99-624. Procedures for the Issuance, Denial, and Revocation of Certificates of Label Approval, Certificates of Exemption From Label Approval, and Distinctive Liquor Bottle Approvals (93F-029P)  

  • [Federal Register Volume 64, Number 8 (Wednesday, January 13, 1999)]
    [Rules and Regulations]
    [Pages 2122-2134]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 99-624]
    
    
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    DEPARTMENT OF THE TREASURY
    
    Bureau of Alcohol, Tobacco and Firearms
    
    27 CFR Parts 4, 5, 7, 13, and 19
    
    [TD ATF-406 Re: Notice No. 815 and Notice No. 819]
    RIN: 1512-AB34
    
    
    Procedures for the Issuance, Denial, and Revocation of 
    Certificates of Label Approval, Certificates of Exemption From Label 
    Approval, and Distinctive Liquor Bottle Approvals (93F-029P)
    
    AGENCY: Bureau of Alcohol, Tobacco and Firearms (ATF), Treasury.
    
    ACTION: Final rule, Treasury decision.
    
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    SUMMARY: The Bureau of Alcohol, Tobacco and Firearms (ATF) is issuing 
    regulations setting forth the procedures for the issuance, denial, and 
    revocation of certificates of label approval (COLAs), certificates of 
    exemption from label approval, and distinctive liquor bottle approvals. 
    The denial and revocation regulations are new, whereas the issuance 
    regulations merely amend current regulations. The new regulations also 
    codify procedures for administratively appealing the denial or 
    revocation of certificates of label approval, exemptions from label 
    approval, or distinctive liquor bottle approvals.
    
    DATES: These regulations are effective March 15, 1999.
    
    ADDRESSES: Copies of the proposed regulation and written comments are 
    available for public inspection during normal business hours at: ATF 
    Reading Room, Office of Public Affairs and Disclosure, Room 6480, 650 
    Massachusetts Avenue, NW, Washington, DC.
    
    FOR FURTHER INFORMATION CONTACT:
    Edward A. Reisman, Jr., Product Compliance Branch, Bureau of Alcohol, 
    Tobacco and Firearms, 650 Massachusetts Avenue, NW, Washington, DC 
    20226 (202-927-8140).
    
    SUPPLEMENTARY INFORMATION:
    
    Background
    
        The Federal Alcohol Administration (FAA) Act, 27 U.S.C. 205(e), 
    provides ATF, as the delegate of the Secretary of the Treasury, with 
    authority to promulgate regulations with respect to the bottling, 
    packaging, and labeling of distilled spirits, wine, and malt beverages 
    in order to prohibit deception of the consumer, and provide the 
    consumer with adequate information as to the identity and quality of 
    the product.
        In order to carry out such requirements, domestic bottlers and 
    producers are prohibited from bottling distilled spirits, wines, or 
    malt beverages, and importers are prohibited from removing bottled 
    distilled spirits, wines, or malt beverages from customs custody unless 
    they have in their possession a certificate of label approval covering 
    such products, ``issued by the Secretary in such manner and form as he 
    shall by regulations prescribe.'' 27 U.S.C. 205(e). The law provides an 
    exemption from these requirements for products that are not to be sold, 
    offered for sale, or shipped or delivered for shipment, or otherwise 
    introduced, in interstate or foreign commerce.
        The regulations implementing these statutory provisions provide 
    that no person shall bottle or pack wine, distilled spirits, or malt 
    beverages unless application is made to the Director and an approved 
    certificate of label approval, ATF Form 5100.31, is issued. 27 CFR 
    4.50(a), 5.55(a), and 7.41. The regulations also provide that no 
    bottled wines, distilled spirits, or malt beverages shall be released 
    from customs custody for consumption unless an approved certificate of 
    label approval, ATF Form 5100.31, is deposited with the appropriate 
    customs officer at the port of entry. 27 CFR 4.40(a), 5.51(a), and 
    7.31(a).
        A bottler of wine or distilled spirits who can show to the 
    satisfaction of the Director that the product is not to be sold, 
    offered for sale, or shipped or delivered for shipment or otherwise 
    introduced in interstate or foreign commerce, must make application for 
    exemption from the labeling requirements of the FAA Act on ATF Form 
    5100.31 in accordance with the instructions on the form. If the 
    application is approved, a certificate of exemption from label approval 
    will be issued on the same form. 27 CFR 4.50(b) and 5.55(b). 
    Certificates of exemption from label approval are not issued for malt 
    beverages.
        Finally, the ATF Form 5100.31 is also used to obtain approval for 
    distinctive liquor bottles, pursuant to the regulations appearing at 27 
    CFR 19.633(a). ATF's authority to regulate liquor bottles is derived 
    from section 5301 of the Internal Revenue Code of 1986, 26 U.S.C. 5301. 
    However, the approval of a distinctive liquor bottle also includes the 
    approval of the label on that bottle, pursuant to the FAA Act.
    
    Revocation of COLAs
    
        ATF reviews approximately 60,000 applications for certificates of 
    label approval, exemptions from label approval, and distinctive liquor 
    bottle
    
    [[Page 2123]]
    
    approvals every year. Because errors occasionally occur in the approval 
    process, there is a need for some type of revocation procedure.
        Since the enactment of the FAA Act in 1935, ATF and its predecessor 
    agencies have taken the position that the statutory authority to issue 
    certificates of label approval includes the implied statutory authority 
    to cancel or revoke the certificates if they were approved in error. 
    However, there have never been formal procedures in the regulations for 
    denial or revocation of certificates of label approval. Instead, ATF 
    has utilized informal procedures for denials and revocations, where 
    applicants or certificate holders who wished to contest a denial or 
    revocation are given an opportunity to do so in writing, or through 
    informal meetings with Bureau officials.
        The certificate of label approval was never intended to convey any 
    type of proprietary interest to the certificate holder. On the 
    contrary, Paragraph 1 of Form 5100.31 provides that ``This certificate 
    is issued for ATF use only. This certificate does not constitute 
    trademark protection.'' Paragraph 2 of this form reminds applicants 
    that the ``certificate does not relieve any person from liability for 
    violations of the Federal Alcohol Administration Act.'' The certificate 
    of label approval is a statutorily mandated tool used to help ATF in 
    its enforcement of the labeling requirements of the FAA Act.
        ATF's informal procedures for revocation of COLAs were subject to 
    challenge in the Federal District Court for the Northern District of 
    California. In Cabo Distributing Co. v. Brady, 821 F. Supp. 601 (N.D. 
    Cal. 1992), the court set aside ATF's revocation of labels for ``Black 
    Death'' vodka on several grounds. The court held that there was no 
    express statutory or regulatory authority for the Bureau to cancel 
    certificates of label approval, and that the Bureau had implied 
    authority to reverse its actions only in limited circumstances. The 
    court thus concluded that ``[w]ithout statutory authority or regulatory 
    authority, the BATF cannot cancel a certificate of label approval.'' 
    821 F. Supp. at 612. The court also held that the Bureau's informal 
    procedures for revoking the ``Black Death'' certificates of label 
    approval had not afforded the certificate holders their constitutional 
    right to procedural due process. 821 F. Supp. at 612.
        AFT does not agree with the court's decision on either of these two 
    holdings. ATF believes that a right to cancel certificates of label 
    approval is implied from the authority granted by the statute to the 
    Secretary to issue certificates of label approval ``in such manner and 
    form as he shall by regulations prescribe * * *'' The statute 
    explicitly authorizes ATF, as a delegate of the Secretary, to issue 
    regulations governing the procedure for the issuance of certificates of 
    label approval. There is also implicit statutory authority to issue 
    regulations governing the procedures for denying and revoking 
    certificates of label approval.
        Furthermore, ATF believes that the procedures that it has been 
    using for revoking certificates of label approval, although not 
    codified in the regulations, have provided certificate holders with due 
    process of law. However, ATF determined that rulemaking was appropriate 
    in order to clarify its authority and procedures for revocation of 
    label approvals.
    
    Notice of Proposed Rulemaking
    
        On September 13, 1995, ATF published a notice of proposed 
    rulemaking (Notice No. 815, 60 FR 47506-47512) to solicit public 
    comment on regulations setting forth procedures for the issuance, 
    denial, and revocation of certificates of label approval, certificates 
    of exemption from label approval, and distinctive liquor bottle 
    approvals. The comment period closed on December 12, 1995, and was 
    reopened until February 21, 1996, by notice dated January 22, 1996 
    (Notice No. 819, 61 FR 1545-1546).
        Notice No. 815 proposed to make existing regulations covering 
    issuance of certificates of label approval, certificates of exemption 
    from label approval, and distinctive liquor bottle approvals more 
    specific and proposed new regulations to codify existing informal 
    procedures for denial of applications and revocation of certificates. 
    The notice also proposed the codification of procedures for 
    administratively appealing the denial or revocation of certificates of 
    label approval, exemptions from label approval, and distinctive liquor 
    bottle approvals. In the notice, ATF restated its position that the 
    proposed regulations would afford applicants and certificate holders 
    due process of law, and that the codification of these procedures in 
    the regulations would eliminate any question as to ATF's authority to 
    revoke certificates of label approval, exemptions from label approval, 
    and distinctive liquor bottle approvals.
        Under current regulations, the authority to approve certificates of 
    label approval, exemptions from label approval, and distinctive liquor 
    bottle applications rests with the Director and has been delegated to 
    the labeling specialists in the Product Compliance Branch. The proposed 
    regulations described the process of approval, denial, and 
    administrative appeal in a new part 13. Proposed revisions to parts 4, 
    5, 7, and 19 added cross-references to the new part 13.
        With respect to revocations of certificates of label approval, 
    certificates of exemption from label approval, or distinctive liquor 
    bottle approvals, and administrative appeals of such actions, the 
    proposed regulations set forth a procedure based on ATF's informal 
    practices.
        In response to Notice 815, ATF received comments from the following 
    organizations:
    
        Government Liaison Services, Inc.;
        Presidents' Forum of the Beverage Alcohol Industry (Presidents' 
    Forum);
        American Brandy Association (ABA);
        Wine Institute;
        Federation Internationale des Vins et Spiriteux (FIVS);
        Federation des Exportateurs de Vins & Spiriteux de France 
    (FEVS);
        National Assocaition of Beverage Importers, Inc. (NABI). Five 
    importers, Remy Amerique, Inc., Austin Nichols & Co. Inc., Dribeck 
    Importers, Inc., Guinness Import Company, Kobrand Corporation, and 
    two associations, The Scotch Whisky Association and the Associacion 
    de Criadores Exportadores de Sherry, wrote to endorse the comments 
    of NABI;
        The Distilled Spirits Council of the U.S. (DISCUS). Jim Beam 
    Brands Co., a distiller, wrote to express agreement with the DISCUS 
    comments;
        Beer Institute filed comments on behalf of its senior members: 
    The Anheuser Busch Companies, Miller Brewing Company, Coors Brewing 
    Company, Stroh Brewery Company, and G. Heileman Brewing Company;
        Ropes & Gray filed comments on behalf of the Institut Nationale 
    des Appellations d'Origine (INAO) of France, an entity responsible 
    for protecting French appellations of origin;
        The U.S. Department of Commerce transmitted comments from the 
    European Commission (EC); and
        The Embassy of Mexico Trade Office forwarded comments from 
    Mexico's Direccion General De Normas concerning labeling of tequila 
    and mezcal. This last comment suggests regulatory changes that are 
    beyond the scope of Notice Number 815, but may be considered as part 
    of a future rulemaking.
    
