Decision-Making Authority Regarding the Denial, Suspension, or Revocation of a Federal Firearms License, or Imposition of a Civil Fine, 31285-31288 [2010-13392]
Download as PDF
<![CDATA[
Federal Register / Vol. 75, No. 106 / Thursday, June 3, 2010 / Rules and Regulations
Pursuant to these Acts, the
establishment of standards is not
considered an unnecessary obstacle to
the foreign commerce of the United
States, so long as the standard has a
legitimate domestic objective, such the
protection of safety, and does not
operate in a manner that excludes
imports that meet this objective. The
statute also requires consideration of
international standards and, where
appropriate, that they be the basis for
U.S. standards. The FAA has assessed
the potential effect of this proposed rule
and determined that it has only a
domestic impact and is not subject to
the Trade Agreements Act requirements.
Regulations That Significantly Affect
Energy Supply, Distribution, or Use
Unfunded Mandates Assessment
Air traffic controllers, Aircraft,
Airmen, Airports, Alcohol abuse,
Aviation safety Drug abuse, Reporting
and recordkeeping requirements,
Security measures.
Title II of the Unfunded Mandates
Reform Act of 1995 (Pub. L. 104–4)
requires each Federal agency to prepare
a written statement assessing the effects
of any Federal mandate in a proposed or
final agency rule that may result in an
expenditure of $100 million or more
(adjusted annually for inflation with the
base year 1995) in any one year by State,
local, and tribal governments, in the
aggregate, or by the private sector; such
a mandate is deemed to be a ‘‘significant
regulatory action.’’ The FAA currently
uses an inflation-adjusted value of
$141.3 million.
This rulemaking action does not
contain such a mandate. Therefore, the
requirements of Title II of the Unfunded
Mandates Reform Act of 1995 do not
apply to this regulation.
Executive Order 13132, Federalism
emcdonald on DSK2BSOYB1PROD with RULES
Environmental Analysis
FAA Order 1050.1E identifies FAA
actions that are categorically excluded
from preparation of an environmental
assessment or environmental impact
statement under the National
Environmental Policy Act in the
absence of extraordinary circumstances.
The FAA has determined this
rulemaking action qualifies for the
categorical exclusion identified in
paragraph 312 and involves no
extraordinary circumstances.
15:54 Jun 02, 2010
Jkt 220001
List of Subjects in 14 CFR Part 65
The Amendment
Accordingly, the Federal Aviation
Administration amends part 65 of the
Federal Aviation Regulations (14 CFR
Part 65) as follows:
■
PART 65—CERTIFICATION: AIRMEN
OTHER THAN FLIGHT
CREWMEMBERS
1. The authority citation for part 65
continues to read as follows:
■
Authority: 5 U.S.C. 8335(a); 49 U.S.C.
106(g); 49 U.S.C. 40113; 49 U.S.C. 44701–
44703; 49 U.S.C. 44707; 49 U.S.C. 44709–
44711; 49 U.S.C. 45102–45103; 49 U.S.C.
45301–45302.
2. Amend § 65.111 by revising the
introductory text of paragraph (b);
redesignating existing paragraphs (c), (d)
and (e) as paragraphs (d), (e) and (f),
respectively; and adding a new
paragraph (c) to read as follows:
■
The FAA has analyzed this final rule
under the principles and criteria of
Executive Order 13132, Federalism. We
determined that this action will not
have a substantial direct effect on the
States, or the relationship between the
national Government and the States, or
on the distribution of power and
responsibilities among the various
levels of government. Therefore, we
have determined that this final rule does
not have federalism implications.
VerDate Mar<15>2010
The FAA has analyzed this final rule
under Executive Order 13211, Actions
Concerning Regulations that
Significantly Affect Energy Supply,
Distribution, or Use (66 FR 28355, May
18, 2001). We have determined that it is
not a ‘‘significant regulatory action’’
under the Order because it is not a
‘‘significant regulatory action’’ under
Executive Order 12866, and it is not
likely to have a significant adverse effect
on the supply, distribution, or use of
energy.
§ 65.111
Certificate required.
