Federal Firearms License Proceedings-Hearings (2008R-15P), 5460-5463 [2012-2492]
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respect to each of those portions of the
accrued benefit are treated as two separate
optional forms of benefit for purposes of
applying the provisions of Plan E
implementing the requirements of section
417(e)(3) and § 1.417(e)–1(d). Therefore,
whether a participant elects to receive a
single sum payment of the portion of the
benefit earned under the cash balance
formula does not affect whether the
distribution elected with respect to the
portion of the benefit earned as of December
31, 2012, is subject to the minimum present
value requirements of section 417(e)(3).
Example 5. (i) The facts are the same as
in Example 4, except that Plan E also permits
a participant to elect, with respect to the cash
balance portion of the benefit, to receive a
percentage of the accrued benefit chosen by
the participant as a single sum and the
remainder in any annuity form provided
under the plan, with both portions of the
payment determined by multiplying the
amount that would be payable if the entire
benefit were paid in that form by the
percentage that applies to that distribution
option. Plan E provides that, with respect to
such a distribution that is paid partly in the
form of a single sum and partly in the form
of an annuity, the single sum and the annuity
are treated as two separate optional forms of
benefit for purposes of applying the
provisions of the plan implementing the
requirements of section 417(e)(3) and
§ 1.417(e)–1(d). Participant X retires at age
65, with an accrued benefit under the
traditional formula of $500 per month
(earned as of December 31, 2012), and a cash
balance hypothetical account of $45,000.
Based on Plan E’s actuarial equivalence
factors, Participant X’s accrued benefit
derived from the cash balance hypothetical
account is $320 per month, payable as a life
annuity at normal retirement. Participant V
elects to receive $15,000 of the current
hypothetical account balance in the form of
a single sum and to receive the remainder of
the total accrued benefit as a life annuity.
(ii) Under the analysis set forth in Example
4, Plan E provides for a bifurcated accrued
benefit in accordance with paragraph
(d)(7)(C) of this section with respect to the
portion of the accrued benefit attributable to
the benefit accrued as of December 31, 2012,
and the portion of the accrued benefit
attributable to the benefit earned under the
cash balance formula. Furthermore, Plan E
provides that the two different distribution
options selected with respect to each of those
portions of the accrued benefit are treated as
two separate optional forms of benefit for
purposes of applying the provisions of Plan
E implementing the requirements of section
417(e)(3) and § 1.417(e)–1(d). Thus, a
separate distribution option may be chosen
for each of these two portions, and section
417(e)(3) applies separately to each portion.
(iii) In accordance with paragraphs
(d)(7)(ii)(B) and (d)(7)(iv) of this section, the
portion of the accrued benefit under Plan E
earned under the cash balance formula is also
a bifurcated accrued benefit because Plan E
provides for a participant to select a singlesum distribution with respect to a portion of
the cash balance formula accrued benefit and
an annuity distribution option with respect
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20:47 Feb 02, 2012
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to the remaining portion of the cash balance
formula accrued benefit, each distribution
option is available with respect to the entire
cash balance formula accrued benefit, and
the amount of the distribution with respect
to each distribution option applied to its
respective portion of the cash balance
formula accrued benefit is the pro rata
portion of the amount of the distribution that
would be determined if that distribution
option had been applied to the entire cash
balance formula accrued benefit.
Furthermore, Plan E provides that the two
different distribution options selected with
respect to each of those portions of the cash
balance formula accrued benefit are treated
as two separate optional forms of benefit for
purposes of applying the provisions of Plan
E implementing the requirements of section
417(e)(3) and § 1.417(e)–1(d). Thus, under
paragraph (d)(7)(iv) of this section, 1⁄3 of the
cash balance hypothetical account is paid as
a single sum (that is, $15,000 ÷ $45,000), and
the remaining 2⁄3 of the cash balance
hypothetical account, or $30,000, is
converted to an annuity benefit of 2⁄3 × $320,
or $213.33 per month.
