[Code of Federal Regulations]
[Title 10, Volume 3]
[Revised as of January 1, 2005]
From the U.S. Government Printing Office via GPO Access
[CITE: 10CFR205.8]

[Page 10-13]
 
                            TITLE 10--ENERGY
 
                    CHAPTER II--DEPARTMENT OF ENERGY
 
PART 205_ADMINISTRATIVE PROCEDURES AND SANCTIONS--Table of Contents
 
                      Subpart A_General Provisions
 
Sec. 205.8  Subpoenas, special report orders, oaths, witnesses.

    (a) In this section the following terms have the definitions 
indicated unless otherwise provided.
    (1) ``DOE Official'' means the Secretary of the Department of 
Energy, the Administrator of the Economic Regulatory Administration, the 
Administrator of Energy Information Administration, the General Counsel 
of the Department of Energy, the Special Counsel for Compliance, the 
Assistant Administrator for Enforcement, the Director of the Office of 
Hearings and Appeals, or the duly authorized delegate of any of the 
foregoing officials.
    (2) ``SRO'' means a Special Report Order issued pursuant to 
paragraph (b) of this section.
    (b) (1) In accordance with the provisions of this section and as 
otherwise authorized by law, a DOE Official may sign, issue and serve 
subpoenas; administer oaths and affirmations; take sworn testimony; 
compel attendance of and sequester witnesses; control dissemination of 
any record of testimony taken pursuant to this section; subpoena and 
reproduce books, papers, correspondence, memoranda, contracts 
agreements, or other relevant records

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or tangible evidence including, but not limited to, information retained 
in computerized or other automated systems in possession of the 
subpoenaed person. Unless otherwise provided by Subpart O, the 
provisions of this section apply to subpoenas issued by the office of 
Hearings and Appeals with respect to matters in proceedings before it.
    (2) A DOE Official may issue a Special Report Order requiring any 
person subject to the jurisdiction of the ERA to file a special report 
providing information relating to DOE regulations, including but not 
limited to written answers to specific questions. The SRO may be in 
addition to any other reports required by this chapter.
    (3) The DOE Official who issues a subpoena or SRO pursuant to this 
section, for good cause shown, may extend the time prescribed for 
compliance with the subpoena or SRO and negotiate and approve the terms 
of satisfactory compliance.
    (4) Prior to the time specified for compliance, but in no event more 
than 10 days after the date of service of the subpoena or SRO, the 
person upon whom the document was served may file a request for review 
of the subpoena or SRO with the DOE Official who issued the document. 
The DOE Official then shall forward the request to his supervisor who 
shall provide notice of receipt to the person requesting review. The 
supervisor or his designee may extend the time prescribed for compliance 
with the subpoena or SRO and negotiate and approve the terms of 
satisfactory compliance.
    (5) If the subpoena or SRO is not modified or rescinded within 10 
days of the date of the supervisor's notice of receipt, (i) the subpoena 
or SRO shall be effective as issued; and (ii) the person upon whom the 
document was served shall comply with the subpoena or SRO within 20 days 
of the date of the supervisor's notice of receipt, unless otherwise 
notified in writing by the supervisor or his designee.
    (6) There is no administrative appeal of a subpoena or SRO.
    (c) (1) A subpoena or SRO shall be served upon a person named in the 
document by delivering a copy of the document to the person named.
    (2) Delivery of a copy of the document to a natural person may be 
made by:
    (i) Handing it to the person;
    (ii) Leaving it at the person's office with the person in charge of 
the office;
    (iii) Leaving it at the person's dwelling or usual place of abode 
with a person of suitable age and discretion who resides there;
    (iv) Mailing it to the person by registered or certified mail, at 
his last known address; or
    (v) Any method that provides the person with actual notice prior to 
the return date of the document.
    (3) Delivery of a copy of the document to a person who is not a 
natural person may be made by:
    (i) Handing it to a registered agent of the person;
    (ii) Handing it to any officer, director, or agent in charge of any 
office of such person;
    (iii) Mailing it to the last known address of any registered agent, 
officer, director, or agent in charge of any office of the person by 
registered or certified mail, or
    (iv) Any method that provides any registered agent, officer, 
director, or agent in charge of any office of the person with actual 
notice of the document prior to the return date of the document.
    (d)(1) A witness subpoenaed by the DOE shall be paid the same fees 
and mileage as paid to a witness in the district courts of the United 
States.
    (2) If in the course of a proceeding conducted pursuant to subpart M 
or O, a subpoena is issued at the request of a person other than an 
officer or agency of the United States, the witness fees and mileage 
shall be paid by the person who requested the subpoena. However, at the 
request of the person, the witness fees and mileage shall be paid by the 
DOE if the person shows:
    (i) The presence of the subpoenaed witness will materially advance 
the proceeding; and
    (ii) The person who requested that the subpoena be issued would 
suffer a serious hardship if required to pay the witness fees and 
mileage. The DOE Official issuing the subpoena shall make the 
determination required by this subsection.

