Legally Armed: October 2019

By JOHANNA REEVES, ESQ.

Whatever Happened to ATF’s Public Guidance? 

Remember when the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) issued industry guidance on compliance matters such as firearm classifications, markings and recordkeeping? Such guidance, in the form of Open Letters, Rulings, FAQs (Frequently Asked Questions) and other publications, was a primary means for industry and the public at large to gain insight into the regulator’s policies, interpretations and methodologies. But we have not seen anything come out of the agency since 2017, apart from the so-called bump stock ruling and associated destruction guidance and FAQs. Why the silence? 

On November 16, 2017, Attorney General Sessions issued a memorandum (the “Sessions Memo”) prohibiting agencies within the Department of Justice from issuing guidance documents “that effectively bind private parties without undergoing” the notice-and-comment rulemaking process required under the Administrative Procedure Act (APA). A couple of months later, on January 25, 2018, the Associate Attorney General issued a follow-up memorandum limiting the use of agency guidance documents in civil enforcement cases “to effectively convert agency guidance documents into binding rules.” Since then, ATF has held fast to its belief that these memos prohibit the agency from issuing public guidance of any sort. 

But is ATF’s ongoing silence good for industry? Many will agree that agency guidance can be helpful in educating regulated parties about the agency’s policies and interpretations of the regulations. ATF has an extensive library of public guidance documents. In the last 10 years (since 2009), ATF has issued more than 20 Rulings, 15 Open Letters to all Federal Firearms Licensees, annual or quarterly newsletters and FAQs, which it updated regularly. Such guidance does not have the force and effect of law but does serve a definitive purpose of promoting a uniform application of the law and creating a “level playing field” for industry members. Quite often, ATF develops interpretive guidance based on repetitive determinations issued to industry members, saving regulated businesses from the administrative burden of filing for and waiting to receive common decisions. We have seen this with recordkeeping interpretations, marking variance determinations and classification rulings, to name a few. 

The publication of guidance is a valuable method that saves taxpayer resources by sparing ATF from having to respond to repeated, identical, private requests individually. Public interpretive rulings also provide the agency with a tool to afford immediate relief to industry from regulations that, in some ways, have not been modernized to align with current technologies and best practices for safety and security. Examples of rulings that have become critical to industry practices include the use of electronic recordkeeping systems, alternative storage and siting of explosive materials, product classifications and clarification of lawful sales, among many others. 

Shackled by the Sessions Memo, ATF has advised industry that it will respond to private letters of inquiry, including requests for advisory opinions, variances and classification rulings. 

Interestingly, the Sessions Memo acknowledges the importance of certain guidance. “Not every agency action is required to undergo notice-and-rulemaking. For example, agencies may use guidance and similar documents to educate regulated parties through plain-language restatements of existing legal requirements or provide non-binding advice on technical issues through examples or practices to guide the application or interpretation of statutes and regulations.” Regardless, ATF has failed to utilize this carve-out and persists in its silence, at least publicly. 

Private correspondence is a different matter altogether. Shackled by the Sessions Memo, ATF has advised industry that it will respond to private letters of inquiry, including requests for advisory opinions, variances and classification rulings. These private letter rulings are sent only to the person making the request, so other licensed manufacturers, importers and dealers do not have access unless the addressee shares the determination. However, even if such private guidance is shared, such as through Internet sites or other public forum, ATF has repeatedly stated that non-addressees may not rely on private determinations, even though ATF may rely on private rulings as precedent when conducting compliance audits of other industry members. 

Isn’t an agency that operates entirely with private determinations undermining all our interests in transparent governance, effective oversight and the promotion of a level playing field? Private letter rulings by their very nature are ad hoc and susceptible to inconsistent application, which poses a significant detriment to licensed manufacturers, importers and dealers who are looking for guidance on agency interpretation of the law. Is this really what the Department of Justice intended with the Sessions Memo? 

On May 20, 2019, the Principal Deputy Associate Attorney General Claire McCusker Murray made the following comments to attendees at the Compliance Week Annual Conference in Washington, DC: 

In our system of separation of powers, Congress makes the laws—not the President, and certainly not administrative agencies within the Executive Branch. In the modern era, of course, Congress has sometimes delegated to Executive Branch agencies the power to enact regulations that have the force of law. But the proper way for a regulatory agency to impose obligations that are binding on the public is governed by the Administrative Procedure Act—and generally … requires notice-and-comment rulemaking. Of course, rulemaking can be cumbersome and slow. For that reason, agencies can be tempted to use subregulatory guidance as a short-cut when they should be undertaking notice-and-comment rulemaking instead. 

Of course, it is important that agencies do not subvert the APA and make law under the guise of public guidance. On the other hand, it is doubtful the intent of the Sessions Memo, now codified in the Attorney General’s Manual on the Administrative Procedure Act, was to choke off all guidance from regulatory agencies like ATF. Nevertheless, ATF has made it clear that until it receives direction to the contrary from the DOJ, it will continue to withhold publishing any public guidance. With the recent confirmation of Jeffrey Rosen as the new Deputy Attorney General, let’s hope ATF can get the green light to start issuing guidance again. Until then, any insight into ATF interpretations and policies will remain locked in private letter rulings that undermine the transparency of our government and guarantees the sought-after “even playing field” remains nothing but a fantasy. 

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The information contained in this article is for general informational and educational purposes only and is not intended to be construed or used as legal advice or as legal opinion. You should not rely or act on any information contained in this article without first seeking the advice of an attorney. Receipt of this article does not establish an attorney-client relationship. 

ABOUT THE AUTHOR 

Johanna Reeves is the founding partner of the law firm Reeves & Dola, LLP in Washington, DC (reevesdola.com). For more than 15 years she has dedicated her practice to advising and representing U.S. companies on compliance matters arising under the federal firearms laws and U.S. export controls. Since 2011, Johanna has served as Executive Director for the Firearms and Ammunition Import/Export Roundtable (F.A.I.R.) Trade Group (http://fairtradegroup.org). She has also served as a member of the Defense Trade Advisory Group (DTAG) since 2016. Johanna can be reached at jreeves@reevesdola.com or 202-715-9941.