    Analysis of Comments
    
        The majority of the commenters expressed support for ATF's effort 
    to promulgate regulations covering issuance, denial, and revocation of 
    certificates of label approval, certificates of exemption from label 
    approval, and distinctive liquor bottle approvals, though most had 
    comments on specific proposals.
    
    [[Page 2124]]
    
    Proposals and Comments on Application, Approval and Denial
    
        In Notice No. 815, ATF set forth proposed regulations describing in 
    detail the steps in applying for a certificate of label approval, 
    certificate of exemption from label approval, or distinctive liquor 
    bottle approval, including issuance of approved certificates, denial of 
    applications, and appeal of such denials. A number of comments 
    addressed specific items in these proposed regulations.
        In its comment, Government Liaison Services, Inc. expressed concern 
    at the use of the word ``send'' in proposed Sec. 13.11, which they 
    interpreted to preclude hand delivery of applications for label 
    approval. A clarifying change is made to this section, now designated 
    as Sec. 13.21. ATF did not intend to prohibit hand-delivered 
    applications.
        In the proposed rule, ATF described the approval process, including 
    the noting of any qualifications to the approval in the appropriate 
    space on the form. The proposed rule further provided that if an 
    application is denied for any reason, the applicant is sent an ATF Form 
    5190.1, ``ATF F 5100.31 Correction Sheet,'' with the reasons for the 
    denial briefly noted on the form. The proposed regulations afforded the 
    applicant an opportunity to file an administrative appeal of the denial 
    of an application for a certificate of label approval, certificate of 
    exemption from label approval, or distinctive liquor bottle approval, 
    with the Chief, Labeling Section, Product Compliance Branch, who would 
    make a final decision on the denial of the application.
        Government Liaison Services, Inc., the President's Forum, NABI and 
    DISCUS all commented that the initial correction notice and informal 
    discussion of technical issues arising from the application that often 
    occurs between applicants and ATF representatives should be kept 
    separate from a formal appeal process. DISCUS, in its comment, noted 
    ``these informal consultations and contacts have served and do serve 
    the interests of all parties, with commensurate savings in expenditures 
    and manpower for both the government and the industry.''
        In practice, applicants and ATF representatives often informally 
    resolve issues related to a qualified approval or a denied application. 
    ATF does not wish to create the impression that all qualifications or 
    denials must be formally appealed. Accordingly, we have added a new 
    subsection Sec. 13.25(b) to confirm that the applicant has the option 
    of pursuing informal resolution of a labeling issue by requesting an 
    informal conference with the Product Compliance Branch Specialist or 
    the Chief, Product Compliance Branch.
        Government Liaison Services, Inc. also noted that the proposed 
    regulations did not incorporate ATF's practice of allowing voluntary 
    withdrawal of applications. A new Sec. 13.22 has been added to cover 
    withdrawal of applications.
        Beer Institute, DISCUS and Government Liaison Services, Inc. 
    questioned ATF's proposal to authorize the Chief of the Labeling 
    Section to make final decisions on appeals of denials of applications 
    for certificates of label approvals, exemptions from label approvals 
    and distinctive liquor bottles. They suggested review by either a 
    higher level officials within the Alcohol and Tobacco Programs Division 
    or by someone outside the Division. Pursuant to these comments, a 
    second level of appeal has been added in Sec. 13.27 for qualifications 
    or denials of applications for label approval. The final rule provides 
    that the first appeal will be decided by the Chief, Product Compliance 
    Branch, and the second appeal will be decided by the Chief, Alcohol and 
    Tobacco Programs Division.
    
    Appeal of Qualifications
    
        The final rule expands the formal and informal resolution and 
    appeal procedures for denials to include resolution of disagreements 
    concerning qualifications on approved certificates. For these purposes, 
    a qualification is treated like a partial denial, since it limits the 
    use of the COLA.
    
    Comments on Revocation and Appeal
    
        With respect to revocations of certificates of label approval, 
    certificates of exemption from label approval, or distinctive liquor 
    bottle approvals, the proposed regulations divided revocations into two 
    categories, revocation of specific labels and revocation by operation 
    of law or regulation. The two types of revocation will be discussed 
    separately in this background material.
        The proposed regulations on revocation of specific approvals gave 
    the Chief, Product Compliance Branch, authority to issue a notice of 
    proposed revocation and gave the certificate holder 45 days to present 
    written arguments as to why the revocation should not occur. In the 
    proposed rule, the Chief, Product Compliance Branch, was authorized to 
    decide whether to revoke the certificate. If a label or distinctive 
    liquor bottle approval were revoked, the certificate holder would have 
    45 days to file a written appeal with the Chief, Alcohol and Tobacco 
    Programs Division. In the proposed rule, the decision of the Chief, 
    Alcohol and Tobacco Programs Division, was the final decision of the 
    Bureau.
    
    ATF's Authority To Revoke Label Approvals
    
        Most commenters who addressed the issue agreed that ATF had 
    authority to revoke certificates of label approval, although there was 
    disagreement on the circumstances where revocation would be 
    appropriate. DISCUS argued, however, that in the absence of a specific 
    statutory provision authorizing revocations of approved labels, ATF 
    lacked authority to take such actions.
        ATF does not agree that it lacks statutory authority to revoke 
    certificates of label approval. Many courts have recognized ``an 
    implied authority in other agencies to reconsider and rectify errors 
    even though the applicable statute and regulations do not expressly 
    provide for such reconsideration.'' Gun South, Inc. v. Brady, 877 F.2d 
    858, 862 (11th Cir. 1989). For example, in concluding that the 
    Interstate Commerce Commission could order a refund to correct a prior 
    error, the Supreme Court stated that ``[a]n agency, like a court, can 
    undo what is wrongfully done by virtue of its order.'' United Gas 
    Improvement Co. v. Callery Properties, 382 U.S. 223, 229 (1965). See 
    also Kudla v. Modde, 537 F. Supp. 87, 89 (E.D. Mich. 1982) (``[t]he 
    power of the state to require a license implies the power of the state 
    to revoke a license which has been improperly issued.''), aff'd without 
    opinion, 711 F.2d 1057 (6th Cir. 1983); Century Arms, Inc. v. Kennedy, 
    323 F. Supp. 1002, 1016-17 (D. Vt. 1971), (``we are aware of no 
    licenses which once granted, can never be taken away.''), aff'd, 449 
    F.2d 1306 (2d Cir. 1971), cert. denied, 405 U.S. 1065 (1972).
        As we explained in the notice, it is ATF's position that its 
    statutory authority to issue regulations governing the issuance of 
    COLAs also includes the implied authority to issue regulations setting 
    forth procedures for the denial and revocation of such COLAs. The 
    single comment opposed to this position did not provide a persuasive 
    basis for concluding otherwise.
    
    Due Process Issues
    
        The American Brandy Association (ABA), Beer Institute, Wine 
    Institute, NABI and DISCUS submitted comments suggesting that ATF's 
    approval of a certificate of label approval (COLA) does create a 
    property right subject to the protection of due process of law.
        ATF has always maintained that its informal procedures concerning 
    the
    
    [[Page 2125]]
    
    denial and revocation of COLAs were sufficient to provide procedural 
    due process to the applicant or certificate holder. Procedural due 
    process imposes constraints on governmental decisions which deprive 
    individuals of ``liberty'' or ``property'' interests within the meaning 
    of the Due Process Clause of the Fifth Amendment. The Supreme Court has 
    recognized that ``due process is flexible and calls for such procedural 
    protections as the particular situation demands.'' Morrissey v. Brewer, 
    408 U.S. 471, 481 (1972).
        In determining whether an administrative procedure accords due 
    process, three factors are considered:
    
        First, the private interest that will be affected by the 
    official action; second, the risk of an erroneous deprivation of 
    such interest through the procedures used, and the probable value, 
    if any, of additional or substitute procedural safeguards; and 
    finally, the Government's interest, including the function involved 
    and the fiscal and administrative burdens that the additional or 
    substitute procedural requirement would entail.
    
    Mathews v. Eldridge, 424 U.S. 319, 334 (1976).
    
