u:s. DEPARTMENT OF THE INTERIO~~~umiMr: 

OFFICE OF SURFACE MINING~~::':""-:----1 RECLAMATION AND ENFORCEMENT ~ua Hlllllbtr: 

DIRECTIVES SYSTEM D•: OCT I 9 1993 

Subill:t:Subpoenastjj teo. el the Attendance of Witnesses, ~ne Proauc~~vu 

• of Wr '"'"Jl · inted Material or Both · 

Apprcml: Lff.YL .// ~ I Title: Acting Director 

~ ~// . 

1. Purpose~ This directive establishes the policy for, and 

procedures implementing, the issuance by the Director or his or 

her Designees of administrative subpoenas to compel the 

attendance of witnesses at a hearing or deposition, the 

production of written or printed materials, or both. 

' 

2. Summary. New directive 

3. Definitions. 

a. Subpoena. A subpoena is a wri.tten c;:ommand, issued by 

the Director of the Office of Surface Mining Reclamation and . Enforcement (OSM), or his or her Designee, pursuant to§ 201(c) 

of the surface Mining Control and Reclamation Act of 1977 (SMCRA 

or the Act), 30 u.s.c. § 1211(c), compelling the attendance of 

witnesses at a hearing or deposition, the production of written 

or printed materials, or both. As used in this directive, the 

term subpoena may refer to the singular or plural. 

b. Designee. Any employee of OSM to whom the authority to 

issue subpoenas on behalf of OSM has been delegated by paragraph 

4.c.(1) of this di~ective. 

c. Requester. The OSM employee who asks the Director or 

·h Designee to issue a subpoena. 

4. Policy/Procedures. 

a. Background. section 201(c)(1) of SMCRA empowers the 

secretary, acting through OSM, to "issue subpoenas, and compel 

the attendance of witnesses and production of written or printed 

material as provided for in this Act." The reasonable exercise 

of this power is needed in order to facilitate OSM's performance 

of its duties and responsibilities as required by SMCRA and its 

implementing regulations. 

Such duties and responsibilities include agency determinations 

concerning, among other things, exemptions from regulation under 

SMCRA §§ 528 and 701(28), liability for abandoned mine 

. 

~ reclamation fees under SMCRA § 402(a), ownership or control under 

OSM/103 7/:2:2/116, 
SMCRA § 510(c), requests for inspection under SMCRA § 517(h), 

bond release under SMCRA § 519(h), appropriateness of cessation 

orders under SMCRA S 52l(a)(5), failure of a State to enforce an 

approved State program under SMCRA § 52l(b), liability for mine 

site reclamation under SMCRA S 52l(c), and designation of lands 

unsuitable for mining under SMCRA § 522(c). 

Sufficient information from public sources may not always exist 

to enable OSM to make the necessary determinations. Private 

parties may refuse to voluntarily provide needed documentation 

upon request. Others selectively provide only that portion of 

the requested documentation that supports their own positions. 

Finally, third parties, including lending institutions and other 

neutral parties, are understandably reluctant to provide 

documentation needed by OSM, unless it is subpoenaed. 

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The judicious exercise of the subpoena power accorded by Congress 

to OSM will resolve these and other problems, and greatly assist 

OSM in performing its duties under SMCRA and its implementing 

regulations. 

b. Policy. It is the policy of OSM to issue administrative 

subpoenas whenever such action would assist OSM in the discharge 

of responsibilities under SMCRA and its implementing regulations. 

c. Procedures. 

(1) A subpoena may be issued by the Director, Deputy 

Director, Assistant Director for Field Operations, or Assistant 

Director for Finance and Accounting; Chief, Division of 

Compliance Management; Chief, Applicant/Violator System Office; 

or any Field Office Director. The authority to issue subpoenas 

may not be further redelegated. 

(2) Requests for the issuance of subpoenas shall be 

made in writing to the Director or Designee. 

(3) Where testimony from a business entity is needed, 

the subpoena may name the officer, director, agent, or employee 

of the entity having knowledge of the information desired. 

Alternatively, the subpoena may name the business entity itself, 

describe with reasonable particularity the information desired, 

and inform the entity that it must designate one or more persons 

who will testify on its behalf as to matters known or reasonably 

available to the entity. See Rule 30(b)(6), Federal Rules of 

Civil Procedure. Where documents or other records from a 

business entity are needed, the subpoena should name the entity itself. 
.. 

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(4) The request shall include a memorandum from the 

Requester, approved by his or her supervisor, explaining the need 

for the subpoena. The subpoena shall follow the model in 

Appendix A. The request shall be accompanied by an original and 

one (1) copy of the proposed subpoena, completely filled out 

except for the date of issuance. The name, address and telephone 

number of the Requester shall be set out in the lower left hand 

corner of the subpoena. 

(5) The Director or Designee will return the subpoena, 

if issued, to the Requester at the address shown on the lower 

left hand corner. The Requester will then arrange to have it 

served • 

(6) Any employee of the Executive Branch who is 

eighteen (18) years of age or older is authorized to serve a 

subpoena issued by the Director or Designee. Normally, service 

should be made by an employee of OSM. 

(7) A witness may be required to attend a deposition 

or hearing at a place not more than one hundred (100) miles from 

the place of service. Subpoenaed witnesses shall be paid the 

same fees and mileage as are paid for like service in the 

District Courts of the United States. Cf. 43 C.F.R. S 4.26(a), 

(c) (1). 

(8) If an individual is named in the subpoena, it 

shall be served on that individual. If an entity is named in the 

subpoena, it shall be served on an officer, a managing or general 

agent, or any other agent authorized to receive service on behalf 

of the entity. 

(9) The subpoena must normally be served at least 

seven (7) calendar days before the date on which the witness is 

to appear. However, a longer time may be required if the 

subpoena requests a large volume of documents. A shorter time 

may be appropriate where exigent circumstances exist and are 

documented by the Requester and approved by the Director or 

Designee. 

(10) The preferred method of service shall be by 

personal service. However, certified United States mail, return 

receipt requested, is an alternative method. If the addressee 

refuses to accept the certified mail, OSM may treat such refusal 

as good service. ~ 30 C.F.R. S 843.14(a) (2). 

(11) The Return of Service, also known as Proof of 

Service, shall be filed with the Requester within three (3) 

business days of the date that service is completed. The Return 

of service consists of a certification signed by the person 

serving the subpoena, setting forth his or her age and the method 
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by which service was accomplished. The Return shall contain 

certified mail receipts where appropriate, and it shall be filed 

with, and become a part of, the official administrative record of 

the proceeding for which the subpoena was issued. 

(12) The Director or Designee will return the subpoena 

to the Requester with the notation "Refused" if it is not issued. 

The Director or Designee may, in his or her discretion, write an 

explanation for the refusal. 

(13) In the event that the witness subpoenaed fails to 

appear or refuses to produce the subpoenaed documents, the matter 

may be referred to the Field Solicitor's Office for initiation of 

a court action to enforce the subpoena. The Requester must 

obtain the approval of his or her supervisor in ·writing before 

commencing a referral for enforcement. The referral package 

shall contain a copy of the subpoena, a copy of the Return of 

Service, and a description of the circumstances concerning the 

failure to appear or to produce the documents. 

5. Reporting Requirements. None 

6. Effect on Other Documents. OPM-5, Delegation of 

Authority will be updated to reflect changes resulting from this 

new directive. 

7. 

Federal 

843.14. 

8. 

References. Section 201(c) (1) of SMCRA; Rule 30(b) (6), 

Rules of Civil Procedure; 43 C.F.R. S 4.26; 30 C.F.R. S 

Effective Date. Upon issuance. 

9. Contact. Chief, Applicant/Violator System Office at 

202-208-4421 

10. Keywords. Subpoena 

11. List of Appendices. Appendix A: SAMPLE SUBPOENA FORM 
r 

IN RE: 

TO: 

[Appendix A] 

SAMPLE SUBPOENA FORM 

Investigation of 

SUBPOENA 

Pursuant to the authority of Section 201(c) (i}· of the Surface 

Mining Control and Reclamation Act, 30 u.s.c: S 1211(c)(1}, YOU 

5 

ARE COMMANDED to appear at _________________ ·-----------------------

----------------------------------------------------------• on the 

day of , 199 ___ , at ~---

to bring with you the following documents: 

o'clock ___ .M., and 

In lieu of personal appearance, you may arrange with the 

Requester of this subpoena at his or her discretion to produce 

the requested documents for inspection and copying. 

NOTE: Your failure to respond fully and truthfully to this 

subpoena, or to justify adequately such failure to respond, may 

result in the issuance of a court order to enforce the subpoena 

and imposition of penalties against you by a Judge of a United 

states District court. 

Please be further advised that provision of false, fictitious, or 

fraudulent statements or representations may subject you to 

criminal penalties of up to five years imprisonment or a fine of 

up to $10,000 or both under 18 u.s.c. S 1001. 

This subpoena is issued this ______ day of ------------· 199 __ __ 

Requester: ~r~n~a~m~e~J~-----------------------------

(address] 

[telephone number] 

Director or Designee