*
*
*
*
*
(b) No person may pack any main
parachute of a dual-parachute system to
be used for intentional parachute
jumping in connection with civil
aircraft of the United States unless that
person—
*
*
*
*
*
(c) No person may maintain or alter
any main parachute of a dual-parachute
system to be used for intentional
parachute jumping in connection with
civil aircraft of the United States unless
that person—
(1) Has an appropriate current
certificate issued under this subpart; or
(2) Is under the supervision of a
current certificated parachute rigger;
*
*
*
*
*
PO 00000
Frm 00013
Fmt 4700
Sfmt 4700
31285
Issued in Washington, DC, on May 25,
2010.
J. Randolph Babbitt,
Administrator.
[FR Doc. 2010–13388 Filed 6–2–10; 8:45 am]
BILLING CODE 4910–13–P
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.
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:
E:\FR\FM\03JNR1.SGM
03JNR1
emcdonald on DSK2BSOYB1PROD with RULES
31286
Federal Register / Vol. 75, No. 106 / Thursday, June 3, 2010 / Rules and Regulations
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, §§ 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, § 478 provided as follows: Under
§ 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 § 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 § 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,
VerDate Mar<15>2010
18:23 Jun 02, 2010
Jkt 220001
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 § 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 § 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 posthearing 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,
PO 00000
Frm 00014
Fmt 4700
Sfmt 4700
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,
§ 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 decisionmaker. 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
E:\FR\FM\03JNR1.SGM
03JNR1
Federal Register / Vol. 75, No. 106 / Thursday, June 3, 2010 / Rules and Regulations
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.
emcdonald on DSK2BSOYB1PROD with RULES
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.
VerDate Mar<15>2010
15:54 Jun 02, 2010
Jkt 220001
31287
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.
Director the authority to make decisions
with respect to the denial, suspension,
imposition of a civil fine, or revocation
of federal firearms licenses.
How This Document Complies With the
Federal Administrative Requirements
for Rulemaking
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 foreignbased companies in domestic and
export markets.
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
PO 00000
Frm 00015
Fmt 4700
Sfmt 4700
E. Small Business Regulatory
Enforcement Fairness Act of 1996
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.
E:\FR\FM\03JNR1.SGM
03JNR1
31288
Federal Register / Vol. 75, No. 106 / Thursday, June 3, 2010 / Rules and Regulations
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.
induction. No other form of
documentation serves this purpose.
The Postal Service adopts the
following changes to the Mailing
Standards for the United States Postal
Service, Domestic Mail Manual (DMM),
which is incorporated by reference in
the Code of Federal Regulations. See 39
CFR Part 111.1.
List of Subjects in 39 CFR Part 111
Administrative practice and
procedure, Postal Service.
■ Accordingly, 39 CFR Part 111 is
amended as follows:
Dated: May 27, 2010.
Eric H. Holder, Jr.,
Attorney General.
[FR Doc. 2010–13392 Filed 6–2–10; 8:45 am]
BILLING CODE 4410–FY–P
PART 111—[AMENDED]
POSTAL SERVICE
1. The authority citation for 39 C.F.R.
Part continues to read as follows:
■
39 CFR Part 111
Plant-Verified Drop Shipment (PVDS)—
Nonpostal Documentation
Postal ServiceTM.
ACTION: Final rule.
AGENCY:
The Postal Service is revising
Mailing Standards of the United States
Postal Service, Domestic Mail Manual
(DMM®) 705.15. 2.14 to clarify that PS
Form 8125, Plant-Verified Drop
Shipment (PVDS) Verification and
Clearance, is the sole source of evidence
for USPS® purposes of the transfer of
the custody of pieces entered as a
mailing at the time of induction; to
clarify that Postal employees may, upon
request, sign additional nonpostal
documents when presented by
transportation providers; and to require
segregation of documentation presented
at the time of induction.
DATES: Effective Date: July 6, 2010.
FOR FURTHER INFORMATION CONTACT:
Susan Thomas at 202–268–8069.
SUPPLEMENTARY INFORMATION: As a result
of reviews of USPS policy concerning
practices at induction points of plantverified drop shipment mailings, the
Postal Service is adopting this final rule
to clarify the use and purpose of PS
Form 8125 as well as other documents
that mailers’ nonpostal transportation
providers (carriers) may present at the
time of induction. The final rule
provides that PS Forms 8125 must be
segregated from any other
documentation presented at the time of
mailing. This measure ensures that
postal personnel will be able to easily
identify and process necessary postal
documentation at the time of induction,
thereby promoting the efficiency of
operations. Further, the final rule
clarifies that a PS Form 8125 serves as
the sole source of evidence for USPS
purposes of the transfer of the custody
of pieces entered at the time of
emcdonald on DSK2BSOYB1PROD with RULES
15:54 Jun 02, 2010
Jkt 220001
Stanley F. Mires,
Chief Counsel, Legislative.
