tion presented on the record (including, when appropriate, comment as to the credibility and demeanor of the witnesses); and (c) the administrative law judge's determination or recommended determination on the record. Where the administrative law judge determines that the imposition of a period of suspension of the permit is appropriate, his decision shall state the length of such period of suspension, to commence at such time as the regional regulatory administrator

shall specify.

§ 200.106 Certification and transmittal of record and decision.

After reaching his decision, the administrative law judge shall certify to the complete record of the proceeding before him and (a), in proceedings on initial application, shall immediately forward the complete certified record together with four copies of his recommended decision to the regional regulatory administrator for initial decision, or (b), in proceedings on renewal applications and revocation, suspension or annulment proceedings, shall immediately forward the complete certified record, together with two copies of his decision, to the regional regulatory administrator, serve one copy of his decision on the respondent or his counsel and transmit a copy of his decision to the attorney for the Government.

ACTION BY REGIONAL REGULATORY ADMINISTRATOR

§ 200.107 Initial application proceedings. If, upon receipt of the record and the recommended decision of the administrative law judge, the regional regulatory administrator decides that the permit should be issued, he shall thereupon approve the application briefly stating, for the record, his reasons therefor, but if he contemplates the disapproval of the application he shall serve a copy of the administrative law judge's recommended decision on the applicant, informing the applicant of his contemplated action and affording the applicant not more than 10 days in which to submit proposed findings and conclusions or exceptions

to the recommended decision with reasons in support thereof. If the regional regulatory administrator, after consideration of the record of the hearing and of any proposed findings, conclusions or exceptions filed with him by the applicant, approves the findings, conclusions and recommended decision of the administrative law judge, he shall by order approve or disapprove of the application in accordance therewith. If, after such consideration, he disapproves of the findings, conclusions and recommended decision of the administrative law judge, in whole or in part, he shall by order make such findings and conclusions as in his opinion are warranted by the law and facts in the record. Any decision of the regional regulatory administrator ordering the disapproval of an initial application for a permit shall state the findings and conclusions upon which it is based, including his ruling upon each proposed finding, conclusion and exception to the administrative law judge's recommended decision, together with a statement of his findings and conclusions, and reasons or basis therefor, upon all material issues of fact, law or discretion presented on the record. A signed duplicate original of the decision shall be served upon the applicant and the original copy containing certificate of service shall be placed in the official record of the proceeding.

§ 200.108 Suspension, revocation, annulment or renewal application proceedings.

Upon receipt of the complete certified record of the hearing the regional regulatory administrator shall enter an order suspending, revoking or annulling the permit (on Form 1430-B) disapproving the application or dismissing the proceedings in accordance with the administrative law judge's findings and decision, unless he disagrees with such findings and decision and files a petition with the Director, for review thereof, as provided in § 200.115. If the regional regulatory administrator files such petition, he shall withhold issuance of the order, pending the decision of the Director, upon receipt of which he shall issue

the order in accordance therewith. A signed duplicate original of the order of the regional regulatory administrator shall be served upon the respondent and the original copy containing certificate of service shall be placed in the official record of the proceeding. In all proceedings in which a suspension is imposed, the regional regulatory administrator's order shall state the time when the suspension period set forth in the administrative law judge's decision shall commence and terminate.

§ 200.109 Notice to Director.

When the regional regulatory administrator makes an order suspending, revoking or annulling a permit or disapproving a renewal application, he will furnish a copy of the order and of the decision on which it is based to the Director. Should such order be subsequently set aside on review by the courts, the regional regulatory administrator will so advise the Director.

§ 200.110 Proceedings involving violations not within region of issuance of permit.

In the event that a citation covers violations which occurred at a place not within the region of issuance of the permit involved, the regional regulatory administrator of such region may set the matter for hearing. In all such cases the administrative law judge shall forward the complete and duly certified transcript of the entire record of such proceeding and a copy of his decision to the regional regulatory administrator of the region in which the permit was issued who shall take appropriate action in accordance with 200.108

[21 FR 1441, Mar. 6, 1956, as amended by T.D. 6389, 24 FR 4791, June 12, 1959. Redesignated at 40 FR 16835, Apr. 15, 1975]

Subpart I-Review

§ 200.115 Appeal on petition to the Director.

