Department of Justice Rescinds ATF Guidance Documents

In a press release issued on December 21, 2018, Acting Attorney General Matthew Whitaker announced the rescission of 69 guidance documents the Department of Justice (DOJ) believes are unnecessary, outdated, inconsistent with existing law or otherwise improper.

The documents were rescinded pursuant to Executive Order 13777 and a November 16, 2017, memorandum signed by Attorney General Sessions. The Sessions memorandum stated that its purpose was to prevent DOJ from evading required rulemaking processes by using guidance documents to create de facto regulations.

All of the guidance documents rescinded by DOJ were issued by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), with the exception of two documents relating to school discipline. ATF officials advise the agency will be publishing a list of the rescinded documents that includes a summary of the document and its full text. Publication will occur sometime after the government shutdown is over.

This bulletin provides a summary of each document and why rescission has no impact on federal firearms licensees, federal explosives licensees, and federal explosives permittees. Because most of the documents are no longer available on ATF’s website or elsewhere in electronic format, full text of the documents is not provided.

ATF Guidance Documents Rescinded on December 21, 2018

Rev. Rul. 69-114: This ruling issued by the Internal Revenue Service (ATF’s predecessor agency) addressed the contiguous state requirements of the Gun Control Act (GCA) that allowed unlicensed individuals to purchase a rifle or shotgun from a federal firearms licensee (FFL) outside the individual’s state of residence if certain requirements were met. The GCA was amended in 1986 to allow residents of any state (not just contiguous states) to purchase firearms from FFLs if the transaction fully complies with the laws of the buyer’s state and seller’s state. See 18 U.S.C. § 922(b)(3)(A). This ruling is obsolete because the contiguous state requirements are no longer in the statute. In addition, the provisions of Massachusetts law referenced in the ruling are no longer in effect.

ATF Rul. 77-25: This ruling addressed the law enforcement certification requirements of regulations implementing the National Firearms Act in 27 C.F.R. Part 479. The law enforcement certification requirement was repealed by ATF 41-F, published in the Federal Register on January 15, 2016. The law enforcement certification previously required on ATF Form 4, Application for Tax Paid Transfer and Registration of Firearm, was replaced with a requirement to provide written notification of the proposed firearm transfer to the chief law enforcement officer of the locality in which the transferee resides. See, 27 C.F.R. § 479.84(c). Accordingly, ATF Rul. 77-25 is obsolete.

ATF Rul. 77-26: This ruling provides a list of ammunition that is interchangeable between rifles and pistols or revolvers. The ruling provided guidance for a provision added to the GCA in 1969 that exempted interchangeable ammunition from the record keeping provisions of the statute. All of the recordkeeping requirements applicable to ammunition (except for armor piercing ammunition) were repealed by the Firearms Owners Protection Act of 1986. Accordingly, this ruling is obsolete.

ATF Rul. 75-30: This ruling addressed recordkeeping requirements for federal explosives licensees and permittees as those requirements existed in 1975. The ruling held that licensees and permittees were allowed to keep records of their daily explosives transactions for each magazine at a centrally located area on the licensed premises, rather than with each magazine as required by regulations. The ruling became obsolete when regulations were subsequently amended to allow central storage of the daily summary records. See 27 C.F.R. § 555.127. Accordingly, this ruling is obsolete.

ATF Rul. 77-13: This ruling provided guidance to federal explosives licensees and permittees on compliance with the statutory requirement that they report thefts or losses of explosive materials to ATF and local authorities within 24 hours after discovery. The ruling required notice by calling ATF and confirming the call by filing Form 4712 with the nearest ATF office. This requirement was subsequently incorporated into regulations and requires notice through a nationwide toll-free number, by filing ATF Form 5400.5, and by notifying local authorities. See 27 C.F.R. § 555.30. Accordingly, the ruling is obsolete.

ATF Rul. 80-22: This ruling allowed federal explosive licensees and permittees to move previously approved mobile magazines storing explosive materials if certain requirements were met. This position was codified in ATF regulations when they were amended in 1981. See, 27 C.F.R. § 55.63. Accordingly, this ruling is obsolete.

ATF Procedure 80-7: This procedure specified the process for federal explosives licensees and permittees to obtain approval for movement of mobile magazines for the storage of explosive materials and implements ATF Rul. 80-22. The procedure became obsolete when the regulations were amended, as explained above.

