[Federal Register Volume 75, Number 153 (Tuesday, August 10, 2010)]
[Notices]
[Pages 48362-48365]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-19740]
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DEPARTMENT OF JUSTICE
Bureau of Alcohol, Tobacco, Firearms and Explosives
[Docket No. ATF 36N]
Hearing Procedures Relating to Federal Firearms Licenses (2010R-
2T)
AGENCY: Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF),
Department of Justice.
ACTION: General notice.
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SUMMARY: In this notice, the Bureau of Alcohol, Tobacco, Firearms and
Explosives (ATF) advises federal firearms licensees and other
interested parties of its current procedures regarding administrative
hearings held as part of firearms license proceedings. The intended
purpose of the notice is to ensure that federal firearms licensees and
persons applying for a federal firearms license are familiar with the
hearing process relative to the denial, revocation, or suspension of a
federal firearms license, or the imposition of a civil fine. This
notice does not contain any policy guidelines as to whether a notice of
denial, revocation, suspension or fine should be issued.
FOR FURTHER INFORMATION CONTACT: Gary Taylor; Office of Field
Operations; Bureau of Alcohol, Tobacco, Firearms and Explosives; U.S.
Department of Justice; 99 New York Avenue, NE., Washington, DC 20226,
telephone (202) 648-7259.
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.
Pursuant to the authority vested in the Director of ATF by 28
U.S.C. 599A and 28 CFR 0.130-0.133, the authority to issue notices,
conduct licensing hearings, render final decisions and issue final
notices after a firearms licensing hearing has been redelegated to the
Director of Industry Operations (DIO) in each field division in most
instances. However, these same authorities are redelegated to the
Deputy Assistant Director, Industry Operations, for all matters that
he/she determines to involve novel or unusual issues of fact, law, or
enforcement policy; matters of national or international significance;
or matters that involve or are related to issues arising in more than
one ATF field division. Thus, the term ``Director'' in this document is
referring to the deciding official who may be the ATF Director, or a
delegate, including the DIO, in most instances, or the Deputy Assistant
Director, Industry Operations.
The regulations in Subpart E of Part 478, Sec. Sec. 478.71-478.78,
relate to proceedings involving federal firearms licenses, including
the denial, revocation, or suspension of a license, or the imposition
of a civil fine. In particular, Sec. 478.71 provides that the Director
of ATF may issue a notice of denial on ATF Form 4498 (Notice of Denial
of Application for License) to an applicant for a license if he has
reason to believe that the applicant is not qualified, under the
provisions of Sec. 478.47, to receive a license. The notice sets forth
the matters of fact and law relied upon in determining that the
application should be denied, and affords the applicant 15 days from
the date of receipt of the notice in which to request a hearing to
review the denial. If a request for a hearing is not filed within such
time, the application is disapproved and a copy, so marked, is returned
to the applicant.
Under Sec. 478.72, an applicant who has been denied an original or
renewal license may file a request with the Director of Industry
Operations (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 Director (or his or her delegate) renders a
decision confirming or reversing the denial of the application. If the
decision is that the denial should stand, a certified copy of the
Director's findings and conclusions are furnished to the applicant with
a final notice of denial, ATF Form 4501 (now ATF Form 5300.13), Final
Notice of Denial of Application or Revocation of Firearms License. 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 Director 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
Director 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 18 U.S.C. 922(t)(1), relating to a NICS
(National Instant Criminal Background Check System) background check
or, in violation of 18 U.S.C. 922(z) and 924 (p), has sold, delivered,
or transferred any handgun to any unlicensed person without providing a
secure gun storage or safety device.
[[Page 48363]]
As specified in Sec. 478.74, a licensee who receives a notice of
license suspension or revocation, 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 information presented at
the hearing, the Director 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 18 U.S.C. 922(t)(5) or 924(p), 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 18 U.S.C. 922(t)(5) or 924(p), 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, a firearms licensee or an applicant for a
firearms license may be represented at a hearing by an attorney,
certified public accountant, or other person recognized to practice
before ATF, provided certain requirements are met. The Director may be
represented in hearing proceedings by an attorney in the Office of
Chief Counsel. Pursuant to Sec. 478.77, hearings concerning
notification of license denials, suspensions, revocations, or the
imposition of a civil fine are held in a location convenient to the
aggrieved party.
Currently, ATF has procedures in place regarding administrative
hearings held as part of federal firearms license proceedings. Those
procedures are set forth in the following section. ATF believes that
providing this information will ensure that federal firearms licensees
and persons applying for a federal firearms license are familiar with
the hearing process relative to the denial, revocation, or suspension
of a firearms license, or imposition of a civil fine.
