ffidavit, if relevant and material, y, in the discretion of the examiner, admitted, but the Secretary will coner the lack of opportunity for crossmination in determining the weight t shall be given to such evidence. 90.41 Hearsay evidence.

[earsay evidence may, in the discre1 of the examiner, be admitted even ugh it does not come within any wellognized exception to the hearsay e, but the Secretary will determine at weight shall be given to such ence.

90.42 Form of introduction of evidence.

he form of the introduction of evice shall not be a ground of objecting uch evidence.

90.43 Copies of exhibits.

When practicable to do so, a copy of h exhibit shall be furnished to the osing party either before or at the e of its introduction.

0.45

Objection to evidence.

the respondent objects to the admisof any evidence offered against him he rejection of any evidence offered im, or to the limitation of the scope ny evidence introduced by him, he 1 state the grounds of such objec. If the objection is overruled, he take an exception.

0.46 Attorney representing the Department of Health, Education, and Welfare.

t the hearing, the Secretary shall be esented by an attorney designated he General Counsel of the Departt of Health, Education, and Welfare. 0.47 Filing of briefs.

; the conclusion of the hearing, the niner shall announce the period of within which briefs may be filed wing the receipt by the respondent e tentative findings of fact and the ative order, as set out in § 290.48.

§ 290.48 Tentative findings of fact.

The examiner, within a reasonable time after the conclusion of the hearing, shall prepare tentative findings of fact and a tentative order, which shall be served upon the respondent or sent to him by registered mail.

§ 290.49 Exceptions by the respondent.

Within 20 days after the receipt of the tentative findings of fact and the tentative order, the respondent, if he wishes to take exceptions to any matters set out therein, shall transmit such exceptions to the General Counsel of the Department of Health, Education, and Welfare. At the same time, the respondent shall transmit a brief statement concerning each of the exceptions to the actions of the examiner at the hearing, as set out in §§ 290.35-290.45, upon which he wishes to rely. If exception is taken to any proposed finding of fact, reference must be made to the pages or parts of the record relied upon and a corrected finding of fact must be submitted. The respondent, if he files exceptions, shall state in writing whether he desires to make an oral argument on the exceptions before the Secretary.

§ 290.50 Oral argument before the Secretary.

In the event that an oral argument before the Secretary is requested, a date for such argument shall be fixed by the Secretary or by the Under Secretary, if designated to act in his stead.

§ 290.51

Issuance of final order.

If oral argument is heard in any proceeding by the Secretary or Under Secretary, the final order in the proceeding shall be issued by the person who heard the argument.

§ 290.52 Hearing before prosecution.

Before violation of the act is referred to the Department of Justice for prosecution under section 5 of the Federal Import Milk Act, an opportunity to be heard will be given to the party against whom prosecution is under consideration. The hearing will be private and confined to questions of fact. The party notified may present evidence, either oral or written, in person or by attorney, to show cause why he should not be prosecuted. After a hearing is held, if it appears that the law has been violated, the facts will be reported to the Department of Justice.

Subpart A Appeal and Review AUTHORITY: §§ 301.1 to 301.7 issued under sec. 5, 46 Stat. 587; 5 U. S. C. 282c.

SOURCE: §§ 301.1 to 301.7 contained in Narcotic Regulations 4, 4 F. R. 2761, July 3, 1939, except as otherwise noted. Redesignated at 20 F.R. 9504, Dec. 20, 1955.

§ 301.1 Appeal and review.

(a) Appeals from action or non-action by Commissioner-generally. Except as to matters relating to petitions for remission or mitigation of forfeiture, appeal may be made to the Secretary of the Treasury (referred to in this part as the Secretary) from any order, rule or decision of the Commissioner of Narcotics (referred to in this part as the Commissioner), or from the failure of the Commissioner to act upon or decide a matter presented to him by proper application. Such appeals must be initiated by the aggrieved party in the following manner:

(1) He shall file with the Secretary, within 15 days from the date of the order, rule or decision, or within a reasonable time after presentation of a matter to the Commissioner and his failure to act thereon, as the case may be, a written notice of his intention to appeal and shall at the same time serve a copy thereof upon the Commissioner.

(2) Within 30 days from the date of the filing of such notice of intention to appeal the aggrieved party shall file with the Secretary a written petition in the form of a brief as provided in § 301.3.

(b) Review of action or non-action by Commissioner on a petition for remission or mitigation of forfeiture. Review by the Secretary of a decision of the

Commissioner on a petition for remission or mitigation of forfeiture, or of the Commissioner's failure to decide such petition, must be initiated by the ag grived party by filing a written request for review of such action with the Sec retary. The request must contain complete statement of the grounds upon which relief is sought and must be submitted within 30 days from the date of receipt of notification of the Commis sioner's decision, or within a reasonable time after submission of the petition and the Commissioner's failure to act there on, as the case may be.

[T.D. 63, 26 F.R. 8490, Sept. 9, 1961]

§ 301.2 Suspension of orders.

Pending the presentation of the appeal to the Secretary and his decision thereon, the Secretary may, upon appli cation and for cause shown, suspend the operation of any order, rule, or decision after his receipt of a timely notice of the intention to appeal.

§ 301.3 Briefs.

(a) Brief of appellant. The brie filed with the Secretary shall be printed or typewritten and shall set forth clear the complaint and shall contain num bered statements of the facts and arguments upon which the appellant relies support thereof. At the time of filing his brief the appellant shall serve a cop thereof upon the Commissioner.

(b) Brief of the Commissioner. The Commissioner shall, within 20 days from the date of the filing of the brief of the appellant, file with the Secretary a brie for his side of the case. The brief of the Commissioner shall be so drawn 3 fully and completely to advise the sp pellant and the Secretary of the nature of the defense. There shall be includes therein, in addition to the arguments the Commissioner, a specific admissio or denial of each material allegation d fact contained in the brief of the appelant, and clear and concise numbere statements of the facts upon which the Commissioner relies in his defense. A the time of filing his brief the Comm:s sioner shall serve a copy thereof upce the appellant.

(c) Reply. The appellant may f with the Secretary, within 10 days fro the date of the filing, of the brief of th Commissioner, a reply brief, a copy which shall be served upon the Commis sioner.

(d) Further pleadings. The Secrery, upon motion of either party in hich good cause is shown, or upon his wn motion, may order a further and etter statement of the nature of the aim or defense, or of any matter stated any of the briefs. Such a motion filed a party shall point out the defects omplained of and the details desired. I the order of the Secretary is not. Deyed within 10 days or within such ther time as the Secretary may fix, he Secretary may make such order in ew thereof as shall be equitable and st. A copy of any further statement the nature of the claim or defense led pursuant to this section shall be erved upon the appellant or Commisoner as the case may be.

301.4 Hearings on appeals. (a) Before Secretary. When an apeal is initiated pursuant to § 301.1(a) he Secretary will notify the appellant nd Commissioner of the time and place I the hearing so as to afford interested arties, their representatives, and witesses an opportunity to present evidence nd argument on the controverted issues nd he will also advise the parties of the anner in which the hearing shall be Onducted.

(b) Before Examining Board. If, owever, the Secretary deems it essenal to a judicious determination of the ontroverted issues, he may appoint an xamining Board (referred to in this art as the Board), which will consist of ne or more persons in the employ of he Treasury Department who have not reviously considered the subject mater of the appeal, to conduct a hearing afford interested parties, their repreentatives, and their witnesses an oportunity to appear and present evience and arguments. Each member I the Board, within 2 days after his ppointment, shall file with the Secrery a statement made under oath that e has not previously considered the bject matter of the appeal. Therefter the Secretary will notify the repective parties of the appointment of he member or members to the Board. The hearing before the Board will be onducted in the following manner:

(1) The Board shall determine the me and place of the hearing, giving due egard to any request filed by either arty within 5 days from the date of his otification of the appointment of the ember or members to the Board.

(2) A reporter shall be appointed by the Board and shall be present at all sessions of the Board at which a reporter may be necessary. With the exception of oral arguments on questions of law, he shall record, verbatim, the proceedings before the Board and the testimony, if any, taken before it. He may set down the proceedings and testimony, in the first instance, in shorthand.

(3) Witnesses shall be sworn or affirmed by a member of the Board.

(4) Evidence submitted at the hearing may include testimony of witnesses, real evidence, affidavits, depositions, and documents and records or duly authenticated copies thereof.

(5) Either party may object to the introduction of any evidence, and the Board shall rule on such objection, but may, in its discretion, relax the ordinary rules of evidence. If the ruling of the Board is adverse to the objecting party, an exception may be taken thereto. exception taken by either party to the ruling of the Board shall be noted in the record at the time it is taken and shall briefly specify the grounds upon which it is made.

Any

(6) Depositions may be arranged by either party with the consent of the Board and shall be taken in the manner prescribed by it. Due regard shall be given by the Board to the convenience of the parties and the testimony to be elicited.

(7) The Board, for cause shown, may, in its discretion, permit other interested parties to intervene and present additional evidence and argument. However, any written argument shall be received and considered only upon a proper showing that a copy thereof has been served upon the Commissioner and the appellant.

(8) Other questions of procedure shall be determined by the Board.

[Narcotic Regs. 4, 4 F.R. 2761, July 3, 1939, as amended by T.D. 63, 26 F.R. 8490, Sept 9, 1961]