Federal Register / Vol. 79, No. 194 / Tuesday, October 7, 2014 / Proposed Rules 60391 

unless it has been inspected following the 

applicable paragraph of PILATUS PC–7 

Service Bulletin No: 51–001, Revision No. 1, 

dated August 26, 2014. 

(1) For airplanes with any parts made of 

aluminum alloy AA2124–T851: Within 12 

months after the effective date of this AD, 

make an entry in the aircraft logbook as 

required by paragraph 3.D.(3) of PILATUS 

PC–7 Service Bulletin No: 51–001, Revision 

No. 1, dated August 26, 2014. The only other 

actions of this AD that apply to airplanes 

with all parts made of aluminum alloy 

AA2124–T851 are the actions in paragraphs 

(f)(3), (f)(4), and (f)(5) of this AD. 

(2) For airplanes with any parts made of 

aluminum alloy AA2024–T351: Within 12 

months after the effective date of this AD, do 

the actions in paragraphs (f)(2)(i) through 

(f)(2)(iii) as applicable, including all 

subparagraphs: 

(i) For items 7 through 9 and 11 through 

13 as listed in paragraph 1.A.(2) of PILATUS 

PC–7 Service Bulletin No: 51–001, Revision 

No. 1, dated August 26, 2014, within 12 

months after the effective date of this AD, do 

a one-time inspection for cracks. If any cracks 

are found as a result of the inspection, before 

further flight, you must contact PILATUS 

Aircraft Ltd. to obtain FAA-approved repair 

instructions approved specifically for 

compliance with this AD and incorporate 

those instructions. Use the contact 

information found in paragraph (h) of this 

AD. 

(ii) For item 6 as listed in paragraph 1.A.(2) 

of PILATUS PC–7 Service Bulletin No: 51– 

001, Revision No. 1, dated August 26, 2014, 

within 12 months after the effective date of 

this AD, replace with a part made of 

aluminum alloy AA2124–T851. 

(iii) For Items 1, 2, 4, 5, and 10 as listed 

in paragraph 1.A.(2) of PILATUS PC–7 

Service Bulletin No: 51–001, Revision No. 1, 

dated August 26, 2014, within 12 months 

after the effective date of this AD, do the 

following actions in paragraphs (f)(2)(iii)(A) 

and (f)(2)(iii)(B), as applicable. 

(A) For items 1, 2, 4, and 10 as listed in 

paragraph 1.A.(2) of PILATUS PC–7 Service 

Bulletin No: 51–001, Revision No. 1, dated 

August 26, 2014, do a one-time inspection for 

cracks. If any cracks are found, before further 

flight, you must contact PILATUS Aircraft 

Ltd. to obtain FAA-approved repair 

instructions approved specifically for 

compliance with this AD and incorporate 

those instructions. Use the contact 

information found in paragraph (h) of this 

AD. 

(B) For item 5 as listed in paragraph 1.A.(2) 

of PILATUS PC–7 Service Bulletin No: 51– 

001, Revision No. 1, dated August 26, 2014, 

replace with a part made of aluminum alloy 

AA2124–T851. 

(3) For all airplanes: For item 3 as listed 

in paragraph 1.A.(2) of PILATUS PC–7 

Service Bulletin No: 51–001, Revision No. 1, 

dated August 26, 2014, within 12 months 

after the effective date of this AD, replace 

with a part made of aluminum alloy 

AA2124–T851. You must replace the elevator 

center control-rods (item 3 as listed in 

paragraph 1.A.(2) of PILATUS PC–7 Service 

Bulletin No: 51–001, Revision No. 1, dated 

August 26, 2014) because it is difficult to 

inspect them for cracks. 

(4) For all airplanes: As of 12 months after 

the effective date of this AD, do not install 

the parts listed in items 1 and 2, 4, and 7 

through 13 of paragraph 1.A.(2) of PILATUS 

PC–7 Service Bulletin No: 51–001, Revision 

No. 1, dated August 26, 2014, that are made 

of aluminum alloy AA2024–T351 unless they 

have been inspected and found free of cracks. 

(5) For all airplanes: As of 12 months after 

the effective date of this AD, do not install 

the parts listed in items 3, 5, and 6 of 

paragraph 1.A.(2) of PILATUS PC–7 Service 

Bulletin No: 51–001, Revision No. 1, dated 

August 26, 2014, that are made of aluminum 

alloy AA2024–T351. 

(g) Other FAA AD Provisions 

The following provisions also apply to this 

AD: 

(1) Alternative Methods of Compliance 

(AMOCs): The Manager, Standards Office, 

FAA, has the authority to approve AMOCs 

for this AD, if requested using the procedures 

found in 14 CFR 39.19. Send information to 

ATTN: Doug Rudolph, Aerospace Engineer, 

FAA, Small Airplane Directorate, 901 Locust, 

Room 301, Kansas City, Missouri 64106; 

telephone: (816) 329–4059; fax: (816) 329– 

4090; email: doug.rudolph@faa.gov. Before 

using any approved AMOC on any airplane 

to which the AMOC applies, notify your 

appropriate principal inspector (PI) in the 

FAA Flight Standards District Office (FSDO), 

or lacking a PI, your local FSDO. 

(2) Airworthy Product: For any requirement 

in this AD to obtain corrective actions from 

a manufacturer or other source, use these 

actions if they are FAA-approved. Corrective 

actions are considered FAA-approved if they 

are approved by the State of Design Authority 

(or their delegated agent). You are required 

to assure the product is airworthy before it 

is returned to service. 

(3) Reporting Requirements: For any 

reporting requirement in this AD, a federal 

agency may not conduct or sponsor, and a 

person is not required to respond to, nor 

shall a person be subject to a penalty for 

failure to comply with a collection of 

information subject to the requirements of 

the Paperwork Reduction Act unless that 

collection of information displays a current 

valid OMB Control Number. The OMB 

Control Number for this information 

collection is 2120–0056. Public reporting for 

this collection of information is estimated to 

be approximately 5 minutes per response, 

including the time for reviewing instructions, 

completing and reviewing the collection of 

information. All responses to this collection 

of information are mandatory. Comments 

concerning the accuracy of this burden and 

suggestions for reducing the burden should 

be directed to the FAA at: 800 Independence 

Ave. SW., Washington, DC 20591, Attn: 

Information Collection Clearance Officer, 

AES–200. 

(h) Related Information 

Refer to Federal Office of Civil Aviation 

(FOCA) AD HB–2014–001, dated July 25, 

2014, for related information. You may 

examine the MCAI on the Internet at 

http://www.regulations.gov by searching for 

and locating Docket No. FAA–2014–0770. 

For service information related to this AD, 

contact PILATUS AIRCRAFT LTD., Customer 

Technical Support (MCC), P.O. Box 992, CH– 

6371 Stans, Switzerland; phone: +41 (0)41 

619 67 74; fax: +41 (0)41 619 67 73; email: 

Techsupport@pilatus-aircraft.com; Internet: 

http://www.pilatus-aircraft.com. You may 

review this referenced service information at 

the FAA, Small Airplane Directorate, 901 

Locust, Kansas City, Missouri 64106. For 

information on the availability of this 

material at the FAA, call (816) 329–4148. 

Issued in Kansas City, Missouri, on 

September 30, 2014. 

Earl Lawrence, 

Manager, Small Airplane Directorate, Aircraft 

Certification Service. 

[FR Doc. 2014–23880 Filed 10–6–14; 8:45 am] 

BILLING CODE 4910–13–P 

DEPARTMENT OF JUSTICE 

Bureau of Alcohol, Tobacco, Firearms, 

and Explosives 

27 CFR Parts 478, 555, and 771 

[Docket No. ATF 33P; AG Order No. 3469– 

2014] 

RIN 1140–AA40 

Rules of Practice in Explosives 

License and Permit Proceedings 

(2007R–5P); Revisions Reflecting 

Changes Consistent With the 

Homeland Security Act of 2002 

AGENCY: Bureau of Alcohol, Tobacco, 

Firearms, and Explosives (ATF), 

Department of Justice. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Department of Justice 

proposes to codify the Bureau of 

Alcohol, Tobacco, Firearms, and 

Explosives (ATF) procedures and 

practices in connection with the 

disapproval of initial applications, 

denials of renewal, and revocations of 

explosives licenses or permits. The 

proposed regulations will be codified in 

a new part entitled ‘‘Rules and Practice 

in License and Permit Proceedings.’’ 

The proposed regulations are based 

upon the regulations that ATF relied 

upon prior to its transfer from the 

Department of the Treasury to the 

Department of Justice. 

Additionally, the Department 

proposes minor revisions to regulations 

governing administrative proceedings 

related to the denial, suspension, or 

revocation of a license, and the 

imposition of a civil fine under Federal 

firearms law to reference regulations 

under ATF authority. These proposed 

revisions remove all references to 

statutes, regulations, positions, and 

other terms that are applicable only to 

the Department of the Treasury. These 


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60392 Federal Register / Vol. 79, No. 194 / Tuesday, October 7, 2014 / Proposed Rules 

revisions reflect ATF’s position as a 

regulatory and enforcement agency 

under the Department of Justice and are 

consistent with the proposed 

regulations governing administrative 

hearing processes for explosives 

licenses and permits. 

DATES: Written comments must be 

postmarked and electronic comments 

must be submitted on or before January 

5, 2015. 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, identified 

by docket number (ATF 33P), by any of 

the following methods: 

• Mail: Denise Brown, Enforcement 

Programs and Services, Office of 

Regulatory Affairs, Mailstop 6N–602, 

Bureau of Alcohol, Tobacco, Firearms, 

and Explosives, 99 New York Avenue 

NE., Washington, DC 20226; ATTN: 

ATF 33P. Written comments must 

appear in minimum 12-point font size 

(.17 inches), include the sender’s 

mailing address, and be signed; they 

may be of any length. 

• Fax: 202–648–9741. 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

Instructions: All submissions received 

must include the agency name and 

docket number for this rulemaking. All 

comments received will be posted 

without change to the Federal 

eRulemaking portal, http://

www.regulations.gov, including any 

personal information provided. For 

detailed instructions on submitting 

comments and additional information 

on the rulemaking process, see the 

‘‘Public Participation’’ heading of the 

SUPPLEMENTARY INFORMATION section of 

this document. 

FOR FURTHER INFORMATION CONTACT: 

Denise Brown, Enforcement Programs 

and Services, Office of Regulatory 

Affairs, Bureau of Alcohol, Tobacco, 

Firearms, and Explosives, U.S. 

Department of Justice, 99 New York 

Avenue NE., Washington, DC 20226; 

telephone: (202) 648–7070. 

SUPPLEMENTARY INFORMATION: 

I. Background 

The Attorney General has delegated to 

the Director of the Bureau of Alcohol, 

Tobacco, Firearms, and Explosives 

(ATF) responsibility for administering 

and enforcing title I of the Gun Control 

Act of 1968 (GCA), Public Law 90–618, 

as amended, 18 U.S.C. Chapter 44, 

relating to commerce in firearms and 

ammunition; and Title XI, Regulation of 

Explosives, of the Organized Crime 

Control Act of 1970 (OCCA), Public Law 

91–452, as amended, 18 U.S.C. Chapter 

40. See 18 U.S.C. 926(a); 18 U.S.C. 843; 

28 CFR 0.130. Under the GCA, ATF has 

the authority to license applicants, 

renew licenses, and revoke Federal 

firearms licenses. The OCCA, as 

amended by the Safe Explosives Act, 

Title XI, Subtitle C of Public Law 107– 

296, the Homeland Security Act of 2002 

(enacted November 25, 2002), 

authorizes ATF to provide licenses and 

permits to qualified applicants for the 

acquisition, distribution, storage, or use 

of explosive materials and renew or 

revoke such licenses and permits. 