(iv) Participant X therefore receives a
single sum payment of $15,000, representing
the portion of the current hypothetical
account balance that X elected to receive as
a single sum. In addition, Participant X
receives a monthly life annuity of $713.33
per month (equal to the $500 benefit
attributable to the benefit earned as of
December 31, 2012, plus the $213.33 portion
of the cash balance benefit paid as an
annuity). Participant X’s election to receive a
single sum payment of part of the benefit
earned under the cash balance formula does
not affect whether the remainder of
Participant X’s distribution is subject to the
minimum present value requirements of
section 417(e)(3).
(8) Effective/applicability date—(i) In
general. Except as otherwise provided
in this paragraph (d)(8), this paragraph
(d) applies to distributions with annuity
starting dates in plan years beginning on
or after January 1, 1995.
*
*
*
*
*
(v) Paragraph (d)(7) of this section
applies to distributions with annuity
starting dates in plan years beginning on
or after the date final regulations that
finalize these proposed regulations are
published in the Federal Register.
*
*
*
*
*
Steven T. Miller,
Deputy Commissioner for Services and
Enforcement.
[FR Doc. 2012–2341 Filed 2–2–12; 8:45 am]
BILLING CODE 4830–01–P
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DEPARTMENT OF JUSTICE
Bureau of Alcohol, Tobacco, Firearms,
and Explosives
27 CFR Part 478
[Docket No. ATF 32P; AG Order No. 3321–
2012]
RIN 1140–AA38
Federal Firearms License
Proceedings—Hearings (2008R–15P)
Bureau of Alcohol, Tobacco,
Firearms, and Explosives (ATF),
Department of Justice.
ACTION: Notice of proposed rulemaking.
AGENCY:
The Department of Justice is
proposing to amend the regulations of
the Bureau of Alcohol, Tobacco,
Firearms, and Explosives (ATF)
regarding administrative hearings held
as part of firearms license proceedings.
This proposed rule clarifies that such
hearings are held in an informal setting
and that persons requesting a hearing
will be afforded the opportunity to
submit facts, arguments, offers of
settlement, or proposals of adjustment
for review and consideration. The
proposed regulations are intended to
ensure that federal firearms licensees
and persons applying for a federal
firearms license are familiar with the
hearing process relative to the denial,
suspension, or revocation of a firearms
license, or imposition of a civil fine.
DATES: Written comments must be
postmarked and electronic comments
must be submitted on or before May 3,
2012. Commenters should be aware that
the electronic Federal Docket
Management System will not accept
comments after Midnight Eastern Time
on the last day of the comment period.
ADDRESSES: Send comments to any of
the following addresses—
• Deborah G. Szczenski, Industry
Operations Specialist (Regulations),
Mailstop 6N–602, Enforcement
Programs and Services, Bureau of
Alcohol, Tobacco, Firearms, and
Explosives, 99 New York Avenue NE.,
Washington, DC 20226; Attn: ATF 32P.
Written comments must appear in a
minimum 12-point size of type (.17
inches), include your mailing address,
be signed, and may be of any length.
• (202) 648–9741 (facsimile).
• https://www.regulations.gov. Federal
eRulemaking portal; follow the
instructions for submitting comments.
You may also view an electronic
version of this proposed rule at the
https://www.regulations.gov site.
See the Public Participation section at
the end of the SUPPLEMENTARY
SUMMARY:
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section for instructions and
requirements for submitting comments,
and for information on how to request
a public hearing.
FOR FURTHER INFORMATION CONTACT:
Deborah G. Szczenski, 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) 648–7087.
SUPPLEMENTARY INFORMATION:
INFORMATION
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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, sections 478.71–478.78, relate to
proceedings involving federal firearms
licenses, including the denial,
suspension, or revocation of a license,
or the imposition of a civil fine. In
particular, § 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
§ 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 § 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
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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 ATF 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.
Additionally, under 18 U.S.C.
