[Federal Register Volume 60, Number 177 (Wednesday, September 13, 1995)]
[Proposed Rules]
[Pages 47506-47512]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-22577]
-----------------------------------------------------------------------
DEPARTMENT OF THE TREASURY
Bureau of Alcohol, Tobacco and Firearms
27 CFR Parts 4, 5, 7, 13, and 19
[Notice No. 815]
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: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Bureau of Alcohol, Tobacco and Firearms (ATF) is proposing
to issue regulations specifically 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 proposed denial and revocation regulations
are new, whereas the proposed issuance regulations are more specific
than the current regulations. The proposed regulations would also
codify the procedures for administratively appealing the denial or
revocation of certificates of label approval, exemptions from label
approval, or distinctive liquor bottle approvals.
DATES: Written comments to this proposed rule must be received by
December 12, 1995.
ADDRESSES: Send written comments to: Chief, Wine, Beer and Spirits
Regulations Branch, Bureau of Alcohol, Tobacco and Firearms, P.O. Box
50221, Washington, DC 20091-0221 (Attn: Notice No. 815).
Copies of the proposed regulation and any written comments received
will be 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: Robert White, Coordinator, Wine, Beer
and Spirits Regulations Branch, Bureau of Alcohol, Tobacco and
Firearms, 650 Massachusetts Avenue NW., Washington, DC 20226 (202-927-
8230).
SUPPLEMENTARY INFORMATION:
Background
The Federal Alcohol Administration (FAA) Act, 27 U.S.C.
Sec. 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. Sec. 205(e). The
law provides an exemption from these requirements for products which
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
Secs. 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 Secs. 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 Secs. 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 Sec. 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. Sec. 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 over 60,000 applications for certificates of label
approval, exemptions from label approval, and distinctive liquor bottle
approvals every year. There is no doubt that errors will occasionally
occur in the approval process. Thus, there is clearly a necessity 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 also included an implied statutory
authority to cancel or revoke such certificates in the event that such
certificates were approved in error. There have never been formal
procedures in the regulations for denial or revocation of certificates
of label approval. However, ATF has utilized informal procedures for
denials and revocations, where applicants or certificate holders who
wished to contest a denial or revocation were 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 III(1)(c) of Form 5100.31 provides that ``[t]his
certificate is issued for Bureau of Alcohol, Tobacco and Firearms use
only and does not constitute trademark protection, or relieve any
person from liability for violations of the FAA Act and related
regulations and rulings.'' 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.
[[Page 47507]]
Recently, however, ATF's 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 [sic] 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.
ATF 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 statute's delegation to the Secretary of
the authority to issue certificates of label approval ``in such manner
and form as he shall by regulations prescribe* * *'' The statute thus
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.
ATF believes that the procedures which 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, in order to clarify its authority and procedures for
revocation of label approvals, ATF is proposing to adopt new
regulations in a new Part 13 which will set forth procedures for
revoking such approvals and for appealing such revocations. The
procedures will also provide applicants with the opportunity to
administratively appeal the denial of applications for label approval.
Finally, the procedures will also cover certificates of exemption from
label approval and distinctive liquor bottle approvals, since these are
issued on the same form as certificates of label approval.
Proposed Procedures
ATF is proposing to issue regulations specifically setting forth
the procedures for the issuance, denial, and revocation of certificates
of label approval, certificates of exemption from label approval, and
distinctive liquor bottle approvals. The proposed denial and revocation
regulations are new, whereas the proposed issuance regulations are more
specific than the current regulations. The proposed regulations would
also codify the procedures for administratively appealing the denial or
revocation of certificates of label approval, exemptions from label
approval, and distinctive liquor bottle approvals. ATF believes that
the proposed regulations would afford applicants and certificate
holders with more than adequate due process of law. ATF also believes
that the codification of these procedures in regulations will eliminate
any questions as to its 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. When an application for
label approval, exemption from label approval, or distinctive liquor
bottle approval is approved, the signature of the Director is affixed
to the form, with the date, and any qualifications are marked in the
appropriate space on the form. The approved ATF Form 5100.31 is then
sent to the applicant. 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 will codify this practice.