A. Rules of Practice in Permit 

Proceedings (27 CFR Part 71) 

On November 25, 2002, President 

George W. Bush signed the Homeland 

Security Act of 2002, Public Law 107– 

296 (the Act), which divided the 

regulatory functions of the Bureau of 

Alcohol, Tobacco, and Firearms into 

two separate agencies. The Act renamed 

the Bureau of Alcohol, Tobacco and 

Firearms as the Bureau of Alcohol, 

Tobacco, Firearms, and Explosives and 

transferred law enforcement and certain 

regulatory functions to the Department 

of Justice. The Act also retained in the 

Department of the Treasury (Treasury) 

certain functions of the former Bureau 

of Alcohol, Tobacco, and Firearms. The 

functions retained by Treasury became 

the responsibility of a new Alcohol and 

Tobacco Tax and Trade Bureau (TTB). 

As a result of the Act, TTB has all 

regulatory authority under 27 CFR Part 

71 and ATF therefore cannot 

promulgate new regulations under this 

part, although ATF uses the regulations 

in Part 71 to administer hearings related 

to the application and revocation of 

Federal explosives licenses and permits. 

B. License Proceedings (27 CFR Part 

478) 

Regulations that implement the 

provisions of the GCA are set forth in 27 

CFR Part 478. Subpart E of Part 478 

relates to proceedings involving Federal 

firearms licensees, including the denial, 

suspension, or revocation of licenses 

and the imposition of civil fines. 

Specifically, 27 CFR 478.76 provides 

that an applicant or licensee may be 

represented at a hearing for the 

disapproval of applications for firearms 

licenses, for the denial, suspension, or 

revocation of a firearms license, or for 

imposition of a civil fine under federal 

firearms law by an attorney, a certified 

public accountant, or any other person 

recognized to practice before ATF as 

provided in 31 CFR Part 8, if the 

representative complies with the 

applicable practice requirements of 26 

CFR 601.521 through 601.527. 

C. License and Permit Proceedings (27 

CFR Part 555) 

The regulations that implement OCCA 

procedural and substantive 

requirements are found in 27 CFR Part 

555. Subpart E of Part 555 relates to 

proceedings involving Federal 

explosives licensees and permittees, 

including the denial of an initial 

application, denial of a renewal, and 

revocation of a license or permit. 

Specifically, 27 CFR 555.78 provides 

that an applicant, licensee, or permittee 

may be represented at a hearing for the 

disapproval of applications for 

explosives licenses, and for the denial of 

renewal or revocation of such licenses 

or permits under federal explosives law 

by an attorney, a certified public 

accountant, or any other person 

recognized to practice before ATF as 

provided in 31 CFR Part 8, if the 

representative complies with the 

applicable practice requirements of 26 

CFR 601.521 through 601.527. 

II. Proposed Rule 

A. Creation of new 27 CFR Part 771 

The Department proposes revising 

ATF regulations to add a new part that 

implements 18 U.S.C. 843 and 847 

relating to the procedures and practice 

for the disapproval of initial 

applications, denials of a renewal, and 

revocations of explosives licenses or 

permits by ATF under federal 

explosives law. ATF is incorporating 

and updating the language relevant to 

its operations currently found in Part 71 

into proposed 27 CFR Part 771. The 

creation of Part 771 is primarily an 

administrative change that will improve 

the organization of ATF regulations. The 

proposed regulations will be codified in 

a new part 771 in Chapter II of title 27 

CFR and are separated into subparts as 

follows: 

Subpart A—Scope and Construction 

Subpart B—Definitions 

Subpart C—General 

Subpart D—Compliance and Settlement 

Subpart E—Grounds for Revocation or Denial 

Subpart F—Hearing Procedure 

Subpart G—Administrative Law Judges 

Subpart H—Decisions 

Subpart I—Review 

Subpart J—Miscellaneous 

B. Proposed Amendments to 27 CFR 

Part 478 

This proposed rule amends ATF 

regulations governing procedures and 

practices for disapproving applications 

for firearms licenses; for denying, 

suspending, or revoking a firearms 

license; and for imposing a civil fine 


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Federal Register / Vol. 79, No. 194 / Tuesday, October 7, 2014 / Proposed Rules 60393 

under federal firearms law. The 

proposed rule revises 27 CFR 478.76 to 

allow an applicant or licensee to be 

represented at a proceeding by himself, 

an attorney, a certified public 

accountant, or any other person without 

submitting a declaration of a 

representative pursuant to 26 CFR 

601.521, and it deletes the current 

references to 31 CFR Part 8 and 26 CFR 

601.521 through 601.527. Under the 

proposed rule, an applicant or licensee 

shall file in the proceeding a duly 

executed power of attorney designating 

his representative. The applicant or 

licensee shall also file waivers, if 

applicable, under the Privacy Act of 

1974 (see 5 U.S.C. 552a), and 26 U.S.C. 

6103(c) (confidentiality and disclosure 

of returns and return information). The 

Director of Industry Operations may be 

represented in proceedings under 

§§ 478.72 and 478.74 by an attorney for 

the government in the ATF Office of 

Chief Counsel who is authorized to 

execute and file motions, briefs, and 

other papers in the proceeding on behalf 

of the Director of Industry Operations in 

the attorney’s own name as ‘‘Attorney 

for the Government.’’ 

C. Proposed Amendments to 27 CFR 

Part 555 

This proposed rule amends ATF 

regulations governing procedures and 

practices for disapproving applications, 

denying renewals, and revoking 

explosives licenses or permits under 

federal explosives law. This proposed 

rule amends § 555.73 and § 555.73 to 

state that the administrative hearings 

will be conducted in accordance with 

the hearing procedures prescribed in 

part 771, thereby replacing the current 

references in these sections to part 71. 

The proposed rule revises 27 CFR 

555.78 to allow an applicant, licensee, 

or permittee to be represented at a 

proceeding by himself, an attorney, a 

certified public accountant, or any other 

person without submitting a declaration 

of a representative pursuant to 26 CFR 

601.521, and it deletes the current 

references to 31 CFR Part 8 and 26 CFR 

601.521 through 601.527. Under the 

proposed rule, an applicant, licensee, or 

permittee shall file in the proceeding a 

duly executed power of attorney 

designating his representative. The 

applicant, licensee, or permittee shall 

also file waivers, if applicable, under 

the Privacy Act of 1974 (see 5 U.S.C. 

552(a)) and 26 U.S.C. 6103(c) 

(confidentiality and disclosure of 

returns and return information). An 

attorney for the government may 

represent the Director of Industry 

Operations under §§ 555.73 and 555.75 

who is authorized to execute and file 

motions, briefs, and other papers in the 

proceeding, on behalf of the Director of 

Industry Operations, in the attorney’s 

own name as ‘‘Attorney for the 

Government.’’ 

This proposed rule amends § 555.79 

to state that, in the event that an appeal 

is taken from a decision of a hearing, the 

process by which the Director will 

review the complete original record will 

be contained in a new part 771, thereby 

replacing the current reference in this 

section to part 71. 

This proposed rule revises § 555.82 to 

state that regulations governing the 

procedures and practices for 

disapproving applications for explosives 

licenses and permits and for denying 

renewal of or revoking such licenses 

and permits are contained in a new Part 

771. 

Statutory and Executive Order Reviews 

A. Executive Order 12866 and 13563 

This proposed rule has been drafted 

and reviewed in accordance with 

Executive Order 12866, ‘‘Regulatory 

Planning and Review,’’ section 1(b), The 

Principles of Regulation and in 

accordance with Executive Order 13563, 

‘‘Improving Regulation and Regulatory 

Review,’’ section 1, General Principles 

of Regulation, and section 6, 

Retrospective Analyses of Existing 

Rules. 

Further, both Executive Orders 12866 

and 13563 direct agencies to assess all 

costs and benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). Executive Order 13563 

emphasizes the importance of 

quantifying both costs and benefits, of 

reducing costs, of harmonizing rules, 

and of promoting flexibility. The 

Department has assessed the costs and 

benefits of this regulation and believes 

that the regulatory approach selected 

maximizes net benefits. 

This rule will not have an annual 

effect on the economy of $100 million 

or more, 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 

government or communities. Similarly, 

it does not create a serious 

inconsistency or otherwise interfere 

with an action taken or planned by 

another agency, materially alter the 

budgetary impact of entitlements, 

grants, user fees, or loan programs or the 

rights and obligations of recipients 

thereof, or raise novel legal or policy 

issues arising out of legal mandates, the 

President’s priorities, or the principles 

set forth in Executive Order 12866. 

Accordingly, this rule is not a 

‘‘significant regulatory action’’ as 

defined in Executive Order 12866. 

Section 6 of Executive Order 13563, 

directs agencies to develop a plan to 

review existing significant rules that 

may be ‘‘outmoded, ineffective, 

insufficient, or excessively 

burdensome,’’ and to make appropriate 

changes where warranted. The 

Department selected and reviewed this 

rule under the criteria set forth in its 

Plan for Retrospective Analysis of 

Existing Rules, and determined that this 

proposed rule transfers and consolidates 

regulations governing explosives license 

application renewal or revocation of 

licenses and permits, improving the 

enforcement of ATF regulations. 

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 does not have sufficient 

federalism implications to warrant the 

preparation of a federalism summary 

impact statement. 

C. Executive Order 12988 

This proposed rule 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. 605(b)) exempts an agency from 

the requirement to conduct a regulatory 

flexibility analysis of any rule subject to 

notice and comment rulemaking 

requirements if 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-forprofit enterprises, and small 

governmental jurisdictions. The 

Attorney General has reviewed this 

proposed rule and, by approving it, 

certifies that it will not have a 

significant economic impact on a 

substantial number of small entities. 

This proposed rule recodifies the ATF 

regulations governing the procedure and 

practice for disapproving applications, 

denying renewals, and revoking 

explosives licenses or permits under 


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60394 Federal Register / Vol. 79, No. 194 / Tuesday, October 7, 2014 / Proposed Rules 

federal explosives law in a new part 771 

under ATF’s regulatory authority. 

Additionally, this proposed rule 

updates the regulations governing the 

denial, suspension, or revocation of a 

firearms license, and imposition of a 

civil fine under federal firearms law to 

only reference regulations under ATF 

authority. This proposed rule also 

amends the regulations to require an 

applicant or licensee in a proceeding 

concerning the denial, suspension, or 

revocation of a firearms license, or the 

imposition of a civil fine under federal 

firearms law, to file a duly executed 

power of attorney designating his 

representative, and waivers, if 

applicable, under the Privacy Act of 

1974 (See 5 U.S.C. 552(a)), and 26 

U.S.C. 6103(c) (confidentiality and 

disclosure of returns and return 

information). This is required in the 

current regulations by reference to 31 

CFR Part 8 and 26 CFR 601.521 through 

601.527. The changes proposed in this 

rule are purely administrative and do 

not add any new requirements that 

would have any impact on the economy. 

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 

enterprises to compete with foreignbased enterprises 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 of 1995. 

