02-11258. Delegation of Authority

AGENCY:

Bureau of Alcohol, Tobacco and Firearms (ATF), Treasury.

ACTION:

Treasury decision, final rule.

SUMMARY:

This final rule places most ATF authorities contained in its Exportation of Tobacco Products and Cigarette Papers and Tubes, Without Payment of Tax, or With Drawback of Tax regulations with the “appropriate ATF officer”. Consequently, this final rule removes the definitions of, and references to, specific officers subordinate to the Director and the word “region.” This final rule also requires that persons file documents required by these regulations with the “appropriate ATF officer” or in accordance with the instructions on the ATF form. Concurrently with this Treasury Decision, ATF Order 1130.31 is being issued and will be made available as specified in this rule. Through this order, the Director has delegated most of the authorities to the appropriate ATF officers and specified the ATF officers with whom applications, notices and other reports, which are not ATF forms, are filed. In addition, this final rule makes a few corrections and miscellaneous changes.

EFFECTIVE DATE:

This rule is effective May 8, 2002.

FOR FURTHER INFORMATION CONTACT:

Robert Ruhf, Regulations Division, Bureau of Alcohol, Tobacco and Firearms, 650 Massachusetts Avenue NW., Washington, DC 20226 (telephone [phone] or e-mail to [e-mail]).

SUPPLEMENTARY INFORMATION:

Background

Delegations of Authority

Pursuant to Treasury Order 120-01 (formerly 221), dated June 6, 1972, the Secretary of the Treasury delegated to the Director of the Bureau of Alcohol, Tobacco and Firearms (ATF), the authority to enforce, among other laws, the provisions of chapter 52 of the Internal Revenue Code of 1986 (IRC). The Director has subsequently redelegated certain of these authorities to appropriate subordinate officers by way of various means, including by regulation, ATF delegation orders, regional directives, or similar delegation documents. As a result, to ascertain what particular officer is authorized to perform a particular function under such provisions, each of these various delegation instruments must be consulted. Similarly, each time a delegation of authority is revoked or redelegated, each of the delegation documents must be reviewed and amended as necessary.

ATF has determined that this multiplicity of delegation instruments complicates and hinders the task of determining which ATF officer is authorized to perform a particular function. ATF also believes these multiple delegation instruments exacerbate the administrative burden associated with maintaining up-to-date delegations, resulting in an undue delay in reflecting current authorities.

Accordingly, this final rule rescinds all authorities of the Director in part 44 that were previously delegated and places those authorities with the “appropriate ATF officer.” Most of the authorities of the Director that were not previously delegated are also placed with the “appropriate ATF officer.” Along with this final rule, ATF is publishing ATF Order 1130.31, Delegation of the Director's Authorities in 27 CFR part 44, which delegates certain of these authorities to the appropriate organizational level. The effect of these changes is to consolidate all delegations of authority in part 44 into one delegation instrument. This action both simplifies the process for determining what ATF officer is authorized to perform a particular function and facilitates the updating of delegations in the future. As a result, delegations of authority will be reflected in a more timely and user-friendly manner.

In addition, this final rule also eliminates all references in the regulations that identify the ATF officer with whom an ATF form is filed. This is because ATF forms will indicate the officer with whom they must be filed. Similarly, this final rule also amends part 44 to provide that the submission of documents other than ATF forms (such as letterhead applications, notices and reports) must be filed with the “appropriate ATF officer” identified in ATF Order 1130.31. These changes will facilitate the identification of the officer with whom forms and other required submissions are filed.

This final rule also makes various technical amendments to Subpart A—Scope of Regulations of 27 CFR part 44. Specifically, § 44.3 is added to recognize the authority of the Director to delegate regulatory authorities for all of part 44 and identifies ATF Order 1130.31 as the instrument reflecting such delegations. Also, § 44.2 is amended to provide that the instructions for an ATF form identify the ATF officer with whom it must be filed.

ATF has made or will make similar changes in delegations to all other parts of Title 27 of the Code of Federal Regulations through separate rulemakings.

Inventory Provisions

This final rule eliminates all references to an ATF region, which were comprised of certain States for ATF administrative purposes. As a result, we have eliminated § 44.110 and part of § 44.146 which required an export warehouse proprietor to take an inventory of tobacco products when a factory moves from one region to another. Besides the fact that ATF is no longer organized by regions, ATF may require a manufacturer to take an inventory of tobacco products at any time under the provisions of § 44.145. Such times may include any change in the location of a factory. Consequently, ATF does not believe that such a specific requirement is presently needed to protect the revenue.

