Rules of Administrative quashing, or modifying proceeding. See, party. Rule 232(a) of Practice. This provision, Procedure Act (APA), 5 any such subpoena. Rule Securities Act Se ction the Rules of Practice, 17 based upon Section 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 issuance of Adviser Act Section 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 circumstances, unreasonable, designated time and place Indenture Act Section 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 discretion, 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 exclusion of that person unreasonable, general relevance 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 unavailability 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 order 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 Administration Small Business Inspector General (IG) Production of all In case of refusal to Notification The scope of IG Administration subpoenas (Inspector information, documents, obey, enforcement is requirements of ten days subpoenas and methods General Act of 1978, as reports, answers, records, 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 mailing 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 in a SBA Office 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 O HA 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 identify the motion to limit or quash appear and testify or to witness, the documents the subpoena may be produce particular to be subpoenaed, and filed and re sponded to, documents. the relevance of the but no oral argument documents or testimony will be heard, unless the sought. A party Judge decides otherwise. obtaining a subpoena must serve the subpoena by personal delivery and file and serve a copy of the subpoena and affidavit of service with all parties within 2 days of service. With respect to privacy protections, the public has no access to information subject to a Protective Order, proprietary or confidential information withheld in accordance with Se ction 134, or information excluded from disclosure by law or regulation. 13 C.F.R. § 225.

Small Business Small Business The Administration may The Administration There are currently no N/A Administration Investment Act, Section investigate to determine may invok e the aid of implementing 310 (P. L. 85-699; 15 whether a licensee or any court of the United regulations or procedures. Small Business U.S.C. 587b). other person has engaged States within the appropriate Investigations are Investment Division in any conduct constituting a violation of jurisdiction in generally referred to the the Act. For the purpose requiring the testimony OIG. of any investigation of witnesses or the regarding such a production of violation, the documents Administration may compel the attendance of witnesses, take evidence, and require production of any books, papers, and documents, which are relevant to the inquiry. Attendance of witnesses and production of documents may be required from any place in the United States. Small Business 15 U.S.C. § 687a Administration may Administration† subpoena witnesses and documents relevant to investigation of compliance with provisions for small business investment companies Small Business 15 U.S.C. § 687b Administration may The Administration Administration† subpoena witnesses and may invok e the aid of documents relevant to any court of the United investigation of States within the compliance with jurisdiction of which provisions for small such investigation or business investment proceeding is carried companies on, or where such person resides or carries on business, in requiring the attendance and testimony of witnesses and the production of books, papers, and documents; and such court may issue an order requiring such person to appear before the Administration, there to produce records, if so ordered, 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. Small Business 15 U.S.C. §634 (b)(11) authorizes the Such attendance of Administration† Administrator to make witnesses and the such investigations as production of any such necessary to determine records may be whether a recipient of or required from any participant in any place in the United assistance under this States. In case of chapter or any other contumacy by, or person has engaged or is refusal to obey a about to engage in any subpena issued to, any acts or practices which person, including a constitute or will recipient or constitute a violation of participant, the any provision of this Administration may chapter, or of any rule or invoke the aid of any regulation under this court of the United chapter, or of any order States within the issued under this chapter. jurisdiction of which The Administration shall such investigation or permit any person to file proceeding is carried with it a statement in on, or where such writing, under oath or person resides or otherwise as the carries on business, in Administration shall requiring the determine, as to all the attendance and facts and circumstances testimony of witnesses concerning the matter to and the production of be investigated. For the books, papers, and purpose of any documents; and such investigation, the court may issue an Administration is order requiring such empowered to administer person to appear before oaths and affirmations, the Administration, subpena witnesses, compel there to produce their attendance, take records, if so ordered, evidence, and require the or to give testimony production of any books, touching the matter papers, and documents under investigation. which are relevant to the Any failure to obey inquiry. such order of the court may be punished by 15 U.S.C. §634 (11). such court as a contempt thereof. All process in any such case may be served in the judicial district whereof such person is an inhabitant or wherever he may be found;

15 U.S.C. §634 (11). Smithsonian Institution Smithsonian Holds no general Institution subpoena authority. The Smithsonian Institution is a trust instrumentality of the United State s and is not in the Executive Branch, not is it an authority of the Government. The Smithsonian Institution does not exercise any administrative subpoena authority.

Notwithstanding, Congress has chosen to identify the Smithsonian Institution as a “designated Federal entity” under Section 8G of the Inspector General Act of 1978, as amended, 5 U.S.C. App. 3.

Tennessee Valley Authority Tennessee Valley Inspector General (IG) Production of all In case of refusal to Notification Internal standards and Authority subpoenas (Inspector information, documents, obey, enforcement is requirements of ten days procedures have been General Act of 1978, as reports, answers, records, obtained by order of from the date of service issue in a TVA O ffice of amended; Publ. L. 95- accounts, papers, and any appropriate U.S. or fourte en days from Inspector General 452; 5 U.S.C. app 3, § other data and district court. the date of mailing of Handbook. 6(a)(4). documentary evidence notice apply when (regardless of medium) records at a financial necessary for the institution are sought of performance of the customers covered by functions assigned under the Right to Financial the Inspector General Act Privacy Act. 12 U.S.C. (essentially a subpoena §§3402, et seq. duces tecum). Customers have a right to challeng in an appropriate U.S. district court during the notice period. Miscellaneous Additional Authorities Civil Rights Commission Civil Rights 42 U.S.C. § 1975a(e)(2) The Commission may The Attorney General Commission^ issue subpoenas for the may obtain an attendance of witnesses enforcement order in and the production of U.S. district court. written or other matter. Such a subpoena may not require the presence of a witness more than 100 miles outside the place where the witness is found or resides or is domiciled or transacts business, or has appointed an agent for receipt of service of process. Corporation of Foreign Security Holders Corporation of 15 U.S.C. §77dd “The Corporation shall Foreign Security have power to ... to require from trustees, Holders† financial agents, or dealers in foreign securities information relative to the original or present holders of foreign securities and such other information as may be requi red, and to issue subpenas therefor.”

15 U.S.C. §77dd Congressional- Executive Commission on the People’s Republic of China The Congressional- 22 U.S.C. § 6916 Subpoenas may be issued Executive only pursuant to a Commission on the two-thirds vote of members of the People’s Republic of Commission present and China† voting. The subpoena may require the attendance and testimony of witnesses and the production of books, records, correspondence, memoranda, papers, documents, and electronically recorded data. Equal Employment Opportunity Commission Equal Employment 29 U.S.C. § 626 Subpoenas used in Opportunity investigations carried out under the Age Commission† Discrimination in Employment Act. Federal Trade Commission & Federal Energy Administration Federal Trade 42 U.S.C. § 6299 Energy conservation Enforcement available Commission & program for consumer in U.S. district court. Federal Energy products other than automobiles: The ^ Administration Commission and the Secretary may each sign and administer subpoenas for the attendance and testimony of witnesses and the production of relevant books, records, paper, and other documents, and may each administer oaths. Foreign Claims Settlement Commission of the United States Foreign Claims 50 App. U.S.C. § 2001 War claims (expires, May bring enforcement Settlement September, 2003): action in U.S. district Commission of the Authority to require a court person to appear and ^ United States testify or produce documents for the purpose of certain hearings, examinations, or investigations General Services Administration General Services 41 U.S.C. § 113 War Contractor Claims: Administration^ contracting agency may require the war contractor to submit information and comply with audits as reasonably required to settle a termination claim. Inspectors General Inspectors General^ 41 U.S.C. § 254d Examination of records of a contractor National Indian Gaming Commission National Indian 25 U.S.C. § 2715 Subpoenas may be issued Gaming in any matter under consideration or Commission† investigation (by a vote of not less than two members). President

President† 10 U.S.C. §2507 (a) Authority.--The (c) Penalty for 10 U.S.C. §2507(c).(d) 10 U.S.C. §2507(d).(e) President shall be entitled, noncompliance.--Any Limitations on Regulations.--The Data collection by regulation, subpoena, person who willfully disclosure of President may make authority of the or otherwise, to obtain performs any act information.--Informati such rules, regulations, President related to such information from, prohibited or willfully on obtained under and orders as he national defense require such reports and fails to perform any act section (a) which the considers necessary or technology, etc. the keeping of such required by the President deems appropriate to carry out records by, make such provisions of subsection confidential or with the provisions of this inspection of the books, (a), or any rule, reference to which a section. Any regulation records, and other regulation, or order request for confidential or order under this writings, premises or thereunder, shall be treatment is made by the section may be property of, and take the fined under title 18 or person furnishing such established in such form sworn testimony of, and imprisoned not more information shall not be and manner, may administer oaths and than one year, or both. published or disclosed contain such affirmations to, any unless the President classification and person as may be determines that the differentiations, and necessary or appropriate, withholding thereof is may provide for such in the President's contrary to the interest adjustments and discretion, to the of the national defense. reasonable exceptions as enforcement or the Any person who in the judgment of the administration of this willfully violates this President are necessary chapter and the subsection shall be fined or proper to effectuate regulations issued under under title 18 or the purposes of this this chapter. imprisoned not more section, or to prevent than one year, or both. circumvention or (b) Condition for use of evasion, or to facilitate authority.--The President enforcement of this shall issue regulations section, or any rule, insuring that the authority regulation, or order of this section will be used issued under this section. only after the scope and purpose of the 10 U.S.C. §2507(e). investigation, inspection, or inquiry to be made have been defined by competent authority and it is assured that no adequate and authoritative data are available from any Federal or other responsible agency.

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(f) Definitions.--In this section: (1) The term "person" includes an individual, corporation, partnership, association, or any other organized group of persons, or legal successor or representative of the foregoing, and includes the United States or any agency thereof, or any other government, or any of its political subdivisions, or any agency of any of the foregoing, except that no punishment provided by this section shall apply to the United States, or to any such government, political subdivision, or government agency.