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 33P), be 

legible, and include the commenter’s 

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 in paper, will be made 

available for public viewing at ATF and 

on the Internet as part of the 

eRulemaking initiative. Comments are 

subject to the Freedom of Information 

Act. Commenters who do not want their 

names or other personal identifying 

information posted on the Internet 

should submit their comments by mail 

or facsimile, along with a separate cover 

sheet containing 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 a 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 the 

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 

may be of any length, must appear in 

minimum 12-point font size (.17 

inches), and include the commenter’s 

mailing address and signature. 

• Facsimile: You may submit 

comments by facsimile transmission to 

(202) 648–9741. Faxed comments must: 

(1) Be legible and appear in minimum 

12-point font size (.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 

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 such 

request for a hearing, in writing, to the 

Director of ATF within the 90-day 

comment period. Address requests for 

public hearings to Denise Brown, 

Enforcement Programs and Services, 

Office of Regulatory Affairs, Mailstop 

6N–602, Bureau of Alcohol, Tobacco, 

Firearms, and Explosives, 99 New York 

Avenue NE., Washington, DC 20226; 

ATTN: ATF 33P. 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 Denise 

Brown; Enforcement Programs and 

Services; Office of Regulatory Affairs, 

Bureau of Alcohol, Tobacco, Firearms, 

and Explosives. 

List of Subjects 

27 CFR Part 478 

Administrative practice and 

procedure, Arms and munitions, 

Customs duties and inspection, Exports, 

Imports, Intergovernmental relations, 

Law enforcement officers, Military 

personnel, Penalties, Reporting and 

recordkeeping requirements, Research, 

Seizures and forfeitures, Transportation. 


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27 CFR Part 555 

Administrative practice and 

procedure, Customs duties and 

inspection, Explosives, Hazardous 

substances, Imports, Penalties, 

Reporting and recordkeeping 

requirements, Safety, Security measures, 

Seizures and forfeitures, Transportation, 

Warehouses. 

27 CFR Part 771 

Administrative practice and 

procedure, Explosives. 

Authority and Issuance 

Accordingly, for the reasons 

discussed in the preamble, 27 CFR Parts 

478 and 555 are proposed to be 

amended and Part 771 is proposed to be 

added to chapter II, title 27 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, 

921–931; 44 U.S.C. 3504(h). 

■ 2. Section 478.76 is revised to read as 

follows: 

§ 478.76 Representation at a hearing. 

Applicants or licensees may represent 

themselves or be represented by an 

attorney, a certified public accountant, 

or any other person, specifically 

designated in a duly executed power of 

attorney that shall be filed in the 

proceeding by the applicant or licensee. 

The applicant or licensee shall file 

waivers, if applicable, under the Privacy 

Act of 1974 and 26 U.S.C. 6103(c) 

(confidentiality and disclosure of 

returns and return information). The 

Director of Industry Operations may be 

represented in proceedings under 

§§ 478.72 and 478.74 by an attorney in 

the Office of Chief Counsel who is 

authorized to execute and file motions, 

briefs, and other papers in the 

proceeding, on behalf of the Director of 

Industry Operations, in the attorney’s 

own name as ‘‘Attorney for the 

Government.’’ 

PART 555—COMMERCE IN 

EXPLOSIVES 

■ 3. The authority citation for 27 CFR 

part 555 continues to read as follows: 

Authority: 18 U.S.C. 847. 

■ 4. Amend § 555.73 by removing ‘‘part 

71’’ and adding in its place ‘‘part 771’’. 

■ 5. Amend § 555.75 by removing ‘‘part 

71’’ and adding in its place ‘‘part 771’’. 

■ 6. Revise 555.78 to read as follows: 

§ 555.78 Representation at a hearing. 

An applicant, licensee, or permittee 

may represent himself, or be 

represented by an attorney, a certified 

public accountant, or any other person, 

specifically designated in a duly 

executed power of attorney that shall be 

filed in the proceeding by the applicant, 

licensee, or permittee. The applicant, 

licensee, or permittee shall file waivers, 

if applicable, under the Privacy Act of 

1974 and 26 U.S.C. 6103(c) 

(confidentiality and disclosure of 

returns and return information). The 

Director of Industry Operations may be 

represented in proceedings under 

§§ 555.73 and 555.75 by an attorney in 

the Office of Chief Counsel who is 

authorized to execute and file motions, 

briefs and other papers in the 

proceeding, on behalf of the Director of 

Industry Operations, in the attorney’s 

own name as ‘‘Attorney for the 

Government.’’ 

■ 7. Amend § 555.79 by removing ‘‘part 

71’’ and adding in its place ‘‘part 771’’. 

■ 8. Revise § 555.82 to read as follows: 

§ 555.82 Rules of practice in license and 

permit proceedings. 

Regulations governing the procedure 

and practice for disapproval of 

applications for explosives licenses and 

permits and for the denial of renewal or 

revocation of such licenses and permits 

under the Act are contained in part 771 

of this chapter. 

■ 9. Add subchapter E (consisting of 

part 771) to 27 CFR chapter II to read 

as follows: 

SUBCHAPTER E—EXPLOSIVE 

LICENSE AND PERMIT PROCEEDINGS 

PART 771—RULES OF PRACTICE IN 

EXPLOSIVE LICENSE AND PERMIT 

PROCEEDINGS 

Subpart A—Scope and Construction of 

Regulations 

Sec. 

771.1 Scope of part. 

771.2 Liberal construction. 

771.3 Forms prescribed. 

Subpart B—Definitions 

771.5 Meaning of terms. 

Subpart C—General 

771.25 Communications and pleadings. 

771.26 Service on applicant, licensee, or 

permittee. 

771.27 Service on the Director of Industry 

Operations or Director. 

Time 

771.28 Computation. 

771.29 Continuances and extensions. 

Representation at Hearings 

771.30 Personal representation. 

771.31 Attorneys and other representatives. 

Subpart D—Compliance and Settlement 

771.35 Opportunity for compliance. 

771.36 Settlement. 

771.37 Notice of contemplated action. 

771.38 Licensee’s or permittee’s failure to 

meet requirements within reasonable 

time. 

771.39 Authority of Director of Industry 

Operations to proceed with revocation or 

denial action. 

Subpart E—Revocation or Denial 

771.40 Denial of initial application 

771.41 Denial of renewal application or 

revocation of license or permit 

771.42 Grounds for revocation of licenses 

or permits. 

771.43 Grounds for denial of applications 

for licenses or permits. 

Subpart F—Hearing Procedure 

Notices 

771.55 Content. 

771.56 Forms. 

771.57 Execution and disposition. 

771.58 Designated place of hearing. 

Request for Hearing 

771.59 Initial application proceedings. 

771.60 Revocation or denial of renewal 

proceedings. 

771.61 Notice of hearing. 

Non-Request for Hearing 

771.62 Initial application 

771.63 Revocation or denial of renewal. 

Responses to Notices 

771.64 Answers. 

771.65 Responses admitting facts. 

771.66 Initial conferences. 

Failure To Appear 

771.67 Initial applications. 

771.68 Revocation or denial of renewal. 

Waiver of Hearing 

771.69 Withdrawal of request for hearing. 

771.70 Adjudication based upon written 

submissions. 

Surrender of License or Permit 

771.71 Before citation. 

771.72 After citation. 

Motions 

771.73 General. 

771.74 Prior to hearing. 

771.75 At hearing. 

Hearing 

771.76 General. 

771.77 Initial applications. 

771.78 Revocation or denial of renewal. 

Burden of Proof 

771.79 Initial applications. 

771.80 Revocation or denial of renewal. 

General 

771.81 Stipulations at hearing. 

771.82 Evidence. 

771.83 Closing of hearings; arguments, 

briefs, and proposed findings. 

771.84 Reopening of the hearing. 


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Record of Testimony 

771.85 Stenographic record. 

771.86 Oath of reporter. 

Subpart G—Administrative Law Judges 

771.95 Responsibilities of administrative 

law judges. 

771.96 Disqualification. 

771.97 Powers. 

771.98 Separation of functions. 

771.99 Conduct of hearing. 

771.100 Unavailability of administrative 

law judge. 

Subpart H—Decisions 

771.105 Administrative law judge’s 

findings and recommended decision. 

771.106 Certification and transmittal of 

record and decision. 

Action by Director of Industry Operations 

771.107 Initial application proceedings. 

771.108 Director of Industry Operations’ 

decision. 

771.109 Revocation or denial of renewal 

proceedings. 

771.110 Revocation or denial of renewal. 

771.111 Proceedings involving violations 

not within the division of issuance of 

license or permit. 

Subpart I—Review 

771.120 Appeal on petition to the Director. 

771.121 Review by Director. 

771.122 Denial of renewal or revocation. 

771.123 Court review. 

Subpart J—Miscellaneous 

771.124 Depositions. 

771.125 Witnesses and fees. 

771.126 Discovery. 

771.127 Privileges. 

Record 

771.135 What constitutes record. 

771.136 Availability. 

Authority: 18 U.S.C. 843, 847. 

Subpart A—Scope and Construction of 

Regulations 

§ 771.1 Scope of part. 

Regulations in this part govern 

procedures and practices for 

disapproving applications for licenses 

and permits and denying renewal of or 

revocation of such licenses or permits 

under 18 U.S.C. Chapter 40. 

§ 771.2 Liberal construction. 

Regulations in this part shall be 

liberally construed to secure just, 

expeditious, and efficient determination 

of the issues presented. The Rules of 

Civil Procedure for the U.S. District 

Courts (28 U.S.C. appendix) are not 

controlling, but may act as a guide in 

any situation not provided for or 

controlled by this part and shall be 

liberally construed or relaxed when 

necessary. 

§ 771.3 Forms prescribed. 

(a) The Director is authorized to 

prescribe all forms required by this part. 

All of the information called for in each 

form shall be furnished as indicated by 

the headings on the form and the 

instructions on or pertaining to the 

form. In addition, information called for 

in each form shall be furnished as 

required by this part. 

(b) Requests for forms should be made 

to the ATF Distribution Center or 

through the ATF Web site at http://

www.atf.gov. 

Subpart B—Definitions 

§ 771.5 Meaning of terms. 

When used in this part and in forms 

prescribed under this part, where not 

otherwise distinctly expressed or 

manifestly incompatible with the intent 

thereof, terms shall have the meaning 

provided in this subpart. Words in the 

plural form shall include the singular, 

and vice versa, and words importing the 

masculine gender shall include the 

feminine. 

Administrative law judge. The person 

appointed pursuant to 5 U.S.C. 3105, 

designated to preside over any 

administrative proceedings under this 

part. 

Applicant. Any person who has filed 

an application for a license or permit 

under 18 U.S.C. Chapter 40. 

Application. Any application for a 

license or permit under 18 U.S.C. 

Chapter 40 for operations not covered 

by an existing license or permit. 

ATF. The Bureau of Alcohol, Tobacco, 

Firearms, and Explosives, Department of 

Justice. 

Attorney for the Government. An 

attorney in the ATF Office of Chief 

Counsel authorized to represent the 

Director of Industry Operations in the 

proceeding. 

CFR. The Code of Federal 

Regulations. 

Contemplated notice. Includes any 

notice contemplating the revocation or 

denial of renewal of a license or permit. 

Director. The Director, Bureau of 

Alcohol, Tobacco, Firearms, and 

Explosives, Department of Justice. 

Director of Industry Operations. The 

principal ATF official in a Field 

Operations division responsible for 

administering regulations in this part. 

Ex parte communication. An oral or 

written communication not on the 

public record with respect to which 

reasonable prior notice to all parties is 

not given, but not including requests for 

status reports. 

Initial decision. The decision of the 

Director of Industry Operations in a 

proceeding concerning the revocation 

of, denial of renewal of, or denial of 

application for a license or permit. This 

decision becomes the agency’s final 

decision in the absence of an appeal. 

