Hearing Procedures Relating to Federal Firearms Licenses (2010R-2T), 48362-48365 [2010-19740]

Agencies

• Department of Justice
• Bureau of Alcohol, Tobacco, Firearms and Explosives
• Alcohol, Tobacco, Firearms, and Explosives Bureau

[Federal Register Volume 75, Number 153 (Tuesday, August 10, 2010)]
[Notices]
[Pages 48362-48365]
From the Federal Register Online via the Government Printing 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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