[Federal Register Volume 74, Number 9 (Wednesday, January 14, 2009)]
[Rules and Regulations]
[Pages 1875-1878]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-527]
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DEPARTMENT OF JUSTICE
Bureau of Alcohol, Tobacco, Firearms, and Explosives
27 CFR Part 478
[Docket No. ATF 27P; AG Order No. 3030-2009]
Decision-Making Authority Regarding the Denial, Suspension, or
Revocation of a Federal Firearms License, or Imposition of a Civil Fine
(2008R-10P)
AGENCY: Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF),
Department of Justice.
ACTION: Interim final rule with request for comments.
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SUMMARY: The Department of Justice is amending the regulations of the
Bureau of Alcohol, Tobacco, Firearms, and Explosives (``ATF'') to
delegate to the Director of ATF the authority to serve as the deciding
official regarding the denial, suspension, or revocation of federal
firearms licenses, or the imposition of a civil fine. The Director will
have the flexibility to delegate to another ATF official the authority
to decide a revocation or denial matter, or may exercise that authority
himself. Such flexibility will allow ATF to more efficiently decide
denial, suspension, and revocation hearings and also whether to impose
a civil fine, because the Director can redelegate to Headquarters
officials, field officials, or some combination thereof, authority to
take action as the final agency decision maker. This will give the
agency the ability to ensure consistency in decision making and to
address any case backlogs that may occur.
The interim rule will remain in effect until superseded by final
regulations.
DATES: Effective Date: This interim rule is effective January 14, 2009.
Comment date: Written comments must be postmarked and electronic
comments must be submitted on or before April 14, 2009. Commenters
should be aware that the electronic Federal Docket Management System
will not accept comments after Midnight Eastern Time on the last day of
the comment period.
ADDRESSES: Send comments to any of the following addresses--
James P. Ficaretta, Program Manager, Room 6N-602, Bureau
of Alcohol, Tobacco, Firearms, and Explosives, P.O. Box 50221,
Washington, DC 20091-0221; ATTN: ATF 27P. Written comments must include
your mailing address and be signed, and may be of any length.
202-648-9741 (facsimile).
http://www.regulations.gov. Federal e-rulemaking portal;
follow the instructions for submitting comments.
You may also view an electronic version of this rule at the http://www.regulations.gov site.
See the Public Participation section at the end of the
SUPPLEMENTARY INFORMATION section for instructions and requirements for
submitting comments, and for information on how to request a public
hearing.
FOR FURTHER INFORMATION CONTACT: James P. Ficaretta, Enforcement
Programs and Services, Bureau of Alcohol, Tobacco, Firearms, and
Explosives, U.S. Department of Justice, 99 New York Avenue, NE.,
Washington, DC 20226; telephone: (202) 648-7094.
SUPPLEMENTARY INFORMATION:
I. Background
The Attorney General is responsible for enforcing the provisions of
the Gun Control Act of 1968 (``the Act''), 18 U.S.C. Chapter 44. He has
delegated that responsibility to the Director of ATF, subject to the
direction of the Attorney General and the Deputy Attorney General. 28
CFR 0.130(a). ATF has promulgated regulations that implement the
provisions of the Act in 27 CFR Part 478.
The regulations in Subpart E of Part 478, Sec. Sec. 478.71-78,
relate to proceedings involving federal firearms licenses, including
the denial, suspension, and revocation of a license, and the imposition
of a civil fine. Section 478.71 provides that whenever the Director of
Industry Operations (``DIO'') has reason to believe that an applicant
is not qualified to receive a license under the provisions of Sec.
478.47, he may issue a notice of denial, on ATF Form 4498, to the
applicant. The notice will set forth the matters of fact and law relied
upon in determining that the application should be denied, and will
afford the applicant 15 days from the date of receipt of the notice in
which to request a hearing to review the denial. If no request for a
hearing is filed within such time, the application will be disapproved
and a copy, so marked, will be returned to the applicant.
Under Sec. 478.72, an applicant who has been denied an original or
renewal license can file a request with the DIO for a hearing to review
the denial of the application. On conclusion of the hearing and after
consideration of all relevant facts and circumstances presented by the
applicant or his representative, the DIO renders a decision confirming
or reversing the denial of the application. If the decision is that the
denial should stand, a
[[Page 1876]]
certified copy of the DIO's findings and conclusions are furnished to
the applicant with a final notice of denial, ATF Form 4501. In
addition, a copy of the application, marked ``Disapproved,'' is
furnished to the applicant. If the decision is that the license applied
for should be issued, the applicant will be so notified, in writing,
and the license will be issued.