        ATF recognizes that brand names and other terms on labels may be 
    significant elements in the marketing of an alcohol beverage. However, 
    even assuming that a certificate represents a property interest, we 
    believe that the procedures set forth in the final rule minimize the 
    risk of an erroneous deprivation of the interest of the industry 
    member. The procedures adopted in the final rule ensure that 
    certificate holders are given prior written notice of a proposed 
    revocation; the opportunity to meet with agency officials to discuss 
    the issues; and the opportunity to present written arguments or 
    evidence before the agency takes final action to revoke a label.
        There have been suggestions that an evidentiary hearing, complete 
    with an Administrative Law Judge and the right to cross-examine 
    witnesses, is the appropriate model for a revocation proceeding. 
    However, none of the commenters explained why a written review 
    procedure involved a risk of erroneous deprivation of the certificate 
    holder's property interests, or why an evidentiary hearing would shed 
    further light on the issue of whether a label is in compliance with the 
    regulations. See Doolin Sec. Sav. Bank v. FDIC, 53 F.3d 1395, 1403 (4th 
    Cir. 1995), cert. denied 516 U.S. 973 (1995) (finding that an agency 
    was not required to provide an evidentiary hearing where the plaintiff 
    did not ``offer sufficient evidence demonstrating that an oral hearing 
    would allow it to present evidence * * * that it could not present in 
    the written review procedure'' and the ``determination did not involve 
    credibility assessments, which would benefit from an oral hearing with 
    the presentation of witnesses'').
        Thus, the comments provided no basis for concluding that the 
    additional procedural safeguards provided by an evidentiary hearing 
    would be of value. However, such hearings would certainly impose 
    additional administrative burdens on the agency. After evaluating the 
    factors set forth in Mathews v. Eldridge, it is clear that due process 
    does not require a formal evidentiary hearing before the agency revokes 
    a certificate of label approval. As the Supreme Court noted in the 
    case, ``the judicial model of an evidentiary hearing is neither a 
    required, nor even the most effective, method of decisionmaking in all 
    circumstances.'' 424 U.S. at 348. This is especially true where, as 
    here, judicial review of the final agency determination is available in 
    the United States District Court pursuant to the Administrative 
    Procedure Act (APA). See 27 U.S.C. 205(e); 5 U.S.C. 702. See also 
    Doolin, 53 F.3d at 1405 (``This opportunity for judicial review of FDIC 
    reclassification determinations therefore supports our conclusion that 
    the FDIC's risk classification review procedures satisfy due 
    process''). Accordingly, the final rule does not provide for 
    evidentiary hearings in connection with the revocation of certificates.
    
    Level of Appeal
    
        Some commenters suggested that the impact of a revocation on the 
    industry member warrants review at a higher level than the ATF 
    officials designated in the proposed rule. A number of commenters, 
    including Beer Institute, suggested that the officials designated in 
    the proposed rule to hear appeals are in day-to-day contact with the 
    persons making the initial decisions and may even have participated in 
    making those initial decisions. As previously noted, some commenters 
    even suggested that appeals of revocations should be heard by an 
    Administrative Law Judge.
        The APA, 5 U.S.C. 554, generally requires that an independent 
    hearing officer preside at formal adjudicatory hearings ``in every case 
    of adjudication required by statute to be determined on the record 
    after opportunity for an agency hearing.'' Section 554 also requires 
    the separation of investigatory and decisionmaking functions for this 
    type of formal adjudication.
        The Federal Alcohol Administration Act does not provide that 
    proceedings regarding labels must be ``determined on the record after 
    opportunity for an agency hearing.'' Accordingly, proceedings regarding 
    the approval or denial of a label do not constitute formal adjudicatory 
    proceedings under the APA. See Joseph E. Seagram & Sons, Inc. v. 
    Dillon, 344 F.2d 497 (D.C. Cir. 1965). Similarly, there is no statutory 
    requirement that appeals of denials or revocations be determined on the 
    record after opportunity for an agency hearing. Since these proceedings 
    are not formal adjudications, there is no legal requirement that such 
    appeals be heard by an independent hearing officer or Administrative 
    Law Judge.
        Nonetheless, ATF recognizes that many industry members believe that 
    fairness dictates that appeals should be heard at a high enough level 
    to ensure some division between the initiation of revocation 
    proceedings and the final appeal. In response to these comments, we 
    have revised the final rule to designate higher level officials to make 
    revocation decisions and hear appeals. The Chief, Product Compliance 
    Branch, will issue a notice of proposed revocation, but the decision 
    whether or not to revoke a certificate will be made by the Chief, 
    Alcohol and Tobacco Programs Division. Any appeal of such a revocation 
    will be decided by the Assistant Director, Alcohol and Tobacco.
    
    Time Limits for Initiating Revocation Proceedings
    
        As noted above, many commenters suggested limitations on ATF's 
    authority to rescind label approvals. Several commenters suggested 
    setting a time within which ATF must begin revocation proceedings. For 
    example, Beer Institute suggested a 30-day period during which ATF 
    could revoke labels to correct agency administrative errors without a 
    formal administrative hearing, and then ``an outer limit of one year'' 
    on any other revocation. Wine Institute suggested that any time limit 
    (they suggested five years) should be measured from ``relatively wide 
    and bona fide distribution'' of a product, rather than from approval of 
    a label.
        It has been ATF's experience that in some cases, errors in the 
    label approval process are not detected right away. For example, a 
    label may be approved for a product that is not placed on the market 
    for some time. ATF believes that the placement of an artificial time 
    constraint on its ability to take revocation action would not further 
    the statutory purpose of protecting the consumer from misleading 
    labels. Accordingly, the final rule does not set forth such a time 
    limit.
    
    [[Page 2126]]
    
    Standard of Proof for Revocation
    
        The American Brandy Association and DISCUS suggested that the 
    standard for revocation should be based on ``clear and convincing 
    evidence'' that a label is not in compliance with law or regulations. 
    However, the comment did not provide a legal basis for imposing such a 
    standard.
        Under the APA, an agency action (including an informal adjudication 
    such as a denial or revocation of a certificate) shall be set aside by 
    a reviewing court if it is arbitrary, capricious, an abuse of 
    discretion, or otherwise not in accordance with law. 5 U.S.C. 
    706(2)(A). Even an agency's action in a formal adjudicatory proceeding 
    (which this is not) will be set aside by a reviewing court only if it 
    is ``unsupported by substantial evidence.'' 5 U.S.C. 706(2)(E). there 
    is no requirement that an agency establish ``clear and convincing 
    evidence'' to justify its actions.
        The standard of review set forth in the APA provides sufficient 
    protection to applicants and certificate holders wishing to contest 
    agency actions. Accordingly, this comment was not adopted.
    
    Judicial Review
    
        ATF is modifying the final rule to clarify that the administrative 
    remedies available within ATF must be exhausted prior to application to 
    the Federal courts for review. Accordingly, Secs. 13.26, 13.27 and 
    13.44 are amended to reflect this requirement.
    
    Effect of Revocation
    
        There were several comments and questions concerning the effect of 
    revocation of a certificate. In response, we have added a new 
    Sec. 13.73 to clarify this issue. Section 13.73 provides that, as of 
    the effective date of the revocation, a revoked certificate may not be 
    used to bottle or pack distilled spirits, wine or malt beverages; to 
    remove such products from the place where they were bottled or packed; 
    or to remove such products from customs custody for consumption.
    
    Use-Up Period
    
        A number of commenters suggested a longer ``use-up'' period for 
    revoked labels. We have revised the section covering this issue, now 
    designated as Sec. 13.72, to allow 60 days from the date of the initial 
    revocation of the certificate. Some commenters also did not understand 
    that the proposed regulations provided that a timely appeal would stay 
    the effective date of a revocation of a certificate (other than a 
    revocation by operation of law or regulations). Accordingly, Sec. 13.72 
    now incorporates the material on the effect of an appeal on the date of 
    revocation, which was originally proposed in Sec. 13.50(b).
    
    Revocations by Operation of Law or Regulation
    
        With respect to revocations by operation of law or regulation, the 
    proposed rule did not require ATF to issue a notice of proposed 
    revocation prior to notifying a certificate holder of the revocation of 
    a certificate of label approval, certificate of exemption from label 
    approval, or distinctive liquor bottle approval. The proposed rule 
    stated that in these cases, the burden of ensuring that affected labels 
    were in compliance with the new requirements imposed by statute or 
    regulation was on the certificate holder, not ATF.
        The proposed rule provided that if ATF determined that a label or 
    bottle which was not in compliance with the new statutory or regulatory 
    requirements was still being used, the Chief, Product Compliance 
    Branch, would issue a letter notifying the certificate holder that the 
    certificate had been revoked by operation of law or regulation. If the 
    certificate holder wished to challenge the application of the law or 
    regulation to the particular label or bottle, the holder would appeal 
    the decision, in writing, to the Chief, Alcohol and Tobacco Programs 
    Division.
        In its comment, DISCUS expressed its opinion that ATF should 
    individually notify holders whose labels are revoked by operation of 
    law, that ATF should never require submission of new COLAs to show 
    compliance with any new requirement in the law, and further expressed 
    the opinion that COLAs may not be revoked by operation of regulation. 
    ATF is not adopting any of these comments.
        In the first instance, affected certificate holders will likely 
    receive notice of a proposed or final change in regulations by the 
    publication of such notice or regulation in the Federal Register. 
    Changes in law usually will be accompanied by changes in regulations. 
    Amendments to both the law and regulations affecting industry members 
    will be published in the ATF Quarterly Bulletin. Thus, there can be no 
    argument that industry members do not receive notice of such changes. 
    In those instances, ATF believes the responsibility for learning about 
    the changes in the law and regulations and making appropriate changes 
    to labels properly rests with the certificate holders.
        Second, ATF reserves the right to decide, based on the facts and 
    circumstances of each change in regulations, whether to require 
    certificate holders to file new applications to show compliance with 
    new requirements or to excuse holders of approved certificates from 
    filing new applications, no longer as labels are modified 
    appropriately.
        Finally, on the issue of ATF's authority to revoke labels by 
    operation of regulations, we believe this is part of our general 
    authority to promulgate regulations and to revoke labels, which was 
    discussed earlier in this preamble. Changes in the labeling regulations 
    usually affect all future labeling activities, regardless of when a 
    certificate of label approval was originally issued for a particular 
    label. Such changes to the regulations will usually set forth 
    specifically whether existing certificates of label approval must be 
    surrendered, and new certificates obtained. In the event that an 
    individual change to the labeling regulations is accompanied by a 
    ``grandfathering'' provision for previously approved certificates of 
    label approval, the regulation will so provide.
    