924(p)(1)(A) and 922 (z), a notice of
suspension or revocation of a license, or
the imposition of a civil penalty, may be
issued when a licensee sells, delivers, or
transfers any handgun to any unlicensed
person without providing a secure gun
storage or safety device for the handgun.
As specified in § 478.74, a licensee
who receives a notice of license
suspension or revocation of a license, or
imposition of a civil fine, may file a
request for a hearing with the Director
of Industry Operations. 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, 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 § 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
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Counsel or authorized Division Counsel.
Pursuant to § 478.77, hearings
concerning notification of license
denials, suspensions, revocations, or the
imposition of a civil fine must be held
in a location convenient to the aggrieved
party.
Currently, ATF has procedures
regarding administrative hearings held
as part of firearms license proceedings
(see ATF 36N, 75 FR 48362, Aug. 10,
2010).
II. Proposed Rule—Clarification of
Hearing Proceedings
As indicated above, the regulations
provide certain information regarding
hearings relative to firearms license
proceedings, e.g., who can request a
hearing, where the hearing is held, and
that the person requesting a hearing is
entitled to representation. ATF believes
that other aspects of the hearing process
should be clarified in the regulations.
For example, hearings are informal in
nature and adherence to civil court rules
and procedures is not required. In
addition, persons who request a hearing
have an opportunity at that time for the
submission and consideration of facts,
arguments, offers of settlement, or
proposals of adjustment. These
provisions are being incorporated into
the proposed regulations.
The proposed regulations are
intended to ensure that federal firearms
licensees and applicants for a federal
firearms license are familiar with the
hearing process relative to the denial,
suspension, or revocation of a firearms
license, or imposition of a civil fine.
How This Document Complies With the
Federal Administrative Requirements
for Rulemaking
A. Executive Order 12866
This proposed rule has been drafted
and reviewed in accordance with
Executive Order 12866, ‘‘Regulatory
Planning and Review,’’ section 1(b),
Principles of Regulation. The
Department of Justice has determined
that this proposed rule is a ‘‘significant
regulatory action’’ under Executive
Order 12866, section 3(f), Regulatory
Planning and Review, and accordingly
this proposed rule has been reviewed by
the Office of Management and Budget.
However, this proposed 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.
Accordingly, this proposed rule is not
an ‘‘economically significant’’
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rulemaking as defined by Executive
Order 12866.
The proposed amendments merely
clarify that an administrative hearing,
pursuant to a firearms license
proceeding, is held in an informal
setting where a federal firearms licensee
or an applicant for a federal firearms
license will have the opportunity for the
submission and consideration of facts,
arguments, offers of settlement or
proposals of adjustment for review and
consideration by the Director of ATF.
B. Executive Order 13132
This proposed 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 proposed
regulation will not have sufficient
federalism implications to warrant the
preparation of a federalism summary
impact statement.
This proposed regulation meets the
applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive
Order 12988.
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G. Paperwork Reduction Act
Public Participation
A. Comments Sought
D. Regulatory Flexibility Act
The Regulatory Flexibility Act (5
U.S.C. 605(b)) 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. Small entities include small
businesses, small not-for-profit
enterprises, and small governmental
jurisdictions. The Attorney General has
reviewed this proposed rule and, by
approving it, certifies that this proposed
rule will not have a significant
economic impact on a substantial
number of small entities. The proposed
amendments merely clarify that an
administrative hearing, pursuant to a
firearms license proceeding, is held in
an informal setting where a federal
firearms licensee or an applicant for a
federal firearms license will have the
opportunity for the submission and
consideration of facts, arguments, offers
of settlement, or proposals of
adjustment for consideration by the
Director of ATF.
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F. Unfunded Mandates Reform Act of
1995
This proposed 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.
This proposed rule does not impose
any new reporting or recordkeeping
requirements under the Paperwork
Reduction Act.
C. Executive Order 12988
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E. Small Business Regulatory
Enforcement Fairness Act of 1996
This proposed 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
proposed 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.