Final decision. The definitive 

decision of ATF, e.g., the agency’s 

decision in the absence of an appeal or 

the Director’s decision following an 

appeal to the Director. 

License. Subject to applicable law, 

entitles the licensee to transport, ship, 

and receive explosive materials in 

interstate or foreign commerce, and to 

engage in the business specified by the 

license, at the location described on the 

license. 

Licensee. Any importer, 

manufacturer, or dealer licensed under 

the provisions of 18 U.S.C. Chapter 40 

and 27 CFR Part 555. 

Limited permit. A permit issued to a 

person authorizing him to receive for 

his use explosive materials from a 

licensee or permittee in his State of 

residence on no more than six occasions 

during the 12-month period in which 

the permit is valid. A limited permit 

does not authorize the receipt or 

transportation of explosive materials in 

interstate or foreign commerce. 

Other term. Any other term defined in 

the Federal explosives laws (18 U.S.C. 

Chapter 40), the regulations 

promulgated thereunder (27 CFR Part 

555), or the Administrative Procedure 

Act (5 U.S.C. 551 et seq.), where used 

in this part, shall have the meaning 

assigned to it therein. 

Permittee. Any user of explosives for 

a lawful purpose who has obtained 

either a user permit or a limited permit 

under 18 U.S.C. Chapter 40 and 27 CFR 

Part 555. 

Person. Any individual, corporation, 

association, firm, partnership, society, 

or joint stock company. 

Recommended decision. The advisory 

decision of the administrative law judge 

in any proceeding regarding the 

revocation of, denial of renewal of, or 

denial of application for a license or 

permit. ATF must act on a 

recommended decision with its own 

initial or final decision. 

User-limited permit. A user permit 

valid only for a single purchase 

transaction. Recipients of a user-limited 

permit must obtain a new permit for any 

subsequent purchase transaction. 

User permit. A permit issued to a 

person authorizing him to— 

(1) Acquire for his own use explosive 

materials from a licensee in a State other 

than the State in which he resides or 

from a foreign country, and; 

(2) Transport explosive materials in 

interstate or foreign commerce. 

Willfulness. The plain indifference to, 

or purposeful disregard of, a known 


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legal duty. Willfulness may be 

demonstrated by, but does not require, 

repeat violations involving a known 

legal duty. 

Subpart C—General 

§ 771.25 Communications and pleadings. 

(a) All communications to the 

Government regarding the procedures 

set forth in this part and all pleadings, 

such as answers, motions, requests, or 

other papers or documents required or 

permitted to be filed under this part, 

relating to a proceeding pending before 

an administrative law judge, shall be 

addressed to the administrative law 

judge at his post of duty and the 

attorney for the Government. 

Communications concerning 

proceedings not pending before an 

administrative law judge should be 

addressed to the Director of Industry 

Operations or Director, as the case may 

be. 

(b) Except to the extent required for 

the disposition of ex parte matters as 

authorized by law, no ex parte 

communications shall be made to or 

from the administrative law judge 

concerning the merits of the 

adjudication. If the administrative law 

judge receives or makes an ex parte 

communication not authorized by law, 

the administrative law judge shall place 

on the record of the proceeding: 

(1) All such written communications; 

(2) Memoranda stating the substance 

of all such oral communications; and 

(3) All written responses and 

memoranda stating the substance of all 

oral responses to paragraphs (b)(1) and 

(2) of this section. 

§ 771.26 Service on applicant, licensee, or 

permittee. 

All orders, notices, motions, and other 

formal documents required to be served 

under the regulations in this part may 

be served by mailing a signed, original 

copy thereof to the designated 

representative of the applicant, licensee, 

or permittee by certified mail, with 

request for return receipt card, at the 

representative’s business address, by 

personal service, or as otherwise agreed 

to by the parties. If the applicant, 

licensee, or permittee has not yet 

designated a representative, all orders, 

notices, motions, and other formal 

documents required to be served under 

the regulations in this part may be 

served by mailing a signed, original 

copy thereof to the applicant, licensee, 

or permittee at the address stated on his 

application, license, or permit, or at his 

last known address, or by delivery of 

such original copy to the applicant, 

licensee, or permittee personally, or in 

the case of a corporation, partnership, or 

other unincorporated association, by 

delivering the same to an officer, or 

manager, or general agent thereof, or to 

its attorney of record. Such personal 

service may be made by any employee 

of the Department of Justice designated 

by the Attorney General or by any 

employee of ATF. A certificate of 

mailing and the return receipt card, or 

certificate of service signed by the 

person making such service, shall be 

filed as a part of the record. 

§ 771.27 Service on the Director of 

Industry Operations or Director. 

Pleadings, motions, notices, and other 

formal documents may be served by 

certified mail, by personal service, or as 

otherwise agreed to by the parties on the 

Director of Industry Operations (or upon 

the attorney for the Government on 

behalf of the Director of Industry 

Operations), or on the Director, if the 

proceeding is before him for review on 

appeal. 

Time 

§ 771.28 Computation. 

In computing any period of time 

prescribed or allowed by this part, the 

day of the act, event, or default after 

which the designated period of time is 

to run is not to be included. The last day 

of the period to be computed is to be 

included, unless it is a Saturday, 

Sunday, or Federal holiday, in which 

event the period runs until the next day 

that is not a Saturday, Sunday, or 

Federal holiday. Pleadings, requests, or 

other papers or documents required or 

permitted to be filed under this part 

must be received for filing at the 

appropriate office within the time 

limits, if any, for such filing. 

§ 771.29 Continuances and extensions. 

For good cause shown, the 

administrative law judge, Director, or 

Director of Industry Operations, as the 

case may be, may grant continuances 

and, as to all matters pending before 

him, extend any time limit prescribed 

by the regulations in this part (except 

where the time limit is statutory). 

Representation at Hearings 

§ 771.30 Personal representation. 

Any individual or member of a 

partnership may appear for himself, or 

for such partnership, and a corporation 

or association may be represented by a 

bona fide officer of such corporation or 

association, upon showing of adequate 

authorization. 

§ 771.31 Attorneys and other 

representatives. 

An applicant, licensee, or permittee 

may represent himself, or be 

represented by an attorney, a certified 

public accountant, or any other person, 

specifically designated in a duly 

executed power of attorney that shall be 

filed in the proceeding by the applicant, 

licensee, or permittee. The applicant, 

licensee, or permittee shall file waivers, 

if applicable, under the Privacy Act of 

1974 and 26 U.S.C. 6103(c) 

(confidentiality and disclosure of 

returns and return information). The 

Director of Industry Operations may be 

represented in proceedings by an 

attorney in the Office of Chief Counsel 

who is authorized to execute and file 

motions, briefs, and other papers in the 

proceeding on behalf of the Director of 

Industry Operations, in the attorney’s 

own name as ‘‘Attorney for the 

Government.’’ 

Subpart D—Compliance and 

Settlement 

§ 771.35 Opportunity for compliance. 

No license or permit shall be revoked 

or denied renewal unless, prior to the 

institution of proceedings, facts or 

conduct warranting such action shall 

have been called to the attention of the 

licensee or permittee by the Director of 

Industry Operations in writing in a 

contemplated notice, and the licensee or 

permittee shall have been accorded an 

opportunity to demonstrate or achieve 

compliance with all lawful 

requirements as set forth in section 9(b) 

of the Administrative Procedure Act. In 

cases in which the Director of Industry 

Operations alleges in his contemplated 

notice, with supporting reasons, willful 

violations or that the public interest 

requires otherwise, this section does not 

apply and the issuance of a 

contemplated notice is unnecessary. 

§ 771.36 Settlement. 

Any proposals of settlement should be 

made to the Director of Industry 

Operations, but may be made through 

the attorney for the Government. Where 

necessary, the date of the hearing may 

be postponed pending consideration of 

such proposals when they are made in 

good faith and not for the purpose of 

delay. If proposals of settlement are 

submitted, and they are considered 

unsatisfactory, the Director of Industry 

Operations may reject the proposals and 

may, either directly or through the 

attorney for the Government, inform the 

licensee or permittee of any conditions 

on which the alleged violations may be 

settled. If the proposals of settlement are 

considered satisfactory to the Director of 


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Industry Operations, the licensee or 

permittee shall be notified thereof and 

the proceeding shall be dismissed. 

§ 771.37 Notice of contemplated action. 

Where the Director of Industry 

Operations has not ascertained whether 

the licensee or permittee has willfully 

violated the federal explosives laws and 

where he believes the matter has the 

potential to be settled informally, i.e., 

without formal administrative 

proceedings, he shall, in accordance 

with section 5(b) of the Administrative 

Procedure Act, prior to the issuance of 

a notice of revocation or denial of 

renewal, give the licensee or permittee 

a contemplated notice of such action 

and an opportunity to show why the 

license or permit should not be revoked 

or denied renewal. The notice should 

inform the licensee or permittee of the 

charges on which the notice would be 

based, if issued, and afford him a period 

of 15 days from the date of the notice, 

or such longer period as the Director of 

Industry Operations deems necessary, in 

which to submit proposals of settlement 

to the Director of Industry Operations. 

Where informal settlement is not 

reached promptly because of inaction by 

the applicant, licensee, or permittee or 

proposals are made for the purpose of 

delay, a notice shall be issued in 

accordance with §§ 771.42 or 771.43, as 

appropriate. The issuance of a notice of 

contemplated action does not entitle the 

recipient to a hearing before an 

administrative law judge. 

§ 771.38 Licensee’s or permittee’s failure 

to meet requirements within reasonable 

time. 

If the licensee or permittee fails to 

meet the requirements of applicable 

laws and regulations within such 

reasonable time as may be specified by 

the Director of Industry Operations, 

proceedings for revocation or denial of 

renewal of the license or permit shall be 

initiated. 

§ 771.39 Authority of Director of Industry 

Operations to proceed with revocation or 

denial action. 

Where the evidence is conclusive and 

the nature of the violation is such as to 

preclude any settlement, the violation is 

of a continuing character that 

necessitates immediate action to protect 

the public interest, or the Director of 

Industry Operations believes that any 

informal settlement of the alleged 

violation will not ensure future 

compliance with applicable laws and 

regulations, or in any similar case where 

the circumstances are such as to clearly 

preclude informal settlement, and the 

Director of Industry Operations so finds 

and states the reasons therefor in the 

notice, the Director of Industry 

Operations may proceed with the 

revocation or denial of renewal. 

Subpart E—Revocation or Denial 

§ 771.40 Denial of initial application. 

Whenever the Director of Industry 

Operations has reason to believe that an 

applicant for an original license or 

permit is not eligible to receive a license 

or permit under the provisions of 

§ 555.49 of this chapter, the Director of 

Industry Operations shall issue a notice 

of denial on ATF Form 5400.11 (Notice 

of Denial of Application for License or 

Permit) (F 5400.11). The notice will set 

forth the matters of fact and law relied 

upon in determining that the 

application should be denied and will 

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 is filed within 

that time, a copy of the application, 

marked ‘‘Disapproved,’’ will be returned 

to the applicant. 

§ 771.41 Denial of renewal application or 

revocation of license or permit. 