10 U.S.C. §2507 Railroad Retirement Board Railroad Retirement 45 U.S.C. § 362 Railroad unemployment The Board may seek Board^ insurance: For the enforcement in a U.S. purpose of any district court, and investigation or other refusal to comply may proceeding relative to the be treated as contempt determination of any right of court. to benefits, the Board has the power to require the presence and testimony of witnesses, and the production of any evidence, documentary or otherwise, that relates to any matter under investigation or in question, before the Board, or any member, employee, or representative thereof. Surface Transportation Board Surface 49 U.S.C. § 721 The Board may subpoena Subpoena may be Transportation witnesses and records enforced in U.S. district Board^ related to a proceeding of court, and refusal to the Board. comply may be punished as contempt. Social Security Administration Social Security 42 U.S.C. § 405(b)(1) Federal old-age, Administration^ survivors, and disability insurance benefits: In the course of any hearing, investigation or other proceeding, the commissioner may administer oaths and affirmations, examine witnesses and receive evidence. United Nations Educational, Scientific, and Cultural Organization

(International Organization) United Nations 22 U.S.C. § Certification in Educational, 287c(c)(3)(A) importation of Rhodesian Scientific, and chromium. The Secretary may promulgate Cultural regulations to require the Organization† attendance and testimony of witnesses and the (International production of evidence. Organization) [Authority under the Export Control Act of 1949 or the Export Administration Act of 1969] The head of any 50 App. U.S.C. § 2411 War and National Defense Enforceable in U.S. department or - export regulation: may district court agency exercising make inspection of books, records, other writings, any function under premises or property of, the Export Control and take sworn testimony Act of 1949 or the of any person Export Administration Act of 1969† [Trading with the Enemy Act] “The officer or 50 App. U.S.C. § 35 Authority under the agency empowered Trading with the Enemy to entertain claims”^ Act of 1917 to hold hearings and issue subpoenas Appendix B:

Administrative Subpoena Authorities Held by the Department of Justice

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 B

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

*Denotes Administrative Law Judge Authority Name of Agency or Source and Scope of Authority Enforcement Notification Req. Issuance Standards Entity Common Name of Description Mechanism and Privacy and Qualifiers or Authority (Including Description Protections Procedures Act Name, P.L. and USC & CFR cites)

Department of Civil Investigative When the Attorney Whenever a person CIDs may be served by No CID may require Justice (Antitrust Demand (CID) General or the fails to comply with any antitrust the production of any CID, the DOJ may investigator, or by any material that would be Division): authority under the Assistant Attorney Antitrust Civil Process General in char ge of file in U.S. District U.S. marshal, at any protected from Act, 15 U.S.C. §§1311- the Antitrust Division Court and serve upon place within the disclosure under the 1314 has r eason to believe such person a petition terr itorial jurisdiction of standards applicable to that any person may be for an order of such any court of the U.S. subpoena issued by a in the possession, court for the CID materials are court of the U.S. in aid custody or control of enforcement of the exempt from FOIA and, of a grand jury any documentary CID. A CID recipient without the consen t of investigation or the material or have any may file in U.S. the CID recipient, may standards applicable to information relevant to District Court and only be used by a duly discovery requests a civil antitrust serve upon the DOJ a authorized official, under the Federal invest igation he may, petition for an order employee, or agent of Rules of Civil prior to the institution modifying or setting the DOJ (or FTC) in Procedure. CIDs must of a proceeding, issue aside such CID. In connection with a case, be approved by the in writin g and serve general, the Federal grand jury, or Federal AG or AAG for upon that person a civil Rules of Civil administrative or Antitrust: approval investigative demand. Procedure apply to regulatory proceeding. auth ority may not be such petitions. Right to Financial delegated. Privacy Act, 12 U.S.C. §§3401-3422, provides for notification to customers for financial records. Department of “Second Request” Certain mergers and The premerger waiting A party filing a If the staff Justice (Antitrust authority under the acquisitions may not period is extended by premerger notification investigating a transaction concludes Division): Hart-Scott-Rodino be consummated until issuance of a second designates a person who Antitrust the parties provide request and continues is to receive notice of that it might raise Improvements Act of DOJ and the FTC with to run un til after issuance of a second competitive problems, 1976: Section 7A of premerger notification (generally 30 d ays request. 15 U.S.C. the staff drafts a the Clayton Act, 15 and observe a waiting after) compliance. 18a(b) provides that any second request. The U.S.C. 18a as amended period. During that The Antitrust Division information or Division utilizes by Section 630 of waiting period, either has instituted an documentary material centralized high-level Pub.L. No. 106-553, DOJ or the FTC “may Internal Appeal pursuant to 15 U.S.C. review of second 114 Stat. 2762(2000). require the submission Procedure that enables 18a shall be exempt requests prior to The authority to issue of additional a party to contest the from FOIA and may be issuance, with a focus second requests is information or breadth of a second relevant to any on eliminating undue found in 15 U.S.C. documentary material request or whether administrative or burden. The Division 18a(c). Rules relevant to the there has been judicial action or recently announced implementing th e Act proposed acquisition” compliance. See proceeding. If a party details of its Merger are found at 16 C.F.R. from the parties. (This http://ww.usdoj.gov/at refuses to produce Review Process Part 801 et seq. See 16 is referred to as issuing r/public/8340.htm. certain documents Initiative. The C.F.R. 803.20 a “second request.”) Under 15 U.S.C. based on privilege Initiative encourages (“Requests for 19a(g)(2), if a party claims, it must submit a staff to be as additional in formation fails substantially to privilege log (see 17 aggressive as possible or documentary comply with a second C.F.R. 803.3). during the initial material”) request, a district waiting period by court may order making voluntary compliance, extend requests from the waitin g period information and until there has been through early compliance, and grant consultation with the other equitable relief. parties, and to use the knowledge th ereby gain ed to tailor Second Requests as narrowly as possible to the transaction and the goals of the investigation. Department of Title 18 U.S.C. Authority provides the Title 18 U.S.C. Title 18 U.S.C. See procedures set out Justice (Child 348(a)(1)(A)(i)(II), Attorney General or 3486(c) permits the 2703(c)(2) provides that by FBI Crimes Attorney General to a governmental entity Against Children Unit. Exploitation & (a)(1)(C) the Attorney General’s designee authority to invoke the aid of any receiving records from FBI issues these Obscenity Section, issue admin istrative court of the United a provider of electronic subpoenas pursuant to Criminal subpoenas for a limited States within the communications service AG delegation order. Division): category of jurisdiction of which or remote computing information in criminal the investigation is service pursuant to an investigations of carried on or of which administrative subpoena specified federal the subpoenaed person requesting the name, kidnaping, child is an inhabitant, or in address, local and long pornography, sex abuse which he car ries on distance telephone toll and transpor tation for subpoenaed person is billing records, illegal sexual activity an inhabitant, or in teleph one number or offenses, where the which he car ries on other subscriber number victim was under business or may be or identify, and length eighteen. The statue found, to compel and type of service does includes the following compliance with the not have to provide requirements: (1) the subpoena. notice to subscr iber or underlying customer. investigation has to relate to an act or activity involving a violation of Sections 1201, 2241(c), 2242, 2243, 2251, 2251A, 2252, 2252A, 2260, 2421, 2422, or 2423 of Title 18, United States Code, when the victim was a minor who had not attained the age of eighteen years: (2) the subpoena can be issued only to a provider of an electronic communication service or remote computing service: (3) the provider can be required to disclose only the subscriber or customer’s : (a) name;(b) address; (c) local and long distance telephone toll billing records; (2) telephone number or other subscriber identity; (e) length of service; and (f) the types of services the customer or subscriber utilized, which may be relevant to an authorized law enforcement inquiry; and (4) the authority to issue admin istrative subpoenas to obtain testimony is limited to requiring a custodian of records to give testimony concerning the production and authentication of such records. Th e Attorney General has delegated the admin istrative subpoena power to all United States Attorneys, the Assistant Attorney General in char ge of the Criminal Division, and the Director of the Federal Bur eau of Investigation. This auth ority may be redelegated to Assistant U.S. Attorneys, Criminal Division trial attorneys, and FBI Special Agents in Charge, Assistant Special Agents in Charge and Sen ior Supervisory Resident Agents in Charge. Department of False Claims Act 1) The Attorney 1) The Attorney 1) Information obtained 1) The Attorney Justice (FCA), Publ. L. 99-562 General is authorized General may enforce a by a CID may not be General must (Commercial §6(a) (Oct. 27, 1986), to issue a civil CID by filing a disclosed, except to authorize each CID 31 U.S.C. §3733. investigative demand petition for certain designated and may not delegate Litigation Branch, (CID) for documentary enforcement in any parties. These parties this function. See 31 Civil Division): material, interrogatory judicial district in include: (a) any Justice U.S.C. §3733(a)(1), answers, and/or oral which the non- Department (DOJ) (a)(2)(G). testimony that is complying person attor ney or investigator 2) A CID for materials relevant to “a false resides, is found, or conducting a “false must state: (a) the claims law transacts business, see claims law alleged conduct and investigation.” See 31 31 U.S.C. §3733(j)(1). investigation;” (b) any false claims law U.S.C. §3733(a)(1). 2)The recipient of a DOJ attorney requiring provision under 2) A “false claims CID ma y object by such information in investigation; (b) the law investigation” filing a petition to connection with a case specific class of includes an inquiry modify or set aside the or proceeding; (c) materials to be under the FCA or any CID in any judicial Congress or any produced; (c) the date act of Congress district where the committee or the materials are due; enacted after October person resides, is subcommittee thereof; and (d) the false 27, 1986 that prohibits found, or transacts (d) other federal claims law fal se cl aims, bri bery, business. See 31 agencies upon a investigator to whom or corruption involving U.S.C. § 3733(j)(2). showing of “substantial the materials should an officer or employee need;” and, (e) any be provided 31 U.S.C. of the United States. other officer or §3733(a)(2)(A)-(B). See 31 U.S.C. § employee of the Untied 3) A CID for answers 3733(I)(1)-(2). States authorized under must state: (a) the regulations to be issued alleged conduct and by the Attorney false claims law General. See 31 U.S.C. provision under §3733(i)(2)-(3). investigation; (b) the 2) Where a CID seeks specific interrogatories any product of to be answered; (c) the discovery, a copy of the date the answers are CID must be sent to the due; and (d) the false person from whom the claims law discovery was obtained, investigator to whom and the CID is not the answers should be returnable for at least provided. 31 U.S.C. 20 days. See 31 U.S.C. §3733(a)(2),(A), §3722(a)(1), (a)(2)(D). (a)(2). 3) Upon completion of the “false claims law 4) A CID for oral investigation,” and any testimony must state: subsequent case or (a) the alleged conduct proceeding, any and false claims law documentary materials provision under obtained by CID must investigation; (b) the be returned to the party general nature of the producing them. See testimony to be 31 U.S.C. §3733(i)(4). provided; (c) the place, date and time fo rthe testimony; (d) the false claims law investigator who will conduct the examination; (e) that the person’s attendance is necessary to the investigation; and, (f) that the person may be accompanied by an attorney and any other representative. See 31 U.S.C. § 3733(a)(2)(A), (a)(2)(D). 5) The Attorney General must appoint a custodian to receive and to implement the confidentiality restrictions covering any materials, answers, or transcripts obtain ed pursuant to a CID. See 31 U.S.C. §3733(i)(1).