Corrections And Miscellaneous Changes

Throughout 27 CFR part 44, we have revised the numbers relating to ATF forms to reflect the correct numbers as shown on the following table:

Form No.	Revised form No.
1534	5000.8
2093	2093 (5200.3)
2098	2098 (5200.16)
2103	2103 (5220.5)
2104	2104 (5200.15)
2105	2105 (5000.7)
2148	2148 (5200.17)
2149	5200.14

In § 44.143(a) we have removed what an export warehouse proprietor must report on ATF Form 5220.3 and with whom it must be filed. This ATF form specifies what an export warehouse proprietor must report and contains instructions for filing.

In § 44.243 we have removed the last sentence. This sentence referred to bond form 2100 which no longer exists and to a regulation that was eliminated over 40 years ago.

We have amended §§ 44.222 and 44.224 to remove references to stamps denoting the payment of tax. Since 1959 (Treasury Decision 6832, 24 FR 4225), we have not required the use of such stamps on tobacco products. In the past, the use of such stamps on tobacco products evidenced the payment of Federal excise tax under section 5701 Title 26 of the United States Code. These two sections involved the destruction of the stamps when a claim for allowance of drawback was filed.

Paperwork Reduction Act

The provisions of the Paperwork Reduction Act of 1995, Pub. L. 104-13, 44 U.S.C. chapter 35, and its implementing regulations, 5 CFR part 1320, do not apply to this final rule because there are no new or revised recordkeeping or reporting requirements.

Regulatory Flexibility Act

Because no notice of proposed rulemaking is required for this rule, the provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) do not apply. A copy of this final rule was submitted to the Chief Counsel for Advocacy of the Small Business Administration in accordance with 26 U.S.C. 7805(f). No comments were received.

Executive Order 12866

It has been determined that this rule is not a significant regulatory action because it will not: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in Executive Order 12866.

Administrative Procedure Act

Because this final rule merely makes technical amendments and conforming changes to improve the clarity of the regulations, it is unnecessary to issue this final rule with notice and public procedure under 5 U.S.C. 553(b). Similarly it is unnecessary to subject this final rule to the effective date limitation of 5 U.S.C. 553(d).

Drafting Information

The principal author of this document is Robert Ruhf, Regulations Division, Bureau of Alcohol, Tobacco and Firearms.

List of Subjects in 27 CFR Part 44

• Administrative practice and procedure
• Aircraft
• Armed forces
• Authority delegations
• Cigars and cigarettes
• Claims
• Customs duties and inspection
• Excise taxes
• Exports
• Foreign trade zones
• Labeling
• Packaging and containers
• Penalties
• Reporting and recordkeeping requirements
• Seizures and forfeitures
• Surety bonds
• Tobacco
• Transportation
• Vessels
• Warehouses

Authority and Issuance

For the reasons set forth in the preamble, title 27, Code of Federal Regulations is amended as follows:

PART 44—[AMENDED]

Paragraph 1. The authority citation for part 44 continues to read as follows:

Authority: 26 U.S.C. 5142, 5143, 5146, 5701, 5703-5705, 5711-5713, 5721-5723, 5731, 5741, 5751, 5753, 5754, 6061, 6065, 6151, 6402, 6404, 6806, 7011, 7212, 7342, 7606, 7805, 31 U.S.C. 9301, 9303, 9304, 9306.

Par. 2. Amend § 44.2 by:

a. Removing the word “Director” and adding, in substitution, the words “appropriate ATF officer” in the first sentence of paragraph (a).

b. Adding a sentence at the end of paragraph (a) and revising paragraph (b) to read as follows:

§ 44.2

Forms prescribed.

(a) * * * The form will be filed in accordance with the instructions for the form.

(b) Forms may be requested from the ATF Distribution Center, P.O. Box 5950, Springfield, Virginia 22150-5950, or by accessing the ATF web site (http://www.atf.treas.gov/​).

* * * * *

Par. 3. Add § 44.3 to read as follows:

§ 44.3

Delegations of the Director.

Most of the authorities of the Director contained in this part are delegated to appropriate ATF officers. These ATF officers are specified in ATF Order 1130.31, Delegation of the Director's Authorities in Part 44. ATF delegation orders, such as ATF Order 1130.31, are available from the ATF Distribution Center, P.O. Box 5950, Springfield, Virginia 22150-5950, or from the ATF web site (http://www.atf.treas.gov).