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ATF is requesting comments on the
proposed rule from all interested
persons. ATF is also specifically
requesting comments on the clarity of
this proposed rule and how it may be
made easier to understand.
All comments must reference this
document docket number (ATF 32P), be
legible, and include your name and
mailing address. ATF will treat all
comments as originals and will not
acknowledge receipt of comments.
Comments received on or before the
closing date will be carefully
considered. Comments received after
that date will be given the same
consideration if it is practical to do so,
but assurance of consideration cannot
be given except as to comments received
on or before the closing date.
B. Confidentiality
Comments, whether submitted
electronically or on paper, will be made
available for public viewing at ATF, and
on the Internet as part of the
eRulemaking initiative, and are subject
to the Freedom of Information Act.
Commenters who do not want their
name or other personal identifying
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information posted on the Internet
should submit their comment by mail or
facsimile, along with a separate cover
sheet that contains their personal
identifying information. Both the cover
sheet and comment must reference this
docket number. Information contained
in the cover sheet will not be posted on
the Internet. Any personal identifying
information that appears within the
comment will be posted on the Internet
and will not be redacted by ATF.
Any material that the commenter
considers to be inappropriate for
disclosure to the public should not be
included in the comment. Any person
submitting a comment shall specifically
designate that portion (if any) of his
comments that contains material that is
confidential under law (e.g., trade
secrets, processes, etc.). Any portion of
a comment that is confidential under
law shall be set forth on pages separate
from the balance of the comment and
shall be prominently marked
‘‘confidential’’ at the top of each page.
Confidential information will be
included in the rulemaking record but
will not be disclosed to the public. Any
comments containing material that is
not confidential under law may be
disclosed to the public. In any event, the
name of the person submitting a
comment is not exempt from disclosure.
C. Submitting Comments
Comments may be submitted in any of
three ways:
• Mail: Send written comments to the
address listed in the ADDRESSES section
of this document. Written comments
must appear in a minimum 12-point
size of type (.17 inches), include your
mailing address, be signed, and may be
of any length.
• Facsimile: You may submit
comments by facsimile transmission to
(202) 648–9741. Faxed comments must:
(1) Be legible and appear in a
minimum 12-point size of type (.17
inches);
(2) Be on 81⁄2″ x 11″ paper;
(3) Contain a legible, written
signature; and
(4) Be no more than five pages long.
ATF will not accept faxed comments
that exceed five pages.
• Federal eRulemaking Portal: To
submit comments to ATF via the
Federal eRulemaking portal, visit
https://www.regulations.gov and follow
the instructions for submitting
comments.
D. Request for Hearing
Any interested person who desires an
opportunity to comment orally at a
public hearing should submit his or her
request, in writing, to the Director of
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ATF within the 90-day comment period.
The Director, however, reserves the
right to determine, in light of all
circumstances, whether a public hearing
is necessary.
adjustment for review and
consideration. * * *
Dated: January 30, 2012.
Eric H. Holder, Jr.,
Attorney General.
Disclosure
[FR Doc. 2012–2492 Filed 2–2–12; 8:45 am]
Copies of this proposed rule and the
comments received will be available for
public inspection by appointment
during normal business hours at: ATF
Reading Room, Room 1E–062, 99 New
York Avenue NE., Washington, DC
20226; telephone: (202) 648–8740.
BILLING CODE 4410–FY–P
Drafting Information
33 CFR Part 100 and 165
The author of this document is
Deborah G. Szczenski; Enforcement
Programs and Services; Bureau of
Alcohol, Tobacco, Firearms, and
Explosives.
[Docket No. USCG–2011–1026]
Administrative practice and
procedure, Arms and ammunition,
Authority delegations, Customs duties
and inspection, Domestic violence,
Exports, Imports, Law enforcement
personnel, Military personnel,
Nonimmigrant aliens, Penalties,
Reporting and recordkeeping
requirements, Research, Seizures and
forfeitures, and Transportation.
