[Code of Federal Regulations]

[Title 49, Volume 4]

[Revised as of October 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 49CFR209.7]



[Page 19-20]

 

                        TITLE 49--TRANSPORTATION

 

       CHAPTER II--FEDERAL RAILROAD ADMINISTRATION, DEPARTMENT OF 

                             TRANSPORTATION

 

PART 209_RAILROAD SAFETY ENFORCEMENT PROCEDURES--Table of Contents

 

                            Subpart A_General

 

Sec.  209.7  Subpoenas; witness fees.



    (a) The Chief Counsel may issue a subpoena on his or her own 

initiative in any matter related to enforcement of the railroad safety 

laws. However, where a proceeding under subpart B, C, or D of this part 

has been initiated, only the presiding officer may issue subpoenas, and 

only upon the written request of any party to the proceeding who makes 

an adequate showing that the information sought will materially advance 

the proceeding.

    (b) A subpoena may require attendance of a witness at a deposition 

or hearing or the production of documentary or other tangible evidence 

in the possession or control of the person served, or both.

    (c) A subpoena may be served personally by any person who is not an 

interested person and is not less than eighteen (18) years of age, or by 

certified or registered mail.

    (d) Service of a subpoena shall be made by delivering a copy of the 

subpoena in the appropriate manner, as set forth below. Service of a 

subpoena requiring attendance of a person is not complete unless 

delivery is accompanied by tender of fees for one day's attendance and 

mileage as specified by paragraph (f) of this section. However, when a 

subpoena is issued upon the request of any officer or agency of the 

United States, fees and mileage need not be tendered at the time of 

service but will be paid by FRA at the place and time specified in the 

subpoena for attendance.



Delivery of a copy of the subpoena may be made:

    (1) To a natural person by:

    (i) Handing it to the person;

    (ii) Leaving it at his or her office with the person in charge 

thereof;

    (iii) Leaving it at his or her dwelling place or usual place of 

abode with some person of suitable age and discretion then residing 

therein;

    (iv) Mailing it by registered or certified mail to him or her at his 

or her last known address; or

    (v) Any method whereby actual notice of the issuance and content is 

given (and the fees are made available) prior to the return date.

    (2) To an entity other than a natural person by:



[[Page 20]]



    (i) Handing a copy of the subpoena to a registered agent for service 

or to any officer, director, or agent in charge of any office of the 

person;

    (ii) Mailing it by registered or certified mail to any 

representative listed in paragraph (d)(2)(i) of this section at his or 

her last known address; or

    (iii) Any method whereby actual notice is given to such 

representative (and the fees are made available) prior to the return 

date.

    (e) The original subpoena bearing a certificate of service shall be 

filed in accordance with Sec.  209.9.

    (f) A witness subpoenaed by the FRA shall be entitled to the same 

fees and mileage as would be paid to a witness in a proceeding in the 

district courts of the United States. See 28 U.S.C. 1821. The witness 

fees and mileage shall be paid by the person requesting that the 

subpoena be issued. In an appropriate case, the Chief Counsel or the 

hearing officer may direct the person requesting issuance of a subpoena 

for the production of documentary or other tangible evidence to 

reimburse the responding person for actual costs of producing and/or 

transporting such evidence.

    (g) Notwithstanding the provisions of paragraph (f) of this section, 

and upon request, witness fees and mileage or the costs of producing 

other evidence may be paid by the FRA if the official who issued the 

subpoena determines on the basis of good cause shown that:

    (1) The presence of the subpoenaed witness or evidence will 

materially advance the proceedings; and

    (2) The party at whose instance the subpoena was issued would suffer 

a serious financial hardship if required to pay the witness fees and 

mileage.

    (h) Any person to whom a subpoena is directed may, prior to the time 

specified therein for compliance, but in no event more than ten (10) 

days after the date of service of such subpoena, apply in writing to the 

official who issued the subpoena, or if that person is unavailable, to 

the Chief Counsel, to quash or modify the subpoena. The application 

shall contain a brief statement of the reasons relied upon in support of 

the action sought therein. The issuing official or the Chief Counsel, as 

the case may be, may:

    (1) Deny the application;

    (2) Quash or modify the subpoena; or

    (3) In the case of subpoena to produce documentary or other tangible 

evidence, condition denial of the application upon the advancement by 

the party in whose behalf the subpoena is issued of the reasonable cost 

of producing the evidence.

    (i) If there is a refusal to obey a subpoena served upon any person 

under the provisions of this section, the FRA may request the Attorney 

General to seek the aid of the United States District Court for any 

district in which the person is found to compel that person, after 

notice, to appear and give testimony, or to appear and produce the 

subpoenaed documents before the FRA, or both.

    (j) Attendance of any FRA employee engaged in an investigation which 

gave rise to a proceeding under subpart B or C of this part for the 

purpose of eliciting factual testimony may be assured by filing a 

request with the Chief Counsel at least fifteen (15) days before the 

date of the hearing. The request must indicate the present intent of the 

requesting person to call the employee as a witness and state generally 

why the witness will be required.



[42 FR 56742, Oct. 28, 1977, as amended at 54 FR 42906, Oct. 18, 1989]