(b) Set the time and place of hearing, adjourn the hearing from time to time, and change the time and place of hearing;

(c) Administer oaths and affirmations and take affidavits;

(d) Examine witnesses;

(e) Admit or exclude evidence;

(f) Hear oral argument on facts or law; and

(g) Do all acts and take all measures necessary for the maintenance of order at the hearing and for the efficient, fair and impartial conduct of the proceeding. § 4.18-5 Who may act in the absence of the Examiner.

In case of the absence of the Examiner or his inability to act, the powers and duties to be performed by him under this part in connection with a proceeding assigned to him may, without abatement of the proceeding unless otherwise

directed by the Secretary, be assigned to any other Examiner.

§ 4.19 Procedure upon request for an oral hearing.

§ 4.19-1 Time and place of hearing.

If and when the proceeding has reached the stage where an oral hearing is to be held, the Examiner, giving careful consideration to the convenience of the parties, shall set a time and place of hearing and shall file with the Hearing Clerk a notice stating the time and place of hearing. If any change in the time or place of the hearing is made, the Examiner shall file with the Hearing Clerk a notice of such change, which notice shall be served upon the parties, unless it is made during the course of an oral hearing and made a part of the transcript.

§ 4.19-2 Subpenas.

(a) Issuance of subpenas. The attendance of witnesses and the production of documentary evidence from any place in the United States on behalf of any party to the proceeding may, by subpena, be required at any designated place of hearing. Subpenas may be issued by the Secretary or by the Examiner, under the facsimile signature of the Secretary, upon a reasonable showing by the applicant of the grounds, necessity, and reasonable scope thereof.

(b) Application for subpena duces tecum. Subpenas for the production of documentary evidence, unless issued by the Examiner upon his own motion, shall

84-048-73- -4

be issued only upon a verified written application. Such application shall specify, as exactly as possible, the documents desired and shall show their competency, relevancy, and materiality and the necessity for their production.

(c) Service of subpenas. Subpenas may be served (1) by a U.S. Marshal or his deputy, or (2) by any other person who is not less than 18 years of age, or (3) by registering or certifying and mailing a copy of the subpena addressed to the person to be served at his or its last known residence or principal place of business or residence. Proof of service may be made by the return of service on the subpena by the U.S. Marshal or his deputy; or, if served by an individual other than a U.S. Marshal or his deputy, by an affidavit of such person stating that he personally served a copy of the subpena upon the person named therein; or if service was by registered or certified mail, by an affidavit made by the person mailing the subpena that it was mailed as provided herein and by the signed return post office receipt: Provided, That, where the subpena is issued on behalf of the Secretary, the return receipt without an affidavit of mailing shall be sufficient proof of service. In making personal service, the person making service shall leave a copy of the subpena with the person subpenaed; the original, bearing or accompanied by the required proof of service, shall be returned to the official who issued the same.

[36 F.R. 12208, June 29, 1971] § 4.19-3

Fees of witnesses.

conduct required of practioners before the courts of the United States. Whenever the Secretary finds, after notice and opportunity for hearing, that a person, who is acting or has acted as counsel or representative for another person in any proceeding before the Secretary, is unfit to act as such representative or counsel, he will order that such person be precluded from acting as counsel or representative in any proceeding under the Act. The procedure in such case will be governed by the applicable provisions of this part.

(b) Failure to appear. If any party to the proceeding, after being duly notified, fails to appear at the hearing, he shall be deemed to have waived the right to an oral hearing in the proceeding. In the event that a party appears at the hearing and no party appears for the opposing side, the party who is present shall have an election whether to present his evidence, in whole or in part, in the form of affidavits or by oral testimony before the Examiner. Failure to appear at a hearing shall not be deemed to be a waiver of the right to be served with a copy of the Examiner's Report and to file exceptions and make oral argument before the Secretary with respect thereto, in the manner provided in §§ 4.19-8 and 4.20. [33 F.R. 14581, Sept. 28, 1968. Redesignated, 36 F.R. 12208, June 29, 1971]

§ 4.19-5 Order of proceeding.