The proposed regulations afford the applicant an opportunity to
file a written 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, within 45 days after the date of the notice
of denial. Such an appeal should explain the basis for the applicant's
belief that the denial was erroneous, and that the subject label or
bottle is in compliance with all applicable laws and regulations. After
considering all relevant facts and issues presented in writing by the
applicant, the Chief, Labeling Section, shall issue a final decision on
the denial of the application.
With respect to revocations of certificates of label approval,
certificates of exemption from label approval, or distinctive liquor
bottle approvals, the proposed regulations provide that the Chief,
Product Compliance Branch, shall provide the certificate holder with a
notice of proposed revocation prior to taking any action with respect
to the label or distinctive liquor bottle. The certificate holder shall
have 45 days from the date of the notice in which to present written
arguments as to why the revocation should not occur. After considering
any arguments or facts presented during this 45-day period, the Chief,
Product Compliance Branch, shall issue a decision. If the decision is
to revoke the label or distinctive liquor bottle approval, the
certificate holder shall then have 45 days from the date of the
decision of the Chief, Product Compliance Branch, to file a written
appeal with the Chief, Alcohol and Tobacco Programs Division. The
written appeal should include all pertinent arguments and evidence
which the certificate holder wishes to present. The decision of the
Chief, Alcohol and Tobacco Programs Division, shall be the final
decision of the Bureau.
The proposed regulations authorize applicants or certificate
holders to request informal conferences at each stage of the
administrative appeal process. The decision whether to grant such
requests lies entirely within the discretion of the official
considering the administrative appeal. It should be noted that the
issue of informal conferences arose during the litigation over the
``Black Death'' labels. To avoid any possible misunderstandings which
might arise out of inconsistent recollections by meeting participants,
the proposed regulations will clarify that informal conferences are not
on the record. To the extent that an applicant or certificate holder
wishes to rely on arguments or evidence presented at an informal
conference, he or she must present such arguments or evidence in
writing to the decision maker within 10 days after the date of the
conference.
Exception to Notice of Proposed Revocation Requirement
The proposed regulations provide that where there is a change in
labeling requirements by operation of law or regulation, there is no
requirement 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. In these cases, the burden of ensuring that
affected labels are in compliance with the new requirements imposed by
statute or regulation should be on the certificate holder, not ATF. If
ATF determines that a label or bottle which is not in
[[Page 47508]]
compliance with the new statutory or regulatory requirements is still
being used, the Chief, Product Compliance Branch, will issue a letter
notifying the certificate holder that the certificate has been revoked
by operation of law or regulation. If the certificate holder wishes to
challenge the application of the law or regulation to the particular
label or bottle, he or she may appeal the decision, in writing, to the
Chief, Alcohol and Tobacco Programs Division.
If the proposals in this notice are adopted, regulations in Parts
4, 5, 7, and 19 will be amended to cross reference the procedures
enumerated in Part 13.
Public Participation
ATF requests all interested parties to submit written comments
concerning the issuance, denial, revocation, and appeal procedures
proposed in this notice of proposed rulemaking. Comments received on or
before the closing date will be carefully considered. Comments received
after that date will be given the same consideration if it is practical
to do so, but assurance of consideration cannot be given except as to
comments received on or before the closing date.
ATF will not recognize any material or comment as confidential.
Comments may be disclosed to the public. Any material which the
respondent considers to be confidential or inappropriate for disclosure
to the public should not be included in the comment. The names of
commenters are not exempt from disclosure.
Written comments will be available for public inspection during
normal business hours at the following address: ATF Reading Room,
Office of Public Affairs and Disclosure, Room 6480, 650 Massachusetts
Avenue, NW., Washington, DC.
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 proposal,
if promulgated as a final rule, is not expected (1) to have significant
secondary, or incidental effects on a substantial number of small
entities; 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 proposed regulation is not a
significant regulatory action as defined by Executive Order 12866.
Accordingly, this proposal is not subject to the analysis required by
this Executive Order.
