[Federal Register Volume 75, Number 106 (Thursday, June 3, 2010)]
[Rules and Regulations]
[Pages 31285-31288]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-13392]
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DEPARTMENT OF JUSTICE
Bureau of Alcohol, Tobacco, Firearms, and Explosives
27 CFR Part 478
[Docket No. ATF 17F; AG Order No. 3160-2010 (2008R-10P)]
Decision-Making Authority Regarding the Denial, Suspension, or
Revocation of a Federal Firearms License, or Imposition of a Civil Fine
AGENCY: Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF),
Department of Justice.
ACTION: Final rule.
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SUMMARY: The Department of Justice has adopted as final, without
change, an interim rule that amended 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. Under the interim rule,
the Director has the flexibility to delegate to another ATF official
the authority to decide a revocation or denial matter, or may exercise
that authority himself. Because the Director can redelegate authority
to take action as the final agency decision-maker to Headquarters
officials, field officials, or some combination thereof, such
flexibility allows ATF to more efficiently conduct denial, suspension,
and revocation hearings, and make the determination whether to impose a
civil fine. This gives the agency the ability to ensure consistency in
decision-making and to address any case backlogs that may occur.
DATES: This rule is effective August 2, 2010.
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:
[[Page 31286]]
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. Prior to the 2009 amendments under the interim rule,
Sec. 478 provided as follows: Under Sec. 478.71, whenever the
Director of Industry Operations (``DIO'') had reason to believe that an
applicant was not qualified to receive a license under the provisions
of Sec. 478.47, he could issue a notice of denial, on ATF Form 4498,
to the applicant. The notice would set forth the matters of fact and
law relied upon in determining that the application should be denied,
and would 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 was filed within such time, the application would
be disapproved and a copy, so marked, would be returned to the
applicant.
Under Sec. 478.72, an applicant who had been denied an original or
renewal license could 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 would render a decision
confirming or reversing the denial of the application. If the decision
was that the denial should stand, a certified copy of the DIO's
findings and conclusions would be furnished to the applicant with a
final notice of denial, ATF Form 4501. In addition, a copy of the
application, marked ``Disapproved,'' would be furnished to the
applicant. If the decision was that the license applied for should be
issued, the applicant would be so notified, in writing, and the license
would be issued.
Section 478.73 provided that whenever the DIO had reason to believe
that a firearms licensee had willfully violated any provision of the
Act or part 478, a notice of revocation of the license (ATF Form 4500),
could be issued. In addition, a notice of revocation, suspension, or
imposition of a civil fine could be issued on Form 4500 whenever the
DIO had reason to believe that a licensee had knowingly transferred a
firearm to an unlicensed person and knowingly failed to comply with the
requirements of 18 U.S.C. 922(t)(1), relating to a NICS (National
Instant Criminal Background Check System) background check.
As specified in Sec. 478.74, a licensee who had received a notice
of suspension or revocation of a license, or imposition of a civil
fine, could 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 would
render a decision and prepare a brief summary of the findings and
conclusions on which the decision was based. If the decision was that
the license should be revoked or, in actions under 18 U.S.C. 922(t)(5),
that the license should be revoked or suspended, or that a civil fine
should be imposed, a certified copy of the summary would be furnished
to the licensee with the final notice of revocation, suspension, or
imposition of a civil fine on ATF Form 4501. If the decision was that
the license should not be revoked, or, in actions under 18 U.S.C.
922(t)(5), that the license should not be revoked or suspended, and a
civil fine should not be imposed, the licensee would be notified in
writing.
Under Sec. 478.76, an applicant or licensee could be represented
by an attorney, certified public accountant, or other person recognized
to practice before ATF, provided certain requirements were met. The DIO
could be represented in proceedings by an attorney in the office of the
Assistant Chief Counsel or Division Counsel who was 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 provided that if a licensee was dissatisfied with a
post-hearing decision revoking or suspending the license, denying the
application, or imposing a civil fine, he could file a petition for
judicial review of such action. In such case, when the DIO found that
justice so required, the DIO could postpone the effective date of
suspension or revocation of a license, or authorize continued
operations under the expired license pending judicial review.