    Time Limits for Appeals
    
        Several commenters, including Beer Institute, DISCUS, FEVS and 
    NABI, asked ATF to set a time limit for its own actions in response to 
    appeals. DISCUS, in its comment, suggested that ``[c]onsistent with the 
    tenet of administrative efficiency, we believe that it is appropriate 
    that the Bureau be required to issue its written decision concerning a 
    COLA denial within 15 days from the receipt of the applicant's appeal 
    of the denial.'' DISCUS made similar recommendations with respect to 
    deadlines for ATF action on decisions after a COLA holder disputes a 
    notice of proposed revocation and appeals a revocation. Beer Institute 
    made the following suggestion: ``* * * we propose that ATF adopt a 45-
    day period to render decisions on appeals of denials of COLA 
    applications.'' With respect to revocations, they recommend that 
    decisions ``be made within 30 days'' after a formal appeal by the 
    holder of the COLA.
        Pursuant to the comments received on this issue, ATF has added a 
    time limit provision to each of the regulatory sections covering 
    initial approvals, appeals of denials of certificates, decisions 
    whether or not to revoke a certificate, and appeals of revocations. ATF 
    does not believe that the time periods suggested by the comments 
    provide sufficient time for the unusual labeling cases that may require 
    extensive agency review. Accordingly, the final rule provides that ATF 
    must
    
    [[Page 2127]]
    
    generally act within 90 days of receiving an application or appeal. 
    However, the regulations provide that, if an applicant or certificate 
    holder requests an informal conference as part of an appeal, as 
    authorized in Sec. 13.71, the 90-day period will begin 10 days after 
    the date of the conference to allow for consideration of any written 
    arguments, facts or evidence submitted after the conference. Further, 
    ATF may exercise an option to extend this period one time for an 
    additional 90 days, based on unusual circumstances.
        It should be emphasized that ATF's current customer service 
    standards call for action on initial label applications within 9 
    calendar days; the allowance of 90 days in the regulations does not 
    reflect any intention to lengthen the average period of time for label 
    review. Instead, the regulation merely places an outside limit on the 
    unusual labeling cases that may require additional fact-finding, 
    consultation with other agencies, or extensive review within the 
    agency. A new Sec. 13.75 has been added to clarify the beginning date 
    of this time limit.
    
    Formal Third-Party Involvement in the Label Process
    
        The INAO comment suggested that ATF should recognize the rights of 
    third parties with respect to certificates of label approval. Once 
    example given by the INAO was where ``a label may contain a brand, 
    fanciful name, class, type or other designation that is identical or 
    substantially similar to a term, such as an appellation of origin, 
    which is protected under U.S. treaties, agreements, laws or 
    regulations.'' The INAO suggested that in such a case, ATF should 
    implement procedures to ensure that the country of origin was contacted 
    regarding the use of the term on the label.
        In appropriate situations, ATF will contact the country of origin 
    for more information regarding whether the use of a labeling term would 
    violate the laws of the country. Accordingly, ATF does not believe it 
    is necessary to codify such procedures in the regulations.
        The INAO also suggested that ATF should implement a system to 
    publish approved labels, perhaps similar to the Official Gazette of the 
    Patent and Trademark Office. Their comment suggested that such a 
    procedure would enable concerned third parties to receive timely notice 
    of approved labels, and, in the case of an erroneous approval, will 
    enable the third party to bring the error to ATF's attention promptly.
        Certificates of label approval or exemption from label approval, 
    and approvals of distinctive containers, become public information upon 
    approval, and can be viewed at the ATF Library or requested by mail 
    under the Freedom of Information Act. ATF is also working to make these 
    public records more readily available through electronic means. We hope 
    to make the approved label database available on the Internet in the 
    next year or two; we believe that this will provide affected third 
    parties ample opportunity to inspect approved labels. Thus, we do not 
    see a need for publishing approved labels on a regular basis.
        However, in response to this comment, the final regulations contain 
    a new Sec. 13.61, which codifies ATF's policy concerning publicity of 
    information contained in applications for certificates of label 
    approval, certificates of exemption from label approval, and 
    distinctive liquor bottle approvals, and the resulting approvals or 
    administrative actions. The regulations also codify ATF's longstanding 
    policy that pending and denied applications for label approval are 
    treated as proprietary information and are not released to the public 
    without the consent of the submitter.
        The INAO and FEVS requested ATF to consider new procedures that 
    would allow third parties to intervene in proceedings concerning the 
    denial or revocation of a label. The INAO suggested that if a proposed 
    revocation of such a label were appealed by the certificate holder, the 
    third party should have an opportunity during the appeal process to 
    submit material in support of revocation.
        The INAO correctly noted that ATF currently reviews complaints 
    concerning approved labels where a third party believes that the label 
    is in violation of the regulations. However, the INAO suggested that 
    this policy be codified, so that the public would be aware of its 
    existence. We concur with the suggestion to codify ATF's policy and 
    informal practice concerning review of third party complaints, and 
    accordingly have added a new Sec. 13.62 to the final rule. However, the 
    regulation does not provide for any formal role for third parties 
    during a revocation proceeding. ATF believes that it may be appropriate 
    in certain cases to seek the opinions of third parties regarding 
    whether a particular label is misleading to consumers; however, we 
    believe that this is best determined on a case-by-case basis.
    
    Service of Notices
    
        In proposed Sec. 13.55, ATF stated that notices of denial, proposed 
    revocation and revocation will be served by first class mail or by 
    personal delivery. NABI and several other commenters stated that 
    service by mail should be by registered mail, return receipt requested. 
    This section has been renumbered as Sec. 13.76 in the final rule and 
    modified to require proof of service of notices of proposed revocation 
    or revocation, either a postal return receipt or equivalent written 
    acknowledgment obtained from the addressee by a commercial delivery 
    service or a report of hand delivery by an ATF official. The final rule 
    does not require proof of service for notices of denial of 
    applications, since applicants may not use a label until an approved 
    certificate is received.
    
    Informal Conferences
    
        In proposed Sec. 13.40(a), ATF reserved the right to decide whether 
    to grant an informal conference to discuss a denial or revocation of a 
    certificate. Several commenters suggested that such a conference should 
    be granted as a matter of right, and cited 27 CFR 70.418, which states 
    that any person may have a conference concerning ``any matter arising 
    in connection with such person's operations'' upon request. In the 
    final rule, the paragraph, now designated as Sec. 13.71, is revised to 
    show that a conference will be granted upon request.
        Proposed paragraph (b) of that section stated that no transcript 
    would be made of a conference, if one was held, and that any arguments, 
    facts or evidence on which an applicant or certificate holder wishes to 
    rely, should be incorporated in a written submission. A number of 
    commenters expressed the opinion that there should be a formal record 
    made of such a conference. ATF disagrees. As noted above, proceedings 
    regarding label approvals are not required by statute to be conducted 
    on the record after an agency hearing; accordingly this is not a formal 
    adjudicatory proceeding. The regulations clarify that the conference is 
    an informal means of clarifying issues or discussing alternative 
    solutions, not an administrative hearing. The written submission of the 
    applicant or certificate holder and the written response of ATF will 
    form the official administrative record of such proceedings.
    
    Comments Regarding Imported Products
    
        The EC commented that ``establishing a mandatory procedure 
    concerning certificates of label approval * * * would appear to be 
    disproportionate to the pursued objective'' (of preventing consumer 
    deception). The EC said
    
    [[Page 2128]]
    
    further that they ``would, therefore, deem this regulation as having 
    the effect of creating unnecessary obstacles to European exports unless 
    the U.S. authorities can show that this proposal is not more trade-
    restrictive than necessary to fulfill the pursued objective and explain 
    the justification for this technical rule in terms of these Articles. * 
    * *'' (Article 2.2 and Article 5.1.2 in connection with Article 2.5 of 
    the Agreement on Technical Barriers to Trade).
        The final regulations do not create any unnecessary obstacles to 
    European exports to the United States; on the contrary, the regulations 
    will provide all applicants and certificate holders with more detailed 
    and specific information about the label approval process. The 
    regulations also set forth specific avenues of appeal for applicants 
    and certificate holders. Domestic and imported products are treated 
    with parity under both the proposed and final regulations. Accordingly, 
    ATF does not agree that the regulations create unnecessary obstacles to 
    imported products.
        In its comments, FEVS asked that ATF ensure equal treatment of 
    domestic and foreign goods in the final rule, but did not identify any 
    specific changes to be made. As noted above, ATF is not aware of any 
    provision in the proposed rule or this final rule that treats domestic 
    and imported products differently.
        NABI noted that importers of beer are subject to suspension or 
    revocation of their basic permits for FAA Act violations, including 
    labeling violations, while domestic brewers are not required to obtain 
    a basic permit under the FAA Act. However, this distinction flows 
    directly from the statute and is not subject to change through 
    regulations. Furthermore, brewers may be subject to other sanctions for 
    violations of the FAA Act. Thus, no changes were made to the final rule 
    as a result of these comments.
    
    Unrelated Labeling Issues
    
        Government Liaison Services, Inc. expressed concerns about ATF's 
    day-to-day handling of applications for certificates of label approval, 
    exemption from label approval, and distinctive liquor bottles. They 
    requested that ATF make changes in areas such as training, workflow, 
    recordkeeping, and communication of policy decisions. Similar concerns 
    were raised in the DISCUS and INAO comments.
        These issues are beyond the scope of this rulemaking document. 
    Nonetheless, ATF is committed to improving the day-to-day 
    administration of its label approval system. ATF is addressing these 
    issues through partnership meetings with the regulated industry, and 
    through internal restructuring efforts.
    
    Regulatory Flexibility Act
    
        It is hereby certified that this regulation will not have a 
    significant economic impact on a substantial number of small entities. 
    The regulation will give ATF specific regulatory authority to issue, 
    deny or revoke certificates of label approval, exemptions from label 
    approval, and distinctive liquor bottle approvals. The regulation will 
    not increase recordkeeping or reporting requirements. Accordingly, a 
    regulatory flexibility analysis is not required because the final rule 
    is not expected (1) to have significant secondary or incidental effects 
    on a substantial number of small entitles; or (2) to impose, or 
    otherwise cause a significant increase in the reporting, recordkeeping, 
    or other compliance burdens on a substantial number of small entities.
    
