§ 290.45

Objection to evidence.

If the respondent objects to the admission of any evidence offered against him or the rejection of any evidence offered by him, or to the limitation of the scope of any evidence introduced by him, he shall state the grounds of such objection. If the objection is overruled, he may take an exception.

§ 290.46 Attorney representing the Department of Health, Education, and Welfare.

At the hearing, the Secretary shall be represented by an attorney designated by the General Counsel of the Department of Health, Education, and Welfare. § 290.47 Filing of briefs.

At the conclusion of the hearing, the examiner shall announce the period of time within which briefs may be filed following the receipt by the respondent of the tentative findings of fact and the tentative 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.

301.8 301.9 310.10

301.11

Subpart B-Cooperation With States
State or municipal prosecutions.
Attendance of officers.
Hearings before licensing boards or
other State agencies having power
to suspend or revoke licenses.
General.

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 a petition, must be initiated by the aggrived party by filing a written request for review of such action with the Secretary. The request must contain a 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 Commissioner's decision, or within a reasonable time after submission of the petition and the Commissioner's failure to act thereon, 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 application 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.

The

(b) Brief of the Commissioner. Commissioner shall, within 20 days from the date of the filing of the brief of the appellant, file with the Secretary a brief for his side of the case. The brief of the Commissioner shall be so drawn as fully and completely to advise the appellant and the Secretary of the nature of the defense. There shall be included therein, in addition to the arguments of the Commissioner, a specific admission or denial of each material allegation of fact contained in the brief of the appellant, and clear and concise numbered statements of the facts upon which the Commissioner relies in his defense. At the time of filing his brief the Commissioner shall serve a copy thereof upon the appellant.

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

(d) Further pleadings. The Secretary, upon motion of either party in which good cause is shown, or upon his own motion, may order a further and better statement of the nature of the claim or defense, or of any matter stated in any of the briefs. Such a motion filed by a party shall point out the defects complained of and the details desired. If the order of the Secretary is not. obeyed within 10 days or within such other time as the Secretary may fix, the Secretary may make such order in view thereof as shall be equitable and just. A copy of any further statement of the nature of the claim or defense filed pursuant to this section shall be served upon the appellant or Commissioner as the case may be.

§ 301.4 Hearings on appeals.

(a) Before Secretary. When an appeal is initiated pursuant to § 301.1(a) the Secretary will notify the appellant and Commissioner of the time and place of the hearing so as to afford interested parties, their representatives, and witnesses an opportunity to present evidence and argument on the controverted issues and he will also advise the parties of the manner in which the hearing shall be conducted.

(b) Before Examining Board. If, however, the Secretary deems it essential to a judicious determination of the controverted issues, he may appoint an Examining Board (referred to in this part as the Board), which will consist of one or more persons in the employ of the Treasury Department who have not previously considered the subject matter of the appeal, to conduct a hearing to afford interested parties, their representatives, and their witnesses an opportunity to appear and present evidence and arguments. Each member of the Board, within 2 days after his appointment, shall file with the Secretary a statement made under oath that he has not previously considered the subject matter of the appeal. Thereafter the Secretary will notify the respective parties of the appointment of the member or members to the Board.

The hearing before the Board will be conducted in the following manner:

(1) The Board shall determine the time and place of the hearing, giving due regard to any request filled by either party within 5 days from the date of his notification of the appointment of the member 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. Any 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.

(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]

arguments shall, upon the filing of the Board's report with the Secretary, be filed with the original record in the case for consideration of the Secretary in connection with any exception by either party and may be referred to by either party in support of any exception to the findings of the Board.

The

(b) Oral argument before Board. Board shall hear oral arguments on the issues in controversy upon the request of either party and shall notify the parties of the time and place thereof.

(c) Findings of law and facts by Board. The Board shall prepare and file with the Secretary its findings of law and facts, recommendations, and a summary of all evidence and argument presented at the hearing. At the same time the Board shall serve a copy thereof upon the respective parties. The Board shall also file with the Secretary the original record, including all evidence presented at the hearing.

(d) Exceptions. Each party shall have 10 days from the date of the filing of the Board's findings of law and facts, recommendations, and summary of evidence and argument to file with the Secretary exceptions thereto.

§ 301.6 Decision of Secretary on appeals.

In deciding any appeal pursuant to § 301.1(a) the Secretary will consider all matters presented to or filed with him pursuant to the foregoing provisions, and on the basis thereof he will affirm, reverse, or modify the action of the Commissioner, or direct such action to be taken as the Secretary shall deem equitable and just.

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

(a) Extension or restriction of time. The Secretary may, in his discretion, for cause shown, extend the foregoing time limits in any case. If the Secretary considers that the public interest so requires, he may, in his discretion, further restrict the time limits upon giving reasonable notice to such parties as he considers to be interested.

(b) Computation of time. Whenever the regulations in this part prescribe a time for the performance of any act, Sundays and legal holidays shall count just as any other days, except that when the time prescribed for the performance of an act expires on a Sunday or a legal holiday, such time shall extend to and

§ 301.9

Attendance of officers.

The Commissioner may direct the attendance of any officer, agent, or employee of the Bureau of Narcotics who may be in possession of pertinent information, to testify as a witness in any inquiry or proceeding instituted by authority of law by or before a grand jury, municipal magistrate, or State court, where the direct object of such inquiry or proceeding is to determine whether there has been, in a particular case, a violation of the State law or municipal ordinance relating to narcotic drugs. The Commissioner may also direct any such officer, agent, or employee to produce for examination at said inquiry or proceeding such record of the Bureau of Narcotics or copy of any part thereof as the Commissioner may deem pertinent to the particular case. The officer, agent, or employee so producing any permanent record of said Bureau for examination shall not relinquish custody or control thereof but, immediately upon conciusion of the inquiry or proceeding, shall promptly return the record to its appropriate official repository.