If, following the opportunity for 

compliance under § 555.71 of this 

chapter, or without opportunity for 

compliance under § 555.71 of this 

chapter as circumstances warrant, the 

Director of Industry Operations finds 

that the licensee or permittee is not 

likely to comply with applicable laws or 

regulations or is otherwise not eligible 

to continue operations authorized under 

his license or permit, the Director of 

Industry Operations shall issue a notice 

of denial of the renewal application or 

revocation of the license or permit, ATF 

F 5400.11 (Notice of Denial of 

Application for License or Permit) or 

ATF Form 5400.10 (Notice of 

Revocation of License or Permit) (F 

5400.10), as appropriate. The notice will 

set forth the matters of fact constituting 

the violations specified, dates, places, 

and the sections of law and regulations 

violated. In the case of the revocation of 

a license or permit, the notice will 

specify the date on which the action is 

effective, which date will be on or after 

the date the notice is served on the 

licensee or permittee. The notice will 

also advise the licensee or permittee 

that he may, within 15 days after receipt 

of the notice, request a hearing and, if 

applicable, a stay of the effective date of 

the revocation of his license or permit. 

§ 771.42 Grounds for revocation of 

licenses or permits. 

Whenever the Director of Industry 

Operations has reason to believe that 

any holder of a license or permit has 

willfully violated any provision of 18 

U.S.C. Chapter 40 or the regulations 

prescribed thereunder or has become 

ineligible to continue operations 

authorized under the license or permit, 

the Director of Industry Operations shall 

issue a notice for the revocation of such 

license or permit, as the case may be. 

§ 771.43 Grounds for denial of 

applications for licenses or permits. 

If, upon examination of any 

application (including a renewal 

application) for a license or permit, the 

Director of Industry Operations has 

reason to believe that the applicant is 

not entitled to such license or permit, 

the Director of Industry Operations shall 

issue a denial of the application. An 

applicant is not eligible for a license or 

permit if he fails to meet the 

requirements of 18 U.S.C. 843(b) and 

§ 555.49 of this chapter. 

Subpart F—Hearing Procedure 

Notices 

§ 771.55 Content. 

(a) Notices for the revocation or denial 

of renewal of a license or permit shall 

be promptly issued by the Director of 

Industry Operations and shall set forth: 

(1) The sections of law and 

regulations relied upon for authority 

and jurisdiction; 

(2) The specific grounds upon which 

the revocation or denial is based, i.e., 

the matters of fact constituting the 

violations specified, dates, places, and 

sections of law and regulations violated; 

(3) In the case of a revocation, the date 

on which the action is effective; and 

(4) That the licensee or permittee has 

15 days from receipt of the notice 

within which to request a hearing before 

an administrative law judge. 

(b) Notices for the denial of an initial 

application for a license or permit shall 

set forth: 

(1) The sections of law and 

regulations relied upon for authority 

and jurisdiction; 

(2) The specific grounds upon which 

the denial is based, i.e., the matters of 

fact and law relied upon for the 

disapproval of the application; and 

(3) That the application will be 

disapproved unless a hearing is 

requested within 15 days from receipt of 

the Notice. 

§ 771.56 Forms. 

Notices shall be issued on the 

following forms: 

(a) ATF Form 5400.9, ‘‘Order After 

Denial or Revocation Hearing,’’ for all 

revocations or denials of renewal of 

licenses or permits pursuant to 18 

U.S.C. Chapter 40 after a hearing has 

been held and a Recommended Decision 


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has been issued by the administrative 

law judge; 

(b) Form 5400.10, ‘‘Notice of 

Revocation for License or Permit,’’ for 

all revocations of licenses or permits 

pursuant to 18 U.S.C. Chapter 40, except 

as provided for in paragraph (a) of this 

section; 

(c) Form 5400.11, ‘‘Notice of Denial of 

Application for License or Permit,’’ for 

the denial of renewal or original 

applications for licenses or permits 

pursuant to 18 U.S.C. Chapter 40, except 

as provided for in paragraph (a) of this 

section; 

(d) Form 5400.12, ‘‘Notice of 

Contemplated Denial or Revocation of 

License or Permit,’’ for the 

contemplated revocation or denial of 

renewal application of licenses or 

permits pursuant to 18 U.S.C. Chapter 

40; or 

(e) Such other forms as the Director 

may prescribe. 

§ 771.57 Execution and disposition. 

A signed original of the applicable 

form shall be served on the licensee or 

permittee. If a hearing is requested, a 

copy shall be sent to the administrative 

law judge designated to conduct the 

hearing. Any remaining copies shall be 

retained for the office of the Director of 

Industry Operations. 

§ 771.58 Designated place of hearing. 

The designated place of hearing shall 

be determined by the administrative law 

judge, taking into consideration the 

convenience and necessity of the parties 

and their representatives. 

Request for Hearing 

§ 771.59 Initial application proceedings. 

(a) If the applicant for an initial 

license or permit desires a hearing, he 

shall file a request in writing with the 

Director of Industry Operations within 

15 days after receipt of notice of the 

disapproval, in whole or in part, of the 

application. The request should include 

a statement of the reasons for a hearing. 

(b) On receipt of the request, the 

Director of Industry Operations shall 

forward a copy of the request, together 

with a copy of the notice, to the Office 

of Chief Counsel for the assignment of 

an administrative law judge. 

(c) After the Office of Chief Counsel 

notifies the Director of Industry 

Operations or the attorney for the 

Government of the assignment of an 

administrative law judge, the Director of 

Industry Operations shall notify the 

licensee or permittee of the assignment. 

§ 771.60 Revocation or denial of renewal 

proceedings. 

(a) If the licensee or permittee desires 

a hearing, he shall file a request, in 

writing, with the Director of Industry 

Operations within 15 days after receipt 

of the notice or within such time as the 

Director of Industry Operations may 

allow. 

(b) Where a licensee or permittee 

requests a hearing, the Director of 

Industry Operations shall forward a 

copy of the request, together with a copy 

of the notice, to the Office of Chief 

Counsel for the assignment of an 

administrative law judge. 

(c) After the Office of Chief Counsel 

notifies the Director of Industry 

Operations or the attorney for the 

Government of the assignment of an 

administrative law judge, the Director of 

Industry Operations shall notify the 

licensee or permittee of the assignment. 

(d) In the case of a revocation, a 

licensee or permittee may include a 

request for a stay of the effective date of 

revocation with the request for a 

hearing. 

(e) On receipt of a request for a stay 

of the effective date of a revocation, the 

Director of Industry Operations shall 

timely advise the licensee or permittee 

whether the stay is granted. 

(1) If the stay is granted, the matter 

shall be referred to an administrative 

law judge pursuant to paragraph (b) of 

this section. 

(2) If the stay is denied, the licensee 

or permittee may request an immediate 

hearing. In this event, the Director of 

Industry Operations shall immediately 

refer the matter to the Office of Chief 

Counsel for the assignment of an 

administrative law judge, who shall set 

a date and place for hearing, which date 

shall be no later than 10 days from the 

date the licensee or permittee requested 

the immediate hearing. 

§ 771.61 Notice of hearing. 

Once a request for a hearing has been 

referred to the administrative law judge, 

the administrative law judge shall set a 

time and place for a hearing and shall 

serve notice thereof upon the parties at 

least 10 days in advance of the hearing 

date. 

Non-Request for Hearing 

§ 771.62 Initial application. 

In the case of an initial application, if 

the applicant does not request a hearing 

within 15 days, or within such 

additional time as the Director of 

Industry Operations may in his 

discretion allow, the Director of 

Industry Operations will return a copy 

of the application, marked 

‘‘Disapproved,’’ to the applicant, 

accompanied by a brief statement 

including the findings upon which the 

denial is based. 

§ 771.63 Revocation or denial of renewal. 

In the case of a revocation or denial 

of renewal of an application, if the 

licensee or permittee does not request a 

hearing within 15 days, or within such 

additional time as the Director of 

Industry Operations may in his 

discretion allow, the Director of 

Industry Operations shall make the 

initial decision in the case pursuant to 

§ 771.78(b). 

Responses to Notices 

§ 771.64 Answers. 

(a) Where the licensee or permittee 

requests a hearing in accordance with 

§ 771.60 of this chapter, a written 

response to the relevant notice may be 

filed with the administrative law judge 

and served on the Director of Industry 

Operations within 15 days after the 

licensee or permittee receives service of 

the designation of the administrative 

law judge. 

(b) Where no hearing is requested, the 

licensee or permittee may file a written 

answer to the relevant notice with the 

Director of Industry Operations within 

15 days after service of the notice. 

(c) An answer shall contain a concise 

statement of the facts that constitute the 

grounds for defense. A hearing, if 

requested, may be limited to the issues 

contained in the notice and the answer. 

The administrative law judge or Director 

of Industry Operations, as the case may 

be, may, as a matter of discretion, waive 

any requirement of this section. 

(d) Answers need not be filed in 

initial application proceedings. 

§ 771.65 Responses admitting facts. 

If the licensee or permittee desires to 

waive the hearing on the allegations of 

fact set forth in the notice and does not 

contest the facts, the answer may consist 

of a statement that the licensee or 

permittee admits all material allegations 

of fact charged in the notice to be true. 

The Director of Industry Operations 

shall base the decision on the notice and 

such answer, although such an answer 

shall not affect the licensee’s or 

permittee’s right to submit proposed 

findings of fact and conclusions of law 

or right to appeal. 

§ 771.66 Initial conferences. 

(a) In any proceeding, the 

administrative law judge, upon his own 

motion or upon the motion of one of the 

parties or their qualified representatives, 

may in the administrative law judge’s 

discretion direct the parties or their 

qualified representatives to appear at a 

specified time and place for a 

conference to consider: 

(1) Simplification of the issues; 


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(2) The necessity of amendments to 

the pleadings; 

(3) The possibility of obtaining 

stipulations, admissions of facts, and 

documents; 

(4) The possibility of both parties 

exchanging information or scheduling 

discovery; 

(5) A date on which both parties will 

simultaneously submit lists of proposed 

hearing exhibits; 

(6) Limiting the number of expert 

witnesses; 

(7) Identifying and, if practicable, 

scheduling all witnesses to be called; 

however, there is no requirement in 

these proceedings for the parties to 

submit pre-hearing statements or 

statements of proposed testimony by 

witnesses; and 

(8) Such other matters as may aid in 

the disposition of the proceeding. 

(b) As soon as practicable after such 

conference, the administrative law judge 

shall issue an order that recites the 

action taken, the amendments allowed 

to the pleadings, and the agreements 

made by the parties or their qualified 

representatives as to any of the matters 

considered. The order shall also limit 

the issues for hearing to those not 

disposed of by admission or agreement. 

Such order shall control the subsequent 

course of the proceedings, unless 

modified for good cause by a subsequent 

order. After discovery is complete, the 

order may be amended or supplemented 

if necessary. 

Failure to Appear 

§ 771.67 Initial applications. 

Where the applicant on an initial 

application for a license or permit has 

requested a hearing and does not appear 

at the appointed time and place, 

evidence has not been offered to refute 

or explain the grounds upon which 

disapproval of the application is 

contemplated, and no good cause has 

been shown for the failure to appear, the 

applicant shall be considered to have 

waived the hearing. When such waiver 

occurs, a default judgment against the 

applicant will be entered and the 

administrative law judge shall 

recommend disapproval of said 

application. 

§ 771.68 Revocation or denial of renewal. 

If, on the date set for a hearing 

concerning the revocation or denial of 

renewal of a license or permit, the 

licensee or permittee does not appear, 

no evidence has been offered, and no 

good cause has been shown for the 

failure to appear, the attorney for the 

Government will proceed ex parte and 

offer for the record sufficient evidence 

to make a prima facie case. At such 

hearing, documents, statements, and 

affidavits may be submitted in lieu of 

testimony of witnesses. 