ATF Rul. 80-23: This ruling authorized the use of electrical lighting in explosive storage magazines if certain specified requirements were satisfied. The provisions of this ruling were subsequently incorporated into the regulations. See 27 C.F.R. § 555.217. Accordingly, the ruling is obsolete.

Open Letter to FFLs dated August 31, 2006: This letter requested assistance from FFLs in recovering firearms stolen from a pawn shop in Greenville, SC. As this investigation began over 12 years ago, it is unlikely ATF still requires assistance from FFLs.

Open Letter Dated August 22, 2001: This letter notified licensed firearms importers and licensed firearms manufacturers of amendments to the regulations specifying minimum depth and height requirements for serial numbers and other information required to be marked on firearms. As the regulations have been in place for over 17 years, the open letter is no longer necessary.

Open Letter Dated November 20, 2001: This letter notified FFLs and federal explosives licensees and permittees that ATF had not received mail since October 25, 2001. The situation was caused by the 2001 delivery of mail containing anthrax to federal facilities, the media, and members of Congress. In response, federal agencies diverted all incoming mail to a central facility in D.C. for decontamination. This problem has been addressed and ATF is currently receiving mail. Accordingly, the Open Letter is not necessary.

Open Letter Dated November 4, 2008: This letter to all FFLs notified them that a new version of Form 4473 with a revision date of August 2008 must be used on and after November 15, 2008. This date is long gone and the letter is not necessary.

Open Letter to Washington FFLs Dated August 12, 2011: This letter advised FFLs in Washington state that concealed pistol licenses issued on or after July 22, 2011, qualify as NICS alternatives. This means that unlicensed purchasers presenting valid concealed pistol licenses were not required to undergo a NICS check in accordance with 18 U.S.C. § 922(t). Sometime after this letter was issued ATF learned that Washington state law requires a background check for all firearms transfers to nonlicensed purchasers unless there is a specific exemption under federal or state law. See RCW 9.41.113, approved by the Washington legislature on November 4, 2014. ATF’s position is reflected on the agency’s website at https://www.atf.gov/rules-and-regulations/permanent-brady-permit-chart. This Permanent Brady Permit Chart indicates that, as of May 10, 2017, the state of Washington has no concealed carry permits that qualify as NICS alternatives. Accordingly, the letter dated August 12, 2011, is obsolete.

53 Open Letters Dated February 1994: These letters provided guidance to states, the District of Columbia, Commonwealth of Puerto Rico, and possessions of the United States regarding the interim provisions of the Brady Handgun Violence Prevention Act, enacted on November 30, 1994. The interim provisions became effective on February 28, 1994, and ceased to apply on November 30, 1998, when the permanent provisions of the statute (18 U.S.C. § 922(t)) became effective. The letters provided guidance on provisions of the law no longer in effect and are obsolete.

Open Letter to All Federal Explosives Licensees and Permittees Dated February 12, 2003: This letter provided notice to federal explosives licensees and permittees concerning a January 29, 2003, notice of proposed rulemaking. The notice published in the Federal Register proposed amendments to regulations implementing the federal explosives laws in 27 C.F.R. Part 555. The Open Letter encouraged all interested persons to submit written comments no later than April 29, 2003. As this rulemaking project has concluded, the Open Letter is obsolete.

Conclusion

All of the ATF guidance documents rescinded by the Department of Justice are obsolete or unnecessary. Rescission has no impact on the operations of federal firearms licensees, federal explosives licensees, and federal explosives permittees.

This bulletin is for informational purposes only and is not intended to be construed or used as legal advice. Receipt of this bulletin does not establish an attorney-client relationship.

Please contact me with questions about this bulletin at [email protected] or (301) 358-3553.

About Teresa Ficaretta, Owner/CEO of Ficaretta Legal Services

After law school I joined the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and spent 28 years learning the complex federal firearms and explosives laws from the agency’s experts. During my years at ATF I was involved in implementing major policy initiatives in every area of the firearms and explosives laws, including the Firearms Owners Protection Act of 1986, the firearms import bans of 1989 and 1998, the 1989 Chinese embargo, 1996 Russian VRA, the Brady Law, the 1994 assault weapons ban, the 1996 Antiterrorism and Effective Death Penalty Act, and the Safe Explosives Act. I held positions at ATF as Deputy Assistant Director, Deputy Chief Counsel, and Associate Chief Counsel (Firearms & Explosives). After leaving ATF in 2012 I went into private practice and have over 35 years of experience with the federal firearms and explosives laws. www.ficarettalegal.com