[FR Doc. 2010–12885 Filed 6–2–10; 8:45 am]
BILLING CODE 7710–12–P
2. Revise the following sections of
Mailing Standards of the United States
Postal Service, Domestic Mail Manual
(DMM) as follows:
ENVIRONMENTAL PROTECTION
AGENCY
Mailing Standards of the United States
Postal Service, Domestic Mail Manual
(DMM)
[EPA–R01–OAR–2009–0705; A–1–FRL–
9157–4]
■
SUMMARY:
VerDate Mar<15>2010
Authority: 5 U.S.C. 552(a); 13 U.S.C. 301–
307; 18 U.S.C. 1692–1737; 39 U.S.C. 101,
401, 403, 404, 414, 416, 3001–3011, 3201–
3219, 3403–3406, 3621, 3622, 3626, 3632,
3633, and 5001.
delivery receipt or a bill of lading
furnished by a USPS customer’s carrier
as proof of mailing, acceptance, or the
amount of mail tendered. Any signature
by a postal employee or agent on any
nonpostal form does not serve any mail
acceptance purpose. If an inconsistency
between the information on a PS Form
8125 and a carrier- or mailer-provided
document designed to evidence the
transfer of custody of pieces entered as
a mailing at the time of induction exists,
the information on PS Form 8125
prevails insofar as the USPS is
concerned.
*
*
*
*
*
We will publish an amendment to 39
CFR 111 to reflect these changes.
*
*
*
*
Approval and Promulgation of Air
Quality Implementation Plans; Rhode
Island; Determination of Attainment of
the 1997 Ozone Standard
*
700
Special Standards
*
*
*
*
*
705 Advanced Preparation and
Special Postage Payment Systems
*
*
15.0
*
*
*
*
Plant-Verified Drop Shipment
*
15.2
*
*
*
*
Program Participation
*
*
*
*
[Add new 705.15.2.14 as follows:]
15.2.14 Form 8125—Segregation and
Nonpostal Documentation
PS Forms 8125 must be segregated
from all other nonpostal documentation
and presented separately to USPS
personnel at the time of induction.
Nonpostal proof-of-delivery documents
such as delivery receipts or bills of
lading presented by a mailer’s
transportation provider [carrier] are not
substitutes for PS Forms 8125. USPS
personnel may, upon request, sign such
documents when presented by carriers.
A PS Form 8125 signed by a postal
employee (or electronic equivalent file
in the Electronic Verification System
(eVS)) serves as the sole evidence of the
transfer of the custody of pieces entered
as a mailing at the time of induction.
The Postal Service does not consider a
proof-of-delivery document such as a
PO 00000
Frm 00016
Fmt 4700
Sfmt 4700
40 CFR Part 52
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Final rule.
SUMMARY: The EPA is determining that
the Providence (All of Rhode Island)
moderate 8-hour ozone nonattainment
area has attained the 1997 8-hour
National Ambient Air Quality Standard
(NAAQS) for ozone. This determination
is based upon complete, quality-assured
and certified ambient air monitoring
data that show the area has monitored
attainment of the 8-hour ozone NAAQS
for the 2006–2008 monitoring period. In
addition, quality-assured and certified
ozone data for 2009, show that this area
continues to attain the 1997 8-hour
ozone NAAQS. This determination
results in the suspension of the
requirements for Rhode Island to submit
an attainment demonstration, a
reasonable further progress plan,
contingency measures, and other
planning State Implementation Plans for
this area related to attainment of the 8hour ozone NAAQS. These
requirements shall remain suspended
for so long as the area continues to
attain the ozone NAAQS.
DATES: Effective Date: This rule is
effective on July 6, 2010.
E:\FR\FM\03JNR1.SGM
03JNR1
]]>Agencies
[Federal Register Volume 75, Number 106 (Thursday, June 3, 2010)]
[Rules and Regulations]
[Pages 31285-31288]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-13392]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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]
BILLING CODE 4410-FY-P