Waiver of Hearing 

§ 771.69 Withdrawal of request for hearing. 

At any time prior to the assignment of 

an administrative law judge, the 

licensee or permittee may, by filing 

written notice with the Director of 

Industry Operations, withdraw his 

request for a hearing. If such a notice is 

filed after assignment to the 

administrative law judge and prior to 

issuance of his recommended decision 

the Director of Industry Operations shall 

move the administrative law judge to 

dismiss the proceedings as moot. If such 

a notice is filed either after issuance of 

a notice of denial or notice of revocation 

and before assignment of the 

administrative law judge, or after 

issuance by the administrative law 

judge of his recommended decision and 

prior to the Director of Industry 

Operations’ order disapproving the 

application or denying the renewal of or 

revoking the license or permit, the 

Director of Industry Operations shall, by 

order, dismiss the proceeding. 

§ 771.70 Adjudication based upon written 

submissions. 

The licensee or permittee may waive 

the hearing before the administrative 

law judge and stipulate that the matter 

will be adjudicated by the Director of 

Industry Operations based upon written 

submissions. Written submissions may 

include stipulations of law or facts, 

proposed findings of fact and 

conclusions of law, briefs, or any other 

documentary material. The pleadings, 

together with the written submissions of 

both the licensee or permittee and the 

attorney for the Government, shall 

constitute the record on which the 

initial decision shall be based. The 

election to contest the denial or 

revocation without a hearing under this 

section does not affect the licensee’s or 

permittee’s right to appeal to the 

Director pursuant to § 555.79 of this 

chapter or to the United States Court of 

Appeals for the district in which the 

licensee or permittee resides or has his 

principle place of business pursuant to 

§ 555.80 of this chapter. 

Surrender of License or Permit 

§ 771.71 Before citation. 

If a licensee or permittee surrenders 

the license or permit before the notice 

of revocation or denial of renewal, the 

Director of Industry Operations may 

accept the surrender. But if the 

evidence, in the opinion of the Director 

of Industry Operations, warrants 

issuance of a notice for revocation or 

denial of renewal, the surrender shall be 

refused and the Director of Industry 

Operations shall issue the notice. 

§ 771.72 After citation. 

If a licensee or permittee surrenders 

the license or permit after notice, but 

prior to the referral to an administrative 

law judge and prior to an initial 

decision, the Director of Industry 

Operations may accept the surrender of 

the license or permit and dismiss the 

proceeding as moot. If a licensee or 

permittee surrenders the license or 

permit after notice and after the referral 

to the administrative law judge, but 

prior to the issuance of a recommended 

decision, the Director of Industry 

Operations may accept the surrender of 

the license or permit and shall move the 

administrative law judge to dismiss the 

proceedings as moot. In either case, if, 

in the opinion of the Director of 

Industry Operations, the evidence is 

such as to warrant revocation or denial 

of renewal, as the case may be, the 

surrender of the license or permit shall 

be refused, and the proceeding shall 

continue. 

Motions 

§ 771.73 General. 

All motions shall be made and 

addressed to the administrative law 

judge before whom the proceeding is 

pending, and copies of all motion 

papers shall be served upon the other 

party or parties. The administrative law 

judge may dispose of any motion 

without oral argument, but he may, if he 

so desires, set it down for hearing and 

request argument. The administrative 

law judge may dispose of such motion 

prior to the hearing on the merits or he 

may postpone the disposition until the 

hearing on the merits. No appeal may be 

taken from any ruling on a motion until 

the whole record is certified for review. 

Examples of typical motions may be 

found in the Rules of Civil Procedure 

referred to in § 771.2. 

§ 771.74 Prior to hearing. 

All motions that should be made prior 

to the hearing, such as a motion directed 

to the sufficiency of the pleadings or of 

preliminary orders, shall be filed in 

writing with the Director of Industry 

Operations or the administrative law 

judge if the matter has been referred to 

him, and shall briefly state the order or 

relief applied for and the grounds for 

such motion. 

§ 771.75 At hearing. 

Motions at the hearing may be made 

in writing to the administrative law 

judge or stated orally on the record. 


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Hearing 

§ 771.76 General. 

If a hearing is requested, it shall be 

held at the time and place stated in the 

notice of hearing unless otherwise 

ordered by the administrative law judge. 

§ 771.77 Initial applications. 

(a) The administrative law judge who 

presides at the hearing on initial 

applications shall recommend a 

decision to the Director of Industry 

Operations. The administrative law 

judge shall certify the complete record 

of the proceedings before him and shall 

immediately forward the complete 

certified record to the Director of 

Industry Operations. The administrative 

law judge shall also send one copy of 

his recommended decision to the 

applicant or the applicant’s 

representative, one copy to the attorney 

for the Government, and one copy to the 

Director of Industry Operations, who 

shall make the initial decision as 

provided in § 771.107. The applicant 

may be directed by the Director of 

Industry Operations to produce such 

records as may be deemed necessary for 

examination. All hearings on 

applications shall be open to the public 

subject to such restrictions and 

limitations as may be consistent with 

orderly procedure. 

(b) If no hearing is requested, the 

return of the application marked 

‘‘Disapproved’’ is the Director of 

Industry Operations’ initial decision. 

§ 771.78 Revocation or denial of renewal. 

(a) The administrative law judge who 

presides at the hearing in proceedings 

for the revocation or denial of renewal 

of licenses or permits shall make a 

recommended decision to the Director 

of Industry Operations. The 

administrative law judge shall certify 

the complete record of the proceedings 

before him and shall immediately 

forward the complete certified record to 

the Director of Industry Operations. The 

administrative law judge shall also send 

one copy of his recommended decision 

to the licensee or permittee or the 

licensee’s or permittee’s representative, 

one copy to the attorney for the 

Government, and one copy to the 

Director of Industry Operations, who 

shall make the initial decision as 

provided in § 771.109. 

(b) If no hearing is requested, the 

Director of Industry Operations shall 

make the initial decision. 

Burden of Proof 

§ 771.79 Initial applications. 

In hearings on the initial denial of 

applications, the burden of proof is on 

the Government to show by a 

preponderance of the evidence that the 

Director of Industry Operations had 

reason to believe that the applicant is 

not entitled to a permit or license. 

§ 771.80 Revocation or denial of renewal. 

In hearings on the revocation or 

denial of renewal of a license or permit, 

the burden of proof is on the 

Government to show that the Director of 

Industry Operations had reason to 

believe that the licensee or permittee is 

not entitled to a permit or license, as 

may be the case. The Government must 

meet this proof by a preponderance of 

the evidence. 

General 

§ 771.81 Stipulations at hearing. 

If there has been no initial conference 

under § 771.66, the administrative law 

judge may at the beginning of the 

hearing require that the parties attempt 

to arrive at such stipulations as will 

eliminate the necessity of taking 

evidence with respect to allegations of 

fact about which there is no substantial 

dispute. The administrative law judge 

should take similar action, where 

appropriate, throughout the hearing and 

should call and conduct any 

conferences that he deems advisable 

with a view to the simplification, 

clarification, and disposition of any of 

the issues involved in the hearing. 

§ 771.82 Evidence. 

Any relevant evidence that would be 

admissible under the rules of evidence 

governing civil proceedings in matters 

not involving trial by jury in the Courts 

of the United States shall be admissible. 

The administrative law judge may relax 

such rules in any hearing when in his 

judgment such relaxation would not 

impair the rights of either party and 

would more speedily conclude the 

hearing or would better serve the ends 

of justice. However, the administrative 

law judge shall provide for the 

exclusion of irrelevant, immaterial, or 

unduly repetitious evidence. Every 

party shall have the right to present his 

case or defense by oral or documentary 

evidence, depositions, or duly 

authenticated copies of records and 

documents; to submit rebuttal evidence; 

and to conduct such reasonable crossexamination as may be required for a 

full and true disclosure of the facts. 

(a) Witnesses. The administrative law 

judge shall have the right in his 

discretion to limit the number of 

witnesses whose testimony may be 

merely cumulative and shall, as a matter 

of policy, not only exclude irrelevant, 

immaterial, or unduly repetitious 

evidence but shall also limit the crossexamination of witnesses to that 

required for a full and true disclosure of 

the facts so as not to unnecessarily 

prolong the hearing and unduly burden 

the record. Opinion testimony shall be 

admitted when the administrative law 

judge is satisfied that the witness is 

properly qualified as defined by Federal 

Rule of Evidence 701. 

(b) Documentary Evidence. Material 

and relevant evidence shall not be 

excluded because it is not the best 

evidence unless its authenticity is 

challenged, in which case reasonable 

time shall be given to establish its 

authenticity. When only portions of a 

document are to be relied upon, the 

offering party shall prepare the 

pertinent excerpts, adequately 

identified, and shall supply copies of 

such excerpts, together with a statement 

indicating the purpose for which such 

materials will be offered, to the 

administrative law judge and to the 

other parties. Only the excerpts, so 

prepared and submitted, shall be 

received in the record. However, the 

whole of the original document should 

be made available for examination and 

for use by opposing counsel for 

purposes of cross-examination. 

Compilations, charts, summaries of 

data, and photostatic copies of 

documents may be admitted in evidence 

if the proceedings will thereby be 

expedited, and if the material upon 

which they are based is available for 

examination by the parties. Objections 

to the evidence shall be in short form, 

stating the grounds relied upon. The 

transcript shall not include argument or 

debate on objections, except as ordered 

by the administrative law judge, but 

shall include the rulings thereon. Where 

official notice is taken of a material fact 

not appearing in the evidence in the 

record, any party shall, on timely 

request, be afforded an opportunity to 

controvert such fact. 

(c) Hearsay. Probative, material, and 

reliable hearsay evidence is admissible 

in proceedings under this subpart. 

§ 771.83 Closing of hearings; arguments, 

briefs, and proposed findings. 

Before closing a hearing, the 

administrative law judge shall inquire of 

each party whether the party has any 

further evidence to offer, which inquiry 

and the response thereto shall be shown 

in the record. The administrative law 

judge may hear arguments of counsel 

and the administrative law judge may 

limit the time of such arguments at his 

discretion. The administrative law judge 

may, in his discretion, allow briefs to be 

filed on behalf of either party but shall 

closely limit the time within which the 

briefs for both parties shall be filed, so 


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as to avoid unreasonable delay. The 

administrative law judge shall also 

ascertain whether the parties desire to 

submit proposed findings and 

conclusions, together with supporting 

reasons, and, if so, a period of not more 

than 15 days (unless extended by the 

administrative law judge)—after the 

close of the hearing or receipt of a copy 

of the record, if one is requested—will 

be allowed for such purpose. 

§ 771.84 Reopening of the hearing. 

The Director, the Director of Industry 

Operations, or the administrative law 

judge, as the case may be, may, as to all 

matters pending before him, in his 

discretion reopen a hearing— 

(a) In case of default under §§ 771.67 

or 771.68 where the applicant, licensee, 

or permittee failed to request a hearing 

or to appear after one was set, upon 

petition setting forth reasonable grounds 

for such failure, and 

(b) Where any party desires leave to 

adduce additional evidence upon 

petition summarizing such evidence, 

establishing its materiality, and stating 

reasonable grounds why such party with 

due diligence was unable to produce 

such evidence at the hearing. 

Record of Testimony 

§ 771.85 Stenographic record. 

A stenographic record shall be made 

of the testimony and proceedings, 

including stipulations, admissions of 

fact, and arguments of counsel in all 

proceedings. A transcript of the 

evidence and proceedings at the hearing 

shall be made in all cases. 