    Executive Order 12866
    
        It has been determined that this final rule is not a significant 
    regulatory action as defined by Executive Order 12866. Accordingly, 
    this rule is not subject to the analysis required by this Executive 
    Order.
    
    Paperwork Reduction Act
    
        The provisions of the Paperwork Reduction Act of 1995, 44 U.S.C. 
    3507(j), and its implementing regulations, 5 CFR part 1320, do not 
    apply to this document because no requirement to collect information is 
    imposed.
    
    Drafting Information
    
        The principal author of this document is Marjorie D. Ruhf, 
    Regulations Division, Bureau of Alcohol, Tobacco and Firearms. However, 
    other personnel of ATF participated in developing this document.
    
    List of Subjects in
    
    27 CFR Part 4
    
        Advertising, Consumer protection, Customs duties and inspection, 
    Imports, Labeling, Packaging and containers, Wine.
    
    27 CFR Part 5
    
        Advertising, Consumer protection, Customs duties and inspection, 
    Imports, Labeling, Liquors, Packaging and containers, Reporting and 
    recordkeeping requirements, Trade practices.
    
    27 CFR Part 7
    
        Advertising, Beer, Consumer protection, Customs duties and 
    inspection, Imports, Labeling.
    
    27 CFR Part 13
    
        Administrative practice and procedure, Alcohol and alcoholic 
    beverages, Appeals, Applications, Certificates of label approval, 
    Certificates of exemption from label approval, Denials, Distinctive 
    liquor bottle approvals, Informal conferences, Labeling, Revocations.
    
    27 CFR Part 19
    
        Administrative practice and procedure, Alcohol and alcoholic 
    beverages, Authority delegations, Claims, Chemicals, Customs duties and 
    inspection, Electronic fund transfers, Excise taxes, Exports, Gasohol, 
    Imports, Labeling, Liquors, Packaging and containers, Puerto Rico, 
    Reporting and recordkeeping requirements, Research, Security measures, 
    Spices and flavorings, Surety bonds, Transportation, Virgin Islands, 
    Warehouses, Wine.
    
    Authority and Issuance
    
        Chapter I of Title 27, Code of Federal Regulations, is amended as 
    follows:
    
    PART 4--LABELING AND ADVERTISING OF WINE
    
        Paragraph 1. The authority citation for part 4 continues to read as 
    follows:
    
        Authority: 27 U.S.C. 205, unless otherwise noted.
    
        Par. 2. Section 4.40 is amended to add paragraph (d) to read as 
    follows:
    
    
    Sec. 4.40  Label approval and release.
    
    * * * * *
        (d) Cross reference. For procedures regarding the issuance, denial, 
    and revocation of certificates of label approval, as well as appeal 
    procedures, see part 13 of this chapter.
        Par. 3. Section 4.50 is amended to add paragraph (c) to read as 
    follows:
    
    
    Sec. 4.50  Certificates of label approval.
    
    * * * * *
        (c) Cross reference. For procedures regarding the issuance, denial, 
    and revocation of certificates of label approval, and certificates of 
    exemption from label approval, as well as appeal procedures, see part 
    13 of this chapter.
    
    PART 5--LABELING AND ADVERTISING OF DISTILLED SPIRITS
    
        Par. 4. The authority citaiton for part 5 continues to read as 
    follows:
    
        Authority: 26 U.S.C. 5301, 7805, 27 U.S.C. 205.
    
    
    [[Page 2129]]
    
    
        Par. 5. Section 5.46 is amended to revise paragraph (d) to read as 
    follows:
    
    
    Sec. 5.46  Standard liquor bottles.
    
    * * * * *
        (d) Exceptions.--(1) Distinctive liquor bottles. The headspace and 
    design requirements in paragraphs (b) and (c) of this section do not 
    apply to liquor bottles that are specifically exempted by the Director, 
    pursuant to an application filed by the bottler or importer.
        (2) Cross reference. For procedures regarding the issuance, denial 
    and revocation of distinctive liquor bottle approvals, as well as 
    appeal procedures, see part 13 of this chapter.
        Par. 6. Section 5.51 is amended to add paragraph (e) to read as 
    follows:
    
    
    Sec. 5.51  Label approval and release.
    
    * * * * *
        (e) Cross reference. For procedures regarding the issuance, denial, 
    and revocation of certificates of label approval, as well as appeal 
    procedures, see part 13 of this chapter.
        Par. 7. Section 5.55 is amended to add paragraph (d) to read as 
    follows:
    
    
    Sec. 5.55  Certificates of label approval.
    
    * * * * *
        (d) Cross reference. For procedures regarding the issuance, denial, 
    and revocation of certificates of label approval and certificates of 
    exemption from label approval, as well as appeal procedures, see part 
    13 of this chapter.
    
    PART 7--LABELING AND ADVERTISING OF MALT BEVERAGES
    
        Par. 8. The authority citation for part 7 continues to read as 
    follows:
    
        Authority: 27 U.S.C. 205.
    
        Par. 9. Section 7.31 is amended to add paragraph (d) to read as 
    follows:
    
    
    Sec. 7.31  Label approval and release
    
    * * * * *
        (d) Cross reference. For procedures regarding the issuance, denial, 
    and revocation of certificates of label approval, as well as appeal 
    procedures, see part 13 of this chapter.
        Par. 10. Section 7.41 is revised to read as follows:
    
    
    Sec. 7.41  Certificates of label approval.
    
        (a) Requirement. No person shall bottle or pack malt beverages, or 
    remove malt beverages from the plant where bottled or packed unless 
    application is made to the Director, and an approved certificate of 
    label approval, ATF Form 5100.31, is issued by the Director.
        (b) Cross reference. For procedures regarding the issuance, denial, 
    and revocation of certificates of label approval, as well as appeal 
    procedures, see part 13 of this chapter.
    
    PART 13--LABELING PROCEEDINGS
    
        Par. 11. Part 13 is added to read as follows:
    
    Subpart A--Scope and Construction of Regulations
    
    Sec.
    13.1  Scope of part.
    
    Subpart B--Definitions
    
    13.11  Meaning of terms.
    
    Subpart C--Applications
    
    13.21  Application for certificate.
    13.22  Withdrawal of applications.
    13.23  Notice of denial.
    13.25  Appeal of qualification or denial.
    13.26  Decision after appeal of qualification or denial.
    13.27  Second appeal of qualification or denial.
    
    Subpart D--Revocations of Specific Certificates
    
    13.41  Authority to revoke certificates.
    13.42  Notice of proposed revocation.
    13.43  Decision after notice of proposed revocation.
    13.44  Appeal of revocation.
    13.45  Final decision after appeal.
    
    Subpart E--Revocation by Operation of Law or Regulation
    
    13.51  Revocation by operation of law or regulation.
    13.52  Notice of revocation.
    13.53  Appeal of notice of revocation.
    13.54  Decision after appeal.
    
    Subpart F--Miscellaneous
    
    13.61  Publicity of information.
    13.62  Third-party comment on certificates.
    13.71  Informal conferences.
    13.72  Effective dates of revocations.
    13.73  Effect of revocation.
    13.74  Surrender of certificates.
    13.75  Evidence of receipt by ATF.
    13.76  Service on applicant or certificate holder.
    13.81  Representation before ATF.
    13.91  Computation of time.
    13.92  Extensions.
    
        Authority: 27 U.S.C. 205(e), 26 U.S.C. 5301 and 7805.
    
    Subpart A--Scope and Construction of Regulations
    
    
    Sec. 13.1  Scope of part.
    
        The regulations in this part govern the procedure and practice in 
    connection with the issuance, denial, and revocation of certificates of 
    label approval, certificates of exemption from label approval, and 
    distinctive liquor bottle approvals under 27 U.S.C. 205(e) and 26 
    U.S.C. 5301. The regulations in this part also provide for appeal 
    procedures when applications for label approval, exemptions from label 
    approval, or distinctive liquor bottle approvals are denied, when such 
    applications are approved with qualifications, or when these 
    applications are approved and then subsequently revoked.
    
    Subpart B--Definitions
    
    
    Sec. 13.11  Meaning of terms.
    
        Where 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 ascribed 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. The terms ``include'' and ``including'' do not exclude things 
    not enumerated that are in the same general class.
        Act. The Federal Alcohol Administration Act.
        Applicant. The permittee or brewer whose name, address, and basic 
    permit number, or plant registry number, appears on an unapproved ATF F 
    5100.31, application for a certificate of label approval, certificate 
    of exemption from label approval, or distinctive liquor bottle 
    approval.
        Assistant Director, Alcohol and Tobacco. The ATF official 
    responsible for deciding an appeal of a revocation of a certificate of 
    label approval, a certificate of exemption from label approval, or a 
    distinctive liquor bottle approval, under this part.
        ATF. The Bureau of Alcohol, Tobacco and Firearms, Department of the 
    Treasury, Washington, DC 20226.
        Brewer. Any person who brews beer (except a person who produces 
    only beer exempt from tax under 26 U.S.C. 5053(e)) and any person who 
    produces beer for sale.
        Certificate holder. The permittee or brewer whose name, address, 
    and basic permit number, or plant registry number, appears on an 
    approved ATF F 5100.31, certificate of label approval, certificate of 
    exemption from label approval, or distinctive liquor bottle approval.
        Certificate of exemption from label approval. A certificate issued 
    on ATF F 5100.31 which authorizes the bottling of wine or distilled 
    spirits, under the condition that the product will under no 
    circumstances be sold, offered for sale, shipped, delivered for 
    shipment, or otherwise introduced by the applicant, directly or 
    indirectly, into interstate or foreign commerce.
        Certificate of label approval. A certificate issued on ATF F 
    5100.31 that authorizes the bottling or packing of wine, distilled 
    spirits, or malt beverages,
    