Except as may be determined otherwise by the Examiner, the moving party shall proceed first at the hearing.

[33 F.R. 14851, Sept. 28, 1968. Redesignated, 36 F.R. 12208, June 29, 1971]

(a) General. The testimony of witnesses at the hearing shall be upon oath or affirmation and subject to cross-examination. Any witness may, in the discretion of the Examiner, be examined separately and apart from all other witnesses except those who may be parties to the proceeding. The Examiner shall admit all relevant and material evidence, except evidence which is unduly repetitious.

(b) Objections. If a party objects to the admission or rejection of any evidence or the limitation of the scope of any examination or cross-examination, he shall state briefly the grounds for such objection, whereupon an automatic exception will follow if the objection is overruled by the Examiner. The transscript shall not include argument or de

bate thereon, except as ordered by the Examiner. The ruling of the Examiner on any objection shall be a part of the transcript. Only objections made before the Examiner may be subsequently relied upon in the proceeding.

(c) Records of the Department. A true copy of every written entry in the records of the Department, made by an officer or employee thereof in the course of his official duty and relevant and material to the issues involved in the hearing, shall be admissible as prima facie evidence of the facts stated therein, without the production of such officer or employee.

(d) Exhibits. Except where the Examiner finds that the furnishing of copies is impracticable, copies of each exhibit, In addition to the original, shall be filed with the Examiner for the use of the other parties to the proceeding. A true copy of an exhibit may, in the discretion of the Examiner, be substituted for the original.

(e) Official notice. Official notice may be taken of the official publications of the Department and other Federal agencies, of such matters as are judicially noticed in the courts of the United States, and of any other matter of technical or scientific fact of established character: Provided, That the parties shall be given adequate notice, at the hearing or by reference in the Examiner's Report or otherwise, of matters so noticed, and shall be given adequate opportunity to show that such facts are erroneously noticed.

(f) Offer of proof. Whenever evidence is excluded from the record, the party offering such evidence may make an offer of proof, which shall be included in the transcript. The offer of proof for excluded oral testimony shall consist of a brief statement describing the nature of the evidence excluded. If the evidence consists of an exhibit, it shall be inserted in the record in toto. In the event the Secretary decides that the Examiner's ruling in excluding the evidence was erroneous and prejudicial, the hearing shall be reopened to permit the taking of such evidence.

[33 F.R. 14581, Sept. 28, 1968. Redesignated, 36 F.R. 12208, June 29, 1971] § 4.19-7 Transcripts.

Clerk an original and two copies of the transcript of testimony and the original and copies of exhibits introduced in evidence at the hearing. He shall attach to the original transcript of the evidence a certificate stating that the transcript is a true transcript of the testimony offered or received at the hearing, except in such particulars as he shall specify, and that the exhibits transmitted are all the exhibits introduced at the hearing, with such exceptions as he shall specify. A copy of such certificate shall be attached to each of the copies of the transcript of evidence.

(b) Ordering copies. Parties to the proceeding or other persons who desire a copy of the transcript of the hearing may place orders at the close of the hearing with the reporter who will furnish and deliver such copies directly to the purchaser upon payment therefor at the rate per page provided by the contract between the reporter and the purchaser.

[33 F.R. 14581, Sept. 28, 1968. Redesignated, 36 F.R. 12208, June 29, 1971]

§ 4.19-8 Proposed findings of fact, conclusions, and order.

Within such time as the Examiner may prescribe, each party may file with the Hearing Clerk proposed findings of fact, conclusions, and order, based solely on the record, and a brief in support thereof. A copy of each such document filed by a party shall be served upon the other party or parties by the Hearing Clerk.

[33 F.R. 14581, Sept. 28, 1968. Redesignated, 36 F.R. 12208, June 29, 1971]

§ 4.19-9 Examiner's Report.