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    (e) If any person upon whom a subpoena or SRO is served pursuant to 
this section, refuses or fails to comply with any provision of the 
subpoena or SRO, an action may be commenced in the United States 
District Court to enforce the subpoena or SRO.
    (f) (1) Documents produced in response to a subpoena shall be 
accompanied by the sworn certification, under penalty of perjury, of the 
person to whom the subpoena was directed or his authorized agent that 
(i) a diligent search has been made for each document responsive to the 
subpoena, and (ii) to the best of his knowledge, information, and belief 
each document responsive to the subpoena is being produced unless 
withheld on the grounds of privilege pursuant to paragraph (g) of this 
section.
    (2) Any information furnished in response to an SRO shall be 
accompanied by the sworn certification under penalty of perjury of the 
person to whom it was directed or his authorized agent who actually 
provides the information that (i) a diligent effort has been made to 
provide all information required by the SRO, and (ii) all information 
furnished is true, complete, and correct unless withheld on grounds of 
privilege pursuant to paragraph (g) of this section.
    (3) If any document responsive to a subpoena is not produced or any 
information required by an SRO is not furnished, the certification shall 
include a statement setting forth every reason for failing to comply 
with the subpoena or SRO.
    (g) If a person to whom a subpoena or SRO is directed withholds any 
document or information because of a claim of attorney-client or other 
privilege, the person submitting the certification required by paragraph 
(f) of this section also shall submit a written list of the documents or 
the information withheld indicating a description of each document or 
information, the date of the document, each person shown on the document 
as having received a copy of the document, each person shown on the 
document as having prepared or been sent the document, the privilege 
relied upon as the basis for withholding the document or information, 
and an identification of the person whose privilege is being asserted.
    (h)(1) If testimony is taken pursuant to a subpoena, the DOE 
Official shall determine whether the testimony shall be recorded and the 
means by which the testimony is recorded.
    (2) A witness whose testimony is recorded may procure a copy of his 
testimony by making a written request for a copy and paying the 
appropriate fees. However, the DOE official may deny the request for 
good cause. Upon proper identification, any witness or his attorney has 
the right to inspect the official transcript of the witness' own 
testimony.
    (i) The DOE Official may sequester any person subpoenaed to furnish 
documents or give testimony. Unless permitted by the DOE Official, 
neither a witness nor his attorney shall be present during the 
examination of any other witnesses.
    (j)(1) Any witness whose testimony is taken may be accompanied, 
represented and advised by his attorney as follows:
    (i) Upon the initiative of the attorney or witness, the attorney may 
advise his client, in confidence, with respect to the question asked his 
client, and if the witness refuses to answer any question, the witness 
or his attorney is required to briefly state the legal grounds for such 
refusal; and
    (ii) If the witness claims a privilege to refuse to answer a 
question on the grounds of self-incrimination, the witness must assert 
the privilege personally.
    (k) The DOE Official shall take all necessary action to regulate the 
course of testimony and to avoid delay and prevent or restrain 
contemptuous or obstructionist conduct or contemptuous language. DOE may 
take actions as the circumstances may warrant in

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regard to any instances where any attorney refuses to comply with 
directions or provisions of this section.

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

[44 FR 23201, Apr. 19, 1979]