Paperwork Reduction Act
The provisions of the Paperwork Reduction Act of 1980, Pub. L. 96-
511, 44 U.S.C. Chapter 35, and its implementing regulations, 5 CFR Part
1320, do not apply to this notice because no requirement to collect
information is proposed.
Drafting Information
The principal author of this document is Robert L. White, Wine,
Beer and Spirits Regulations Branch, Bureau of Alcohol, Tobacco and
Firearms.
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 proposed to
be 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 citation for part 5 continues to read as
follows:
Authority: 26 U.S.C. 5301, 7805, 27 U.S.C. 205.
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 which 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.
[[Page 47509]]
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.
Par. 11. Part 13 is added to read as follows:
PART 13--LABELING PROCEEDINGS
Subpart A--Scope and Construction of Regulations
Sec.
13.1 Scope of part.
Subpart B--Definitions
13.5 Meaning of terms.
Subpart C--Applications
13.11 Application for certificate.
13.12 Notice of denial.
13.13 Appeal of denials.
13.14 Final decision after appeal of denial.
Subpart D--Revocations
13.20 Revocation of certificates.
13.21 Notice of proposed revocation.
13.22 Decision after notice of proposed revocation.
13.23 Appeal of revocation.
13.24 Final decision after appeal.
Subpart E--Revocation by Operation of Law or Regulation
13.35 Revocation by operation of law or regulation.
13.36 Notice of revocation.
13.37 Appeal of notice of revocation.
13.38 Decision after appeal.
Subpart F--Miscellaneous
13.40 Informal conferences.
13.45 Effective dates of revocations.
13.50 Effect of revocations.
13.55 Service on applicant or certificate holder.
13.60 Representation before the Bureau.
13.65 Computation of time.
13.70 Extensions.
Authority: 270 U.S.C. 205(e) and 26 U.S.C. 5301.
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, or when
these applications are approved and then subsequently revoked.
Subpart B--Definitions
Sec. 13.5 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 which 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.
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 which authorizes the bottling or packing of wine, distilled
spirits, or malt beverages, or the removal of bottled wine, distilled
spirits, or malt beverages from Customs custody for introduction into
commerce, as long as the product 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 under this part for deciding appeals of revocations of:
(1) Certificates of label approval;
(2) Certificates of exemption from label approval; and
(3) Distinctive liquor bottle approvals.
Chief, Labeling Section, Product Compliance Branch.
The ATF official responsible under this part for deciding appeals
of denials of applications for:
(1) Certificates of label approval;
(2) Certificates of exemption from label approval; and
(3) Distinctive liquor bottle approvals.
Chief, Product Compliance Branch. The ATF official responsible
under this part for issuing revocations of
(1) Certificates of label approval;
(2) Certificates of exemption from label approval; and
(3) Distinctive liquor bottle approvals.
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'' shall not include mixtures containing wine,
[[Page 47510]]
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 which 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 thereof, or commerce within any Territory or the District
of Columbia, or between points within the same State but through any
place outside thereof.
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--
(1) Responsible under this part for reviewing initial applications
for:
(i) Certificates of label approval;
(ii) Certificates of Exemption from label approval; and
(iii) Distinctive liquor bottle approvals; and
(2) With authority to affix the Director's signature to approved
certificates and to issue an ``ATF F 5100.31 Correction Sheet'' along
with any denial of an application.
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. (1) Wine as defined in section 610 and section 617 of the
Revenue Act of 1918 (26 U.S.C. 3036, 3044, 3045) and
(2) 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. 13.11 Application for certificate.
An applicant for a certificate of label approval, certificate of
exemption from label approval, or distinctive liquor bottle approval,
shall send 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, D.C. 20226. If the application evidences compliance with
all applicable laws and regulations, a certificate of label approval,
certificate of exemption from label approval, or distinctive liquor
bottle approval shall be issued, and the Director's signature shall be
affixed to the form. If the approval is qualified in any manner, such
qualifications shall be set forth in the appropriate space on the form.
Sec. 13.12 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 shall
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.
