§ 316.63 Official transcript; index; corrections.

(a) Testimony given at a hearing shall be reported verbatim. The Bureau will make provision for a stenographic record of the testimony and for such copies of the transcript thereof as it requires for its own purpose. Any person desiring a copy of the transcript of the testimony and exhibits taken at the hearing or of any part thereof (except such materials as are described in § 316.46 (b) shall be entitled to the same upon application to the Hearing Clerk of the Bureau and upon payment of the costs thereof.

(b) At the close of the hearing, the presiding officer shall afford the parties and witnesses time (not longer than 30 days, except in unusual cases) in which to submit written proposed corrections of the transcript, pointing out errors that may have been made in transcribing the testimony. The presiding officer shall promptly thereafter order such corrections made as in his judgment are required to make the transcript conform to the testimony.

[36 F.R. 7820, Apr. 24, 1971, as amended at 36 F.R. 13387, July 21, 1971]

§ 316.64 Proposed findings of fact and conclusions of law.

Any party in the hearing may file in quintuplicate proposed findings of fact and conclusions of law within the time fixed by the presiding officer. Any party so filing shall also serve one copy of his proposed findings and conclusion upon each other party in the hearing. The party shall include a statement of supporting reasons for the proposed findings and conclusions, together with evidence of record (including specific and complete citations of the pages of the transcript and exhibits) and citations of authorities relied upon.

§ 316.65 Report and record.

(a) As soon as practicable after the time for the parties to file proposed findings of fact and conclusions of law has expired, the presiding officer shall prepare a report containing the following:

(1) His recommended rulings on the proposed findings of fact and conclusions of law;

(2) His recommended findings of fact and conclusions of law, with the reasons therefor; and

(3) His recommended decision.

(b) The presiding officer shall certify to the Director the record, which shall

contain the transcript of testimony, exhibits, the findings of fact and conclusions of law proposed by the parties, and his report. Upon receipt of the certified record, the Director shall serve one copy of the report of the presiding officer upon each party in the hearing. § 316.66 Final order.

As soon as practicable after the presiding officer has certiñed the record to the Director, the Director shall cause to be published in the FEDERAL REGISTER his order in the proceeding, which shall set forth the final rule and the findings of fact and conclusions of law upon which the rule is based. This order shall specify the date on which it shall take effect, which shall not be less than 30 days from the date of publication in the FEDERAL REGISTER Unless the Director finds that emergency conditions exist necessitating an earlier effective date, in which event the Director shall specify in the order his findings as to such conditions.

§ 316.67 Copies of petitions for judicial review.

Copies of petitions for judicial review, filed pursuant to section 507 of the Act (21 U.S.C. 877) shall be delivered to and served upon the Director in quintuplicate. The Director shall certify the record of the hearing and shall file the certified record in the appropriate U.S. Court of Appeals.

Subpart E-Seizure, Forfeiture, and Disposition of Property

AUTHORITY: The provisions of this Subpart E of Part 316 issued under secs. 501 (b), 511, 1015, 84 Stat. 1271, 1276, 1277, 1278, 1291; 21 U.S.C. 871(b), 881, 965. Other statutory provisions interpreted or applied are cited to text in parentheses.

§ 316.71 Definitions.

As used in this subpart, the following terms shall have the meanings specified:

(a) The term "Act" means the Controlled Substances Act (84 Stat. 1242; 21 U.S.C. 801) and/or the Controlled Substances Import and Export Act (84 Stat. 1285; 21 U.S.C. 951).

(b) The term "custodian" means the officer required under § 316.72 to take custody of particular property which has been seized pursuant to the Act.

(c) The term "property" means a controlled substance, raw material, product, container, equipment, vessel, vehicle, or aircraft within the scope of the Act.

(d) The terms "seizing officer," "officer seizing," etc., mean any officer, authorized and designated by § 316.72 to carry out the provisions of the Act, who initially seizes property or adopts a seizure initially made by any other officer or by a private person.

(e) The term "Regional Director" means the Regional Director of the Bureau.

(f) Any term not defined in this section shall have the definition set forth in sections 102 and 1001 of the Act (21 U.S.C. 802 and 951) and in § 301.02 of this chapter.

§ 316.72 Officers who will make seizures.

For the purpose of carrying out the provisions of the Act, all special agents of the Bureau are authorized and designated to seize such property as may be subject to seizure. § 316.73

Custody and other duties.

An officer seizing property under the Act shall store the property in a location designated by the custodian, generally in the judicial district of seizure. The Regional Directors are designated as custodians to receive and maintain in storage all property seized pursuant to the Act. The Regional Directors are also authorized to dispose of any property pursuant to the Act and any other applicable statutes or regulations relative to disposal, and to perform such other duties regarding such seized property as are imposed on the District Directors of the U.S. Bureau of Customs with respect to seizures under the customs laws. (Sec. 605, 46 Stat. 754, 19 U.S.C. 1605; sec. 609, 46 Stat. 755, 19 U.S.C. 1609)

§ 316.74 Appraisement.