Par. 4. Amend § 44.11 by:

a. Removing the definitions of “Associate Director (Compliance Operations)”, “ATF officer”, “Region”, and “Regional Director (compliance)''; and

b. Adding the definition of “Appropriate ATF officer” to read as follows:

§ 44.11

Meaning of Terms.

* * * * *

Appropriate ATF officer. An officer or employee of the Bureau of Alcohol, Tobacco and Firearms (ATF) authorized to perform any functions relating to the administration or enforcement of this part by ATF Order 1130.31, Delegation of the Director's Authorities in 27 CFR Part 44, Exportation of Tobacco Products and Cigarette Papers and Tubes, Without Payment of Tax, or With Drawback of Tax.

* * * * *

§§ 44.35, 44.70, 44.71, 44.142, 44.143, 44.145, 44.147, 44.150, 44.199, 44.201, 44.225, 44.257, 44.266 and 44.267

[Amended]

Par. 5. Add the word “appropriate” before the words “ATF officer” or “ATF officers” each place they appear in the following places:

a. Section 44.35(c);

b. The heading and text of § 44.70;

c. Section 44.71;

d. The last sentence of § 44.142(e);

e. Section 44.143(b);

f. Section 44.145;

g. The last sentence of § 44.147;

h. Section 44.150;

i. The second sentence of § 44.199;

j. The last sentence of § 44.201;

k. Section 44.225;

l. The second sentence of § 44.257;

m. The last sentence of § 44.266; and

n. The last sentence of § 44.267.

Par. 6. In the sixth sentence of § 44.62 remove the words “regional director (compliance) for the region from which the articles were shipped” and add, in substitution, the words “appropriate ATF officer”.

Par. 7. Remove the first sentence of § 44.66 and add, in substitution, two sentences to read as follows:

§ 44.66

Relief from liability for tax.

A manufacturer of tobacco products or cigarette papers and tubes or an export warehouse proprietor is relieved of the liability for tax on tobacco products, or cigarette papers or tubes upon providing evidence satisfactory to the appropriate ATF officer of exportation or proper delivery. The evidence must comply with this part. * * *

* * * * *

§§ 44.72, 44.73 and 44.184

[Amended]

Par. 8. Remove the words “Director” and add, in substitution, the words “appropriate ATF officer” each place they appear in the following places:

a. The introductory text of § 44.72 and the fifth, sixth and seventh sentences of § 44.72(c);

b. The introductory text of § 44.73 and the fourth and last sentence of § 44.73(c); and

c. Section 44.184.

§§ 44.72 and 44.73

[Amended]

Par. 9. Remove the words “do so, in triplicate, to the regional director (compliance) for transmittal to the Director” and add, in substitution, the words “the appropriate ATF officer” in the following places:

a. The third sentence of § 44.72(c); and

b. The fifth sentence of § 44.73(c).

Par. 10. Revise the first sentence of § 44.82 to read as follows:

§ 44.82

Application for permit.

Every person, before commencing business as an export warehouse proprietor, must apply on ATF Form 2093 (5200.3) and obtain the permit provided for in § 44.93. * * *

* * * * *

§§ 44.83 and 44.84

[Amended]

Par. 11. Remove the words “same regional director (compliance)” each place they appear and add, in substitution, the words “appropriate ATF officer” in the following places:

a. The last sentence of § 44.83; and

b. The last sentence of § 44.84.

§ 44.86

[Amended]

Par. 12. In the first sentence of § 44.86 add the numbers and parentheses “(5220.5)” after the numbers “2103”.

§ 44.87

[Amended]

Par. 13. In the last sentence of § 44.87 remove the number and the words “1534 and furnished to the regional director (compliance) and add, in substitution, the number and words “5000.8 in accordance with its instructions.”

§§ 44.91, 44.92, 40.104, 44.105, 44.106, 44.112, 44.121, 44.123, 44.124, 44.125, 44.127, 44.129, 44.153, 44.154, 44.161, 44.162, 44.210, 44.213, 44.223, 44.226, 44.228, 44.230, 44.231, 44.232, 44.242, 44.244, 44.245 and 44.246

[Amended]

Par. 14. Remove the words “regional director (compliance)” and add, in substitution, the words “appropriate ATF officer” each place they appear in the following places:

a. Section 44.91;

b. Section 44.92;

c. The last sentence of § 40.104;

d. Section 44.105;

e. Section 44.106;

f. Section 44.112;

g. Section 44.121(b);

h. Section 44.123;

i. Section 44.124;

j. Section 44.125;

k. Section 44.127;

l. Section 44.129(a);

m. The second sentence of § 44.153;

n. The first sentence of § 44.154;

o. Section 44.161;

p. Section 44.162;

q. Section 44.210;

r. The first sentence of § 44.213;

s. Section 44.223;

t. The last sentence of § 44.226;

u. Section 44.228;

v. The last sentence of § 44.230;

w. Section 44.231;

x. Section 44.232;

y. Section 44.242;

z. Section 44.244;

aa. Section 44.245; and

bb. Section 44.246.