II. Hearing Procedures Relating to Federal Firearms Licenses
The law and regulations (18 U.S.C. 923(f)(2) and 27 CFR part 478,
subpart E) provide for a hearing if requested by an applicant or
licensee upon receipt of a Notice of Denial or Revocation. If the
Director's decision is to revoke or deny the license subsequent to the
hearing, the aggrieved party may file a petition in the U.S. District
Court for a de novo judicial review of the denial or revocation. In a
de novo proceeding, a court may consider any evidence submitted by the
parties, whether or not the evidence was considered at the hearing.
Hearing procedures in firearms licensing matters are informal in
nature; the regulations found in the Administrative Procedure Act (APA)
(5 U.S.C. 554) do not apply to hearings held under 18 U.S.C. 923(f)(2)
because a federal firearms licensing hearing is subject to de novo
judicial review in district court under 18 U.S.C. 923(f)(3).
Authorities
Delegation of Authority: Pursuant to authorities vested in the
Director, ATF, by 6 U.S.C. 531 and 28 CFR 0.130-0.133, the Chief,
Firearms and Explosives Services (FES) Division is authorized and
retains full authority to designate hearing officers.
Designation of Hearing Officers: Unless otherwise noted, the Chief,
FES Division delegates the authority to assign hearing officers to FES
Division program managers as designees. This authority may not be
redelegated.
Selection and Training of Hearing Officers
The Chief, FES Division will select hearing officers from a list of
contractors and volunteers furnished by the Office of Field Operations.
While there are no formal selection requirements, at a minimum,
candidates for hearing officer should possess the following:
Comprehensive knowledge of firearms laws and regulations.
Excellent oral and written communication skills.
Ability to condense complex information into a clear and
concise report.
Ability to maintain order and decorum in an adversarial
proceeding.
Not have been the subject of adverse action as the result
of an investigation by the Office of Professional Responsibility and
Security Operations (OPRSO) within 5 years preceding selection to serve
as a hearing officer.
If, subsequent to being selected as a hearing officer, the
subject is the recipient of adverse action as the result of an
investigation by the OPRSO, the hearing officer will be removed from
performing those duties.
Prior to conducting a firearms hearing, hearing officers will
complete the appropriate training on hearing procedures conducted by
the Office of Training and Professional Development (TPD) or by an
experienced hearing officer. If an experienced hearing officer, who has
received training on hearing procedures conducted by the Office of
Training and Professional Development (TPD), provides training on
hearing procedures to a newly selected hearing officer who has not had
the opportunity to attend hearing officer training provided by TPD,
such training will be deemed adequate.
Hearing officers are appointed by and serve at the discretion of
the Chief, FES Division with the concurrence of the hearing officer's
DIO or other appropriate field division management official. Expenses
for hearing officer travel and equipment needs will be funded by the
FES Division.
Designation of Hearing Officer and Preliminary Procedures
Upon receipt of a timely filed request for a hearing, the DIO will
advise the Chief, FES Division that a request for a hearing has been
made. The Chief, FES Division will designate a hearing officer for the
case. The selection of the hearing officer will be made according to
the following criteria:
Complexity and nature of the case will be considered. More
experienced hearing officers will be assigned to complex cases.
The hearing officer's impartiality and/or prior
relationship with or knowledge of the applicant or licensee will be
considered. The Chief, FES Division will consider whether there is
reasonable cause to believe that the hearing officer's ability to
conduct a fair and impartial inquiry is impaired by the hearing
officer's prior knowledge of the case or interactions with the
applicant/licensee.
The hearing officer's location will be considered. To
ensure impartiality, the hearing officer will generally be appointed
from outside the applicant's/licensee's division; however, if staffing
and resource issues demand, a hearing officer from within the
applicant's/licensee's division may be assigned.
When assigning cases, the Chief, FES Division will attempt
to rotate selection among all eligible hearing officers in order to
maintain a high level of proficiency in conducting hearings.
Upon selection, the Chief, FES Division will notify the hearing
officer or the hearing officer's DIO, the Office of Chief Counsel, and
the DIO of the division which issued the notice of denial, revocations,
suspension or fine. A Hearing Officer's Assignment Notification will be
issued to the DIO of the division where the hearing will be held.
An individual should decline to act as a hearing officer in a
particular case if he/she is not fully confident that he/she can
administer a fair and impartial proceeding. If, at any time after being
[[Page 48364]]
designated as hearing officer for a case, the officer determines that
he/she cannot administer a fair and impartial proceeding, the hearing
officer should immediately recuse himself or herself from the matter
and notify the Chief, FES Division.
