New DOJ Rules Delay Publication of Firearms Guidance

December 15, 2020

This year the Department of Justice (“DOJ”) published two regulations adding new requirements to guidance documents issued by DOJ components. The regulations will likely delay the issuance of written guidance to members of the firearms industry and the public and may result in less guidance being issued. This bulletin will discuss the two new regulations and their impact on the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”).

The Regulations

DOJ published interim final rules in the Federal Register on August 19, 2020 (85 FR 50951), and October 7, 2020 (85 FR 63200). These regulations codify the 2017 memo of Attorney General Sessions directing all DOJ components to stop issuing guidance documents, such as letters to regulated entities, that effectively bind private parties without going through the notice and comment requirements of the Administrative Procedure Act. The memorandum, as well as the regulations, require agencies to include disclaimer language in guidance documents clearly notifying the recipient the documents have no legally binding effect and do not have the force and effect of law. The regulations make it clear ATF may not issue guidance documents that purport to create rights or obligations binding on persons outside the executive branch.

The term “guidance document” is defined in DOJ regulations to include any agency statement setting forth a policy on a statutory, regulatory, or technical issue or an interpretation of a statute or regulation. This definition would include most ATF rulings, ATF procedures, and FFL newsletters providing guidance on provisions of the Gun Control Act of 1968 and National Firearms Act. The term could also include private letter rulings requesting guidance on provisions of the federal firearms laws if ATF or DOJ determines the documents are designed to guide the conduct of the broader regulated public.

The regulations in 28 C.F.R. 50.27 provide that “significant guidance documents” must be reviewed and approved by the Attorney General, Deputy Attorney General, or the head of a component whose appointment is required to be made by the President. Significant guidance documents must also be reviewed and approved by the Office of Management and Budget (“OMB”) and made available public comment for not less than 30 days. The term “significant guidance document” is defined to include those that lead to an annual effect on the economy of $100 million or more or adversely affect the economy, productivity, or jobs. The term also includes documents that raise novel legal or policy issues arising out of legal mandates or the President’s priorities.

Impact on ATF

  1. ATF Rulings

ATF issues rulings to provide guidance on how the law and regulations apply to a particular set of facts. Rulings are not legally binding, but they provide the firearms industry with relevant, timely guidance on issues that affect a significant number of licensees. Examples of significant ATF rulings include ATF Rul. 2006-2 (devices that are activated by a single pull of the trigger to initiate an automatic firing cycle regulated as machineguns) and ATF Rul. 2008-1 (upper assembly of FNC rifle is classified as the receiver). The most recent firearms rulings issued by ATF are ATF Rul. 2016-3, which authorizes licensed manufacturers to consolidate their records of manufacture with their separate firearms disposition records; ATF Rul. 2016-4, authorizing importers to submit an electronic version of ATF Form 6A; and ATF Ful. 2016-5, authorizing manufacturers of destructive devices to mark them with sequential lot numbers when being manufactured for and transferred to the federal government.

The new regulatory requirements will likely slow down the issuance of ATF rulings issued under the Gun Control Act and National Firearms Act. All draft rulings will be reviewed by DOJ to determine whether they are significant guidance documents. This review will likely take months.  If the ruling is considered significant, then it must be transmitted to OMB for review. The new regulations do not specify a timeframe for OMB review. Following OMB review, the proposed ruling must be published in the Federal Register for a 30-day public comment period. ATF must then evaluate the comments and address them in a separate memorandum submitted to DOJ and OMB. Only after DOJ and OMB clear the ruling may it be published in final form. This process could take many months, particularly if a large number of comments are received.

Notably, for the period 2010-2015 ATF published thirteen firearms rulings. From 2016-present ATF has issued four rulings.

  1. ATF Procedures

ATF Procedures provide guidance on the processes industry members should use to comply with the law and regulations. They are not legally binding and merely provide ATF’s views on a method of complying with the law. An example of a recent ATF procedure is ATF Procedure 2020-2, which provided recordkeeping procedures for licensees who facilitate private transfers of firearms. ATF procedures must now be reviewed by DOJ to determine whether they are significant guidance documents. Because such documents merely set forth processes for complying with the law, it is unlikely they would be considered significant. Nonetheless, the DOJ review process may result in considerable delay in issuing ATF Procedures.

  1. FFL Newsletters

FFL Newsletters are also affected by the new rules. For the period 2010-2015 ATF published 10 FFL newsletters. From 2016-present ATF published four FFL newsletters, with only one newsletter published in 2019 and none so far in 2020. FFL Newsletters are “guidance documents,” but it is unclear whether they would fit within the definition of “significant guidance document.” Newsletters provide timely, relevant information to the firearms industry on regulatory compliance. Newsletter articles are brief and to the point, and they are an invaluable source of information for FFLs.

As with rulings and procedures, proposed FFL Newsletters must be submitted to DOJ for review to determine whether they are significant. That review process will delay publication by a minimum of 30 days. If the newsletters include articles considered “significant,” then OMB review, publication in the Federal Register, and public comment will be required. Alternatively, ATF may opt to omit items in newsletters deemed significant. FFLs will likely see more newsletters issued in 2021 as ATF and DOJ work through the kinks in the review process.