II. Interim Rule
The Department of Justice published an interim rule with request
for comments at 74 FR 1875 on January 14, 2009 (ATF 27P) that amended
ATF's regulations to redesignate the Director, as opposed to 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. ATF determined that
delegating the final authority with respect to those matters to the
Director is necessary and proper. ATF further maintained 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 approach 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).
These changes to the decision-making and related delegation
authority were the only substantial changes made by the interim rule.
All other aspects of the ATF processes, including notice and review
provisions, remained the same. ATF believes that it is appropriate for
the Director to have more flexibility to delegate or directly exercise
authority to conduct a hearing and decide denial, suspension, or
revocation of a federal firearms license, or the imposition of a civil
fine. Such flexibility allows ATF to more efficiently conduct
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 gives the agency
the ability to ensure consistency in decision-making and to address any
case backlogs that may occur.
Comments on the interim rule were to be submitted to ATF on or
before April 14, 2009.
III. Comment Analysis and Department Response
In response to the interim rule, ATF received three comments. Two
commenters supported the interim regulations, while one commenter
expressed opposition. Essentially, the opposing commenter expressed a
concern that under the interim regulations the Director's decision is
not subject to review.
According to the commenter:
The only other times in the state of American government, aside
from the Presidency, where one person is afforded the opportunity to
make decisions affecting
[[Page 31287]]
others without a system of checks and balances is by a judge. Even
then, there is an appeals process by which this one individual's
interpretation of legal circumstances may be reviewed. * * * To
afford the director of a government agency, or any other appointed
individual for that matter, the ability to ``legislate'' freely as
he deems necessary regarding the denial, suspension, or revocation
of a federally issued license seems not only unconstitutional, but
potentially unethical if this one man's ruling is subject to a
political agenda.
Department Response
ATF understands the issues and the concerns that the commenter
raised; however, the due process ``system of checks and balances'' is
already incorporated into the procedures for denying, suspending, or
revoking a federal firearms license, or imposing a civil fine. Prior to
any adverse decision, ATF must provide notice to the affected applicant
or license holder and provide that person with an opportunity to
present evidence in a hearing. Before the interim rule became
effective, the DIO for each field division had the authority to issue
the final decision. The interim rule vests this same authority to issue
a final decision in the ATF Director. The Director may, in turn,
delegate that authority to Headquarters officials, field officials, or
some combination thereof. This gives the Director the ability to more
effectively decide licensing cases and ensure consistency in decision-
making.
Regardless which ATF official is authorized to make a final
decision, ATF must provide notice and an opportunity to present
evidence. Moreover, Congress has provided, under 18 U.S.C. 923(f), for
federal court review of the final notice denying a person's application
or revoking the person's license. In such a judicial review, the courts
are not bound by the evidence that had been previously presented during
the administrative proceedings before the agency decision. If the court
decides that the agency was not authorized to deny the application or
to revoke the license, the court shall order the agency to take such
action as may be necessary to comply with the judgment of the court.
Nothing in this rule change would alter or affect the person's due
process rights to judicial review as they stood prior to the change.
The change simply elevates final decision-making authority to the
Director. Therefore, no changes to the rule need to be made to ensure
minimum constitutional due process requirements are satisfied.
IV. Final Rule
The Department has determined that an amendment of the interim
regulations is not warranted and it is, therefore, adopting the interim
rule as a final rule without change.
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. 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). The
interim rule was not subject to notice and comment rulemaking
requirements. Id. 553(b)(A). This final rule, which adopts the interim
regulations, 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.
E. 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.
F. 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.
G. Paperwork Reduction Act
This rule does not impose any new reporting or recordkeeping
requirements under the Paperwork Reduction Act.
Disclosure
Copies of the interim rule, the comment received in response to the
interim rule, and this final rule 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.
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.
[[Page 31288]]
Authority and Issuance
PART 478--COMMERCE IN FIREARMS AND AMMUNITION
Accordingly, the interim rule amending 27 CFR part 478, which was
published at 74 FR 1875 on January 14, 2009, is adopted as a final rule
without change.
Dated: May 27, 2010.
Eric H. Holder, Jr.,
Attorney General.
[FR Doc. 2010-13392 Filed 6-2-10; 8:45 am]
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