    [[Page 2130]]
    
    or the removal of bottled wine, distilled spirits, or malt beverages 
    from customs custody for introduction into commerce, as long as the 
    project bears labels identical to the labels affixed to the face of the 
    certificate, or labels with changes authorized by the certificate.
        Chief, Alcohol and Tobacco Programs Division. The ATF official 
    responsible for issuing revocations of certificates of label approval, 
    certificates of exemption from label approval, and distinctive liquor 
    bottle approvals, under this part. This official is also responsible 
    for deciding certain appeals of denials of applications for 
    certificates of label approval, certificates of exemption from label 
    approval, and distinctive liquor bottle approvals, under this part.
        Chief, Product Compliance Branch. The ATF official responsible for 
    deciding first appeals of denials of applications for certificates of 
    label approval, certificates of exemption from label approval, and 
    distinctive liquor bottle approvals, under this part. This official is 
    also responsible for proposing revocation of certificates of label 
    approval, certificates of exemption from label approval, and 
    distinctive liquor bottle approvals, under this part.
        Director. The Director, Bureau of Alcohol, Tobacco and Firearms, 
    the Department of the Treasury, Washington, DC.
        Distilled spirits. Ethyl alcohol, hydrated oxide of ethyl, spirits 
    of wine, whisky, rum, brandy, gin, and other distilled spirits, 
    including all dilutions and mixtures thereof for nonindustrial use. The 
    term ``distilled spirits'' does not include mixtures containing wine, 
    bottled at 48 degrees of proof or less, if the mixture contains more 
    than 50 percent wine on a proof gallon basis.
        Distinctive liquor bottle. A liquor bottle of distinctive shape or 
    design.
        Distinctive liquor bottle approval. Approval issued on ATF F 
    5100.31 that authorizes the bottling of distilled spirits, or the 
    removal of bottled distilled spirits from customs custody for 
    introduction into commerce, as long as the bottle is identical to the 
    photograph affixed to the face of the form.
        Interstate or foreign commerce. Commerce between any State and any 
    place outside that State, or commerce within any Territory or the 
    District of Columbia, or between points within the same State but 
    through any place outside that State.
        Liquor bottle: A bottle made of glass or earthenware, or of other 
    suitable material approved by the Food and Drug Administration, which 
    has been designed or is intended for use as a container for distilled 
    spirits for sale for beverage purposes, and which has been determined 
    by the Director to protect the revenue adequately.
        Malt beverage. A beverage made by the alcoholic fermentation of an 
    infusion or decoction, or combination of both, in potable brewing 
    water, of malted barley with hops, or their parts, or their products, 
    and with or without other malted cereals, and with or without the 
    addition of unmalted or prepared cereals, other carbohydrates, or 
    products prepared therefrom, and with or without the addition of carbon 
    dioxide, and with or without other wholesome products suitable for 
    human food consumption.
        Permittee. Any person holding a basic permit under the Federal 
    Alcohol Administration Act.
        Person. Any individual, partnership, joint stock company, business 
    trust, association, corporation, or other form of business enterprise, 
    including a receiver, trustee, or liquidating agent and including an 
    officer or employee of any agency of a State or political subdivision 
    thereof.
        Product Compliance Branch Specialist. An ATF official responsible 
    for reviewing initial applications for certificates of label approval, 
    certificates of exemption from label approval, and distinctive liquor 
    bottle approvals, under this part, with authority to issue approvals, 
    qualified approvals, or denials of such applications for certificates.
        United States. The several States and Territories and the District 
    of Columbia; the term ``State'' includes a Territory and the District 
    of Columbia; and the term ``Territory'' means the Commonwealth of 
    Puerto Rico.
        Use of other terms. Any other term defined in the Federal Alcohol 
    Administration Act and used in this part shall have the same meaning 
    assigned to it by the Act.
        Wine. Wine as defined in section 610 and section 617 of the Revenue 
    Act of 1918 (26 U.S.C. 3036, 3044, 3045) and other alcoholic beverages 
    not so defined, but made in the manner of wine, including sparkling and 
    carbonated wine, wine made from condensed grape must, wine made from 
    other agricultural products than the juice of sound, ripe grapes, 
    imitation wine, compounds sold as wine, vermouth, cider, perry, and 
    sake; in each instance only if containing not less than 7 percent, and 
    not more than 24 percent of alcohol by volume, and if for nonindustrial 
    use.
    
    Subpart C--Applications
    
    
    Sec. 13.21  Application for certificate.
    
        (a) Form of application. An applicant for a certificate of label 
    approval, certificate of exemption from label approval, or distinctive 
    liquor bottle approval, must send or deliver signed duplicate copies of 
    ATF Form 5100.31, ``Application For And Certification/Exemption Of 
    Label/Bottle Approval'' to the Product Compliance Branch, Bureau of 
    Alcohol, Tobacco and Firearms, Washington, DC 20226. If the application 
    complies with applicable laws and regulations, a certificate of label 
    approval, certificate of exemption from label approval, or distinctive 
    liquor bottle approval will be issued. If the approval is qualified in 
    any manner, such qualifications will be set forth in the appropriate 
    space on the form.
        (b) Time period for action on application. Within 90 days of 
    receipt of an application, the Product Compliance Branch must notify 
    the applicant whether the application has been approved or denied. The 
    Product Compliance Branch may extend this period of time once by an 
    additional 90 days if it finds that unusual circumstances require 
    additional time to consider the issues presented by an application. If 
    the Product Compliance Branch extends the period, it must notify the 
    applicant by letter, along with a brief explanation of the issues 
    presented by the label. If the applicant receives no decision from the 
    Product Compliance Branch within the time periods set forth in this 
    paragraph, the applicant may file an appeal as provided in Sec. 13.25 
    of this part.
    
    
    Sec. 13.22  Withdrawal of applications.
    
        A person who has filed an application for a certificate of label 
    approval, certificate of exemption from label approval, or distinctive 
    liquor bottle approval, may withdraw such application at any time 
    before ATF takes action on the application.
    
    
    Sec. 13.23  Notice of denial.
    
        Whenever an application for a certificate of label approval, 
    certificate of exemption from label approval, or distinctive liquor 
    bottle approval is denied, a Product Compliance Branch Specialist must 
    issue to the applicant a notice of denial on ATF Form 5190.1, entitled 
    ``ATF F 5100.31 Correction Sheet,'' briefly setting forth the reasons 
    why the label or bottle is not in compliance with the applicable laws 
    or regulations. The applicant may then submit a new application for 
    approval after making the necessary corrections.
    
    [[Page 2131]]
    
    Sec. 13.25  Appeal of qualification or denial.
    
        (a) Form of appeal. If an applicant for a certificate of label 
    approval, certificate of exemption from label approval, or distinctive 
    liquor bottle approval wishes to appeal the qualified approval or 
    denial of an application, the applicant may file a written appeal with 
    the Chief, Product Compliance Branch, within 45 days after the date of 
    the notice of qualification or denial. The appeal should explain why 
    the applicant believes that the label or bottle is in compliance with 
    applicable laws and regulations. If no appeal is filed within 45 days 
    after the date of the notice of qualification or denial, the notice 
    will be the final decision of ATF.
        (b) Informal resolution. Applicants may choose to pursue informal 
    resolution of disagreements regarding correction sheets or 
    qualifications by requesting an informal conference with the Specialist 
    or the Chief, Product Compliance Branch. However, formal administrative 
    appeals must comply with the provisions of paragraph (a) of this 
    section.
    
    
    Sec. 13.26  Decision after appeal of qualification or denial.
    
        (a) Decision. After considering any written arguments or evidence 
    presented by the applicant, the Chief, Product Compliance Branch, must 
    issue a written decision to the applicant. If the decision is that the 
    qualified approval or denial should stand, a copy of the application, 
    marked ``appeal denied,'' must be returned to the applicant with an 
    explanation of the decision and the specific laws or regulations relied 
    upon in qualifying or denying the application. If the decision is that 
    the certificate of label approval, certificate of exemption from label 
    approval, or distinctive liquor bottle application should be approved 
    without qualification, the applicant should resubmit ATF Form 5100.31 
    and the certificate will be issued.
        (b) Time limits for decision. Within 90 days of receipt of an 
    appeal, the Chief, Product Compliance Branch, must notify the appellant 
    whether the appeal has been granted or denied. If an applicant requests 
    an informal conference as part of an appeal, as authorized in 
    Sec. 13.71, the 90-day period will begin 10 days after the date of the 
    conference to allow for consideration of any written arguments, facts 
    or evidence submitted after the conference. The Chief, Product 
    Compliance Branch, may extend this period of time once by an additional 
    90 days if he or she finds that unusual circumstances require 
    additional time to consider the issues presented by an appeal. If the 
    Chief, Product Compliance Branch, extends the period, he or she must 
    notify the applicant by letter, briefly explaining the issues presented 
    by the label. If the appellant receives no decision from the Chief, 
    Product Compliance Branch, within the time periods set forth in this 
    paragraph, the appellant may appeal as provided in Sec. 13.27.
        (c) Judicial review. Prior to applying to the Federal courts for 
    review, an applicant must first exhaust his or her administrative 
    remedies, including the appeal rights set forth in this section and 
    Sec. 13.27.
    
    
    Sec. 13.27  Second appeal of qualification or denial.
    
        (a) Form of Appeal. The decision of the Chief, Product Compliance 
    Branch, may be appealed in writing to the Chief, Alcohol and Tobacco 
    Programs Division. If the decision is that the qualified approval or 
    denial was correct, a copy of the application, marked ``appeal 
    denied,'' must be returned to the applicant, with an explanation of the 
    decision and the specific laws or regulations relied upon in qualifying 
    or denying the application. If the decision is that the certificate of 
    label approval, certificate of exemption from label approval, or 
    distinctive liquor bottle application should be approved without 
    qualification, the applicant may resubmit ATF Form 5100.31 and the 
    certificate will be issued.
        (b) Time limits for decision. Within 90 days of receipt of an 
    appeal, the Chief, Alcohol and Tobacco Programs Division, must notify 
    the appellant whether the appeal has been granted or denied. If an 
    applicant requests an informal conference as part of an appeal, as 
    authorized in Sec. 13.71, the 90-day period will begin 10 days after 
    the date of the conference to allow for consideration of any written 
    arguments, facts or evidence submitted after the conference. The Chief, 
    Alcohol and Tobacco Programs Division, may extend this period of time 
    once by an additional 90 days if he or she finds that unusual 
    circumstances require additional time to consider the unique issues 
    presented by an appeal. If the Chief, Alcohol and Tobacco Programs 
    Division, extends the time period, he or she must notify the applicant 
    by letter, briefly explaining the issues presented by the label. The 
    decision of the Chief, Alcohol and Tobacco Programs Division, shall be 
    the final decision of ATF.
        (c)  Judicial review. An appeal to the Chief, Alcohol and Tobacco 
    Programs Division is required prior to application to the Federal 
    courts for review of any denial or qualification of an application.
    