The custodian shall appraise the property to determine the domestic value at the time and place of seizure. The domestic value shall be considered the retail price at which such or similar property is freely offered for sale. If there is no market for the property at the place of seizure, the domestic value shall be considered the value in the principal market nearest the place of seizure. (Sec. 606, 46 Stat. 754, 19 U.S.C. 1606) § 316.75

Advertisement.

(a) If the appraised values does not exceed $2,500, the custodian shall cause a notice of the seizure and of the intention to forfeit and sell or otherwise dispose of the property to be published once

a week for at least 3 successive weeks in a newspaper of general circulation in the judicial district in which the seizure occurred.

(b) The notice shall: (1) Describe the property seized and show the motor and serial numbers, if any; (2) state the time, cause, and place of seizure; and (3) state that any person desiring to claim the property may, within 20 days from the date of first publication of the notice, file with the custodian a claim to the property and a bond with satisfactory sureties in the sum of $250.

(Sec. 607, 46 Stat. 754, as amended, 19 U.S.C. 1607)

§ 316.76 Requirements as to claim and bond.

(a) The bond shall be rendered to the United States, with sureties to be approved by the custodian, conditioned that in the case of condemnation of the property the obligor shall pay all costs and expenses of the proceedings to obtain such condemnation. When the claim and bond are received by the custodian, he shall, after finding the documents in proper form and the sureties satisfactory, transmit the documents, together with a description of the property and a complete statement of the facts and circumstances surrounding the seizure, to the United States Attorney for the judicial district in which the seizure was made for the purpose of proceeding to a condemnation of the property in the manner prescribed by law. If the documents are not in satisfactory condition when first received, a reasonable time for correction may be allowed. If correction is not made within a reasonable time the documents may be treated as nugatory, and the case shall proceed as though they had not been tendered.

(b) The filing of the claim and the posting of the bond does not entitle the claimant to possession of the property, however, it does stop the summary forfeiture proceedings. The bond posted to cover costs may be in cash, certified check, or on Treasury Department Form 171 with satisfactory sureties. The costs and expenses secured by the bond are such as are incurred after the filing of the bond including storage cost, safeguarding, court fees, marshal's costs, etc. (Sec. 608, 46 Stat. 755, 19 U.S.C. 1608) § 316.77 Summary forfeiture.

If the appraised value does not exceed $2,500, and a claim and bond are not

filed within the 20 days hereinbefore mentioned, the custodian shall declare the property forfeited. The custodian shall prepare the Declaration of Forfeiture and forward it to the Director of the Bureau as notification of the action he has taken. Thereafter, the property shall be retained in the custodian's district or delivered elsewhere for official use, or otherwise disposed of, in accordance with official instructions received by the custodian.

(Sec. 609, 46 Stat. 755, as amended, 19 U.S.C. 1609) [36 F.R. 7820, Apr. 24, 1971, as amended at 36 F.R. 13387, July 21, 1971]

§ 316.78 Judicial forfeiture.

If the appraised value is greater than $2,500 or a claim and satisfactory bond have been received for property appraised at $2,500 or less, the custodian shall transmit a description of the property and a complete statement of the facts and circumstances surrounding the seizure to the U.S. Attorney for the judicial district in which the seizure was made for the purpose of instituting condemnation proceedings. The U.S. Attorney shall also be furnished the newspaper advertisements required by § 316.75. (Sec. 610, 46 Stat. 755, 19 U.S.C. 1610) § 316.79 Petitions for remission or mitigation of forfeiture.

(a) Any person interested in any property which has been seized, or forfeited either summarily or by court proceedings, may file a petition for remission or mitigation of the forfeiture. Such petition shall be filed in triplicate with the Regional Director for the judicial district in which the seizure occurred. It shall be addressed to the Director if the property is subject to summary forfeiture pursuant to § 316.77, and addressed to the Attorney General if the property is subject to judicial forfeiture pursuant to § 316.78. The petition must be executed and sworn to by the person alleging interest in the property.

(b) The petition shall include the following: (1) A complete description of the property, including motor and serial numbers, if any, and the date and place of seizure; (2) the petitioner's interest in the property, which shall be supported

by bills of sale, contracts, mortgages, or other satisfactory documentary evidence; and, (3) the facts and circumstances, to be established by satisfactory proof, relied upon by the petitioner to justify remission or mitigation.

(c) Where the petition is for restoration of the proceeds of sale, or for value of the property placed in official use, it must be supported by satisfactory proof that the petitioner did not know of the seizure prior to the declaration of condemnation of forfeiture and was in such circumstances as prevented him from knowing of the same.

(Secs. 613, 618, 46 Stat. 756, 757, as amended; 19 U.S.C. 1613, 1618)

§ 316.80 Time for filing petitions.

