§ 511.38 Subpoenas.

(a)

Availability.

A subpoena shall be addressed to any party or any person not a party for the purpose of compelling attendance, testimony and production of documents at a hearing or oral examination.

(b)

Form.

A subpoena shall identify the action with which it is connected; shall specify the person to whom it is addressed and the date, time and place for compliance with its provisions; and shall be issued by order of the Presiding Officer and signed by the Chief Counsel, or by the Presiding Officer. A subpoena duces tecum shall specify the books, papers, documents, or other materials or data-compilations to be produced.

(c)

How obtained

—(1)

Content of application.

An application for the issuance of a subpoena stating reasons shall be submitted in triplicate to the Presiding Officer.

(2)

Procedure of application.

The original and two copies of the subpoena, marked “original,” “duplicate” and “triplicate,” shall accompany the application. The Presiding Officer shall rule upon an application for a subpoena

ex parte,

by issuing the subpoena or by issuing an order denying the application.

(d)

Issuance of a subpoena.

The Presiding Officer shall issue a subpoena by signing and dating, or ordering the Chief Counsel to sign and date, each copy in the lower right-hand corner of the document. The “duplicate” and “triplicate” copies of the subpoena shall be transmitted to the applicant for service in accordance with these Rules; the “original” copy shall be retained by or forwarded to the Chief Counsel for retention in the docket of the proceeding.

(e)

Service of a subpoena.

A subpoena may be served in person or by certified mail, return receipt requested, as provided in § 511.16(b). Service shall be made by delivery of the signed “duplicate” copy to the person named therein.

nt for service in accordance with these Rules; the “original” copy shall be retained by or forwarded to the Chief Counsel for retention in the docket of the proceeding.

(e)

Service of a subpoena.

A subpoena may be served in person or by certified mail, return receipt requested, as provided in § 511.16(b). Service shall be made by delivery of the signed “duplicate” copy to the person named therein.

(f)

Return of service.

A person serving a subpoena shall promptly execute a return of service, stating the date, time, and manner of service. If service is effected by mail, the signed return receipt shall accompany the return of service. In case of failure to make service, a statement of the reasons for the failure shall be made. The “triplicate” of the subpoena, bearing or accompanied by the return of service, shall be returned forthwith to the Chief Counsel after service has been completed.

(g)

Motion to quash or limit subpoena.

Within five (5) days of receipt of a subpoena, the person against whom it is directed may file with the Presiding Officer a motion to quash, modify, or limit the subpoena, setting forth the reasons why the subpoena should be withdrawn or why it should be modified or limited in scope. Any such motion shall be answered within five (5) days of service, and shall be ruled on immediately thereafter. The order shall specify the date, if any, for compliance with the specifications of the subpoena and the reasons for the decision.

(h)

Consequences of failure to comply.

In the event of failure to comply with a subpoena, the Presiding Officer may take any of the actions enumerated in § 511.37 or may order any other appropriate relief to compensate for the withheld testimony, documents, or other materials. If in the opinon of the Presiding Officer such relief is insufficient, the Presiding Officer shall certify to the Administrator a request for judicial enforcement of the subpoena.

[45 FR 81578, Dec. 11, 1980, as amended at 53 FR 26261, July 12, 1988]