    Subpart D--Revocations of Specific Certificates
    
    
    Sec. 13.41  Authority to revoke certificates.
    
        Certificates of label approval, certificates of exemption from 
    label approval, and distinctive liquor bottle approvals, previously 
    approved on ATF Form 5100.31, may be revoked by the Chief, Alcohol and 
    Tobacco Programs Division, upon a finding that the label or bottle at 
    issue is not in compliance with the applicable laws or regulations.
    
    
    Sec. 13.42  Notice of proposed revocation.
    
        Except as provided in Sec. 13.51, when the Chief, Product 
    Compliance Branch, determines that a certificate of label approval, 
    certificate of exemption from label approval, or distinctive liquor 
    bottle approval has been issued for a label or bottle that is not in 
    compliance with the laws or regulations, he or she must issue to the 
    certificate holder a notice of proposed revocation. The notice must set 
    forth the basis for the proposed revocation and must provide the 
    certificate holder with 45 days from the date of receipt of the notice 
    to present written arguments or evidence why the revocation should not 
    occur.
    
    
    Sec. 13.43  Decision after notice of proposed revocation.
    
        (a) Decision. After considering any written arguments or evidence 
    presented by the certificate holder, the Chief, Alcohol and Tobacco 
    Programs Division, must issue a decision. If the decision is to revoke 
    the certificate, a letter must be sent to the holder explaining the 
    revocation of the certificate, and the specific laws or regulations 
    relied upon in determining that the label or bottle was not in 
    conformance with law or regulations. If the decision is to withdraw the 
    proposed revocation, a letter of explanation must be sent.
        (b) Time limits for decision. Within 90 days of receipt of written 
    arguments or evidence from the certificate holder, the Chief, Alcohol 
    and Tobacco Programs Division, shall notify the appellant of his or her 
    decision. If a certificate holder requests an informal conference as 
    part of an appeal, as authorized in Sec. 13.71, the 90-day period will 
    begin 10 days after the date of the conference to allow for 
    consideration of any written arguments, facts or evidence submitted 
    after the conference. The Chief, Alcohol and Tobacco Programs Division, 
    may extend this period of time once by an additional 90 days if he or 
    she finds that unusual circumstances require additional time to 
    consider the issues presented by a proposed revocation. If the Chief, 
    Alcohol and Tobacco
    
    [[Page 2132]]
    
    Programs Division, extends the time period, he or she must notify the 
    applicant by letter, along with a brief explanation of the issues under 
    consideration.
    
    
    Sec. 13.44  Appeal of revocation.
    
        (a) Filing of appeal. A certificate holder who wishes to appeal the 
    decision of the Chief, Alcohol and Tobacco Programs Division, to revoke 
    a certificate of label approval, certificate of exemption from label 
    approval, or distinctive liquor bottle approval, may file a written 
    appeal with the Assistant Director, Alcohol and Tobacco, setting forth 
    why the holder believes that the decision of the Chief, Alcohol and 
    Tobacco Programs Division, was erroneous. The appeal must be filed with 
    the Assistant Director, Alcohol and Tobacco within 45 days after the 
    date of receipt of the decision of the Chief, Alcohol and Tobacco 
    Programs Division.
        (b) Judicial review. An appeal to the Assistant Director, Alcohol 
    and Tobacco, is required prior to application to the Federal courts for 
    review of any revocation of a certificate.
    
    
    Sec. 13.45  Final decision after appeal.
    
        (a) Issuance of decision. After considering any written arguments 
    or evidence presented by the certificate holder or the holder's 
    representative, the Assistant Director, Alcohol and Tobacco, must issue 
    a final decision. If the decision is to revoke the certificate of label 
    approval, certificate of exemption from label approval, or distinctive 
    liquor bottle approval, a letter must be issued explaining the basis 
    for the revocation, and the specific laws or regulations relied upon in 
    determining that the label or bottle was not in conformance with law or 
    regulations. If the decision is to withdraw the proposed revocation, a 
    letter explaining the decision must be sent.
        (b) Time limits for decision. Within 90 days of receipt of an 
    appeal, the Assistant Director, Alcohol and Tobacco, must notify the 
    holder whether the appeal has been granted or denied. If a certificate 
    holder requests an informal conference as part of an appeal, as 
    authorized in Sec. 13.71, the 90-day period will begin 10 days after 
    the date of the conference to allow for consideration of any written 
    arguments, facts or evidence submitted after the conference. The 
    Assistant Director, Alcohol and Tobacco, may extend this period of time 
    once by an additional 90 days if he or she finds that unusual 
    circumstances require additional time to consider the issues presented 
    by an appeal. If the Assistant Director, Alcohol and Tobacco, extends 
    the period, he or she must notify the holder by letter, briefly 
    explaining the issues presented by the label. The decision of the 
    Assistant Director, Alcohol and Tobacco, will be the final decision of 
    the Bureau.
    
    Subpart E--Revocation by Operation of Law or Regulation
    
    
    Sec. 13.51  Revocation by operation of law or regulation.
    
        ATF will not individually notify all holders of certificates of 
    label approval, certificates of exemption from label approval, or 
    distinctive liquor bottle approvals, that their approvals have been 
    revoked if the revocation occurs by operation of law or regulation. If 
    changes in labeling or other requirements are made as a result of 
    amendments or revisions to the law or regulations, the certificate 
    holder must voluntarily surrender all certificates that are no longer 
    in compliance. The holder must submit applications for new certificates 
    in compliance with the new requirements, unless ATF determines that new 
    applications are not necessary. If a new application is unnecessary, it 
    is the responsibility of the certificate holder to ensure that labels 
    are in compliance with their requirements of the new regulations or 
    law.
    
    
    Sec. 13.52  Notice of revocation.
    
        If ATF determines that a certificate holder is still using a 
    certificate of label approval, certificate of exemption from label 
    approval, or distinctive liquor bottle approval that is no longer in 
    compliance due to amendments or revisions in the law or regulations, 
    the Chief, Product Compliance Branch, will notify the certificate 
    holder in writing that the subject certificate has been revoked by 
    operation of law or regulations, with a brief description of the 
    grounds for such revocation.
    
    
    Sec. 13.53  Appeal of notice of revocation.
    
        Within 45 days after the date of receipt of a notice of revocation 
    by operation of law or regulations, the certificate holder may file a 
    written appeal with the Chief, Alcohol and Tobacco Programs Division. 
    The appeal should set forth the reasons why the certificate holder 
    believes that the regulation or law at issue does not require the 
    revocation of the certificate.
    
    
    Sec. 13.54  Decision after appeal.
    
        (a) Issuance of decision. After considering all written arguments 
    and evidence submitted by the certificate holder, the Chief, Alcohol 
    and Tobacco Programs Division, must issue a final decision regarding 
    the revocation by operation of law or regulation of the certificate. If 
    the decision is that the law or regulation at issue requires the 
    revocation of the certificate of label approval, certificate of 
    exemption from label approval, or distinctive liquor bottle approval, a 
    letter must be issued explaining the basis for the revocation, and 
    citing the specific laws or regulations which required the revocation 
    of the certificate. If the decision is that the law or regulation at 
    issue does not require the revocation of such certificate, a letter 
    explaining the decision must be sent to the certificate holder. The 
    decision of the Chief, Alcohol and Tobacco Programs Division, will be 
    the final decision of ATF.
        (b) Time limits for decision. Within 90 days of receipt of an 
    appeal, the Chief, Alcohol and Tobacco Programs Division, must notify 
    the holder whether the appeal has been granted or denied. If a 
    certificate holder requests an informal conference as part of an 
    appeal, as authorized in Sec. 13.71, the 90-day period will begin 10 
    days after the date of the conference to allow for consideration of any 
    written arguments, facts or evidence submitted after the conference. 
    The Chief, Alcohol and Tobacco Programs Division, may extend this 
    period of time once by an additional 90 days if he or she finds that 
    unusual circumstances require additional time to consider the issues 
    presented by an appeal. If the Chief, Alcohol and Tobacco Programs 
    Division, extends the period, he or she must notify the holder by 
    letter, briefly explaining the issues presented by the label. The 
    decision of the Chief, Alcohol and Tobacco Programs Division, will be 
    the final decision of ATF.
    
    Subpart F--Miscellaneous
    
    
    Sec. 13.61  Publicity of information.
    
        (a) Pending and denied applications. Pending and denied 
    applications for certificates of label approval, certificates of 
    exemption from label approval, or distinctive liquor bottle approvals 
    are treated as proprietary information, unless the applicant or 
    certificate holder provides written authorization to release such 
    information.
        (b) Approved applications. The Chief, Product Compliance Branch, 
    shall cause to be maintained in the ATF Library for public inspection, 
    a copy of each approved application for certificate of label approval, 
    certificate of exemption from label approval, or distinctive liquor 
    bottle approval. These documents may be viewed during business hours at
    
    [[Page 2133]]
    
    650 Massachusetts Avenue, NW, Washington, DC 20226.
        (c) Revoked certificates. If an approved certificate is 
    subsequently revoked, the record of the approved application will 
    remain on file for public inspection, but the index will be annotated 
    to show it was revoked.
        (d) Further disclosure of information on denied or revoked 
    certificates. If an applicant whose application is pending or has been 
    denied, or a holder of a revoked certificate of label approval, 
    certificate of exemption from label approval, or distinctive liquor 
    bottle approval, issues public statements concerning ATF action in 
    connection with such application or certificate, then ATF may issue a 
    statement to clarify its position or correct any misstatements of fact, 
    including a disclosure of information contained on the application or 
    certificate of label approval, certificate of exemption from label 
    approval, or distinctive liquor bottle approval.
    