§ 771.86 Oath of reporter. 

The reporter making the stenographic 

record shall subscribe an oath before the 

administrative law judge, to be filed in 

the record of the case, that he will truly 

and correctly report the oral testimony 

and proceedings at such hearing and 

accurately transcribe the same to the 

best of his ability. 

Subpart G—Administrative Law 

Judges 

§ 771.95 Responsibilities of administrative 

law judges. 

Administrative law judges shall be 

under the administrative control of the 

Director. In hearings under this subpart, 

administrative law judges must apply 

all governing agency rulings and 

governing agency precedent. They shall 

be responsible for the conduct of 

hearings and shall render their 

decisions as soon as is reasonably 

possible after the hearing is closed. 

Administrative law judges shall also be 

responsible for the preparation, 

certification, and forwarding of the 

complete record of proceedings and the 

administrative work relating thereto 

and, by arrangement with Directors of 

Industry Operations and representatives 

of the Office of Chief Counsel shall have 

access to facilities and temporary use of 

personnel at such times and places as 

are needed in the prompt dispatch of 

official business. 

§ 771.96 Disqualification. 

An administrative law judge shall, at 

any time, withdraw from any 

proceeding if he deems himself 

disqualified. Upon the filing in good 

faith by the applicant, licensee, 

permittee, or attorney for the 

Government of a timely and sufficient 

affidavit of facts showing personal bias 

or otherwise warranting the 

disqualification of any administrative 

law judge, if the administrative law 

judge fails to disqualify himself, the 

Director shall upon appeal, as provided 

in § 771.120, determine the matter as a 

part of the record and decision in the 

proceeding. If the Director decides the 

administrative law judge should have 

deemed himself disqualified, the 

Director will remand the record for 

hearing de novo before another 

administrative law judge. If the Director 

should decide against the 

disqualification of the administrative 

law judge, the proceeding will be 

reviewed on its merits by the original 

administrative law judge. The burden is 

upon the party seeking disqualification 

to set forth evidence sufficient to 

overcome the presumption of the 

administrative law judge’s honesty and 

integrity. 

§ 771.97 Powers. 

Administrative law judges shall have 

authority to: 

(a) Administer oaths and affirmations; 

(b) Issue subpoenas as authorized by 

law; 

(c) Rule upon offers of proof and 

receive relevant evidence; 

(d) Take or cause depositions to be 

taken whenever the ends of justice 

would be served thereby; 

(e) Regulate the course of the hearing; 

(f) Hold conferences for the settlement 

or simplification of the issues by 

consent of the parties; 

(g) Require the attendance at such 

conferences of at least one 

representative of each party who has the 

authority to negotiate concerning 

resolution of issues in controversy; 

(h) Dispose of procedural requests or 

similar matters; 

(i) Render recommended decisions in 

proceedings on applications for licenses 

and permits and on revocation or denial 

of renewal of licenses or permits; 

(j) Call, examine, and cross-examine 

witnesses, including hostile or adverse 

witnesses, when the administrative law 

judge deems such action to be necessary 

to a just disposition of the case, and 

introduce into the record documentary 

or other evidence; and 

(k) Take any other action authorized 

by rule of the Bureau of Alcohol, 

Tobacco, Firearms, and Explosives 

consistent with the Administrative 

Procedure Act. 

§ 771.98 Separation of functions. 

Administrative law judges shall 

perform no functions inconsistent with 

their duties and responsibilities. The 

Director may assign administrative law 

judges duties not inconsistent with the 

performance of their functions as 

administrative law judges. Except to the 

extent required for the disposition of ex 

parte matters as required by law, no 

administrative law judge shall consult 

any person or party as to any fact in 

issue unless there has been notice and 

opportunity for all parties to participate. 

The functions of the administrative law 

judge shall be entirely separated from 

the general investigative functions of the 

agency. No officer, employee, or agent 

engaged in the performance of 

investigative or prosecuting functions in 

any proceeding shall, in that proceeding 

or a factually related proceeding, 

participate or advise in the 

administrative law judge’s or Director’s 

decision, or in the agency review on 

appeal, except as a witness or counsel 

in the proceedings. The administrative 

law judge may not informally obtain 

advice or opinions from the parties or 

their counsel, or from any officer or 

employee of the ATF, as to the facts or 

the weight or interpretation to be given 

to the evidence. The administrative law 

judge may, however, informally obtain 

advice on matters of law or procedure 

in a proceeding from officers or 

employees who were not engaged in the 

performance of investigative or 

prosecuting functions in that proceeding 

or a factually related proceeding. The 

administrative law judge may, at any 

time, consult with and obtain 

instructions from the Director on 

questions of law and policy. 

Furthermore, it is not a violation of the 

separation of functions for the 

administrative law judge to participate 

in the questioning of witnesses, where 

the questioning is for clarification or to 

move the proceedings along, and where 

the questioning is not so extensive as to 

place the administrative law judge in 

the position of a prosecuting officer. 


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§ 771.99 Conduct of hearing. 

The administrative law judge is 

charged with the duty of conducting a 

fair and impartial hearing and of 

maintaining order in form and manner 

consistent with the dignity of a court 

proceeding. In the event that counsel or 

any person or witness in any proceeding 

shall refuse to obey the orders of the 

administrative law judge, or be guilty of 

disorderly or contemptuous language or 

conduct in connection with any hearing, 

the administrative law judge may, for 

good cause stated in the record, suspend 

the hearing, and, in the case of 

disorderly or contemptuous language or 

conduct by an attorney, recommend that 

the Director report the matter to the 

Chief Counsel regarding the attorney for 

the Government or the applicable state 

bar association regarding the attorney 

for a licensee or permittee for 

disciplinary action. The refusal of a 

witness to answer any question that has 

been ruled to be proper shall be 

considered by the administrative law 

judge in determining the weight to be 

given all the testimony of that witness. 

§ 771.100 Unavailability of administrative 

law judge. 

In the event that the administrative 

law judge designated to conduct a 

hearing becomes unavailable before the 

filing of his findings and recommended 

decision, the Director may assign the 

case to another administrative law judge 

for the continuance of the proceeding, 

in accordance with the regulations in 

this part in the same manner as if he had 

been designated administrative law 

judge at the commencement of the 

proceeding. 

Subpart H—Decisions 

§ 771.105 Administrative law judge’s 

findings and recommended decision. 

Within a reasonable time after the 

conclusion of the hearing, and as 

expeditiously as possible, the 

administrative law judge shall render 

his recommended decision. All 

decisions shall become a part of the 

record and, if proposed findings and 

conclusions have been filed, shall show 

the administrative law judge’s ruling 

upon each of such proposed findings 

and conclusions. Decisions shall consist 

of: 

(a) A brief statement of the issues of 

fact involved in the proceeding; 

(b) The administrative law judge’s 

findings and conclusions, as well as the 

reasons or basis therefor with record 

references, upon all the material issues 

of fact, law, or discretion presented on 

the record (including, when 

appropriate, comment as to the 

credibility and demeanor of the 

witnesses); and 

(c) The administrative law judge’s 

recommended determination as to the 

revocation or denial at issue. 

§ 771.106 Certification and transmittal of 

record and decision. 

After reaching his decision, the 

administrative law judge shall certify 

the complete record of the proceeding 

before him and shall immediately 

forward the complete certified record 

together with one copy of the 

administrative law judge’s 

recommended decision to the Director 

of Industry Operations for initial 

decision, one copy of the recommended 

decision to the applicant or the 

applicant’s representative, and one copy 

of the recommended decision to the 

attorney for the Government. 

Action by Director of Industry 

Operations 

§ 771.107 Initial application proceedings. 

(a) Accepting the recommended 

decision. If the Director of Industry 

Operations, after consideration of the 

record of the hearing and of any 

proposed findings, conclusions, or 

exceptions filed with him by the 

applicant, accepts the recommended 

decision of the administrative law 

judge, the Director of Industry 

Operations shall by order approve or 

disapprove of the application in 

accordance with the recommended 

decision. If the Director of Industry 

Operations approves the application, he 

shall briefly state for the record his 

reasons therefor. However, if the 

Director of Industry Operations 

disapproves of the applications, he shall 

serve a copy of the administrative law 

judge’s recommended decision on the 

applicant, informing the applicant of the 

Director of Industry Operations’ 

contemplated action and affording the 

applicant not more than 10 days in 

which to submit proposed findings and 

conclusions or exceptions to the 

recommended decision with reasons in 

support thereof. 

(b) Rejecting the recommended 

decision. If, after such consideration 

referenced in paragraph (a) of this 

section, the Director of Industry 

Operations rejects the recommended 

decision of the administrative law 

judge, in whole or in part, the Director 

of Industry Operations shall by order 

make such findings and conclusions as 

in his opinion are warranted by the law 

and facts in the record. Any decision of 

the Director of Industry Operations 

ordering the disapproval of an 

application for a permit shall state the 

findings and conclusions upon which it 

is based, including his ruling upon each 

proposed finding, conclusion, and 

exception to the administrative law 

judge’s recommended decision, together 

with a statement of the administrative 

law judge’s findings, conclusions, and 

reasons or basis therefor, upon all 

material issues of fact, law, or discretion 

presented on the record. A signed 

original of the decision of the Director 

of Industry Operations shall be served 

upon the applicant and the original 

copy containing a certificate of service 

shall be placed in the official record of 

the proceeding. 

§ 771.108 Director of Industry Operations’ 

decision. 

When the Director of Industry 

Operations issues an initial decision in 

accordance with §§ 771.77 or 771.107 

the decision shall become a part of the 

record. The decision shall consist of: 

(a) A brief statement of the issues 

involved in the proceedings; 

(b) The Director of Industry 

Operations’ findings and conclusions, as 

well as the reasons therefor; and 

(c) The Director of Industry 

Operations’ determination on the 

record. 

§ 771.109 Revocation or denial of renewal 

proceedings. 

(a) Accepting the recommended 

decision. After consideration of the 

complete certified record of the hearing, 

if the Director of Industry Operations 

agrees with the recommended decision 

of the administrative law judge, the 

Director of Industry Operations shall 

enter an order revoking or denying the 

renewal of the license or permit or 

dismissing the proceedings in 

accordance with the administrative law 

judge’s recommended decision. 

(b) Rejecting the recommended 

decision. After consideration of the 

complete certified record of the hearing, 

if the Director of Industry Operations 

disagrees with the recommended 

decision of the administrative law 

judge, he may file a petition with the 

Director for review of the recommended 

decision, as provided in § 771.120. If the 

Director of Industry Operations files 

such a petition, he shall withhold 

issuance of the order pending the 

decision of the Director, upon receipt of 

which he shall issue the order in 

accordance with the Director’s decision. 

A signed original of the order of the 

Director of Industry Operations shall be 

served upon the licensee or permittee or 

his representative and the original copy 

containing a certificate of service shall 

be placed in the official record of the 

proceeding. 


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60404 Federal Register / Vol. 79, No. 194 / Tuesday, October 7, 2014 / Proposed Rules 

(c) In a case where the initial decision 

is made by the Director of Industry 

Operations in accordance with 

§ 771.78(b), the Director of Industry 

Operations shall also issue an order 

revoking or denying the renewal of the 

license or permit, or dismissing the 

proceedings in accordance with his 

initial decision. A signed original of the 

decision and order of the Director of 

Industry Operations shall be served 

upon the licensee or permittee or his 

representative and the original copy 

placed in the official record of the 

proceeding. 