Sec. 13.13 Appeal of denials.
If an applicant for a certificate of label approval, certificate of
exemption from label approval, or distinctive liquor bottle approval
wishes to appeal the denial of an application, he or she may file a
written appeal with the Chief, Labeling Section, Product Compliance
Branch, within 45 days after the date of the notice of denial. Such an
appeal should explain the basis for the applicant's belief that the
subject label or bottle is in compliance with the applicable laws and
regulations. If no appeal is filed within 45 days after the date of the
notice of denial, such notice of denial shall be the final decision of
the Bureau.
Sec. 13.14 Final decision after appeal of denial.
After considering any written arguments or evidence presented by
the applicant or his or her representative, the Chief, Labeling
Section, Product Compliance Branch, shall issue a written decision to
the applicant. If the decision is that the denial should stand, a copy
of the application, marked ``appeal denied,'' shall be returned to the
applicant, along with a brief explanation of the basis for the denial
and the specific laws or regulations relied upon in 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, ATF Form 5100.31 shall be issued
in accordance with usual procedures. The decision of the Chief,
Labeling Section, Product Compliance Branch, shall be the final
decision of the Bureau.
Subpart D--Revocations
Sec. 13.20 Revocation of 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, Product
Compliance Branch, upon a finding that the label or bottle at issue is
not in compliance with the applicable laws or regulations.
Sec. 13.21 Notice of proposed revocation.
Except as provided in Sec. 13.35, 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 which is not in
compliance with the laws or regulations, he or she shall issue to the
certificate holder a notice of proposed
[[Page 47511]]
revocation which shall set forth the basis for the proposed revocation
and shall provide the certificate holder with 45 days from the date of
the notice in which to present written arguments or evidence as to why
the revocation should not occur.
Sec. 13.22 Decision after notice of proposed revocation.
After considering any written arguments or evidence presented by
the certificate holder or his or her representative, the Chief, Product
Compliance Branch, shall issue a decision. If the decision is to revoke
the certificate, a letter shall be issued explaining the basis for 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 to that effect shall be issued.
Sec. 13.23 Appeal of revocation.
A certificate holder who wishes to appeal the decision of the
Chief, Product Compliance Branch, 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 Chief,
Alcohol and Tobacco Programs Division, setting forth the grounds on
which he or she believes that the decision of the Chief, Product
Compliance Branch, was erroneous. Such appeal must be filed with the
Chief, Alcohol and Tobacco Programs Division, within 45 days after the
date of the decision of the Chief, Product Compliance Branch.
Sec. 13.24 Final decision after appeal.
After considering any written arguments or evidence presented by
the certificate holder or his or her representative, the Chief, Alcohol
and Tobacco Programs Division, shall issue a written decision to the
certificate holder. If the decision is to revoke the certificate of
label approval, certificate of exemption from label approval, or
distinctive liquor bottle approval, a letter shall 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 to that effect shall be sent to the
certificate holder. The decision of the Chief, Alcohol and Tobacco
Programs Division, shall be the final decision of the Bureau.
Subpart E--Revocation by Operation of Law or Regulation
Sec. 13.35 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 such approvals have been
revoked in situations where such revocation occurs by operation of law
or regulation.
Where changes in labeling or other requirements are made as a
result of amendments or revisions to the law or regulations, it is the
responsibility of the certificate holder to voluntarily surrender all
certificates which are no longer in compliance, and to submit
applications for new certificates in compliance with the new
requirements; Provided, that in certain circumstances, ATF may announce
that the submission of new applications for label approval is not
necessary in order to implement a new requirement in the law or
regulations. In such circumstances, it is the responsibility of the
certificate holder to ensure that labels are in compliance with the
requirements of the new regulations or law, notwithstanding the fact
that new applications for label approval were not required.
Sec. 13.36 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 which 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. 13.37 Appeal of notice of revocation.
Within 45 days after the date 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. 13.38 Decision after appeal.