    
    Sec. 13.62.  Third-party comment on certificates.
    
        When a third party (such as foreign government, another Federal 
    agency, a State agency, an industry association, a competitor of a 
    certificate holder, a consumer or consumer group, or any other 
    interested person) wishes to comment on an approved certificate of 
    label approval, certificate of exemption from label approval, or 
    distinctive liquor bottle approval, such comments should be submitted 
    in writing to the Chief, Product Compliance Branch. The Chief, Product 
    Compliance Branch, will review the subject of the comment. If the 
    comment raises an issue that is outside the scope of ATF's statutory or 
    regulatory authority, or the Chief, Product Compliance Branch, 
    determines that the certificate is in compliance with applicable law 
    and regulations, the commenter will be informed that no further action 
    will be taken. If the Chief, Product Compliance Branch, determines that 
    the commenter has raised a valid issue that ATF has authority to 
    address, then the Chief, Product Compliance Branch, will initiate 
    appropriate action. The Chief, Product Compliance Branch, may, in his 
    or her discretion, notify the commenter as to the action being taken by 
    ATF with respect to the certificate.
    
    
    Sec. 13.71  Informal conferences.
    
        (a) General. As part of a timely filed written appeal of a notice 
    of denial, a notice of proposed revocation, or a decision of the Chief, 
    Alcohol and Tobacco Programs Division, to revoke a certificate, an 
    applicant or certificate holder may file a written request for an 
    informal conference with the ATF official deciding the appeal, or that 
    official's delegate.
        (b) Informal conference procedures. The deciding official, or such 
    official's delegate, and the applicant or certificate holder will agree 
    upon a date for an informal conference. The informal conference is for 
    purposes of discussion only, and no transcript shall be made. If the 
    applicant or certificate holder wishes to rely upon arguments, facts, 
    or evidence presented at the informal conference, he or she has 10 days 
    after the date of the conference to incorporate such arguments, facts, 
    or evidence in a written submission to the deciding official.
    
    
    Sec. 13.72  Effective dates of revocations.
    
        (a) Effective dates.--(1) Revocation of specific certificates. A 
    written decision to revoke a certificate becomes effective 60 days 
    after the date of the decision.
        (2) Revocation by operation of law or regulation. If a certificate 
    is revoked by operation of law or regulation, the revocation becomes 
    effective on the effective date of the change in law or regulation with 
    which the certificate does not comply, or if a separate label 
    compliance date is given, on that date.
        (b) Use of certificate during period of appeal. If a certificate 
    holder files a timely appeal after receipt of a decision to revoke a 
    certificate from the Chief, Alcohol and Tobacco Programs Division, 
    pursuant to Sec. 13.45, the holder may continue to use the certificate 
    at issue until the effective date of a final decision issued by the 
    Assistant Director, Alcohol and Tobacco. However, the effective date of 
    a notice of revocation by operation of law or regulations, issued 
    pursuant to Sec. 13.52, is not stayed pending the appeal.
    
    
    Sec. 13.73  Effect of revocation.
    
        On and after the effective date of a revocation of a certificate of 
    label approval, certificate or exemption from label approval, or 
    distinctive liquor bottle approval, the label or distinctive liquor 
    bottle in question may not be used to bottle or pack distilled spirits, 
    wine or malt beverages, to remove such products from the place where 
    they were bottled or packed, or to remove such products from customs 
    custody for consumption.
    
    
    Sec. 13.74  Surrender of certificates.
    
        On the effective date of a final decision that has been issued by 
    the Chief, Alcohol and Tobacco Programs Division, or the Assistant 
    Director, Alcohol and Tobacco, to revoke a certificate of label 
    approval, certificate of exemption from label approval, or distinctive 
    liquor bottle approval, the certificate holder must surrender the 
    original of the certificate to ATF for manual cancellation. Regardless 
    of whether the original certificate of label approval, certificate of 
    exemption from label approval, or distinctive liquor bottle approval 
    has been manually canceled or not, the certificate is null and void 
    after the effective date of the revocation. It is a violation of this 
    section for any certificate holder to present a certificate of label 
    approval, certificate of exemption from label approval, or distinctive 
    liquor bottle approval to an official of the United States Government 
    as a valid certificate after the effective date of the revocation of 
    the certificate if the certificate holder has been previously notified 
    that such certificate has been revoked by ATF.
    
    
    Sec. 13.75  Evidence of receipt by ATF.
    
        If there is a time limit on ATF action that runs from ATF's receipt 
    of a document, the date of receipt may be established by a certified 
    mail receipt or equivalent written acknowledgment secured by a 
    commercial delivery service or by a written acknowledgment of personal 
    delivery. In the absence of proof of receipt, the date the document is 
    logged in by ATF will be considered the date of receipt.
    
    
    Sec. 13.76  Service on applicant or certificate holder.
    
        (a) Method of service. ATF must serve notices of denial on an 
    applicant by first class mail, or by personal delivery. ATF must serve 
    notices of proposed revocation and notices of revocation on a 
    certificate holder by certified mail, return receipt requested, by a 
    commercial delivery service that will provide an equivalent written 
    acknowledgment from the recipient, or by personal delivery.
        (b) Date of receipt. If there is a time limit on a certificate 
    holder's action that runs from the holder's receipt of a document, the 
    date of receipt may be established by a certified mail receipt, an 
    equivalent written acknowledgment secured by a commercial delivery 
    service, or by a written acknowledgment of personal delivery.
        (c) Person to be served. When service is by mail or other 
    commercial delivery service, a copy of the document must be sent to the 
    applicant or certificate holder at the address stated in the 
    application or at the last known address. If authorized by the 
    applicant or certificate holder, the copy of the document may be mailed 
    to a designated representative. If service is by personal delivery, a 
    copy of the document must be delivered to the
    
    [[Page 2134]]
    
    certificate holder or to a designated representative. In the case of a 
    corporation, partnership, or association, personal delivery may be made 
    to an officer, manager, or general agent thereof, or to the attorney of 
    record.
    
    
    Sec. 13.81  Representation before ATF.
    
        An applicant or certificate holder may be represented by an 
    attorney, certified public accountant, or other person recognized to 
    practice before ATF as provided in 31 CFR part 8 (Practice Before the 
    Bureau of Alcohol, Tobacco and Firearms). The applicable requirements 
    of 26 CFR 601.521 through 601.527 (conference and practice requirements 
    for alcohol, tobacco, and firearms activities) shall apply.
    
    
    Sec. 13.91  Computation of time.
    
        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 counted. The last day of the period to be 
    computed is counted, unless it is a Saturday, Sunday, or legal holiday, 
    in which case the period runs until the next day that is not a 
    Saturday, Sunday, or legal holiday. Papers or documents that are 
    required or permitted to be filed under this part must be received at 
    the appropriate office within the filing time limits, if any.
    
    
    Sec. 13.92  Extensions.
    
        An applicant or certificate holder may apply to the Chief, Product 
    Compliance Branch, the Chief, Alcohol and Tobacco Programs Division, or 
    the Assistant Director, Alcohol and Tobacco for an extension of any 
    time limit prescribed in this part. The time limit may be extended if 
    ATF agrees the request is reasonable.
    
    PART 19--DISTILLED SPIRITS PLANTS
    
        Par. 12. The authority citation for part 19 continues to read as 
    follows:
    
        Authority: 19 U.S.C. 81c, 1311; 26 U.S.C. 5001, 5002, 5004-5006, 
    5008, 5010, 5041, 5061, 5062, 5066, 5081, 5101, 5111-5113, 5142, 
    5143, 5146, 5171-5173, 5175, 5176, 5178-5181, 5201-5204, 5206, 5207, 
    5211-5215, 5221-5223, 5231, 5232, 5235, 5236, 5241-5243, 5271, 5273, 
    5301, 5311-5313, 5362, 5370, 5373, 5501-5505, 5551-5555, 5559, 5561, 
    5562, 5601, 5612, 5682, 6001, 6065, 6109, 6302, 6311, 6676, 6806, 
    7011, 7510, 7805; 31 U.S.C. 9301, 9303, 9306.
    
        Par. 13. Section 19.633 is amended to add paragraph (c) to read as 
    follows:
    
    
    Sec. 19.633  Distinctive liquor bottles.
    
    * * * * *
        (c) Cross reference. For procedures regarding issuance, denial and 
    revocation of distinctive liquor bottle approvals, as well as appeal 
    procedures, see part 13 of this chapter.
        Par. 14. Section 19.641 is revised to read as follows:
    
    
    Sec. 19.641  Certificate of label approval or exemption.
    
        (a) Requirement. Proprietors are required by 27 CFR part 5 to 
    obtain approval of labels, or exemption from label approval, for any 
    label to be used on bottles of spirits for domestic use and shall 
    exhibit evidence of label approval, or of exemption from label 
    approval, on request of an ATF officer.
        (b) Cross reference. For procedures regarding the issuance, denial 
    and revocation of certificates of label approval and certificates of 
    exemption from label approval, as well as appeal procedures, see Part 
    13 of this chapter.
    
    ``(Sec. 201, Pub. L. 85-859, 72 Stat. 1356, as amended (26 U.S.C. 
    5201))
    
        Signed: August 6, 1998.
    John W. Magaw,
    Director.
    
        Approved: December 11, 1998.
    John P. Simpson,
    Deputy Assistant Secretary (Regulatory, Tariff and Trade Enforcement).
    [FR Doc. 99-624 Filed 1-12-99; 8:45 am]
    BILLING CODE 4810-31-U
    
    
    

Document Information

Effective Date:
3/15/1999
Published:
01/13/1999
Department:
Alcohol, Tobacco, Firearms, and Explosives Bureau
Entry Type:
Rule
Action:
Final rule, Treasury decision.
Document Number:
99-624
Dates:
These regulations are effective March 15, 1999.
Pages:
2122-2134 (13 pages)
Docket Numbers:
TD ATF-406 Re: Notice No. 815 and Notice No. 819
PDF File:
99-624.pdf
CFR: (38)
27 CFR 4.40
27 CFR 4.50
27 CFR 5.46
27 CFR 5.51
27 CFR 5.55
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