The Examiner, within a reasonable time after the termination of the period allowed to the parties for the filing of proposed findings of fact, conclusions, and orders, and briefs in support thereof, shall prepare on the basis of the record and shall file with the Hearing Clerk, his report, a copy of which shall be served upon each of the parties.

[33 F.R. 14581, Sept. 28, 1968. Redesignated, 36 F.R. 12208, June 29, 1971]

§ 4.19-10 Exceptions; objections; request for oral argument.

(a) Within 20 days after service of the Examiner's Report, the parties may take exception to any matter set out in such report, and in such case shall file exceptions in writing with the Hearing

Clerk, referring to the relevant pages of the transcript, and suggesting corrected findings of fact, conclusions, or order. Within the same period of time, each party shall file with the Hearing Clerk a brief statement in writing concerning each of the objections taken to the action of the Examiner at the hearing, as set out in § 4.19-4(b), upon which the party wishes to rely, referring where relevant, to the pages of the transcript. A party may file a brief in support of any exceptions or objections which he may file.

(b) A party, if he files exceptions or a statement of objections, shall state in writing, whether he desires to make an oral argument thereon before the Secretary; otherwise, he shall be deemed to have waived such oral argument. [33 F.R. 14581, Sept. 28, 1968. Redesignated, 36 F.R. 12208, June 29, 1971] § 4.19-11

Final order.

As soon as practicable after the expiration of the period for filing exceptions, objections, and briefs, or, in case oral argument is had, as soon as practicable thereafter, the Secretary shall issue his final decision and order, including his ruling on any exceptions or objections filed by the parties.

[33 F.R. 14581, Sept. 28, 1968. Redesignated, 36 F.R. 12208, June 29, 1971]

§ 4.20 Argument before the Secretary. § 4.20-1 Request for oral argument;

waiver.

Unless a party has included in his exceptions or objections a request for oral argument or has filed a separate request for argument prior to the expiration of the last date for filing such exceptions or objections, he shall be deemed to have waived his right to such oral argument.

§ 4.20-2 Briefs.

The parties may, with the consent of the Secretary, file written briefs either in addition to oral argument or in lieu thereof.

§ 4.20-3 Scope of argument.

Except where the Secretary determines that argument on additional issues would be helpful, argument, whether oral or on brief, shall be limited to the issues raised by the exceptions and statement of objections. If the Secretary determines that additional issues should be argued, counsel for the parties shall be given reasonable notice of such determination, so as

At no stage of the proceeding between its institution and the issuance of the order shall the Secretary discuss ex parte the merits of the proceeding with any person who is connected with the proceeding in an advocative or in an investigative capacity, or with any representative of such person: Provided, That the Secretary may discuss the merits of the case with such a person if all parties to the proceeding, or their representatives, have been given an opportunity to be present. Any memorandum or other communication addressed to the Secretary, during the pendency of the proceeding, and relating to the merits thereof, by or on behalf of, any party shall be regarded as argument made in the proceeding and shall be filed with the Hearing Clerk, who shall serve a copy thereof upon the opposite party to the proceeding, and opportunity will be given the opposite party to file a reply thereto. § 4.22 Applications for reopening hearings; for rehearing; or reargument of proceedings, or for reconsideration of order.

(a) Filing; service. An application for reopening the hearing to take further evidence, or for rehearing or reargument of the proceeding, or for reconsideration of the order, must be made by petition to the Secretary filed with the Hearing Clerk, who shall serve a copy thereof upon the other party or parties to the proceeding. Every such petition must state specifically the grounds relied upon.

(b) Petitions to reopen hearings. A petition to reopen a hearing to take further evidence may be filed at any time prior to the issuance of the final order. Every such petition shall state briefly the nature and purpose of the evidence to be adduced, shall show that such evidence is not merely cumulative, and shall set forth a good reason why such evidence was not adduced at the hearing.