§ 771.110 Revocation or denial of renewal. 

Pursuant to § 771.109(a), when the 

Director of Industry Operations issues 

an order revoking or denying the 

renewal of a license or permit, he shall 

furnish a copy of the order and of the 

recommended decision on which it is 

based to the Director. Should such order 

be subsequently set aside on review by 

the courts, the Director of Industry 

Operations will so advise the Director. 

§ 771.111 Proceedings involving violations 

not within the division of issuance of 

license or permit. 

In the event violations occurred at a 

place not within the field division 

where the licensee or permittee is 

located, the Director of Industry 

Operations of the field division where 

the licensee or permittee is located will 

take jurisdiction over any proceeding 

and will take appropriate action in 

accordance with this subpart, including 

issuing the relevant notice. 

Subpart I—Review 

§ 771.120 Appeal on petition to the 

Director. 

(a) An appeal to the Director may be 

made by the applicant, licensee, or 

permittee, or by the Director of Industry 

Operations. For the applicant, licensee, 

or permittee, such appeal shall be made 

by filing a petition for review on appeal 

with the Director within 15 days of the 

service of the adverse initial decision by 

the Director of Industry Operations. For 

the Director of Industry Operations, 

such appeal shall be taken by filing a 

petition for review on appeal with the 

Director within 15 days of the issuance 

of the administrative law judge’s 

decision recommending against 

revocation or denial of renewal. The 

petitioning applicant, licensee, or 

permittee must submit arguments 

showing that the Director of Industry 

Operations’ initial decision, and if 

applicable the underlying 

administrative law judge’s 

recommended decision, was without 

reasonable warrant in fact or contrary to 

law and regulations. The petitioning 

DIO must submit arguments showing 

the administrative law judge’s 

recommended decision was without 

reasonable warrant in fact or contrary to 

law and regulations. Nothing in these 

regulations shall limit the authority of 

the Director to review the administrative 

law judge’s decision exercising all the 

powers that he would have in making 

the recommended decision. 

(b) A copy of the petition shall be 

filed with the Director of Industry 

Operations or served on the applicant, 

licensee, or permittee, as the case may 

be. In the event of an appeal, the 

Director of Industry Operations shall 

immediately certify and forward the 

complete original record, by certified 

mail, to the Director, for his 

consideration and review. 

§ 771.121 Review by Director. 

(a) Modification or reversal. On 

appeal, the Director shall afford a 

reasonable opportunity for the 

submission of proposed findings, 

conclusions, or exceptions with reasons 

in support thereof and an opportunity 

for oral argument. The Director may 

alter or modify any finding of the 

administrative law judge (or of the 

Director of Industry Operations as the 

case may be) and may affirm, reverse, or 

modify the recommended decision of 

the administrative law judge, or the 

initial decision of the Director of 

Industry Operations, or may remand the 

case for further hearing, but shall not 

consider evidence that is not a part of 

the record. 

(b) Affirmance. Except in the case of 

a remand, when, on appeal, the Director 

affirms the initial decision of the 

Director of Industry Operations or the 

recommended decision of the 

administrative law judge, as the case 

may be, such decision shall be the 

agency’s final decision. 

(c) Recusal. Appeals and petitions for 

review shall not be decided by the 

Director in any proceeding in which the 

Director has engaged in an investigation 

or prosecution and in such event the 

Director shall so state his 

disqualification in writing and refer the 

record to the Deputy Director for 

appropriate action. The Deputy Director 

may designate an Assistant Director or 

one of the Deputy Director’s principal 

aides to consider any proceeding 

instead of the Director. The original 

copy of the decision on review shall be 

placed in the official record of the 

proceeding, a signed duplicate original 

shall be served upon the applicant, 

licensee, or permittee, and a copy shall 

be transmitted to the Director of 

Industry Operations. 

§ 771.122 Denial of renewal or revocation. 

If the Director orders the denial of an 

application, a copy of the application 

marked ‘‘Disapproved’’ will be returned 

to the applicant by the Director of 

Industry Operations. If the Director 

orders a revocation of a license of 

permit, any stay of revocation will be 

withdrawn and the revocation will 

become effective upon the order of the 

Director of Industry Operations. After 

the issuance of a denial of a renewal 

application or a revocation, and pending 

the final determination of a timely 

appeal, the licensee or permittee may 

continue operations, if at all, pursuant 

to § 555.83 of this chapter. 

§ 771.123 Court review. 

(a) If an applicant, licensee, or 

permittee files an appeal in the United 

States Court of Appeals for the district 

in which he resides or has his principle 

place of business, within 60 days after 

the receipt of the Director’s decision, the 

Director, upon notification that an 

appeal has been taken, shall prepare the 

record for submission to the court in 

accordance with applicable court rules. 

(b) If an applicant, licensee, or 

permittee does not seek review with the 

Director, but instead seeks review 

within 60 days after the receipt of the 

initial decision of the Director of 

Industry Operations pursuant to 

§ 771.109, the Director of Industry 

Operations, upon notification that an 

appeal has been taken, shall prepare the 

record for submission to the court in 

accordance with applicable court rules. 

The Director of Industry Operations 

shall notify the Director if such an 

appeal is taken. 

(c) The Director, or the Director of 

Industry Operations, as the case may be, 

shall certify the correctness of the 

transcript of the record, forward one 

copy to the attorney for the Government 

in the review of the case, and file the 

original record of the proceedings with 

the original certificate in the appropriate 

United States Court of Appeals. 

Subpart J—Miscellaneous 

§ 771.124 Depositions. 

The administrative law judge may 

take or order the taking of depositions 

by either party to the proceeding at such 

time and place as the administrative law 

judge may designate before a person 

having the power to administer oaths, 

upon application therefor and notice to 

the parties to the action. The testimony 

shall be reduced to writing by the 

person taking the deposition, or a 

person under his direction, and the 

deposition shall be subscribed by the 


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Federal Register / Vol. 79, No. 194 / Tuesday, October 7, 2014 / Proposed Rules 60405 

deponent unless subscribing thereof is 

waived in writing by the parties. 

§ 771.125 Witnesses and fees. 

Witnesses summoned before the 

administrative law judge may be paid 

the same fees and mileage that are paid 

witnesses in the courts of the United 

States, and witnesses whose depositions 

are taken and the persons taking the 

same shall severally be entitled to the 

same fees as are paid for like services in 

the courts of the United States. Witness 

fees and mileage shall be paid by the 

party at whose instance the witnesses 

appear and the person taking the 

deposition shall be paid by the party at 

whose instance the deposition is taken. 

§ 771.126 Discovery. 

The discovery provisions of the 

Federal Rules of Civil Procedure and the 

Federal Rules of Criminal Procedure are 

not controlling with respect to agency 

proceedings under this part. However, 

fundamental fairness requires a party be 

given the opportunity to know what 

evidence is offered and a chance to 

rebut such evidence. Either party may 

petition the administrative law judge for 

non-burdensome discovery if the party 

can demonstrate that the interests of 

justice require disclosure of these 

materials. 

§ 771.127 Privileges. 

The Administrative Procedure Act, 5 

U.S.C. 559, provides that, except as 

otherwise required by law, privileges 

relating to procedure or evidence apply 

equally to agencies and persons. 

Therefore, an agency may rely on 

judicially-approved privileges to resist 

production of its files where 

appropriate. 

Record 

§ 771.135 What constitutes record. 

The transcript of testimony, 

pleadings, exhibits, all papers and 

requests filed in the proceeding, and all 

findings, decisions, and orders, shall 

constitute the exclusive record. Where 

the decision rests on official notice of 

material fact not appearing in the 

record, the administrative law judge 

shall so state in his findings and any 

party shall, on timely request, be 

afforded an opportunity to show facts to 

the contrary. 

§ 771.136 Availability. 

A copy of the record shall be available 

for inspection or copying by the parties 

to the proceedings during business 

hours at the office of the administrative 

law judge or the Director of Industry 

Operations or, pending administrative 

review, at the Office of the Director. 

Dated: October 1, 2014. 

Eric H. Holder, Jr., 

Attorney General. 

[FR Doc. 2014–23932 Filed 10–6–14; 8:45 am] 

BILLING CODE 4410–FY–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2014–0615; FRL–9916–94– 

Region 9] 

Revisions to the California State 

Implementation Plan, Placer County 

Air Pollution Control District 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to approve a 

revision to the Placer County Air 

Pollution Control District (PCAPCD) 

portion of the California State 

Implementation Plan (SIP). This 

revision concerns oxides of nitrogen 

(NOx) emissions from natural gas-fired 

water heaters, small boilers, and process 

heaters. We are proposing to approve a 

local rule to regulate these emission 

sources under the Clean Air Act (CAA 

or the Act). 

DATES: Any comments on this proposal 

must arrive by November 6, 2014. 

ADDRESSES: Submit comments, 

identified by docket number EPA–R09– 

OAR–2014–0615, by one of the 

following methods: 

1. Federal eRulemaking Portal: 

www.regulations.gov. Follow the on-line 

instructions. 

2. Email: steckel.andrew@epa.gov. 

3. Mail or deliver: Andrew Steckel 

(Air-4), U.S. Environmental Protection 

Agency Region IX, 75 Hawthorne Street, 

San Francisco, CA 94105–3901. 

Instructions: All comments will be 

included in the public docket without 

change and may be made available 

online at www.regulations.gov, 

including any personal information 

provided, unless the comment includes 

Confidential Business Information (CBI) 

or other information whose disclosure is 

restricted by statute. Information that 

you consider CBI or otherwise protected 

should be clearly identified as such and 

should not be submitted through 

www.regulations.gov or email. 

www.regulations.gov is an ‘‘anonymous 

access’’ system, and EPA will not know 

your identity or contact information 

unless you provide it in the body of 

your comment. If you send email 

directly to EPA, your email address will 

be automatically captured and included 

as part of the public comment. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. 

Docket: Generally, documents in the 

docket for this action are available 

electronically at www.regulations.gov 

and in hard copy at EPA Region IX, 75 

Hawthorne Street, San Francisco, 

California 94105–3901. While all 

documents in the docket are listed at 

www.regulations.gov, some information 

may be publicly available only at the 

hard copy location (e.g., copyrighted 

material, large maps), and some may not 

be publicly available in either location 

(e.g., CBI). To inspect the hard copy 

materials, please schedule an 

appointment during normal business 

hours with the contact listed in the FOR

FURTHER INFORMATION CONTACT section. 

FOR FURTHER INFORMATION CONTACT: 

Nicole Law, EPA Region IX, (415) 947– 

4126, law.nicole@epa.gov. 

SUPPLEMENTARY INFORMATION: This 

proposal addresses the following local 

rule: Placer County Air Pollution 

Control District Rule 247 Natural GasFired Water Heaters, Small Boilers and 

Process Heaters. In the Rules and 

Regulations section of this Federal 

Register, we are approving this local 

rule in a direct final action without 

prior proposal because we believe these 

SIP revisions are not controversial. If we 

receive adverse comments, however, we 

will publish a timely withdrawal of the 

direct final rule and address the 

comments in subsequent action based 

on this proposed rule. 

We do not plan to open a second 

comment period, so anyone interested 

in commenting should do so at this 

time. If we do not receive adverse 

comments, no further activity is 

planned. For further information, please 

see the direct final action. 

Dated: September 5, 2014. 

Jared Blumenfeld, 

Regional Administrator, Region IX. 

[FR Doc. 2014–23775 Filed 10–6–14; 8:45 am] 

BILLING CODE 6560–50–P 


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