order to show cause why such permit should not be revoked, and, pending the hearing upon such order, the Secretary may temporarily suspend such permit.

§ 290.32 Docket or file number. The order to show cause shall be assigned a docket or file number and the proceedings had thereunder shall thereafter be referred to by such number.

§ 290.33 Service of order to show cause. The order to show cause shall be addressed to the permittee, who shall be designated as the respondent, and shall be served upon the permittee by an employee of the Department of Health, Education, and Welfare or by registered mail, return receipt requested. If the respondent is a corporation, service shall be had upon the president, secretary, treasurer or statutory agent of the corporation.

§ 290.34 Time and place of hearing. The Secretary shall set a time and place for a hearing upon the order to show cause.

§ 290.35 Designation of examiner. The Secretary shall designate an employee of the Department of Health, Education, and Welfare as examiner to conduct the hearing, and such examiner may, in accordance with the rules of evidence applicable to administrative proceedings, admit or exclude any evidence presented and may limit the scope of any evidence admitted.

§ 290.36 Appearance of respondent. The respondent may appear in person or by counsel. All persons who appear at the hearing must conform to the standards of ethical conduct required of practitioners before the courts of the United States.

$290.37 Testimony of witnesses. The testimony of witnesses at the hearing shall be upon oath or affirmation administered by the examiner.

§ 290.38 Admissibility of records. Copies of the records of the Department of Health, Education, and Welfare, certified under the seal of the Department, shall be admissible to the same extent that the original records would be admissible.

§ 290.39 Depositions. The deposition of any witness, taken after reasonable notice to the opposite party and at a time and place and before a person desig

nated for the purpose by the Secretary, shall be admitted if the evidence is otherwise admissible.

§ 290.40 Affidavits. Affidavits, if relevant and material, may, in the discretion of the examiner, be admitted, but the Secretary will consider the lack of opportunity for cross-examination in determining the weight that shall be given to such evidence.

§ 290.41 Hearsay evidence. Hearsay evidence may, in the discretion of the examiner, be admitted even though it does not come within any well-recognized exception to the hearsay rule, but the Secretary will determine what weight shall be given to such evidence.

§ 290.42 Form of introduction of evidence. The form of the introduction of evidence shall not be a ground of objecting to such evidence.

§ 290.43 Copies of exhibits. When practicable to do so, a copy of each exhibit shall be furnished to the opposing party either before or at the time of its introduction.

§ 290.44 Judicial notice. Judicial notice, on request, will be taken of such matters as are noticed by the courts of the United States.

§ 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.

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. Redesignated at 20 F. R. 9504, Dec. 20, 1955.

§ 301.1 Appeals-(a) From decision of Commissioner. The appeal to the Secretary of the Treasury (referred to in this part as the Secretary) from an order, rule, or decision of the Commissioner of Narcotics (referred to in this part as the Commissioner) may be initiated by the aggrieved party in the following manner only:

(1) He shall file with the Secretary, within 15 days from the date of the order, rule, or decision, a notice in writing of his intention to appeal. At the time of the filing of such notice he shall serve a copy thereof upon the Commissioner.

(2) He shall file with the Secretary, within 30 days from the date of such order, rule, or decision, a written petition in the form of a brief as provided in § 301.3.

(b) From failure of Commissioner to rule upon or decide matter. The appeal to the Secretary from the failure of the Commissioner to rule upon or decide any matter presented to him by proper application may be initiated by the aggrieved party in the following manner only:

(1) He shall file with the Secretary, after the lapse of a reasonable time from the date of the presentation of such

matter, a notice in writing of his intention to appeal. At the time of the filing of such notice he shall serve a copy thereof upon the Commissioner.

(2) He shall file with the Secretary, within 30 days from the date of the filing of such notice, a written petition in the form of a brief as provided in § 301.3.

§ 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.

§ 301.3 Briefs-(a) Brief of appellant. The brief filed with the Secretary shall be printed or typewritten and shall set forth clearly the complaint and shall contain numbered statements of the facts and arguments upon which the appellant relies in support thereof. At the time of filing his brief the appellant shall serve a copy 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 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. the time of filing his brief the Commissioner shall serve a copy thereof upon the appellant.

At

(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