Department of 18 U.S.C. §3486, as In any criminal In th e case of I. No notification I. The subpoena can Justice (Fraud originally enacted by investigation of a contumacy by or requirements. May require: 1) production Section, Criminal the Section 248a of the “federal health care refusal to obey a obtain an ex parte order of records or other Division; Federal Health Insurance offense” (which are subpoena issued to preventing the things relevant to the Portability and enumerated in 18 any person, the disclosure of the investigation 2) Bureau of Accountability Act of U.S.C. §24), the Attorney General may existence of the testimony of the Investigation 1996, Pub.L.104-191. Attorney General may move in any district summons for 90 days, custodian of the [FBI]): issue in writing and court where the renewable for records or other things [Since 1996, Section serve, a subpoena investigation is carried additional 90 day required to be 3486 has been requiring pr oduction or on, or of which the periods for reasons produced concerning subjected to a series of testimony. §3486 subpoenaed person is listed in the production and amendments which (a)(1)(A). At any time an inhabitant or does §3486(a)(6)(B). Health authenticity of those expan ded th e reach of before the return date, business, or may be information obtained thin gs. §3486(a)(1)(B) administrative the person or entity found, to compel under this section “may subpoenas to other subpoenaed may compliance with the not be used in, or II. The subpoena shall areas of law: the sexual petition for an order subpoena. §3486(c). disclosed to any person describe the objects exploitation of modifying or quashing for use required to be children, and the the summons. Motion in, any administrative, produced and protective services shall be made in the civil, or criminal action prescribe a return date provided by the Secret U.S. District Court in or investigation directed within a reasonable Service to the which the person or against the individual period of time within President and others. entity resides or does who is the subject of which the objects can For example, in 1998, business. §3486(a)(5). the information unless be assembled and §3486 was enacted to the action or made available. grant the Attorney The Attorney General investigation arises out §3486(a)(2). General additional has delegated authority of and is directly administrative to the Assistant related to r eceipt of III. T he production of subpoena power, in Attorney General for health care or payment records relatin g to a cases involving the the Criminal Division for hea lth care or action Federal health offense sexual exploitation of and the United States involving a fraudulent shall not be required children. Pub. L. 105- Attorneys to issue claim related to health” more than 500 miles 314, §606(a)(2). Th en administrative or i f authori zed by a from the place where in 2000, the provisions subpoenas court of competent the subpoena is of §3486A were folded for health care fraud jurisdiction. §3486(e). served. §3486(a)(3). into §3486, which was offense further revised to investigations. These II. Executive Order No. IV. Witnesses shall be extend administrative subpoenas may be 13181, 65 Fed. Reg. paid the customary subpoena authority to issued by these 81321 (Dec. 30, 2000). fees for witnesses in the Secretary of the officials or their The Executive Order, U.S. Courts. Treasury, to investigate design ees on their own titled “To Protect the §3486(a)(4). threats against the initiative, or in Privacy of Protected President, the response to the request Health Information in V. Major cases President-elect, or of investigative Oversight interpreting the use of former Presidents, and agencies, such as the Investigations,” subpoenas under threat against person FBI. provides U.S. §3486 for the receiving pr otective government policy investigation of services from the concernin g protected Federal Health Care Secret Service. Pub. L. health information Offense: 106-544 § 5(a),(b)(1) discovered during the and (c).] course of health In re Subpoena Duces oversight activities. Tecum (Bailey, 228 F.3d 341 (4th Cir. III. The disclosur e of 2000) medical records of substance abuse In re Administrative patients is strictly Subpoena John Doe, limited by operation of 253 42 U.S.C. §290dd-2. F.3d 256(6th Cir. 20001). IV. Subpoenas issued under §3486 in the FBI requests for course of investigations issuance by U.S. of Federal health care Attorneys’ Office are offenses are subject to governed by the all other limitations gener al guidelines on placed on the investigation found production of evidence in: pursuant to compulsory 1. Attorney General process, for example: Guidelines on General Crimes, Racketeering a) The Right to Enterprise and Financial Privacy Act, Domestic 12 U.S.C. §3401 et Security/Terrorism seq., the Right to Investigations (March Financial Privacy Act 21, 1989). (RFPA). The RFPA 2. Internal FBI auth orizes the use of regulations found in administrative the Manual of subpoenas as a method Investigative to obtain from financial Operations and institutions the financial Guidelines (MIOG), records of the Part II, 10-8.2(1), customers of those “Access to institutions. §§3402(2) Transactional and 3405. Various Information: provisions provide for Telephone Toll notification to the Records, Subscriber customer and limit Listing Information.” disclosure of the financial information, Very useful for except where prohibited obtaining documents by this or anoth er during health care federal statute. fraud investigations. b) 5 U.S.C. §552a (Privacy Act): No disclosure is permitted without the prior written consent of the person to whom the record pertains, unless permitted by one of twelve exceptions; regulations are found at 28 C.F.R. Part 16, Subpart D. c) 5 U.S.C. §552(b) (Freedom of Information Act exemptions). Regulations at 28 C.F.R. Part 16, Subpart A.

d) Protection of Cable Subscriber Privacy, 47 U.S.C. §55.

e) Wrongful Disclosure of Video Tape Rental or Sale Records, 18 U.S.C. §2710. f) 42 U.S.C. §2000aa- 11(a) (“Guidelin es for Federal offices and employees”), when documents are in the possession of third parties. Regulations at 28 C.F.R. Part 59 (“Guidelin es on Methods of Obtaining Documentary Materials Held by Third Parties”). Department of 15 U.S.C. 78dd-2 For the purpose of any In case of contumacy The Attorney General Justice (Fraud civil investigation by, or refusal to obey may make such r ules Section, Criminal Foreign Corrupt which, in the opinion a subpoen a issued to, relating to civil Practices Act (FCPA) of the Attorney any person, the investigations as may Division): (prohibited foreign General, is necessary Attorney General may be necessary or trade pra ctices by and proper to enforce invoke the aid of any appropriate to domestic concerns) this section, the court of the United implement the Attorney General or his States within the provisions of this designee are jurisdiction of which subsection. empowered to such investigation or administer oaths and proceeding is carried 15 U.S.C. §78dd- affirmations, subpoena on, or where such 2(d)(4). witnesses, take person resides or evidence, and require carries on business, in All process in any the production of any requiring the such ca se may be books, papers, or other attendance and served in the judicial documents which the testimony of witnesses district in which such Attorney General and the production of person resides or may deems relevant or books, papers, or other be found. material to such documents. Any such investigation. The court may issue an 15 U.S.C. §78dd- attendance of witnesses order requiring such 2(d)(3) and the production of person to appear documentar y evidence before the Attorn ey may be required from General or his any place in the United designee, there to Sta tes, or any ter ritor y, produce records, if so possession, or ordered, or to give commonwealth of the testimony touching the United States, at any matter under design ated place of investigation. Any hearing. failure to obey such order of the court may 15 U.S.C. §78dd- be punished by such 2(d)(2). court as a contempt ther eof.

15 U.S.C. §78dd- 2(d)(3). Department of 15 U.S.C. 78dd-3 For the purpose of any In case of contumacy All process in any Justice (Fraud civil investigation by, or refusal to obey such ca se may be Section, Criminal Foreign Corrupt which, in the opinion a subpoen a issued to, served in the judicial Practices Act of the Attorney any person, the district in which such Division): (prohibited foreign General, is necessary Attorney General may person resides or may trade pra ctices by and proper to enforce invoke the aid of any be found. The persons other than this section, the court of the United Attorney General may issuers or domestic Attorney General or his States within the make such rules concerns) designee are jurisdiction of which relating to civil empowered to such investigation or investigations as may administer oaths and proceeding is carried be necessary or affirmations, subpoena on, or where such appropriate to witnesses, take person resides or implement the evidence, and require carries on business, in provisions of this the production of any requiring the subsection. books, papers, or other attendance and documents which the testimony of witnesses 15 U.S.C. 78dd- Attorney General and the production of 3(d)(5). deems r elevant or books, papers, or other material to such documents. Any such investigation. The court may issue an attendance of witnesses order requiring such and the production of person to appear documentar y evidence before the Attorn ey may be required from General or his any place in the United designee, there to Sta tes, or any ter ritor y, produce records, if so possession, or ordered, or to give commonwealth of the testimony touching the United States, at any matter under design ated place of investigation. Any hearing. failure to obey such order of the court may 15 U.S.C. 78dd- be punished by such 3(d)(2). court as a contempt ther eof.

