[Federal Register Volume 77, Number 23 (Friday, February 3, 2012)]
[Proposed Rules]
[Pages 5460-5463]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-2492]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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).
http://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 http://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 http://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