Section 478.73 provides that whenever the DIO has reason to believe
that a firearms licensee has willfully violated any provision of the
Act or part 478, a notice of revocation of the license (ATF Form 4500),
may be issued. In addition, a notice of revocation, suspension, or
imposition of a civil fine may be issued on Form 4500 whenever the DIO
has reason to believe that a licensee has knowingly transferred a
firearm to an unlicensed person and knowingly failed to comply with the
requirements of section 922(t)(1), relating to a NICS (National Instant
Criminal Background Check System) background check.
As specified in Sec. 478.74, a licensee who received a notice of
suspension or revocation of a license, or imposition of a civil fine,
may file a request for a hearing with the DIO. On conclusion of the
hearing and after consideration of all the relevant presentations made
by the licensee or the licensee's representative, the DIO renders a
decision and prepares a brief summary of the findings and conclusions
on which the decision was based. If the decision is that the license
should be revoked or, in actions under section 922(t)(5), that the
license should be revoked or suspended, and/or that a civil fine should
be imposed, a certified copy of the summary is furnished to the
licensee with the final notice of revocation, suspension, or imposition
of a civil fine on ATF Form 4501. If the decision is that the license
should not be revoked, or in actions under section 922(t)(5), that the
license should not be revoked or suspended, and a civil fine should not
be imposed, the licensee will be notified in writing.
Under Sec. 478.76, an applicant or licensee may be represented by
an attorney, certified public accountant, or other person recognized to
practice before ATF, provided certain requirements are met. The DIO may
be represented in proceedings by an attorney in the office of the
Assistant Chief Counsel or Division Counsel who is authorized to
execute and file motions, briefs and other papers in the proceeding, on
behalf of the DIO, in his own name as ``Attorney for the Government.''
Section 478.78 provides that if a licensee is dissatisfied with a
post-hearing decision revoking or suspending the license or denying the
application or imposing a civil fine, as the case may be, he may file a
petition for judicial review of such action. In such case, when the DIO
finds that justice so requires, he may postpone the effective date of
suspension or revocation of a license or authorize continued operations
under the expired license, as applicable, pending judicial review.
II. Interim Rule
As indicated above, at present ATF's regulations name the DIO as
the deciding official in matters dealing with the denial of an original
or renewal firearms license, the suspension or revocation of a license,
and the imposition of a civil fine. This interim rule amends the
regulations to redesignate the Director as the deciding official. ATF
believes that delegating the final authority with respect to those
matters to the Director is necessary and proper. ATF further believes
that the Director should be able to redelegate this authority to the
DIO or any other agency official through issuance of a delegation
order, not through regulation. This is consistent with other
regulations in part 478. For example, Sec. 478.144 provides that the
Director is the deciding authority with respect to applications for
relief from firearms disabilities. Pursuant to ATF Order 1120.4 (69 FR
55462, September 14, 2004), the authority to make determinations on
applications for relief from federal firearms disabilities was
delegated to the Assistant Director (Enforcement Programs and
Services).
ATF believes that it is appropriate for the Director to have more
flexibility to change the delegation of authority to decide a hearing
regarding denial, suspension, or revocation of a federal firearms
license, and a hearing regarding imposition of a civil fine, or to
exercise that authority himself. Such flexibility will allow ATF to
more efficiently decide revocation and denial hearings, because the
Director can designate Headquarters officials, field officials, or some
combination thereof, as the final agency decision maker. That
flexibility will give the agency the ability to ensure consistency in
decision making and to address any case backlogs that may occur.
How This Document Complies With the Federal Administrative Requirements
for Rulemaking
A. Executive Order 12866
The Attorney General has determined that this rule is not a
``significant regulatory action'' under Executive Order 12866, section
3(f), Regulatory Planning and Review. This rule will not have an annual
effect on the economy of $100 million, nor will it adversely affect in
a material way the economy, a sector of the economy, productivity,
competition, jobs, the environment, public health, or safety, or State,
local or tribal governments or communities.
This is a rule of agency organization, procedure, and practice. It
merely redesignates the Director as the deciding official with respect
to the denial, suspension, or revocation of a federal firearms license
and the imposition of a civil fine.