After considering all written arguments and evidence submitted by
the certificate holder, the Chief, Alcohol and Tobacco Programs
Division, shall 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 shall 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 to that effect shall be
sent to the certificate holder. The decision of the Chief, Alcohol and
Tobacco Programs Division, shall be the final decision of the Bureau.
Subpart F--Miscellaneous
Sec. 13.40 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,
Product Compliance Branch, 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. However, the
decision whether to hold an informal conference is at the sole
discretion of the deciding official.
(b) Informal conference procedures. If the deciding official
determines that the holding of an informal conference would be
beneficial, he or she shall inform the applicant or certificate holder,
and a date shall be agreed upon. 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. 13.45 Effective dates of revocations.
With the exception of revocations occurring pursuant to Sec. 13.35,
ATF shall allow at least 45 days between the issuance of a decision to
revoke a certificate, and the actual revocation of the certificate. The
deciding official may, at his or her discretion, allow the certificate
holder a longer period of time in which to use up the existing stock of
labels or distinctive liquor bottles. The decision to allow such a
``use-up'' period, and the length of the ``use-up'' period allowed, are
matters committed entirely to the discretion of the deciding official,
based on the circumstances of the case.
[[Page 47512]]
Sec. 13.50 Effect of revocations.
(a) General. On the effective date of a final decision which has
been issued by the Chief, Product Compliance Branch, or 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, the certificate holder shall be asked to
surrender the original of such 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 cancelled or not, the
certificate shall be null and void after the effective date of the
certificate's revocation. It shall be 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.
(b) Use of certificate during period of appeal. If a certificate
holder files a timely appeal after receipt of a notice of revocation
from the Chief, Product Compliance Branch pursuant to section 13.22, he
or she may continue to use the certificate at issue until the effective
date of a final decision issued by the Chief, Alcohol and Tobacco
Programs Division. However, the effective date of a notice of
revocation by operation of law or regulations, issued pursuant to
Sec. 13.36, is not stayed during the pendency of an appeal.
Sec. 13.55 Service on applicant or certificate holder.
Notices of denial, notices of proposed revocation, and notices of
revocation shall be served on an applicant or a certificate holder by
first class mail, or by personal delivery. When service is by mail, a
signed duplicate original copy of the document shall be mailed to the
applicant or certificate holder at the address stated in the
application for a certificate of label approval, or at the last known
address. If authorized by the applicant or certificate holder, the
signed duplicate original copy of the document may be mailed to a
designated representative. Where service is by personal delivery, a
signed duplicate original copy of the document shall be delivered to
the certificate holder or to a designated representative, or, in the
case of a corporation, partnership, or association, by delivering it to
an officer, manager, or general agent thereof, or to its attorney of
record.
Sec. 13.60 Representation before the Bureau.
An applicant or certificate holder may be represented by an
attorney, certified public accountant, or other person recognized to
practice before the Bureau of Alcohol, Tobacco and Firearms as provided
in 31 CFR Part 8 (Practice Before the Bureau of Alcohol, Tobacco and
Firearms), if he or she has otherwise complied with the applicable
requirements of 26 CFR 601.521 through 601.527 (conference and practice
requirements for alcohol, tobacco, and firearms activities).
Sec. 13.65 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 to be included. The last day of the period to
be computed is to be included, unless it is a Saturday, Sunday, or
legal holiday, in which event the period runs until the next day which
is neither a Saturday, Sunday, or legal holiday. Papers or documents
which are required or permitted to be filed under this part must be
received for filing at the appropriate office within the time limits,
if any, for such filing.
Sec. 13.70 Extensions.
For good cause shown, the Chief, Labeling Section, Product
Compliance Branch, the Chief, Product Compliance Branch, or the Chief,
Alcohol and Tobacco Programs Division, may grant extensions as to any
time limits prescribed by the regulations in this part.
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, 9304, 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: July 26, 1995.
Daniel R. Black,
Acting Director.
Approved: August 17, 1995.
John P. Simpson,
Deputy Assistant Secretary (Regulatory, Tariff and Trade Enforcement).
[FR Doc. 95-22577 Filed 9-12-95; 8:45 am]
BILLING CODE 4810-31-U