Authority and Issuance
Accordingly, for the reasons
discussed in the preamble, 27 CFR Part
478 is proposed to be amended as
follows:
PART 478—COMMERCE IN FIREARMS
AND AMMUNITION
1. The authority citation for 27 CFR
Part 478 continues to read as follows:
Authority: 5 U.S.C. 552(a); 18 U.S.C. 847,
921–930; 44 U.S.C. 3504(h).
2. Section 478.72 is amended by
adding a new fifth sentence to read as
follows:
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Hearing after application denial.
* * * The hearing shall be informal
and the applicant will have the
opportunity to submit facts, arguments,
offers of settlement, or proposals of
adjustment for review and
consideration. * * *
3. Section 478.74 is amended by
adding a new fourth sentence to read as
follows:
§ 478.74 Request for hearing after notice
of suspension, revocation, or imposition of
civil fine.
* * * The hearing shall be informal
and the licensee will have the
opportunity to submit facts, arguments,
offers of settlement, or proposals of
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Coast Guard
RIN 1625–AA08; AA00
List of Subjects in 27 CFR Part 478
§ 478.72
DEPARTMENT OF HOMELAND
SECURITY
Safety Zones; Annually Recurring
Marine Events in Coast Guard
Southeastern New England Captain of
the Port Zone
Coast Guard, DHS.
Notice of proposed rulemaking.
AGENCY:
ACTION:
The Coast Guard proposes to
amend special local regulations and to
establish permanent safety zones in
Coast Guard Southeastern New England
Captain of the Port (COTP) Zone for
annually recurring marine events. When
these safety zones are activated, and
subject to enforcement, this rule may
restrict vessels from portions of water
areas during annual events listed in the
TABLE below that may pose a hazard to
public safety. The revised safety zones
would expedite public notification of
events, remove extraneous and
discontinued marine events, add new
annually recurring marine events, and
ensure the protection of the maritime
public and event participants from the
hazards associated with marine regattas,
firework displays, swim competitions,
and other marine events.
DATES: Comments and related material
must be received by the Coast Guard on
or before April 3, 2012. Requests for
public meetings must be received by the
Coast Guard on or before February 24,
2012.
ADDRESSES: You may submit comments
identified by docket number USCG–
2011–1026 using any one of the
following methods:
(1) Federal e-Rulemaking Portal:
https://www.regulations.gov.
(2) Fax: (202) 493–2251.
(3) Mail: Docket Management Facility
(M–30), U.S. Department of
Transportation, West Building Ground
Floor, Room W12–140, 1200 New Jersey
Avenue SE., Washington, DC 20590–
0001.
(4) Hand delivery: Same as mail
address above, between 9 a.m. and
SUMMARY:
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5 p.m., Monday through Friday, except
Federal holidays. The telephone number
is (202) 366–9329.
To avoid duplication, please use only
one of these four methods. See the
‘‘Public Participation and Request for
Comments’’ portion of the
SUPPLEMENTARY INFORMATION section
below for instructions on submitting
comments.
If
you have questions on this proposed
rule, call or email Mr. Edward G.
LeBlanc, Waterways Management
Division at Coast Guard Sector
Southeastern New England, telephone
(401) 435–2351, email
Edward.G.LeBlanc@uscg.mil. If you
have questions on viewing or submitting
material to the docket, call Renee V.
Wright, Program Manager, Docket
Operations, telephone (202) 366–9826.
SUPPLEMENTARY INFORMATION:
FOR FURTHER INFORMATION CONTACT:
Public Participation and Request for
Comments
We encourage you to participate in
this rulemaking by submitting
comments and related materials. All
comments received will be posted
without change to https://
www.regulations.gov and will include
any personal information you have
provided.
Submitting Comments
If you submit a comment, please
include the docket number for this
rulemaking (USCG–2011–1026),
indicate the specific section of this
document to which each comment
applies, and provide a reason for each
suggestion or recommendation. You
may submit your comments and
material online (via https://
www.regulations.gov) or by fax, mail, or
hand delivery, but please use only one
of these means. If you submit a
comment online via https://
www.regulations.gov, it will be
considered received by the Coast Guard
when you successfully transmit the
comment. If you fax, hand deliver, or
mail your comment, it will be
considered as having been received by
the Coast Guard when it is received at
the Docket Management Facility. We
recommend that you include your name
and a mailing address, an email address,
or a telephone number in the body of
your document so that we can contact
you if we have questions regarding your
submission.
To submit your comment online, go to
https://www.regulations.gov, click on the
‘‘submit a comment’’ box, which will
then become highlighted in blue. In the
‘‘Document Type’’ drop down menu
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]]>Agencies
[Federal Register Volume 77, Number 23 (Friday, February 3, 2012)]
[Proposed Rules]
[Pages 5460-5463]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-2492]
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DEPARTMENT OF JUSTICE
Bureau of Alcohol, Tobacco, Firearms, and Explosives
27 CFR Part 478
[Docket No. ATF 32P; AG Order No. 3321-2012]
RIN 1140-AA38
Federal Firearms License Proceedings--Hearings (2008R-15P)
AGENCY: Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF),
Department of Justice.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Department of Justice is proposing to amend the
regulations of the Bureau of Alcohol, Tobacco, Firearms, and Explosives
(ATF) regarding administrative hearings held as part of firearms
license proceedings. This proposed rule clarifies that such hearings
are held in an informal setting and that persons requesting a hearing
will be afforded the opportunity to submit facts, arguments, offers of
settlement, or proposals of adjustment for review and consideration.
The proposed regulations are intended to ensure that federal firearms
licensees and persons applying for a federal firearms license are
familiar with the hearing process relative to the denial, suspension,
or revocation of a firearms license, or imposition of a civil fine.
DATES: Written comments must be postmarked and electronic comments must
be submitted on or before May 3, 2012. Commenters should be aware that
the electronic Federal Docket Management System will not accept
comments after Midnight Eastern Time on the last day of the comment
period.
ADDRESSES: Send comments to any of the following addresses--
Deborah G. Szczenski, Industry Operations Specialist
(Regulations), Mailstop 6N-602, Enforcement Programs and Services,
Bureau of Alcohol, Tobacco, Firearms, and Explosives, 99 New York
Avenue NE., Washington, DC 20226; Attn: ATF 32P. Written comments must
appear in a minimum 12-point size of type (.17 inches), include your
mailing address, be signed, and may be of any length.
(202) 648-9741 (facsimile).
https://www.regulations.gov. Federal eRulemaking portal;
follow the instructions for submitting comments.
You may also view an electronic version of this proposed rule at
the https://www.regulations.gov site.
See the Public Participation section at the end of the
SUPPLEMENTARY
[[Page 5461]]
INFORMATION section for instructions and requirements for submitting
comments, and for information on how to request a public hearing.
FOR FURTHER INFORMATION CONTACT: Deborah G. Szczenski, 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) 648-7087.
SUPPLEMENTARY INFORMATION:
I. Background
The Attorney General is responsible for enforcing the provisions of
the Gun Control Act of 1968 (``the Act''), 18 U.S.C. Chapter 44. He has
delegated that responsibility to the Director of ATF, subject to the
direction of the Attorney General and the Deputy Attorney General. 28
CFR 0.130(a). ATF has promulgated regulations that implement the
provisions of the Act in 27 CFR Part 478.
The regulations in Subpart E of Part 478, sections 478.71-478.78,
relate to proceedings involving federal firearms licenses, including
the denial, suspension, or revocation 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 ATF 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.
Additionally, under 18 U.S.C. 924(p)(1)(A) and 922 (z), a notice of
suspension or revocation of a license, or the imposition of a civil
penalty, may be issued when a licensee sells, delivers, or transfers
any handgun to any unlicensed person without providing a secure gun
storage or safety device for the handgun.
As specified in Sec. 478.74, a licensee who receives a notice of
license suspension or revocation of a license, or imposition of a civil
fine, may file a request for a hearing with the Director of Industry
Operations. 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, 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 or authorized Division Counsel. Pursuant to Sec. 478.77,
hearings concerning notification of license denials, suspensions,
revocations, or the imposition of a civil fine must be held in a
location convenient to the aggrieved party.
Currently, ATF has procedures regarding administrative hearings
held as part of firearms license proceedings (see ATF 36N, 75 FR 48362,
Aug. 10, 2010).
II. Proposed Rule--Clarification of Hearing Proceedings
As indicated above, the regulations provide certain information
regarding hearings relative to firearms license proceedings, e.g., who
can request a hearing, where the hearing is held, and that the person
requesting a hearing is entitled to representation. ATF believes that
other aspects of the hearing process should be clarified in the
regulations. For example, hearings are informal in nature and adherence
to civil court rules and procedures is not required. In addition,
persons who request a hearing have an opportunity at that time for the
submission and consideration of facts, arguments, offers of settlement,
or proposals of adjustment. These provisions are being incorporated
into the proposed regulations.
The proposed regulations are intended to ensure that federal
firearms licensees and applicants for a federal firearms license are
familiar with the hearing process relative to the denial, suspension,
or revocation of a firearms license, or imposition of a civil fine.
How This Document Complies With the Federal Administrative Requirements
for Rulemaking
A. Executive Order 12866
This proposed rule has been drafted and reviewed in accordance with
Executive Order 12866, ``Regulatory Planning and Review,'' section
1(b), Principles of Regulation. The Department of Justice has
determined that this proposed rule is a ``significant regulatory
action'' under Executive Order 12866, section 3(f), Regulatory Planning
and Review, and accordingly this proposed rule has been reviewed by the
Office of Management and Budget. However, this proposed 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.
Accordingly, this proposed rule is not an ``economically significant''
[[Page 5462]]
rulemaking as defined by Executive Order 12866.
The proposed amendments merely clarify that an administrative
hearing, pursuant to a firearms license proceeding, is held in an
informal setting where a federal firearms licensee or an applicant for
a federal firearms license will have the opportunity for the submission
and consideration of facts, arguments, offers of settlement or
proposals of adjustment for review and consideration by the Director of
ATF.
B. Executive Order 13132
This proposed 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 proposed regulation will not have sufficient federalism
implications to warrant the preparation of a federalism summary impact
statement.
C. Executive Order 12988
This proposed regulation meets the applicable standards set forth
in sections 3(a) and 3(b)(2) of Executive Order 12988.
D. Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 605(b)) 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. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions. The Attorney General has reviewed this proposed rule
and, by approving it, certifies that this proposed rule will not have a
significant economic impact on a substantial number of small entities.
The proposed amendments merely clarify that an administrative hearing,
pursuant to a firearms license proceeding, is held in an informal
setting where a federal firearms licensee or an applicant for a federal
firearms license will have the opportunity for the submission and
consideration of facts, arguments, offers of settlement, or proposals
of adjustment for consideration by the Director of ATF.
E. Small Business Regulatory Enforcement Fairness Act of 1996
This proposed 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 proposed 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 proposed 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 proposed rule does not impose any new reporting or
recordkeeping requirements under the Paperwork Reduction Act.
Public Participation
A. Comments Sought
ATF is requesting comments on the proposed rule from all interested
persons. ATF is also specifically requesting comments on the clarity of
this proposed rule and how it may be made easier to understand.
All comments must reference this document docket number (ATF 32P),
be legible, and include your name and mailing address. ATF will treat
all comments as originals and will not acknowledge receipt of comments.
Comments received on or before the closing date will be carefully
considered. Comments received after that date will be given the same
consideration if it is practical to do so, but assurance of
consideration cannot be given except as to comments received on or
before the closing date.