  1. Variance Requests

Letters requesting guidance on matters specifically addressed in the law or regulations are generally not guidance documents and will continue to be handled in the same way they were before. A number of ATF regulations (e.g., 27 C.F.R. §§ 478.22, 478.122(c), 478.123(c), 478.125(h)) authorize FFLs to request authority to maintain required records in a manner not specified in the regulations and to request authority to conduct other aspects of the firearms business in a way other than that set forth in the regulations (generally known as “variances”). Accordingly, ATF will continue to respond to variance requests as authorized under these regulations. It is unlikely that variance requests would be considered “significant guidance documents,” and few would require DOJ review. This means the vast majority of variance requests should not be delayed in processing within ATF.

  1. Marking Variances

ATF regulations in 27 C.F.R. §§ 478.92(a)(4) and 479.102(c) allow the Firearms and Ammunition Technology Division (“FATD”) to approve alternate methods of marking firearms other than those specified in the law and regulations. ATF responses to marking variance applications are generally not considered guidance documents, and FATD will continue to process marking variances as they were before the regulations were issued. It is unlikely any routine marking variances would require DOJ review. However, ATF will handle marking variances on a case-by-case basis depending on the issues presented by the particular request and may submit them to DOJ if necessary.

  1. Firearms and Ammunition Import Classifications

ATF regulations in 27 C.F.R. §§ 447.42 and 478.112 require persons who wish to import firearms and ammunition into the United States to obtain a Form 6 import permit from ATF. Generally, only sporting firearms may be lawfully imported for commercial sale. Accordingly, ATF must evaluate and classify firearms and ammunition sought for import. If particular firearms, ammunition, and other defense articles have not been approved for import in the past, FATD will continue to evaluate them and issue classifications. The vast majority of such classifications should not require DOJ review and will be processed in the same timeframe (generally 6 weeks) as in the past. However, if ATF believes the classification could be a “significant guidance document,” it would be submitted to DOJ for review. An example of a classification that is significant might be a new model firearm or firearm device not previously evaluated by ATF. A classification that sets forth new factors or methods of classification not utilized by ATF in the past might also amount to a significant classification. If the classification must be reviewed and approved by DOJ, it could be delayed by a number of months. If it must also be reviewed by OMB and published for public comment, a longer delay will result.

  1. Classifications of Domestically Produced Firearms

ATF regulations in 27 C.F.R. §§ 478.26 and 478.27 authorize ATF to determine whether a particular firearm is a curio or relic or a destructive device. Accordingly, ATF will continue to process requests for such classifications in the same manner as the agency did before. As for other types of domestically produced firearms, neither the law nor regulations require or specifically authorize such firearms classifications. Nonetheless, ATF officials advise they will continue to encourage manufacturers to submit a sample and request a classification before introducing a new model of firearm into the market.

Firearms classifications are generally not guidance documents, except when directed to a particular party and designed to guide the conduct of the broader regulated public. Such classifications could also be significant guidance documents depending on the factors used and conclusions reached in the ATF classification letter. As stated above, classifications of new model firearms, those that utilize new methods of analysis or factors not articulated before, and classifications that reverse prior ATF determinations could all amount to significant guidance documents. Under the new DOJ regulations, the internal review process will likely be longer and DOJ review of some classifications will be required. This means the current 6-9-month processing time for classifications may be longer. If the classification is significant, a delay of a year or more may result.

  1. Other Requests for Guidance

Aside from variances and firearms classifications, FFLs request written guidance from ATF on a wide variety of topics. Examples of such requests include guidance on FFL employees or potential employees convicted of a felony that has been expunged, pardoned, or set aside; questions on whether a federal firearms license is required and/or the type of license; and questions about compliance with National Instant Criminal Background System (NICS) requirements.

ATF is not required by the law or regulations to provide written guidance to the firearms industry or the public on any topics not specifically addressed in the law or regulations. However, ATF receives a lot of routine conduct-of-business questions from FFLs and has in the past provided written responses. ATF officials will continue to answer such questions submitted to Headquarters and ATF field offices. If the responses are routine questions the agency has answered in the past, it is unlikely they would be significant guidance documents. If the responses are not routine, they may require referral to DOJ for a determination whether they are significant. If this occurs, the responses could be delayed for several months. If a determination is made that the response is a significant guidance document, the delay may be months to over a year.

Conclusion

The 2017 Sessions memo and recent DOJ regulations are resulting in less guidance, published and unpublished, being issued by ATF. The guidance being issued is subject to a longer review process within ATF and DOJ that delays the guidance being issued. ATF field divisions will continue to enforce the law, but FFLs and the public will have less information on how the agency interprets it. The next Administration will have to determine whether this is the appropriate balance between oversight and open, timely communication with the firearms industry.

Please contact me with questions about this bulletin at teresa@ficarettalegal.com or (301)358-3553.

By | 2020-12-15T16:07:29+00:00 December 15th, 2020|