The Office of Chief Counsel will represent the Government, unless,
upon review of the facts of a case, the DIO and Chief Counsel's office
concur that counsel's presence is not warranted at the hearing.
Notification of Applicant/Licensee
The DIO in the applicant's/licensee's division will make
arrangements for the hearing and advise the applicant/licensee in
writing (by certified mail, return receipt requested, contract carrier
or hand delivery) of the date, time, place, and name of the hearing
officer, in accordance with 27 CFR 478.72, 478.74, 478.76, and 478.77.
Copies of this notification will be provided to the Chief, FES Division
and the designated hearing officer.
The specific location for the hearing is within the discretion of
the agency, as is the time for the commencement of the hearing, and
both should be set with due regard for the convenience of the parties,
the availability of an appropriate setting for the hearing, and
security considerations.
The DIO will coordinate the scheduling of the hearing with the
hearing officer and the assigned counsel, if any, to ensure that there
is no scheduling conflict and to ensure that all notifications are
conducted according to law and regulation. Within 30 days of the
assignment of a hearing officer, a hearing date is to be established.
This hearing date is to be no later than 90 days from the date the
hearing officer was assigned, except for good cause shown and approved
by the Chief, FES Division. A party's initial request for the
rescheduling of a hearing may be approved if the party establishes a
legitimate need for the rescheduling. The rescheduled date should be
within 30 days of the original hearing date. Subsequent requests for
rescheduling by a party should be denied unless the request is a result
of an emergency outside the party's control, e.g., illness or similar
personal or family emergency.
Hearing officers should not have any contact with the licensee/
applicant prior to the hearing. All questions/inquiries should be
directed to the DIO of the applicant's/licensee's division.
The individual who presents the case for the Government will make
all arrangements for witnesses and documentary evidence relevant to the
Government's case, with the assistance of the DIO, if needed.
Recording of the Hearing
The hearing shall be recorded using an audiotape recorder or
digital voice recorder, which will be provided by the agency and
operated by the hearing officer. The tape or recording, along with the
exhibits, shall constitute the official record of the hearing.
The applicant/licensee may make an audiotape recording or digital
voice recording of the proceedings, or have the proceedings recorded by
a stenographer, at his/her own expense, provided this is not disruptive
to the proceedings. The proceedings will not be videotaped.
Any person (including the applicant/licensee) desiring a copy of
the official record of the hearing may make a written request to ATF's
Disclosure Division at the following address: Disclosure Division,
Office of the Director, Bureau of Alcohol, Tobacco, Firearms and
Explosives, 99 New York Avenue, NE., Washington, DC 20226.
Prior to concluding the hearing, the hearing officer shall ensure
that the hearing has been recorded properly. If the hearing, or any
portion thereof, was not recorded properly, the DIO may consult with
agency counsel, the hearing officer, or any other party he/she deems
necessary, including opposing counsel, to determine the appropriate
remedy. The DIO may consider all legal remedies available in such
circumstances including, but not limited to, repeating the hearing. The
DIO will determine the appropriate remedy for an inadequate recording
or poor sound quality in a recording.
Conduct of the Hearing
Hearings are informal in nature, and adherence to civil court rules
and procedures is not required. However, the hearing officer will
ensure that the proceedings are conducted in an orderly and
professional manner. The purpose of the hearing is to allow both
parties to fully present all relevant evidence and arguments deemed
necessary regarding the denial, revocation, or suspension of a license,
or the imposition of a civil fine. The hearing is properly closed when
these issues have been fully explored in the judgment of the hearing
officer.
The hearing officer is responsible for all materials necessary to
conduct the hearing, e.g., audiotape recorder, tapes, digital voice
recorder, batteries, labels to mark exhibits, writing materials,
memorandum designating the hearing officer, and a copy of the written
notice giving the time and place of the proceeding.
The hearing officer will advise the parties that firearms are not
permitted at the hearing, and that all proceedings will cease if this
policy is violated.
The hearing officially begins at the time the audiotape recorder or
digital voice recorder is activated by the hearing officer. The hearing
officer will explain general procedures to be followed.