B. Executive Order 13132
This regulation will not have substantial direct effects on the
States, on the relationship between the federal Government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with section 6
of Executive Order 13132, the Attorney General has determined that this
regulation will not have sufficient federalism implications to warrant
the preparation of a federalism summary impact statement.
C. Executive Order 12988
This regulation meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice
Reform.
D. Administrative Procedure Act (APA)
Notice and comment rulemaking is not required for this interim
final rule. Under the APA, ``rules of agency organization, procedure or
practice,'' 5 U.S.C. 553(b)(3)(A), that do not ``affect[ ] individual
rights and obligations,'' Morton v. Ruiz, 415 U.S. 199, 232 (1974), are
exempt from the general notice and comment requirements of section 553.
See JEM Broadcasting Co. v. FCC, 22 F.3d 320, 326 (D.C. Cir. 1994)
(section 553(b)(3)(A) applies to ``agency actions that do not
themselves alter the rights or interests of parties, although [they]
may alter the manner in which the parties present themselves or their
viewpoints to the agency''). The revisions to the regulations in
Sec. Sec. 478.71-78 are purely matters of agency organization,
procedure, and practice. The interim final rule will not affect
substantive rights or interests of federal firearms licensees or
applicants for federal firearms licensees. Nevertheless, ATF welcomes
public comments on the interim final rule.
Furthermore, there is good cause for finding that the interim final
rule is exempt from the effective date
[[Page 1877]]
limitation of section 553(d). The interim final rule will grant the
Director more flexibility to change the delegation of authority to
decide a hearing regarding denial, suspension, or revocation of a
federal firearms license, and a hearing regarding imposition of a civil
fine, or to exercise that authority himself. Such flexibility will
allow ATF to more efficiently decide revocation and denial hearings,
because the Director can designate Headquarters officials, field
officials, or some combination thereof, as the final agency decision
maker. This will enable the Director to ensure consistency in decision
making and to address any case backlogs that may occur.
There is no reason to defer these benefits for thirty days. The
interim final rule will not alter the rights or obligations of third
parties, although it may alter the manner in which those parties
present themselves or their viewpoints to the agency. No matter how the
Director delegates his authority to revoke or deny federal firearms
licenses pursuant to 18 U.S.C. 923(e), persons who apply for or hold
federal firearms licenses will still have a right to due process during
the agency administrative proceeding, including a right to a hearing
(18 U.S.C. 923(f)(2)), a right to a written notice from the agency
specifying the grounds for denial or revocation (18 U.S.C. 923(f)(3)),
and a right to judicial review (18 U.S.C. 923(f)(3)). Therefore, there
is good cause to make the interim final rule effective immediately.
E. Regulatory Flexibility Act
The Regulatory Flexibility Act, 5 U.S.C. 601 et seq., requires an
agency to conduct a regulatory flexibility analysis of any rule subject
to notice and comment rulemaking requirements unless the agency
certifies that the rule will not have a significant economic impact on
a substantial number of small entities. See 5 U.S.C. 605(b). As noted
above, this rule is not subject to notice and comment rulemaking
requirements. Id. 553(b)(A). This is a rule of agency organization,
procedure, and practice. It merely delegates to the Director the
authority to make decisions with respect to the denial, suspension,
imposition of a civil fine, or revocation of federal firearms licenses.
F. Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 251 of the
Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C.
804. This rule will not result in an annual effect on the economy of
$100 million or more; a major increase in costs or prices; or
significant adverse effects on competition, employment, investment,
productivity, innovation, or on the ability of United States-based
companies to compete with foreign-based companies in domestic and
export markets.
G. Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local, and
tribal governments, in the aggregate, or by the private sector of $100
million or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
H. Paperwork Reduction Act
This rule does not impose any new reporting or recordkeeping
requirements under the Paperwork Reduction Act.
Public Participation
A. Comments Sought
ATF is requesting comments on the interim final rule from all
interested persons. ATF is also specifically requesting comments on the
clarity of this interim final rule and how it may be made easier to
understand.
All comments must reference this document docket number (ATF 27P),
be legible, and include your name and mailing address. ATF will treat
all comments as originals and will not acknowledge receipt of comments.
Comments received on or before the closing date will be carefully
considered. Comments received after that date will be given the same
consideration if it is practical to do so, but assurance of
consideration cannot be given except as to comments received on or
before the closing date.