(c) Petitions to rehear or reargue proceedings, or to reconsider orders. A petition to rehear or reargue the proceeding or to reconsider the order shall be filed within 15 days after the date of the service of the order. Every such petition must state specifically the mat

ters claimed to have been erroneously decided and alleged errors must be briefly stated.

§ 4.22-2 Procedure for disposition of petitions.

Within 20 days following the service of any petition provided for in this section 4.22, the other party to the proceeding shall file with the Hearing Clerk an answer thereto. As soon as practicable thereafter, the Secretary shall announce his decision whether to grant or to deny the petition. Unless the Secretary shall determine otherwise, operation of the order shall not be stayed pending the decision to grant or to deny the petition. In the event that any such petition is granted by the Secretary, the applicable rules of practice, as set out elsewhere herein, shall be followed. A person filing a petition under this section shall be regarded as the moving party or complainant, although he shall be referred to as the complainant or respondent, depending upon his designation in the original proceeding.

In any situation where the Administrator has reason to believe that any person licensed as a dealer has violated or is violating any provision of the act or regulations and he deems such action warranted under the circumstances, the Administrator may suspend such person's license temporarily, for a period not to exceed 21 days, effective, except as provided in § 4.23-2, upon written notification given to such person of the suspension of his license pursuant to § 4.25. § 4.23-2 Actual or threatened physical harm to animals.

In any case of actual or threatened physical harm to animals in violation of the act or regulations, by a person licensed as a dealer, the Administrator may suspend such person's license temporarily for a period not to exceed 21 days, effective upon oral or written notification, whichever is earlier. In the event of oral notification, a written confirmation shall be given to such person of the suspension of his license pursuant to § 4.25, as promptly as circumstances permit.

the Secretary pursuant to the Act, after notice and opportunity for hearing pursuant to the applicable procedure in this subpart.

§ 4.24 Filing; number of copies.

All documents or papers required or authorized to be filed, except as provided otherwise in the rules in this subpart, shall be filed with the Hearing Clerk in triplicate: Provided, That, where there are more than two parties to the proceeding, a sufficient number of copies shall be filed so as to provide copies for service upon all parties to the proceeding.

§ 4.25 Service; proof of service.

Copies of all documents or papers required or authorized by the rules in this subpart to be served on any party to a proceeding shall be served by the Hearing Examiner, Hearing Clerk, or by some other employee of the United States. Except as is provided otherwise by the rules in this subpart, service shall be made either (a) by delivering a copy of the document or paper to the individual to be served or to a member of the partnership to be served or to the president, secretary, or other executive officer or any director of the corporation, organization, or association to be served, or to the attorney, or agent of record of such individual, partnership, corporation, organization, or association; (b) by leaving a copy of the document or paper at the principal office or place of business of such individual, partnership, corporation, organization, or association or of his or its attorney or agent of record; or (c) by registering or certifying and mailing a copy of the document or paper, addressed to such individual, partnership, corporation, organization, or association, or to his or its attorney or agent of record, at his or its last known residence or principal office or place of business. Proof of service hereunder shall be made by the affidavit of the person who actually made the service: Provided, That if the service is made by registered or certified mail, proof of service shall be made by the return post office receipt. The affidavit or post office receipt contemplated hereby shall be filed with the Hearing Clerk and the fact of filing thereof shall be noted in the record of the proceeding.

§ 4.26 Computation of time.

Saturdays, Sundays, and holidays shall be included in computing the time

allowed for the filing of any document or paper: Provided, That, when such time expires on a Saturday, Sunday, or legal holiday, such period shall be extended to include the next following business day. § 4.27 Extensions of time.

The time for the filling of any document or paper required or authorized under the rules in this part to be filed may be extended by the Examiner (before the Examiner's Report is filed), or by the Secretary (after the Examiner's Report is filed), if request for such extension of time is made prior to or on the final date allowed for such filing, and if in the judgment of the Examiner or the Secretary, as the case may be, after notice to and consideration of the views of the other party, when practicable, there is good reason for the extension.