Par. 15. Revise § 44.93 to read as follows:

§ 44.93

Issuance of permit.

After the application for permit, bond, and supporting documents, as required under this part, has been approved, the appropriate ATF officer will issue a permit to the export warehouse proprietor. The proprietor must keep such permit at the export warehouse and make it available for inspection by an appropriate ATF officer.

§§ 44.101, 44.102, 44.103, 44.108, 44.109 and 44.111.

[Amended]

Par. 16. Add the numbers and parentheses “(5200.16)” after the number “2098” each place they appear in the following places:

a. Section 44.101;

b. Section 44.102;

c. Section 44.103;

d. Section 44.108;

e. Section 44.109; and

f. Section 44.111.

§ 44.108

Change in location.

Par. 17. Section 44.108 is amended by:

a. Revising the heading to read as set forth above; and

b. Removing the words “within the same region” and the words and punctuation “, to the regional director (compliance)”.

§ 44.110

[Removed and reserved]

Par. 18. Remove and reserve § 44.110.

§ 44.124

[Amended]

Par. 19. In the first sentence of § 44.124 remove the word “administrator”.

§ 44.126

[Amended]

Par. 20. In § 44.126, add the numbers and parentheses “(5000.7)” after the number “2105”.

§ 44.143

[Amended]

Par. 21. In § 44.143, remove the last sentence of paragraph (a) and remove paragraphs (a)(1) and (2).

§ 44.144

[Amended]

Par. 22. In § 44.144, remove the words “as indicated thereon by the regional director (compliance)”.

§ 44.146

[Amended]

Par. 23. In § 44.146, remove the words and punctuation “, changes his location to another region,”.

§ 44.147

[Amended]

Par. 24. In the first sentence of § 44.147, remove the words and punctuation “, to the regional director (compliance),”.

Par. 25. Amend § 44.152 by:

a. In the second sentence removing the words “regional director (compliance) for the region in which the warehouse is located” and adding, in substitution, the words “appropriate ATF officer”; and

b. Revising the third and remaining sentences to read as follows:

§ 44.152

Claim for remission of tax liability.

* * * If the proprietor wishes to be relieved of the tax liability, the proprietor must prepare and file a claim on ATF Form 5620.8. The nature, date, place, and extent of the loss or destruction must be stated in such claim. The claim must be accompanied by such evidence as is necessary to establish to the satisfaction of the appropriate ATF officer that the claim is valid. When the appropriate ATF officer has acted on the claim, such officer will return a copy of ATF Form 5620.8 to the proprietor as notice of such action. The proprietor must keep the copy of ATF Form 5620.8 for 3 years following the close of the calendar year in which the claim is filed.

* * * * *

§§ 44.153 and 44.243

[Amended]

Par. 26. Remove the words “with the regional director (compliance)” in each of the following places:

a.The first sentence of § 44.153; and

b.The first sentence of § 44.243.

Par. 27. Revise the third sentence of § 44.154 to read as follows:

§ 44.154

Claim for refund of tax.

* * * The claim must be filed on ATF Form 5620.8 and supported by such evidence as is necessary to establish to the satisfaction of the appropriate ATF officer that the claim is valid. * * *

* * * * *

§ 44.199

[Amended]

Par. 28. In the first sentence of § 44.199 remove the words “regional director (compliance) for the region in which is located the factory or warehouse from which the shipment is removed” and add, in substitution, the words “appropriate ATF officer”.

§§ 44.200, 44.201, 44.202, 44.203, 44.204, 44.205, 44.206, 44.207, 44.207a, 44.208, 44.212 and 44.213

[Amended]

Par. 29. Remove the words “his regional director (compliance)” and add, in substitution, the words “the appropriate ATF officer” each place it occurs in the following places:

a. The second sentence of § 44.200;

b. The second sentence of § 44.201;

c. The last sentence of § 44.202;

d. The last sentence of § 44.203;

e. The last sentence of § 44.204;

f. Section 44.205(b)(3);

g. The last sentence of § 44.206;

h. The third sentence of § 44.207;

i. The last sentence of § 44.207a;

j. The last sentence of § 44.208;

k. The first sentence of § 44.209;

l. The last sentence of § 44.212; and

m. The last sentence of § 44.213.