There may be some preliminary comments regarding the hearing
procedures before the audiotape recorder or digital voice recorder is
activated. Following activation of the audiotape recorder or digital
voice recorder, the hearing officer will:
State the purpose of the hearing;
State the hearing officer's identity, and have all persons
present identify themselves on the record;
Address whether any non-witness observers may attend the
hearing; the hearing officer may also exclude witnesses from the
hearing until their appointed time to testify;
State the time, date, and location of the hearing;
State that the proceeding is being recorded, and that the
recording being made by him/her is the official recording of the
proceeding;
State that if the DIO decides to deny the application,
revoke or suspend the license, or impose a civil fine, the aggrieved
party is entitled to de novo judicial review of the decision, and that
the record of the present proceedings may become part of that review;
In addition, during the hearing, the hearing officer will identify
and enter into the official record:
All exhibits, including his/her designation as hearing
officer;
Any power of attorney, if filed;
The license or application;
Notice of denial or revocation;
Proof of delivery of notice of denial or revocation;
Notice of hearing; and
Proof of delivery of notice of hearing;
At the hearing, the Government will present its evidence first. The
applicant/licensee will then present evidence for its case. The hearing
officer has the discretion to allow the rebuttal of evidence. All
evidence offered by either party (including hearsay, whether offered
through a witness or by document) shall be admissible, unless the
hearing officer determines that the evidence is completely irrelevant,
manifestly unreliable, or unduly repetitive.
Both parties shall have the right to question all witnesses. The
party calling
[[Page 48365]]
a witness shall have the right to re-direct examination of the witness.
The hearing officer may permit further questioning beyond re-direct
examination for good cause. The hearing officer may question the
parties and the parties' witnesses at any time during the hearing.
In the event that a hearing becomes disorderly, the hearing officer
may take one or more of the following actions to regain control of the
proceedings:
Caution the parties to conduct themselves in an orderly
manner;
Call for a short recess;
Express disapproval on the record and warn against
repetition of the offensive conduct;
Postpone the proceedings; or
Suspend the proceedings, in which case the hearing officer
shall notify the DIO of his/her action and the reason(s) immediately,
to be followed by written notification to the Chief, FES Division as
soon as possible. In such circumstances, the hearing officer shall
grant the parties an appropriate period of time to submit additional
written evidence.
When the hearing officer is satisfied that all evidence and
arguments have been fully presented by the parties, the hearing officer
will state that the DIO will make a decision in the matter and will
notify the licensee/applicant of the final decision in writing. The
hearing officer will state for the record that if the licensee/
applicant is not satisfied with the final decision, he/she may appeal
this decision to Federal district court within 60 days, according to 18
U.S.C. 923(f)(3), and that these proceedings may become part of that
review.
If either party states that he/she wishes to submit additional
documents, which are not available in the hearing, the hearing officer
may state on the record, during the hearing, that such specified
documents will be received and considered along with other evidence in
the case. The hearing officer should specify a time frame for the
submission of such documents. The hearing officer will declare the
proceedings closed on the record; however, the record will remain open
for the timely submission of the specified documents not available at
the hearing pursuant to the hearing officer's instructions. The hearing
officer may set conditions under which additional documentation,
including rebuttal documentation, may be submitted.
Hearing Officer Report
Following the completion of the proceedings, the hearing officer
shall prepare a report summarizing the proceedings. The report shall be
completed within 30 calendar days of the conclusion of the hearing and
at a minimum include the following items:
An introduction outlining the reason for the hearing,
notification procedures, date and location of the hearing, and persons
present at the hearing;
Summaries of the presentations by the Government and by
the applicant/licensee party;
Findings of fact based only upon the information
presented, including applicable references to laws and regulations;
Conclusions based only upon the findings of fact;
Recommendation; and
List of exhibits.
Upon completion of the report, the hearing officer will forward the
report and the recording of the proceedings directly to the DIO via the
carrier under ATF contract. The hearing officer will retain a receipt
of shipping and notify the Chief, FES Division or his/her designee. The
recording will be labeled with the licensee's/applicant's name, Federal
Firearms License (FFL) number, date of hearing, and tape, CD, or
cassette number (i.e., Tape or Cassette 1 of 3).
Following a decision by the DIO, the report and the recording
should be maintained by the DIO, unless counsel requests the recording
to be forwarded for review.
The DIO should notify the Chief, FES Division or the designee of
the date of receipt of the hearing officer's report; the date the
report is forwarded to ATF Counsel for final review; and the date final
action is taken on the case.
Post Hearing Procedures
The original report, including exhibits and recording, shall become
part of the applicant's/licensee's official file at the Federal
Firearms Licensing Center.
The hearing officer will be provided a copy of the Final Notice, if
issued, or be advised of other action taken by the DIO in lieu of the
recommended denial, revocation, suspension, or fine.
Drafting Information
The author of this document is James P. Ficaretta; Enforcement
Programs and Services; Bureau of Alcohol, Tobacco, Firearms and
Explosives.
Authority and Issuance
This notice is issued pursuant to 5 U.S.C. 552(a).
Approved: August 2, 2010.
Kenneth E. Melson,
Deputy Director.
[FR Doc. 2010-19740 Filed 8-9-10; 8:45 am]
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