15 U.S.C. 78dd- 3(d)(3). Department of Racketeer Influenced “Whenever the The Attorney General Issuance of a Civil Justice and Corrupt Attorney General has “may file, in the Investigative Demand (Organized Crime Organizations Act reason to believe that district court of the must be approved by (RICO) 18 U.S.C. any per son or United States for any the Organized Crime and Racketeering §1968 enterprise may be in judicial district in and Racketeering Section, Criminal possession, custody or which such person Section and either the Division): control of any resides, is found, or Attorney General, the documentary materials transacts business,” a Deputy Attorney relevant to a petition to enforce the General, the Associate racketeering civil investigative Attorney General, any invest igation , he ma y, demand. 18 U.S.C. Assistant Attorney prior to the institution §1968(g). General or any of a civil or criminal employee designated by proceeding,: issue a None. the Attorney General, written demand 18 U.S.C. §§ 1961(10) “requiring such per son and 1968. “No such to produce such demand shall - (1) material for contain any requirement examination.” 18 which would e held to U.S.C. §1968(a). be unreasonable if contained in a subpoena duces tecum”... or “require the production of any documentary evidence which would be privileged from disclosure if demanded by a subpoena duces tecum.” 18 U.S.C. § 1968(c). Department of 21 U.S.C. §876(a) 21 U.S.C. 876(a) To enforce an The DEA Agents The Attorney General Justice (Drug provides that: “[i]n an administrative Manual (Am) explains can issue administrative Enforcement investigation relating subpoena served under that certain types of to his functions under 21 U.S.C. §876, the information otherwise subpoenas to obtain Administration this subchapter with Attorney General subject to DEA’s testimony or materials [DEA]): respect to controlled “May invoke the aid administrative subpoena that he finds “relevant substances, listed of any court of the power are protected or material to” and chemicals, tableting United States...The from disclosure. The investigation, 21 machines, or court may issue an AM contains a detailed U.S.C. §876. The AM encapsulating order requiring the explanation of the Right states that the machines, the Attorney subpoenaed persons to to Financial Privacy subpoena powers General may subpoena appear before the Act (RFPA), which provided in the witnesses, compel the Attorney General to limits the disclosure of Controlled Substances attendance and produce records, if so financial information by Act “will be used testimony of witnesses ordered, or to give financial in stitutions, judiciously and with and require the testimony...Any Under the RFPA, DEA appropriate restraint.” production of any failure to obey the may use an AM §6614.23. The records (including order of the court may administrative subpoena AM also states that books, papers, be punished by the to obtain the name, subpoenas should be documents, and other court as a contempt address, account used pr imar ily for tangible things which thereof.” 21 U.S.C. numbers an d types of obtain ing information constitute or contain §876(c). accounts of a customer or docum ents fr om evidence) which the of a fina ncial institution business entities. The Attorney General finds without providing AM directs employees relevant material to the notice to the customer. serving an investigation. The In order to obtain any administrative subpoena may be used other information, subpoena to have due to compel the however, DEA must regard for the attendance and notify the customer by convenience of the testimony of witnesses, person al service or by person or entity and require the mailing a copy of the served, and, insofar as protection of any subpoena to his last possible, to permit records (including known address. The compliance in a books, papers, customer is given ten manner preferable to documents, and other days from personal them. tangible things which ser vice or four teen days constitute or contain from mailing to contest evidence) which the the action. The only Attorney General finds means of avoiding pr ior relevant material to the notification is by investigation.” The obtaining a court order Attorney General has delayin g notification for delegated all functions an initial 90 days, with vested in him by extensions in 90-day Controlled Substances increments. The delay ACT (CSA) to the order may be obtained DEA Administrator, 28 where there is a C.F.R. §0.100, Subpart “reasonable belief” that R. DEA’s notification would 1) Administrator has endanger the life or redelegated his physical safety of any authority to issue person administrative 2) result in flight from subpoenas to the prosecution following DEA 3) result in the personnel: Chief destruction or Inspector; The Deputy tampering with Chief Inspector and evidence Associate Deputy 4) result in the Chief Inspector of intimidation of a DEA’s Office of potential witness Professional 5) unduly delay a trial Resp ons ibi lity; or other judicial Inspector; Special proceeding, or Agents in Charge; 6) otherwise seriously Associate Special jeopardize and Agents in Charge; investigation or official Associate Special proceeding. Federal Agents in Charge; laws governing access Resident Agents in to stored wire and Charge: and Diversion electronic Program Managers, 28 communications also C.F.R. §0.100, provide protections to Appendix to Subpart the public. Under 18 R. U.S.C. §2703(c)(2), a The courts h ave provider of electronic consistently upheld the communications validity of the DEA’s service or remote administrative computing service can subpoenas. See United disclose only limited States v. Phibbs, 999 information without F.2d 1053 (6th Cir. notice to the subscriber 1993) (Government in response to need not secure administrative subpoena judicial warrant before ser ved by a service of DEA governmental entity. administrative Such information subpoenas); United consists of the States v. Harrington, customer’s name, 761 F.2d 1482 (1th Cir. address, local and long 1985) (subpoenas distance telephone issued by DEA connection records or between indictment records of session times and trial in drug- and durations, len gth of related prosecution service and types of were legal where service utilized, subpoenas issued to telephone or instrument third parties during number or other continuing subscriber number or investigation and were identify, and means and not running to indicted source of payment for individuals); United such service (including States v. Mountain any credit card or bank States Telephone and account num ber) of a Tel egr aph Comp any, subscriber. Other 516 F.. Supp. 225 (D. records pertaining to Wyo. 1981) (issuance the subscriber, of subpoena by Special including audit Agent in Ch arge of trails/logs, web sites DEA office was visited and iden tities of legitimate exercise of email correspondents, authority provided to can on ly be obtain ed by him); United States v. search warrant or court Hossbach, 518 F. Supp. order. With prior 759 (E.d. Pa. 1980) notice to the subscriber. (use by DEA of DEA can also use an administrative administrative subpoena subpoenas in to obtain unopened e- conducting criminal mail (in storage more investigation was than 180 days) or valid.) opened email still on the provider’s system. The n otice may be del ayed for 90 d ays under the same criteria listed above for information protected by the RFPA. Unopened e-mail storage 180 days or less can on ly be obtain ed by serving a search warrant. Department of 18 U.S.C. §3486, The Attorney General The Attorney General No notification The subpoena issued Justice (Federal Presidential Threat is authorized to issue may request an order requirements. See 18 under this statute Bureau of Protection Act of 2000, administrative from the district court U.S.C. §2703(c)(2). allows production of in the district in which records, other relevant Investigation Pub. L. No. 106-544, subpoenas for a federal 114 Stat. 2717, 1718 offense involving the the investigation May obtain an ex parte items, or telephone [FBI]): (2000). sexual exploitation or occurs or in which the order preventing the toll records. Or, in the abuse of children. subpoenaed per son disclosure of the alternative, the §3486(a)(1)(A)(i)(II). resides to compel existence of the custodian of those compliance with the summons for 90 days, records or other The Attorney General subpoena. Failure to renewable for relevant items may be delegated his authority comply with the court additional 90 day subpoenaed to address to “issue and cause to order may be punished periods for reasons their production and be served by the court as listed in §3486(a)(6)(B) authenticit y. administrative contempt. §3486(c). and (C). subpoenas” to the The subpoena may Director, FBI, by Order Privacy protection require: (1) the No. 2421-2000, dated required under oth er production of records 4/05/2001. The Order statutes and regulations: or other things provided that the relevant to the Director may 5 U.S.C. §552a investigation and the redelegate his authority (Privacy Act): No testimony of the to Special Agents in disclosure is permitted custodian of the things Charge (SACs), without the prior to be produced about Assistant Special written consent of the their production and Agents in Charge person to whom the authenticit y, (ASACs), an d Senior record pertains, unless §3486(a)(1)(B); or Supervisory Resident permitted by one of (2) when directed to a Agents (SSRAs), as the twelve exceptions; provider of electronic Director “deems regulations are found at communication appropriate.” The 28 C.F.R. Part 16, service or remote redelegation occurred Subpart D. computing service, the on 5/31/2001. subpoena may require 5 U.S.C. §552(b) that the provider (Freedom of disclose only: the Information Act name, address, local exemptions). and long distance Regulations at 28 telephone toll billing C.F.R. Part 16, Subpart records, telephone A. number or other subscriber number or 42 U.S.C. §2000aa- identity, and the 11(a) (“Guidelin es for length of ser vice of a Federal officers and subscriber to or employees”), when customer of such documents are in the service, and the types possession of third of services the parties. Regulations at subscriber or customer 28 C.F.R. Part 59 utilized wh ich may be (“Guidelin es on relevant to a law Methods of Obtaining enforcement inquiry, Documentary Materials §3486(a)(1)(C)(i); or Held by Third Parties”). require the custodian of records for that 20 U.S.C. § 1232g(b) provider to testify as (the Family Educational to the production and Rights and Privacy Act authentication of the of 1974 (FERPA) (the records or information Buckley Amendment). §3486(a)(1)(C)(ii). Regulations are found Use is governed by the at 34 C.F.R. Part 99. gener al guidelines on The Buckley investigation found Amendment permits a in: federal government 1. Attorney General entity (e.g., the FBI) to Guidelines on General obtain education Crimes, Racketeering records, as defined in Enterprise and and protected by the Domestic statute (other than Security/Terrorism unprotected directory Investigation (March information) from an 21, 1989). educational institution 2) Internal FBI that receives federal regulations found in funds. The parents and the Manual of the student must be Investigative notified in advance that Operations and the educational agency Guidelines (MIOG), or institution will Part II, 10-8.2(1), comply with the “Access to subpoena. Transactional §1232g(b)(2)(B). A Information: court (or other issuing Telephone Toll agency) may order Records, Subscriber nondisclosure to any Listing Information;” person of the contents MIOG, part I, 7-20, of or the existence of “Administrative the subpoena or Subpoenas in Child nondisclosure of the Abuse and Child information furnished Sexual Exploitation “for good cause Cases” (publication of shown,” section 7- 20 is §1232g(b)(1)(J). pending revision reflecting amendments to 18 U.S.C. §3486(a) by Pub.L. No. 106- 544).