An appeal is not required prior to application to the Federal Courts for review. An appeal may be taken by the applicant or respondent to the Direc

tor from an administrative law judge's decision suspending, revoking or annulling a permit or disapproving a renewal application, and from an order of the regional regulatory administrator disapproving an initial application for a permit. Similarly, an appeal may be taken by the regional regulatory administrator from an administrative law judge's decision. Such appeal shall be taken by filing a petition for review on appeal with the Director within 15 days of the service of the order or administrative law judge's decision. The petition must set forth facts tending to show (a) action of an arbitrary nature, (b) action without reasonable warrant in fact, or (c) action contrary to law and regulations. A copy of the petition shall be filed with the regional regulatory administrator or served on the respondent, as the case may be. In the event of such appeal, the regional regulatory administrator shall immediately forward the complete original record, by registered mail, to the Director, for his consideration and review.

§ 200.116 Review by Director.

The Director, on appeal on petition for review, shall afford a reasonable opportunity for the submission of proposed findings, conclusions or exceptions with reasons in support thereof and an opportunity for oral argument. He may alter or modify any finding of the administrative law judge (or of the regional regulatory administrator in initial application proceedings) and may affirm, reverse, or modify the decision of the administrative law judge (or of the regional regulatory administrator in initial application proceedings), or he may remand the case for further hearing, but he shall not consider evidence which is not a part of the record. Appeals and petitions for review shall not be decided by the Director in any proceeding in which he has engaged in investigation or prosecution, and in such event he shall so state his disqualification in writing and refer the record to the Under Secretary for appropriate action. The Under Secretary may designate an Assistant Secretary or one of his principal aides to consider any proceeding

instead of the Director. The original copy of the decision on review shall be placed in the official record of the proceeding, a signed duplicate original shall be served upon the applicant or respondent and a copy shall be transmitted to the regional regulatory administrator. When, on appeal, the Director affirms the decision of the regional regulatory administrator or the administrative law judge, as the case may be, disapproving an application or suspending, revoking or annulling a permit, such action shall not supersede the decision of the regional regulatory administrator or the administrative law judge and such decision shall be final.

(26 U.S.C. 7805 (68A Stat. 917), 27 U.S.C. 205 (49 Stat. 981 as amended), 18 U.S.C. 926 (82 Stat. 959), and Sec. 38, Arms Export Control Act (22 U.S.C. 2778, 90 Stat. 744)) [21 FR 1441, Mar. 6, 1956. Redesignated at 40 FR 16835, Apr. 15, 1975, and amended by T.D. ATF-48, 43 FR 13531, Mar. 31, 1978]

§ 200.117 Permit privileges, exceptions.

Pending final determination of any timely appeal in revocation, suspension, annulment, or renewal application proceeding to the Director, the permit involved shall continue in force and effect except that, in the case of industrial use permits, any time after a citation has been issued withdrawals of tax-free spirits or specially denatured spirits by such permittee may, in the discretion of the regional regulatory administrator or Director, be restricted to the quantity which, together with the quantity then on hand, is necessary to carry on legitimate operations under such permit. The regional regulatory administrator may, in restricting the permittee to his legitimate needs, refuse to issue any withdrawal permit.

[T.D. 6389, 24 FR 4791, June 12, 1959. Redesignated at 40 FR 16835, Apr. 15, 1975]

§ 200.118 Court review; permits under the Internal Revenue Code.

If an applicant or respondent desires to have a decision of the administrative law judge, or a final order of the regional regulatory administrator or of the Director, reviewed on appeal by the Federal court, the regional regula

tory administrator or the Director, upon notification that such an appeal has been taken shall have prepared in triplicate a complete transcript of the record of the proceeding. The regional regulatory administrator or the Director, as the case may be will certify to the correctness of such transcript of the record, forward one copy to the attorney for the Government in the review of the case, and file the original record of the proceedings with the original certificate in the district court.

§ 200.119 Court review; basic permits.

If an applicant or respondent desires to have a decision of the administrative law judge or a final order of the regional regulatory administrator, or the Director, reviewed on appeal by the United States Circuit Court of Appeals, as provided by law, the Director, upon notification of the filing of the petition for review, shall have prepared, in triplicate, a complete transcript of the record of the proceeding. The regional regulatory administrator or Director, as the case may be, will certify to the correctness of the record and file the original certificate with the original record in the Circuit Court of Appeals.

[21 FR 1441, Mar. 6, 1956, as amended by T.D. 6389, 24 FR 4791, June 12, 1959. Redesignated at 40 FR 16835, Apr. 15, 1975]

Subpart J-Miscellaneous

§ 200.125 Depositions.