B. Confidentiality
Comments, whether submitted electronically or in paper, will be
made available for public viewing at ATF, and on the Internet as part
of the President's eRulemaking initiative, and are subject to the
Freedom of Information Act. Commenters who do not want their name or
other personal identifying information posted on the Internet should
submit their comment by mail or facsimile, along with a separate cover
sheet that contains their personal identifying information. Both the
cover sheet and comment must reference this docket number. Information
contained in the cover sheet will not be posted on the Internet. Any
personal identifying information that appears within the comment will
be posted on the Internet and will not be redacted by ATF.
Any material that the commenter considers to be inappropriate for
disclosure to the public should not be included in the comment. Any
person submitting a comment shall specifically designate that portion
(if any) of his comments that contains material that is confidential
under law (e.g., trade secrets, processes, etc.). Any portion of a
comment that is confidential under law shall be set forth on pages
separate from the balance of the comment and shall be prominently
marked ``confidential'' at the top of each page. Confidential
information will be included in the rulemaking record but will not be
disclosed to the public. Any comments containing material that is not
confidential under law may be disclosed to the public. In any event,
the name of the person submitting a comment is not exempt from
disclosure.
C. Submitting Comments
Comments may be submitted in any of three ways:
Mail: Send written comments to the address listed in the
ADDRESSES section of this document. Written comments must be signed and
may be of any length.
Facsimile: You may submit comments by facsimile
transmission to (202) 648-9741. Faxed comments must:
(1) Be legible;
(2) Be on 8\1/2\ x 11 paper;
(3) Contain a legible, written signature; and
(4) Be no more than five pages long. ATF will not accept faxed
comments that exceed five pages.
Federal e-Rulemaking Portal: To submit comments to ATF via
the Federal e-rulemaking portal, visit http://www.regulations.gov and
follow the instructions for submitting comments.
D. Request for Hearing
Any interested person who desires an opportunity to comment orally
at a public hearing should submit his or her request, in writing, to
the Director of ATF within the 90-day comment period. The Director,
however, reserves the right to determine, in light of all
circumstances, whether a public hearing is necessary.
Disclosure
Copies of this interim rule and the comments received will be
available for public inspection by appointment during normal business
hours at: ATF Reading Room, Room 1E-063, 99 New York Avenue, NE.,
Washington, DC 20226; telephone: (202) 648-7080.
[[Page 1878]]
Drafting Information
The author of this document is James P. Ficaretta; Enforcement
Programs and Services; Bureau of Alcohol, Tobacco, Firearms, and
Explosives.
List of Subjects in 27 CFR Part 478
Administrative practice and procedure, Arms and ammunition,
Authority delegations, Customs duties and inspection, Domestic
violence, Exports, Imports, Law enforcement personnel, Military
personnel, Penalties, Reporting requirements, Research, Seizures and
forfeitures, and Transportation.
Authority and Issuance
0
Accordingly, for the reasons discussed in the preamble, 27 CFR part 478
is amended as follows:
PART 478--COMMERCE IN FIREARMS AND AMMUNITION
0
1. The authority citation for 27 CFR part 478 continues to read as
follows:
Authority: 5 U.S.C. 552(a); 18 U.S.C. 847, 921-931; 44 U.S.C.
3504(h).
Sec. 478.71 [Amended]
0
2. Section 478.71 is amended by removing ``of Industry Operations'' in
the first sentence.
Sec. 478.72 [Amended]
0
3. Section 478.72 is amended by removing ``of Industry Operations'' in
the fifth sentence and by removing ``Director of Industry Operations''
in the sixth sentence and adding in its place ``Director's''.
Sec. 478.73 [Amended]
0
4. Section 478.73 is amended by removing ``of Industry Operations''
wherever it appears.
Sec. 478.74 [Amended]
0
5. Section 478.74 is amended by removing ``of Industry Operations'' in
the fourth sentence.
Sec. 478.76 [Amended]
0
6. Section 478.76 is amended by removing ``of Industry Operations''
wherever it appears.
Sec. 478.78 [Amended]
0
7. Section 478.78 is amended by removing ``of Industry Operations'' in
the last sentence.
Dated: January 7, 2009.
Michael B. Mukasey,
Attorney General.
[FR Doc. E9-527 Filed 1-13-09; 8:45 am]
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