Statute prohibits production of records beyond a distance of 500 miles from the place where the subpoena was served. §3486(a)(3).

45 C.F.R. §164.512(f) This regulation provides the minimum circumstances under which law enforcement can obtain medical records from health care providers by administrative subpoena if the requested information is: specific and limited in scope, relevant and material to a legitimate law enforcement inquiry, and if de-identified information can not be used. If state law is more stringent, state law applies. Department of 21 U.S.C. §876, The Attorney General The Attorney General 12 U.S.C. §3401 et Relevance or Justice (Federal Comprehensive Drug “may subpoena may request an order seq., the Right to materiality to the Bureau of Abuse Prevention and witnesses, compel the from the district court Financial Privacy Act investigation is Control Act of 1970, attendance and in the district in which (RFPA). [ The RFPA required for issuance Investigation commonly called the testimony of witnesses, the investigation auth orizes the use of of the subpoena. [FBI]): “Controlled Substances and require the occurs or the administrative §876(a). Act,” Pub. L. No. 91- production of any subpoenaed per son subpoenas as a method The subpoena may 513, Title II, 84 Stat. records (including resides to compel to obtain from financial require attendance of 1242, 1272 (1970). books, papers, compliance with the institutions the financial witnesses and documents, and other subpoena. Failure to records of the production of records tangible things which comply with the court customers of those at any designated constitute or contain order may be punished institutions. §§3402(2) place of hearing from evidence) which the by the court as and 3405. Various any place in any state Attorney General finds contempt. §876(c). provisions provide for or from any place or relevant or material to notification to the territory subject to the investigation.” customer and limit United States §876(a). disclosure of financial jurisdiction. §876(a). By Order No. 968-82, information, except dated 1/28/82, where permitted by this 42 U.S.C. §2000aa- reprinted at 47 Fed. or another federal 11(a) (“Guidelin es for Reg. 4989-01 (2/3/82), statute.] Federal officers and the Attorney General employees”), when authorized the 18 U.S.C. §2701 et documents are in the Director, FBI, to seq., the Electronic possession of third investigate criminal Communications parties. Regulations at law violations and Privacy Act (ECPA), as 28 C.F.R. Part 59 granted him authority amended by Pub. Law (“Guidelin es on concur rent with that of No. 107-56, Uniting Methods of Obtaining the Administrator, and Strengthening Documentary Drug Enforcement America by Providing Mater ials Held by Administration (DEA). Appropriate Tools Third Parties”). See 28 C.F.R. §0.85(a). Required to Intercept The Director, FBI, has and Obstruct Terrorism Use governed by the redelegated his Act (USA PATRIOT gener al guidelines on authority to issue Act) of 2001. [ECPA, investigation found in: administrative in relevant part, 1. Attorney General subpoenas to all authorizes a Guidelines on General Special Agents in governmental entity Crimes, Racketeering Charge (SACs), (e.g., the FBI) to Enterprise and Assistant Special require a provider of a Domestic Agents in Charge remote computing Security/Terrorism (ASACs), and service to disclose to Investigations (March Supervisory Sen ior that entity, the contents 21, 1989). Resident Agents of any wire or 2. Internal FBI (SSRAs) (28 C.F.R. electronic regulations found in App. To Subpart R, communication in a the Manual of sec. 4) and to remote computing Investigative supervisors of drug service by use of an Operations and investigation squads administrative subpoena Guidelines (MIOG), (pending publication in if prior notice is given Part I, 281-7 through the Federal Reg. by to the subscriber or 281-7.4 DEA). customer. (“Administrative §2703(b)(1)(B)(i). Subpoenas”); Part II, Delayed notice is 10-8.1, “Con tents of available under §2705. Electronic ECPA also authorizes a Communications in governmental entity Electronic Storage and (i.e., the FBI) to require Part II, 10-8.2(1), a provider of electronic “Access to communication service Transactional or remote computing Information: service to disclose to Telephone Toll that entity the name, Records, Subscriber address, local and long Listing Information,” distance telephone connection records or Necessary to fulfill records of session times responsibilities under and durations, 28 C.F.R. §0.85(a) to telephone or instrument investigate violations numbers or other of the controlled subscriber number or substance laws. identity, and length of service of a subscriber to or customer of such services and the types of service the subscriber or customer used, as well as means and source of payment for such service, including any credit card or bank account number. §2703(c)(2). No notice to the customer is required. §2703(c)(3), former ly, §2703(c)(1)(C).]

20 U.S.C. §1232g(b) (the Family Educational Rights and Privacy Act of 1974 (FERPA) (the Buckley Amendment). Regulations are found at 34 C.F.R. Part 99. [The Buckley Amendment permits a federal government entity (e.g., the FBI) to obtain education records, as defined in and protected by the statute (other than unprotected directory information) from an educational institution that receives federal funds. The parents and the student must be notified in advance that the educational agency or institution will comply with the subpoena. §1232g(b)(2)(B). A court (or other issuing agency) may order nondisclosure to any person of the contents of or the existence of the subpoena or nondisclosure of the information furnished “for good cause shown.” §1232g(b)(1)(J).]

Department of Immigration and “The Attorney General “Any U.S. district 12 U.S.C. §3401 et seq. 1) Docum ents to be Justice Nationality Act (INA) and any immigr ation court within the (“The Right to produced must be (Immigration and §235(d)(4); 8 U.S.C. officer sh all h ave jurisdiction of which Financial Privacy Act”) described with §1225(d)(4) power to r equir e by the investigations or definiteness and Naturalization subpoena the inquiries are being reasonable time to Service [INS]): attendance and conducted... may, in produce must be testimony of witnesses the even t of neglect or allowed; before immigr ation refusal to testify 2) Interr ogation of officers and the before an immigration subpoenaed person to production of books, officer, issue an order, be confined to scope papers, and documents requiring such persons of proceedings related to the privilege to appear before an involved; of any person to enter, immigration officer, 3) Prerequisite for reenter, reside in, or produce books, paper, issuance-reasonable pass through the and documents, if basis for belief that United states or dem anded, and testify, INA violation concernin g any matter and any failure to occurred. Sources: which is material and obey such order of the INS Operating relevant to the court may be punished Instructions (“OI”) enforcement of this by the court as 287.4; Investigations Act and the contempt thereof.” Handbook §3-3.9. administration of the Service, and to that end may invoke the aid of any court of the Untied States.” [ The Attorney General and Immigration officers may require by subpoena the attendance and testimony of witnesses and the production of books, papers, and documents related to the privilege of any person to enter, reenter, reside in, or pass through the United States or concernin g any matter which is material and relevant to the enforcement of this Act and the administration of the Service. ] Department of INA §274A(e)(2)(C); “In conducting “In case of contumacy 12 U.S.C. §3401 et seq. 1) Docum ents to be Justice 8 U.S.C. § investigations and or r efusal to obey a (“The Right to produced must be subpoena lawfully (Immigration and 1324a(e)(2)(C); 8 hearings under this Financial Privacy described with C.F.R. § subsection, issued under this Act”). definiteness and Naturalization 274a2(b)(2)(B)(ii) immigration officers paragraph... an reasonable time to Service [INS]): designated by the appropriate distr ict produce must be This section also Commissioner may court of the United allowed; provides for issuance compel by subpoena States may issue an 2) Interr ogation of of subpoenas by ALJs the attendance of order requiring subpoenaed person to in formal proceedings witnesses and the compliance with such be confined to scope initiated by the production of evidence subpoena and any of proceedings Service. Cf. Also at any designated place failure to obey such involved. 274B(f)(2). prior to the filin g of a order may be punished 3) Consultation with complaint in a case by such court as a U.S. Attorney or INS under paragraph (2).” contempt thereof.” Attorney advised before seeking subpoena issuance. Sources: OI 287.4; Special Agents Field Manual, 33.30(a)(1).

Department of INA § 274C(d)(1)(C); “In conducting “In case of contumacy 12 U.S.C. §3401 et seq. 1) Docum ents to be Justice 8 U.S.C. investigations and or r efusal to obey a (“The Right to produced must be (Immigration and §1324c(d)(1)(C); 8 hearings under this subpoena lawfully Financial Privacy described with CFR §270.2(C) subsection, issued under this Act”). definiteness and Naturalization immigration officers paragraph... an reasonable time to Service [INS]): designated by the appropriate distr ict produce must be Commissioner may court of the United allowed; compel by subpoena States may issue an 2) Interr ogation of the attendance of order requiring subpoenaed person to witnesses and the compliance with such be confined to scope production of evidence subpoena and any of proceedings at any designated place failure to obey such involved; prior to the filin g of a order may be punished 3) Prerequisite for complaint in a case by such court as a issuance-reasonable under paragraph (2).” contempt thereof.” basis for belief that INA violation occurred. Sources: INS Operating Instructions (“OI”) 287.4; Investigations Handbook §3-3.9. Department of INA §287(a); 8 U.S.C. “Under any regulations “The officer 12 U.S.C. §3401 et seq. The subpoena “shall Justice § 1357(a); 8 C.F.R. prescribed by the requesting the (“The Right to command th e person (Immigration and §287.4. Attorney General, an subpoena shall request Financial Privacy Act”) or entity to which t is officer or employee of the U.S. Attorney for address to attend and Naturalization the Service may ... the distr ict in which to give testimony at a Service [INS]): execute and serve any the subpoena was time or place order, warrant, issued to report specified... shall also subpoena, subpoena, negligence or refusal command th e person summons, or other to appear and testify or entity to which it is process issued under to the U.S. district addressed to produce the authority of the Court and to request the books, papers, or United States.” such court to issue an documents specified in order requiring the the subpoena... may witness to appear and direct the taking of a to testify and to deposition before an produce the books, officer of the Service.” paper or documents 8 CFR designated in the §287.4(b)(1),(2). subpoena.” Regulation also lists official authorized to issue subpoenas.** **Officials Authorized to issue subpoenas: District Directors, Deputy District Directors, Chief Patrol Agents, Deputy Chief Patrol Agents, Officers-in Ch arge, Patrol Agents in Charge, Assistant Directors for Investigations, Supervisory Criminal Investigators (Anti- Smuggling), Regional Directors, Service Center Directors, Assistant Directors for Examinations.

Department of INA §335(b); 8 U.S.C. “The Attorney General “Any district court of 12 U.S.C. §3401 et seq. 1) Docum ents to be Justice §1446(b); 8 C.F.R. shall designate the United States may, (“The Right to produced must be (Immigration and §§336.2(d)(1), 335.11 employees of the “in the event of Financial Privacy Act:) described with Service to conduct neglect or refusal to definiteness and Naturalization examinations upon respond to a subpoena reasonable time to Service [INS]): applications for issued by any such produce must be naturalization. For employee so allowed: such purposes any such designated or refusal 2) Interr ogation of employee so to testify before such subpoenaed person to design ated is hereby employee so be confined to scope authorized to... require designated issue an of proceedings by subpoena the order requiring such involved. Sources: OI attendance and person to appear 287.4. testimony of witnesses, before such employee including applicant, so designated, produce before such employee relevant books, so designated and the papers, and documents production of relevant if demanded and books, papers, and testify; and any failure documents...” to obey such order of the court may be punished by the court as contempt thereof.” Department of INA §336(d); 8 U.S.C. “The immigration Such subpoenas may 12 U.S.C. §3401 et seq. 1) Docum ents to be Justice 1447(d) officer shall, if the be enforced in the (“The Right to produced must be (Immigration and applicant requests it at same manner as Financial Privacy Act”) described with the time of filing the subpoenas under definiteness and Naturalization request for the hearing, section 335(b) (see reasonable time to Service [INS]): issue a subpoena for above provision) produce must be the witnesses nam ed by allowed; such applicant to appear upon the day set 2) Interr ogation of for the hearing, but in subpoenaed person to case such witnesses be confined to scope cannot be produced of proceedings upon the hearing other involved. Sources: OI witnesses may be 287.4. summoned upon notice to the Attorney General, in such manner and at such time as the Attorney General may by regulation prescribe.” Department of INA, 8 U.S.C. Upon application of a An Administrative None. A party must make a Justice (Executive §1324a(e)(2)(b); 8 party or by the Law Jude may apply showing of general Administrative Law through appropriate relevance of the Office for U.S.C. §1324b(f)(2); 8 U.S.C. Judge’s (ALJ) order, counsel to the evidence or testimony Immigration §1324c(d)(1)(B); 28 the ALJ may compel appropriate distr ict sought in the Review, Office of C.F.R. §68.25; 28 by subpoena the court of the United subpoena. The the Chief C.F.R. §68.28(a)(4). attendance of witnesses States for an order subpoena is used to Administrative and the production of requiring compliance obtain evidence or Hearing Officer Administrative Hearing evidence at any with the order or testimony in a Subpoenas. design ated place or subpoena. 28 C.F.R. determination of [EOIR])*: hearing. §68.25(e). whether a violation under the Immigration Act has occurred. Department of INA, 8 U.S.C. “Upon being satisfied “If a witness neglects None. A party must make a Justice (Executive §1229(b)(1); 8 C.F.R. that a witness will not or refuses to appear showing of general relevance of the Office for §3.35(b)(1). appear and testify or and testify as directed produce documentary by the subpoena testimony or other Immigration Administrative Hearing evidence that is served upon h im or evidence sought. The Review, Office of Subpoenas. essential, the her in accordance with subpoena is used to the Chief Immigration Judge the provisions of this obtain evidence or Immigration shall issue a section, the testimony in the Judge [EOIR] ): subpoena..” 8 C.F.R. Immigration Judge adjudication of an §3.35(b)(3) issuing the subpoena application for relief shall request the under the Immigration United States Attorney and Nationality Act. for the district in which the subpoena was issued to report such neglect or refusal to the United States District Court and to request such court to issue an order requiring the witness to appear and to testify and to produce the [documents] designated in the subpoena.” 8 C.F.R. §3.35(b)(6)

Department of Inspector General Act “Production of all “In the case of Right to Financial “The Inspector Justice (Office of of 1978, as amended, 5 information, contumacy or refusal Privacy Act, 12 U.S.C. General acts under the Inspector General): U.S.C. App. 3, Section documents, reports, to obey, shall be §340 et seq. “auth ority, direction 6(a)(4). answers, records, enforceable by order and control” of the (authority limited in accounts, papers, and of any appropriate Fair Credit Reporting Attorney General with regard to subpoena of other data and United states district Act, 15 U.S.C. §1681. respect to issuance of certain sen sitive documentar y evidence court.” Id. subpoenas, which information under id. necessary in the Access to Tax Return require access to At Section 8E.) performance of the Information, 26 U.S.C. sensitive in formation functions assign ed by §6103. concerning– [the IG Act]... (A)ongoing civil or procedures other than Individually criminal investigations subpoenas shall be Identifiable Health or proceedings; (B) used by the Inspector Information, 45 C.F.R. undercover operations; General to obtain §§160, 164 (not yet in (C) th e identity of documents and effect) confidential sources, information from including protected Federal agencies.” Id. Substance Abuse and witnesses; (D) Mental Health intelligence or Information counterin telligence 42 C.F.R. Part 2 matters; or (E)other matters, the disclosure Electronic of which would Communication Privacy constitute a serious Act threat to national 18 U.S.C. §2701 security. (2) With respect to the Cable Subscriber information described Privacy Protection under paragraph (1), 47 U.S.C. §551 the Attorney General may prohibit the Family Education Inspector General Privacy Right Act from carryin g out or 20 U.S.C. completing any audit §1232g(b)(2)(B) or investigation , or from issuing any Video Tape Rental or subpoena, after such Sale Information Inspector General has 18 U.S.C. §2710 decided to initiate, carry out, or complete such audit or investigation or to issue such subpoena, if the Attorney General the United determines that such prohibition is necessary to prevent this disclosure of any information described under par agraph (1) or to prevent the significant impairment of interests of the States. (3) If the Attorney General exercises any power under par agraph (1) or (2), the Attorney General shall n otify the Inspector General in writing stating the reasons for such exercise. Within 30 days after receipt of any such notice, the Inspector General shall transmit a copy of such notice to the Committee on Governmental Affairs and Judiciary of the Senate and Committees on Governmental Operations and Judiciary of the House of Representatives, and to other appropriate committees or subcommittees of the Congress.” 5 U.S.C. App. 3, Section 8E.

Appendix C:

Administrative Subpoena Authorities Held by the Department of 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 C

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

* Denotes Administrative Law Judge authority Name of Source and Scope of Authority Enforcement Notification Req. Issuance Standards Component or other Common Name of Description Mechanism and Privacy and Qualifiers or Entity Authority (Including Description Protections Procedures Act Name, P.L. and USC & CFR cities) Department of the 27 U.S.C. §202 “power to require by Agency Order of Writ None. Relevance to any Treasury (Bureau (Federal Alcohol subpoena the of Mandamus issued matter under of Alcohol, Administration Act) 49 attendance and by U.S. District court. investigation. Stat. 977, renumbered testimony of witnesses See 15 U.S.C.§49. Toacco, and Pub.L. 100-690 and the production of Firearms [ATF]): allsuch documentary evidence relating to any matter under investigation.”

15 U.S.C. §49, as incor porated by reference in 27 U.S.C. §202(g)

Treasury 26 U.S.C. §7602 ‘(a)Authority to (a) In general. (c) Notice of contact of Relevance or Department Internal Revenue Code summon, etc. For the Whenever an y person third parties. (1) materiality to an (Bureau of Alcohol, Pub.L. 94-455 purpose of ascertaining summoned under 26 General notice. An inquiry into the tax Tobacco, and Pub.L. 97-248 the correctness of any U.S.C. 7602 neglects officer or employee of liability of any person. Firearms [ATF] ): Pub.L. 105-206 return, making a return or refuses to obey such the Internal Revenue where none has been summons, or to Service may not 27 C.F.R. § 70.24 et made, determining the produce books, papers, contact any person seq. liability of an y person records, or other data, other than the taxpayer for any internal or to give testimony, as with respect to the revenue tax or the required, application determination or liability at law or in may be made to the collection of the tax equity of any judge of the district liability of such transferee or fuduciary court or to a U.S. taxpayer without of any person in magistrate for the providing reasonable respect of any internal district within which notice in advance to revenue tax, or the person so the taxpayer that collecting any such summoned resides or is contacts with persons liability, the Secretary found for an other than the taxpayer is authorized–(1) To attachment against him may be made. examine any books, as for a contempt.(b) (2) Notice of specific paper s, records, or Persons who may contacts. The other data which may apply for an Secretary shall be relevant or material attachment. periodically provide to to such inquiry; (2) To Appropriate ATF a taxpayer a record of summon the person officers are auth orized persons contacted liable for tax or to apply for an during such per iod by required to perform the attachment as provided the Secretary with act, or any officer or of in paragraph (a) of this respect to the the internal revenue section. The authority determination or laws.” employee of to apply for an collection of the tax such person, or any attachment for the liability of such person having enforcement of taxpayer. Such record possession, custody, or summons may not be shall also be provided care of books of redelegated. upon request of the account containing taxpayer. entries relating to the 27 C.F.R. § 70.24 (3)Exceptions. This business of the person subsection shall n ot liable for tax or apply. required to perform the (A) to any contact act, or any other person which the taxpayer has the Secretary may uthorized; deem proper, to (B) if the Secretary appear before the determines for good Secretary at a time and cause shown that such place named in the notice would summons and produce jeopardize collection such books, papers, of any tax or such records, or other data notice may in volve and to give such reprisal against any testimony, under oath, peson; or (C) with as may be relevant or respect to any pending material to such criminal investigation. inquiry; and (3) to take 26 U.S.C. §7602(c) such testimony of the and (a) When the person concerned, Bureau summons the under oath, as may be records of persons relevant or material to defined by 26 U.S.C. such inquiry. (b) 7609(a)(3) as “third Purpose may include party inquiry into offense. recordkeepers”,the The purposes for which person about whom the Secretary may take information is being any action described in gath ered must be paragraph (1),(2), or notified in advance, (3) of subsection(a) except when: (1) The include th e purpose of summons is served on inquiring into any the person about whom offense connected with information is being the admin istration or gathered, or any officer enforcement of the or employee of such internal revenue laws.” person, or (2) The summons is served to determine wheth er or not records of the business transactions or affairs of an identified person have been made or kept, or (3) The summons does not identify the person with respect to whose liability the summons is issued (a “John Doe” summons issued under the provisions of 26 U.S.C. 7609(f)), or (4) The appropriate ATF officer petitions, and the court determines, on the basis of the facts and circumstances reasonable cause to believe the giving of notice may lead to attempts to conceal, destroy, or alter records relevant to the examination, to prevent the communication of information from other persons through intimidation, bri bery, or collusion, or to flee to avoid prosecution, testifying or production of records. (b) Within 3 days of th e day on which the summons was served, the notice required by paragraph (a) of this section a summons as to which notice is require under paragraph (a) of this section shall be served upon the per son entitled to notice, or mailed by certified or registered mail to the last known address of such person, or, in the absence of a last known address, left with the person summon3d. No examination of any records required to be produced under a summons as to which notice is required under par agraph (a) of this section may be made: (1) Before the close of the 23rd day after the day notice with respect to the summons is given in the manner provided in this paragraph, or (2) Where a proceeding under par agraph (c) of this section was begun within the 20-day period referred to in that paragraph and the requirements of paragraph (c) of this section have been met, expect in accordance with an order of the court having jurisdiction of such proceeding or with the consent of the person beginning the proceeding to quash. (c) If the person about whom information is being gathered has been given notice, that person has the right to institute, until and including the 20th day following the day such notice was served on or mailed, by certified or registered mail, to such notified person, a proceeding to quash the summons. During the time th e validity of the summons is being litigated, the statutes of limitation are suspended under 26 U.S.C. 7609(e). Title 26 U.S.C. 7609 does not restrict the authority under 26 U.S.C. 7602 (or under any oth er provision of law) to examine records and witnesses without serving a summons and without giving notice of an examination.”

27 C.F.R. § 70.25 Treasury 26 U.S.C. §5274 “power to require by Agency Order of Writ None Relevance to any Department (Internal Revenue subpoena the of Mandamus issued matter under (ATF): Code); Pub.L. 94-455; attendance and by U.s. District court. investigation 27 C.F.R. §70.24 et testimony of witnesses See 15 U.S.C. §49. seq. and the production of all suchdocumentary evidence relating to any matter under investigation.”

15 U.S.C. § 49, as incor porated by reference in 26 U.S.C. § 5274 Treasury 12 U.S.C. §1818(n) The agency or any The agency or any Right to Financial Same as stan dard set Department designated party to any Privacy Act 12 USC forth in US v. Morton (Office of representative shall proceeding under 12 3401 et seq. Salt, 388 U.S. 632 have the power to USC 1818 may apply (1950). Comptroller of issue, revoke, quash or to the US Dist. Ct. the Currency): modify subpoenas and where the witness subpoenas duces tecum resides or carries on business for enforcement of the Subpoena Treasury 12 U.S.C. §481 Gives examiners the None Any institution Department authority to administer supervised by the OCC (Office of oaths and access documents during an Comptroller of examination. the Currency): Treasury 12 CFR 19.34 Upon application of a The subpoenaing party Right to Financial A party must make a Department Administrative party the ALJ may or any aggrieved party Privacy Act 12 USC showing of general (Office of Hearing Subpoenas issue a subpoena or may seek enforcement 3401 et seq. relevance and subpoena duces tecum pursuant to 12 CFR reasonableness of Comptroller of requiring the 19.26(c) which scope of the testimony the Currency):* attendance of a witness provides for or other evidence at the hearing or the application to the sought production of appropriate US Dist. documen tary or Ct. for an order physical evidence at requiring compliance the hearing Treasury 12 CFR 19.170 and A party may take the Enforcement shall be A party desiring to Department 19.171 Administrative deposition of an in accordance with the take a deposition shall procedures set forth in give reasonable notice (Office of Discovery Depositions expert, or of a person, including another 12 CFR 19,27(d) in writing to the Comptroller of party, who has direct which provides for deponent and to every the Currency): knowledge of matters application to the US other party to the that are non-privileged, Dist. Ct. for an order proceeding, stating the relevant, and material requiring compliance time and place for to the proceeding and taking th e deposition where there is a need and the name and for the deposition address of the person to be deposed.

Treasury 12 CFR 19.26 Any party may apply Apply to the Right to Financial The application to the Department Administrative to the Administrative appropriate US Dist. Privacy Act 12 USC ALJ must contain a Ct. for an order 3401 et seq (Office of Document Subpoenas Law Judge for the . proposed subpoena and to Non-Parties issuance of a document requiring compliance a brief statement Comptroller of subpoena to an y person showing the general the Currency)*: who is not a party to relevance and the proceeding reasonableness of the scope of documents sought Treasury 12 CFR 19.27 A party desiring to Apply to the A party desiring to The ALJ may issue a Department Administrative preserve the testimony appropriate US Dist. take a deposition shall deposition subpoena (Office of Deposition of Witness of a witness who will Ct. for an order give reasonable notice upon a showing that: Unavailable for be unavailable for requiring compliance in writing to the (1) th e witness will be Comptroller of Hearing hearing may apply to with the portions of the deponent and to every unavailable to attend the Currency)*: the ALJ for issuance of subpoena that the ALJ other party to the or may be prevented a subpoena including a has ordered enforced proceeding, stating the from attending the subpoena duces tecum time and place for hearing because of age, taking th e deposition sickness or infirmity or and the name and will otherwise be address of the person unavailable; (2) the to be deposed. testimony is reasonably expected to be material; and (3) taking th e deposition will not result in any undue burden to any other party and will not cause undue delay of the proceeding Treasury Tariff Act of 1930, Summons, enforceable Third Party summons: Special-Agent-In- Department P.L. No. 91-271; 19 in Court Requires that the Charge is responsible (Customs): U.S.C. §1509; 19 person to whom the for any such ongoing C.F.R. §163.7 records pertain has an investigation and will opportunity to stay determine the propriety compliance with the of the ser vice of summons by giving Customs Summons. notice in writing to the Any exceptions to this person summoned not determination will be to comply and mailing coordinated by the by registered or Assistant certified mail. Notice Commissioner need not be given if (Investigations) and summons issued to any other relevant determine existence of Assistant records if a Court order Commissioners in is obtained stating that consultation with Chief notice may lead to an Counsel. attempt to conceal, destroy or alter records. Right to Financial Privacy Act, 12 U.S.C. §3401 et seq. Treasury Controlled Substances Authorizes the Controlled Substances Right to Financial Must be signed by one Department Enforcement, P.L. No. Secretary of the Enforcement Privacy Act, 12 U.S.C. of the following: (Customs): 91-513, 21 U.S.C. Treasury to subpoena Subpoena, enforceable §3401 et seq. Assistant §967 witnesses and records in Court Commissioner relevant to the (Investigations), enforcement of 18 Deputy Assistant U.S.C. §545 Commissioner (smuggling), with (Investigations), respect to controlled Director, Strategic substances (as defined Investigations Division in 21 U.S.C. §802) Customs Attaches, Senior Customs Representatives, Special-Agents-In- Charge, Resident- Agents-In-Charge. If company or individual refuses to com ply, Chief Counsel should be contacted. Can be redelegated by Special- Agency-In-Charge or the Resident-A gen cy- In-Charge.

Treasury International Inherent in IEEPA is Summons, enforceable Right to Financial Must be signed by one Department Emergency Economic Customs ability to in Court Privacy Act, 12 U.S.C. of the following: (Customs): Powers Act (IEEPA) demand any records § 3401 et seq. Assistant 50 U.S.C. §1701 et relating to a possible commissioner seq.: 31 C.F.R. Part violation of the statute. (Investigations), 171 “In any case in which a Deputy Assistant report by a person commissioner could be required (Investigations),Direct under this paragraph, or, Strategic the President may Investigations Division require the production Customs Attaches, of any books of Senior Customs account, records, Representatives, contracts, letters, Special-Agents-In- memoranda, or other Charge, Resident- paper s, in the custom Agents-In-Charge. If or control of such company or individual person.” 50 U.S.C. § refuses to com ply, 1702(a)(2). Courts Chief Counsel should have ruled that “the be contacted. Cann ot requirement that one be redelegated. engaged in handling commodities under government regulation by required to keep records would be rendered futile and nugatory if there was no right of inspector of such records by the proper government representatives.” Wilson v. Untied States, 221 U.S. 361(1911). Treasury Bank Secrecy Act, P.L. For an y investigation Summons of Financial Any financial Deputy Commissioner, Department No. 97-258, 31 U.S.C. for the purpose of civil Institutions and Their institution that makes a Assistant (Customs): §5318; 31 C.F.R. enforcement of Officers, enforceable disclosure of any Commissioners, and §103.71-77 violations of the in Court possible violation of Special-Agent-In- Currency and Foreign law or regulation or a Charge Transactions Reporting disclosure pursuant to Act, U.S.C.§§5311-24, this subsection or any 12 U.S.C. §1829b, 12 other authority, shall U.S.C. §1951et seq., or not be liable to any section 411 of the person under any law National Housing Act: or regulation for 1) Examine any books, disclosure or for failure papers, records or other to notify of such data of domestic disclosure. financial institutions relevant to the Unless auth orized by recordkeeping and Secretary or delegate reporting requirements in writin g, in formation of 31 U.S.C. §§5311 et obtained from this seq.: 2) summon a summons authority financial institution, an shall not be disclosed officer or employee of Right to Financial a financial institution, Privacy Act, 12 U.S.C. or any person having §3401 et seq. possession, custody, or care of the reports and records to give testimony under oath. Treasury Arms Expor t Control Customs may obtain Summons, enforceable Right to Financial Must be signed by one Department Act, P.L. No. 90-629, information and make in Court Privacy Act, 12 U.S.C. of the following: (Customs): 22 U.S.C. §2778 such inspector of the §3401 et seq. Assistant (Statute states that books, records, and Commissioner Customs shall have other writings (Investigations), same authority as premises, or property Deputy Assistant stated in 50 U.S.C. related to and AECA Commissioner §2411(a)(c) (through violation. (Investigations), the Export Director, Strategic Administration Investigations Division Regulations [62 Fed. Customs Attaches, Reg. 12714, March 25, Senior Customs 1996) (EAR) codified Representatives, at 15 C.F.R. Parts 730- Special Agents-In- 774, which have been Charge, Resident- continued in effect Agents-In-Charge. If after expiration of the company or individual promulgating statutory refuses to com ply, authority, (Export Chief Counsel should Administration Act, 50 be contacted. Cann ot U.S.C. §2401 et seq. be redelegarted. (EAA), by Execut ive Order of the President. See Notice of Continuation of Executive Order No. 12924, August 212, 2001 66 Fed. Reg. 44025)). Treasury Trading with the Investigate any Presumably U.S. None None Department Enemy Act (TWEA) transactions in which a District Court (Office of Foreign 50 U.S.C. app §1 et foreign person or state contempt proceedings seq subject to economic (none have been Asset Control sanctions has an judicially enforced in [OFAC]): interest recent history)

Treasury International Investigate any Presumably U.S. None None Department Emergency Economic transactions in which a District Court (Office of Foreign Powers Act 50 U.S.C. foreign personor state contempt proceedings § 1601 et seq. subject to economic (none have been Asset Control sanctions has an judicially enforced in [OFAC]): interest recen t hist ory)

Treasury 31 U.S.C. §5318 (the Section 6(a)(4) of the The Attorney General Summons must be Department Bank Secrecy Act), Inspector General Act may request an order issued for the purpose from a federal district of civil enforcement (Financial Crimes and 31 CFR §§103.71- of 1978, The Secretary 103.77. of the Treasury may court to comply. investigations of Enforcement summon a financial Failure to comply with violations of the Bank Network[FinCen]) institution, an officer the order may be Secrecy Act or : or employee of a punishable by regulation thereunder. financial institution contempt. No N/A (including a former notification officer of employee)f, requirements. or any person having possession, custody, or care of the reports and records in connection with investigations for the purpose of civil enforcement investigations of the Bank Secrecy Act or any regulation thereunder.

NOTE: This authority has been delegated by regulation to, among other agencies, the Office of Financial Enforcement, an office department that no longer exists within the Treasury Department. The functions of this office have been subsumed by the Financial Crimes Enforcement Network (“FinCEN”). While FinCEN has the authority to issue summonses, it does n ot do so. The Internal Revenue Service issues summonses, with FinCEN approval, when it needs information in connection with a Title 31 Bank Secrecy Act examination of certain financial in stitutions. Treasury Inspector General Act “production of all “in the case of Right to Financial Decision to issue IG Department of 1978, as amended, 5 information, contumacy or refusal Privacy Act, 12 U.S.C. subpoena is reviewed Section 3401 et seq. (Office of U.S.C.A. app. §3, documents, reports, to obey, shall be by auditor’s or Section 6(a)(4) answers, records, enforceable by order of investigator’s Inspector accounts, papers, and any appropr iate United supervisors, by IG General): other data and States district court” Counsel, and by the documentar y evidence IG. Alternative means necessary in the to obtain information performance of the are tried first, and functions assign ed by scope of subpoena is [the IG made as narrow as Act]...procedures other possible, consistent than subpoenas shall with case needs. be used by the Inspector General to obtain documents and information from Federal agencies.

Treasury Internal Revenue Code Authority to summons Judicial enforcement; 26 USC 7602(c); 26 USC 7602(a)(2); Department (IRS): books, records or other 26 USC 7604; 7609(f), 7609(a); 7611(a), (b); US v. Powell, 379 US 26 USC §7602(a); data, and to obtain (g) & (h); 7210; but 7612(c)(2); 6103(a); 48 (1964), “may be §6420(e)(2); testimony th at may be see 7609(b) and 6503(j) relevant”; 26 USC §6421(g)(2); relevant or material to 7612(b)(4) 7602(b), inquiry into §6427(j)(2) the investigation for “any offense”; 26 USC the purpose of 7602(d), 7603, 7605, ascertaining the 7609, 7611, 7612, correctness of a tax 6503(j) return, making a tax return, determining the liability of an y person for a tax, or collecting a tax liabi lity. Treasury Money and Finance 31 Authority to summon Judicial Enforcement Subject to Right to Criminal Investigation Department (IRS): USC §5318 books, papers, records, 31 USC 5318(e) Financial Privacy Act limited to use of Title or other data, and to Subject to Right to 12 USC 3401-3422 31 summons in relation obtain testimony as to processing civil may be relevant in forfeitures in relation connection with to Title 31 violation. investigations for the purpose of civil enforcement of 31 U.S.C. 5311, et seq. Treasury Presidential Threat Section 3486 Subsection (9)(c) Subsection (a)(5) Determination of Department Protection Act of 2000, (a)(1)(A)(ii) authorizes provides for DOJ permits th e recipient of imminent threat enforcement by an admin istrative against a Secret (United States P.L. 106-544; 18 USC the Secretary of 3486 (Administrative Treasury to issue an requesting an order subpoena to seek to Service protectee or Secret Service Subpoenas/Pr otective administrative requiring a subpoenaed modify th e scope of conduct constituting an [USSS]): Threats) subpoena if the person or entity to the admin istrative offense enumerated Director of the Secret appear. Failure to demand, or modify any under 18 USC 871 Service determines that appear may result in a a court nondisclosure (Threat Investigations a threat against a contempt order. order acquired by the Involving the President Secret Service government. and Successors to the protectee is imminent. Presidency) and 18 USC 879 Threat Investigations Involving former Presidents and other Secret Service Protectees).

Treasury Section 10(g)(2) of the The Office of Thrift OTS’s administrative All OTS investigative OTS administrative Department (Office Home Owners’ Loan Supervision (OTS) subpoenas are enforced proceedings and formal subpoenas are issued of Thrift Act (HOLA), 12 authority to issue through a civil action examination are incident to Supervision): U.S.C. §1467a(g)(2) administrative brought by OTS in private and the record investigative [investigative subpoenas in United States District of such proceedings, proceedings and formal subpoenas] investigative Court. See e.g., 12 including subpoenas examinations. proceedings arises U.S.C. 1818(n). issued by OTS, are Accordingly, their and under section 10(g)(2), confidential. See 12 issuance must be in of the Home Owners’ CFR 512.3. Further, compliance with Section 5(d)(1)(B) of Loan Act (HOLA), 12 the provisions of the lawful authori ty, the HOLA, 12 U.S.C. U.S.C. 1467a(g)(2), Right to Financial related to the subject of §1464(d)(1)(B); and to issue Privacy Act, 12 U.S.C. the investigation or Section 7(j)(15) of the administrative §3410 et seq., apply to formal examination Federal Deposit subpoenas in formal OTS administrative and intended to obtain Insurance Act (FDIA), examination subpoenas. There is no information that is 12 U.S.C. §1818(n); proceedings with requirement that OTS relevant and material and section 19(c) of respect to savings provide notification to to the investigation or the FDIA, 12 U.S.C. associations and their the subject of a examination. 1820(c). [formal affiliates ar ises under subpoena prior to the examination section 5(d)(1)(B) of issuance of the proceedings] the HOLA, 12 U.S.C. subpoena. 1464(d)(1)(B), section 7(j)(15) of the Federal Deposit Insur ance Act (FDIA), 12 U.S.C. 1818(n), and section 10(c) of the FDIA, 12 U.S.C. 1820(c). Treasury Inspector General Act Section 6(a)(4) of the Subpoena may be Right to Financial Administrative Department of 1978, 5 U.S.C. app. Inspector General Act enforced by order by Privacy Act of 1978, subpoena cannot be (Treasury §3 permits IG to require appropriate distr ict 12 U.S.C. §§3401- served on federal by subpoena the court. (I.G. Act 3422, for financial agencies. Inspector General production of §6(a)(4)). Current records provides for Administrative for Tax documen ts or procedure is to ask notification to subpoena cannot be Administration information necessary DOJ to seek customer used for testimony. [TIGTA]): in the per formance of enforcement of Electronic the functions assigned subpoena, if necessar y. communications in by the Act. electronic storage accessed pursuant to 18 U.S.C. §2703