§ 44.212

[Amended]

Par. 30. In the last sentence of § 44.212 remove the word “he” and add, in substitution, the words “such officer”.

§§ 44.213 and 44.226

[Amended]

Par. 31. Remove the words “an ATF officer” or “the ATF officer” and add, in substitution, the words “an appropriate ATF officer” or “the appropriate ATF officer”, respectively, each place they appear in the following places:

a. In the first and third sentences of § 44.213;

b. In the second sentence of § 44.226.

Par. 32. Revise § 44.222 to read as follows:

§ 44.222

Claim.

Claim for allowance of drawback of tax, under this subpart, must be filed on Form 5620.7. Such claim must be filed in sufficient time to permit the appropriate ATF officer to detail an appropriate ATF officer to inspect the articles and supervise the affixture of a label or notice bearing the legend “For Export With Drawback of Tax.” Upon receipt of a claim supported by satisfactory bond, as required by this subpart, an appropriate ATF officer will proceed to the place where the articles involved are held and there perform the functions required in § 44.224.

* * * * *

§ 44.223

[Amended]

Par. 33. In the first sentence of § 44.223 add the numbers and parentheses “(5200.17)” after the numbers “2148”.

Par. 34. Revise § 40.224 to read as follows:

§ 44.224

Inspection by an appropriate ATF officer.

(a) Examination. An appropriate ATF officer will examine the tobacco products, and cigarette papers and tubes listed on ATF Form 5620.7. Such officer will verify the accuracy of the schedule of such articles on ATF Form 5620.7.

(b) Label or notice. If the tax on such articles has been paid by return, the appropriate ATF officer must be satisfied that the articles have in fact been taxpaid and each package bears the label or notice required by § 44.222.

(c) Shipping containers. The appropriate officer will supervise the packing of such articles in shipping containers. Each container must be numbered and have affixed to it the notice:

Drawback of tax claimed on contents.

Sale, consumption, or use in U.S. prohibited.

(d) Disposition of ATF Form 5620.7. After the appropriate ATF officer completes the report of inspection on ATF Form 5620.7, such officer will return two copies to the claimant and send a copy to the ATF office listed on the form.

(e) Release. After executing the report of inspection on ATF Form 5620.7, the appropriate ATF office will release the shipment to the claimant for delivery to the port of exportation.

* * * * *

§ 44.227

[Amended]

Par. 35. In the last sentence of § 44.227 remove the words “regional director (compliance) for the region from which the articles were shipped” and add, in substitution, the words “appropriate ATF officer”.

§ 44.229

[Amended]

Par. 36. In the first sentence of § 44.229 remove the words “regional director (compliance) with whom the drawback claim and bond were filed” and add, in substitution, the words “appropriate ATF officer”.

§ 44.242

[Amended]

Par. 37. In the first sentence of § 44.242 remove the words and punctuation “, for the region in which is located the customs warehouse from which the cigars were withdrawn,”.

§ 44.243

[Amended]

Par. 38. Amend § 44.243 by:

a. In the first sentence of § 44.243 add the numbers and parentheses “(5200.15) after the numbers “2104”; and

b. Removing the last sentence.

§ 44.257

[Amended]

Par. 39. In the first sentence of § 44.257 remove the words “regional director (compliance) for the region in which is located the customs warehouse from which the shipment is withdrawn” and add, in substitution, the words “appropriate ATF officer”.

§ 44.258, 44.259, 44.260, 44.261, 44.262, 44.263, 44.264, 44.264a, 44.265 and 44.267

[Amended]

Par. 40. Remove the words “regional director (compliance)” and add, in substitution, the words “ATF officer” in each of the following places:

a. The last sentence of § 44.258;

b. The last sentence of § 44.259;

c. The last sentence of § 44.260;

d. The last sentence of § 44.261;

e. The last sentence of § 44.262;

f. The third sentence of § 44.263;

g. The last sentence of § 44.264;

h. The last sentence of § 44.264a;

i. The last sentence of § 44.265; and

j. The first sentence of § 44.267.

Par. 41. In the last sentence of § 44.264 remove the number “2149” and add, in substitution, the number “5200.14”.

Signed: February 25, 2002.

Bradley A. Buckles,

Director.

Approved: March 28, 2002.

Timothy E. Skud,

Deputy Assistant Secretary

(Regulatory, Tariff, and Trade Enforcement).