B. Confidentiality
Comments, whether submitted electronically or on paper, will be
made available for public viewing at ATF, and on the Internet as part
of the eRulemaking initiative, and are subject to the Freedom of
Information Act. Commenters who do not want their name or other
personal identifying information posted on the Internet should submit
their comment by mail or facsimile, along with a separate cover sheet
that contains their personal identifying information. Both the cover
sheet and comment must reference this docket number. Information
contained in the cover sheet will not be posted on the Internet. Any
personal identifying information that appears within the comment will
be posted on the Internet and will not be redacted by ATF.
Any material that the commenter considers to be inappropriate for
disclosure to the public should not be included in the comment. Any
person submitting a comment shall specifically designate that portion
(if any) of his comments that contains material that is confidential
under law (e.g., trade secrets, processes, etc.). Any portion of a
comment that is confidential under law shall be set forth on pages
separate from the balance of the comment and shall be prominently
marked ``confidential'' at the top of each page. Confidential
information will be included in the rulemaking record but will not be
disclosed to the public. Any comments containing material that is not
confidential under law may be disclosed to the public. In any event,
the name of the person submitting a comment is not exempt from
disclosure.
C. Submitting Comments
Comments may be submitted in any of three ways:
Mail: Send written comments to the address listed in the
ADDRESSES section of this document. Written comments must appear in a
minimum 12-point size of type (.17 inches), include your mailing
address, be signed, and may be of any length.
Facsimile: You may submit comments by facsimile
transmission to (202) 648-9741. Faxed comments must:
(1) Be legible and appear in a minimum 12-point size of type (.17
inches);
(2) Be on 8\1/2\'' x 11'' paper;
(3) Contain a legible, written signature; and
(4) Be no more than five pages long. ATF will not accept faxed
comments that exceed five pages.
Federal eRulemaking Portal: To submit comments to ATF via
the Federal eRulemaking portal, visit https://www.regulations.gov and
follow the instructions for submitting comments.
D. Request for Hearing
Any interested person who desires an opportunity to comment orally
at a public hearing should submit his or her request, in writing, to
the Director of
[[Page 5463]]
ATF within the 90-day comment period. The Director, however, reserves
the right to determine, in light of all circumstances, whether a public
hearing is necessary.
Disclosure
Copies of this proposed rule and the comments received will be
available for public inspection by appointment during normal business
hours at: ATF Reading Room, Room 1E-062, 99 New York Avenue NE.,
Washington, DC 20226; telephone: (202) 648-8740.
Drafting Information
The author of this document is Deborah G. Szczenski; 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, Nonimmigrant aliens, Penalties, Reporting and recordkeeping
requirements, Research, Seizures and forfeitures, and Transportation.
Authority and Issuance
Accordingly, for the reasons discussed in the preamble, 27 CFR Part
478 is proposed to be amended as follows:
PART 478--COMMERCE IN FIREARMS AND AMMUNITION
1. The authority citation for 27 CFR Part 478 continues to read as
follows:
Authority: 5 U.S.C. 552(a); 18 U.S.C. 847, 921-930; 44 U.S.C.
3504(h).
2. Section 478.72 is amended by adding a new fifth sentence to read
as follows:
Sec. 478.72 Hearing after application denial.
* * * The hearing shall be informal and the applicant will have the
opportunity to submit facts, arguments, offers of settlement, or
proposals of adjustment for review and consideration. * * *
3. Section 478.74 is amended by adding a new fourth sentence to
read as follows:
Sec. 478.74 Request for hearing after notice of suspension,
revocation, or imposition of civil fine.
* * * The hearing shall be informal and the licensee will have the
opportunity to submit facts, arguments, offers of settlement, or
proposals of adjustment for review and consideration. * * *
Dated: January 30, 2012.
Eric H. Holder, Jr.,
Attorney General.
[FR Doc. 2012-2492 Filed 2-2-12; 8:45 am]
BILLING CODE 4410-FY-P