The administrative law judge may take or order the taking of depositions by either party to the proceeding at such time and place as he may designate before a person having the power to administer oaths, upon application therefor and notice to the parties to the action. The testimony shall be reduced to writing by the person taking the deposition, or under his direction. and the deposition shall be subscribed by the deponent unless subscribing thereof is waived in writing by the parties. Any person may be subpoenaed to appear and depose and to produce documentary evidence in the same manner as witnesses at hearings.

§ 200.126 Subpoenas.

On written application by a party to a proceeding, the attendance and testimony of any person, or the production of documentary evidence in proceedings instituted under this part may be required by personal subpoena (Form 1644) or by subpoena duces tecum (Form 1645). Application should be addressed to, and subpoenas should be issued by, the administrative law judge before whom the proceedings are pending, but may be issued by the regional regulatory administrator or by the Director, if the administrative law judge is unavailable. Both the application and the subpoena shall set forth the title of the proceedings, the name and address of the person whose attendance is required, the date and place of his attendance and, if documents are to be produced, a description thereof; and the application must have reasonable scope and specify as exactly as possible the documents required, if any, and show their general relevance. Subpoenas shall be served in person. When issued on behalf of the United States, service shall be made by an officer, employee, or agent of the Treasury Department; when issued on behalf of a permittee or applicant, service shall be made by any person who is not a party to the proceeding and is not less than 18 years of age.

(49 Stat. 977, 72 Stat. 1372; 27 U.S.C. 202, 26 U.S.C. 5274)

[21 FR 1441, Mar. 6, 1956, as amended by T.D. 6389, 24 FR 4791, June 12, 1959. Redesignated at 40 FR 16835, Apr. 15, 1975]

§ 200.127 Witnesses and fees.

Witnesses summoned before the administrative law judge may be paid the same fees and mileage that are paid witnesses in the courts of the United States, and witnesses whose depositions are taken and the persons taking the same shall severally be entitled to the same fees as are paid for like services in the courts of the United States. Witness fees and mileage shall be paid by the party at whose instance the witnesses appear and the person taking the deposition shall be paid by the party at whose instance the deposition is taken.

RECORD

§ 200.128 What constitutes record.

The transcript of testimony, pleadings and exhibits, all papers and requests filed in the proceeding, together with all findings, decisions and orders, shall constitute the exclusive record. Where the decision rests on official notice of material fact not appearing in the record, the administrative law judge shall so state in his findings and any party shall, on timely request, be afforded an opportunity to show facts to the contrary.

§ 200.129 Availability.

A copy of the record shall be available for inspection by the parties to the proceedings during business hours at the office of the administrative law judge or the regional regulatory administrator or, pending administrative review, at the office of the Director. Copies of the record desired by the respondent or applicant may be purchased from the contract reporter, or, if the hearing was reported by a Government employee, a charge will be made for the copies at the lowest prevailing rates charged by public reporters in the region where the hearing is held, and in the case of photostats or copies of other documents in accordance with the provisions of Com-Mim. A.T. No. 719 dated, January 3, 1952.

201.72 Experimental

or research operations by scientific institutions and colleges of learning.

AUTHORITIES OF THE REGIONAL REGULATORY ADMINISTRATOR

201.73 Other businesses.

201.74 Removal of distilling material. 201.75 Assignment of officers.

201.76 Hours of operation.

201.77 Allowance of remission, abatement,

credit, or refund of tax.

201.78 Installation of meters, tanks, and other apparatus.

201.79 Approval of qualifying documents.

AUTHORITIES OF ATF OFFICERS

201.80 Right of entry and examination. 201.81 Authority to break up ground or walls.

201.82 Detention of containers.

201.83 Samples for the United States. 201.84 Gauging and measuring equipment.

ENTRY AND EXAMINATION OF PREMISES 201.85 Premises to be kept accessible. 201.86 Furnishing facilities and assistance. CUSTODY AND SUPERVISION 201.87 Supervision of operations. Storage rooms or buildings. Proprietor's schedule of operations. 201.90 Denaturation of spirits.

201.44 Claims on spirits returned to bonded premises.

201.88

201.89

201.45 Claims relating to spirits lost or destroyed after tax determination,

201.46 Claims relating to samples taken for the United States.

201.47 Execution of claims and supporting documents.

201.48 Claims for credit of tax.

201.49 Adjustments for credited tax.