(a) In order to be considered as seasonably filed, a petition for remission or mitigation of forfeiture should be filed within 30 days of the receipt of the notice of seizure. If a petition for remission or mitigation of forfeiture has not been received within 30 days of the notice of seizure, the property will either be placed in official Government service or sold as soon as it is forfeited. Once property is placed in official use, or is sold, a petition for remission or mitigation of forfeiture can no longer be accepted.

(b) A petition for restoration of proceeds of sale, or for the value of property placed in official use, must be filed within 90 days of the sale of the property, or within 90 days of the date the property is placed in official use.

(Secs. 613, 618, 46 Stat. 756, 757, as amended; 19 U.S.C. 1613, 1618)

§ 316.81

Handling of petitions.

Upon receipt of a petition, the custodian shall request an appropriate investigation. The petition and the report of investigation shall be forwarded to the Director. If the petition involves a case which has been referred to the U.S. Attorney for the institution of court proceedings, the custodian shall transmit the petition to the U.S. Attorney for the judicial district in which the seizure occurred. He shall notify the petitioner of this. action.

(Sec. 618, 46 Stat. 757, as amended, 19 U.S.C 1618)

INTERPRETATION OF SECTION 408(b) (2) (C) IN RELATION TO OTHER LAWS

Sec. 401.61

Relationship of section 408 (b) (2) (C) to other provisions of section 408 and to other legislation generally. 401.62 Scope of orders; relationship to confidentiality provisions of Public Law 91-513.

INTERPRETATIVE GUIDELINES FOR APPLICATIONS AND ORDERS UNDER SECTION 408(b) (2) (C) 401.71

Applications for orders should be restricted to records of specified patients.

401.72 Information which should be furnished in support of application. 401.73 Suggested safeguards against unnecessary disclosures.

AUTHORITY: The provisions of this Part 401 are authorized under sections 213, 221, 222, and 408 of the Drug Abuse Office and Treatment Act of 1972 (Public Law 92-255; 21 U.S.C. 1122, 1131, 1132, and 1175), and other relevant provisions of law.

SOURCE: The provisions of this Part 401 appear at 37 F.R. 24636, Nov. 17, 1972, unless otherwise noted.

at the time the provision referring to it is applied.

(b) The term "Director" means the Director of the Special Action Office for Drug Abuse Prevention.

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(c) The term "drug abuse prevention function" means any program or activity relating to drug abuse education, training, treatment, rehabilitation, or search, and includes any such function even when performed by an organization whose primary mission is in the field of drug traffic prevention functions (as defined in 21 U.S.C. 1103 (c)), or is unrelated to drugs.

(d) The term "drug abuse prevention function authorized or assisted under any provision of the Act or any act amended by the Act" means any drug abuse prevention function

(1) Which is conducted in whole or in part by any department, agency, or instrumentality of the United States, or (2) For the lawful conduct of which in whole or part any license, permit, or other authorization is required to be granted by any department or agency of the United States.

(e) The term "patient" means any person who is or has been interviewed, examined, diagnosed, treated, or habilitated in connection with any drug abuse prevention function.

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(a) Except as provided in paragraph (b) of this section, this part applies to records or any part thereof made on or after March 21, 1972, of the identity, diagnosis, prognosis, or treatment of any patient which are maintained in connection with the performance of any drug abuse prevention function authorized or assisted under the Act or any act amended by the Act.

(b) The provisions of section 408 of the Act (21 U.S.C. 1175) and the remaining provisions of this part do not apply to any interchange of records en

tirely within the Armed Forces, within those components of the Veterans Administration furnishing health care to veterans, or between such components and the Armed Forces, but otherwise such section and this part apply to any communication to or from any person outside the Armed Forces or such components of the Veterans Administration. § 401.03 General rules regarding confidentiality.

Records of the identity, diagnosis, prognosis, or treatment of any patient which are maintained in connection with the performance of any drug abuse prevention function shall be confidential, may be disclosed only as authorized by this part, and may not otherwise be divulged in any civil, criminal, administrative, or legislative proceeding conducted by any Federal, State, or local authority, whether such proceeding is commenced before or after the effective date of this part.

§ 401.04 Incompetent or deceased patients.

In any case in which disclosure is authorized with the consent of the patient, such consent may be given by a guardian, conservator, or other court-appointed designee in the case of an incompetent patient, and by an executor, administrator, or other personal representative in the case of a deceased patient. § 401.05 Security precautions.

(a) Appropriate precautions should be taken for the security of records to which this part applies. The succeeding paragraphs of this section set forth examples of such precautions, but these should be added to or may be modified in the light of individual circumstances.

(b) The file of each patient maintained in connection with the performance of any drug abuse prevention function should be marked "Confidential Patient Information," as should any record identifying an individual as a drug abuse patient, including photographs, fingerprints, reports of skin abrasions indicating drug use, or other documentation of patient identification.

(c) Each file drawer, cabinet, or other container in which such files are kept should be conspicuously labeled with a cautionary statement such as the following: