Near the end of December 2017, the Department of Justice rescinded 25 obsolete Guidance Documents pursuant to Executive Order 13777 from President Donald Trump. Among those documents are several that deal with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF).
Executive Order 13777 called for agencies to establish Regulatory Reform Task Forces, chaired by a Regulatory Reform Officer, to identify existing regulations for potential repeal, replacement, or modification.
“Last month, I ended the longstanding abuse of issuing rules by simply publishing a letter or posting a web page,” Attorney General Jeff Sessions said in December. “Congress has provided for a regulatory process in statute, and we are going to follow it. This is good government and prevents confusing the public with improper and wrong advice.”
“Therefore, any guidance that is outdated, used to circumvent the regulatory process, or that improperly goes beyond what is provided for in statutes or regulation should not be given effect,” Sessions added. “That is why today, we are ending 25 examples of improper or unnecessary guidance documents identified by our Regulatory Reform Task Force led by our Associate Attorney General Rachel Brand. We will continue to look for other examples to rescind, and we will uphold the rule of law.”
The list of 25 guidance documents that DOJ has withdrawn in 2017 is as follows:
- ATF Procedure 75-4.
- Industry Circular 75-10.
- ATF Ruling 85-3.
- Industry Circular 85-3.
- ATF Ruling 2001-1.
- ATF Ruling 2004-1.
- Southwest Border Prosecution Initiative Guidelines (2013).
- Northern Border Prosecution Initiative Guidelines (2013).
- Juvenile Accountability Incentive Block Grants Program Guidance Manual (2007).
- Advisory for Recipients of Financial Assistance from the U.S. Department of Justice on Levying Fines and Fees on Juveniles (January 2017).
- Dear Colleague Letter on Enforcement of Fines and Fees (March 2016).
- ADA Myths and Facts (1995).
- Common ADA Problems at Newly Constructed Lodging Facilities (November 1999).
- Title II Highlights (last updated 2008).
- Title III Highlights (last updated 2008).
- Commonly Asked Questions About Service Animals in Places of Business (July 1996).
- ADA Business Brief: Service Animals (April 2002).
- Prior Joint Statement of the Department of Justice and the Department of Housing and Urban Development Group Homes, Local Land Use, and the Fair Housing Act (August 18, 1999).
- Letter to Alain Baudry, Esq., with standards for conducting internal audit in a non-discriminatory fashion (December 4, 2009).
- Letter to Esmeralda Zendejas on how to determine whether lawful permanent residents are protected against citizenship status discrimination (May 30, 2012).
- Common ADA Errors and Omissions in New Construction and Alterations (June 1997).
- Common Questions: Readily Achievable Barrier Removal and Design Details: Van Accessible Parking Spaces (August 1996).
- Website guidance on bailing-out procedures under section 4(b) and section 5 of the Voting Rights Act (2004).
- Americans with Disabilities Act Questions and Answers (May 2002).
- Statement of the Department of Justice on Application of the Integration Mandate of Title II of the Americans with Disabilities Act and Olmstead v. L.C. to State and Local Governments’ Employment Service Systems for Individuals with Disabilities (October 31, 2016).
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1. ATF Rul. 2004-1. Revoked as obsolete pursuant to the 2012 amendments to the regulatory definition of “State of residence” in 27 C.F.R. 478.11.
ATF Rul. 2004-1, originally published on March 22, 2004, addressed how “nonimmigrant aliens” may satisfy the Gun Control Act (GCA) state of residence requirement to purchase or acquire a firearm. The ruling cited the existing ATF regulations that imposed a 90-day state residency requirement on “aliens” in 27 C.F.R. 478.11. This 90-day requirement in the definition of “State of residence” was applicable only to aliens and differed from all other individuals, who were deemed to reside in a state if “he or she is present in a State with the intention of making a home in that State.”
In 2012, ATF amended its regulations in 27 C.F.R. 478.11 to remove the 90-day state residency requirement that applied only to aliens lawfully present in the United States to purchase or acquire a firearm. According to the Department of Justice, ATF’s imposition of two different constructions for state of residence – one that applied to U.S. citizens and one that applied to lawfully present aliens – was not legally permissible. The amendments, published as an interim final rule on June 7, 2012, made ATF Ruling 2004-1 obsolete. “The Department [of Justice] has determined that the Gun Control Act does not permit ATF to impose a regulatory requirement that aliens lawfully present in the United States are subject to a 90-day State residency requirement when such a requirement is not applicable to U.S. citizens” (summary of interim final rule (2011R-23P), 77 Fed. Reg. 33630 (Jun. 7, 2012). More information about the 2012 regulatory amendments is in the interim final rule, published in the Federal Register at 77 Fed. Reg. 33630 (Jun. 7, 2012).
2. ATF Rul. 2001-1. This ruling, published on February 2, 2001, established May 1, 2001, as the final registration deadline for individuals in possession of the Streetsweeper, Striker-12 and the USAS-12 shotguns. ATF reclassified these firearms as destructive devices under the National Firearms Act in previous ATF Rulings 94-1 and 94-2. This ruling is obsolete as the registration period has been closed for more than sixteen years. In an April 10, 2001 Open Letter to All Federal Firearms Licensees, ATF explained “sufficient time has been afforded for the registration period of these destructive devices. Therefore, the Bureau has decided that May 1, 2001 will end this registration period. After that date, any unregistered Streetweeper, Striker-12, or USAS-12, will be subject to the seizure and forfeiture provisions of the [NFA], In addition, criminal penalties may also be imposed for possession of an unregistered destructive device.”
As the registration period ended more than sixteen years ago, ATF has determined Rul. 2001-1 obsolete and unnecessary.
3. ATF Ruling 85-3 and Industry Circular 85-3. These documents were made obsolete by amendments to Section 922(b)(3) of the Gun Control Act. Section 922(b)(3) (18 U.S.C. 922(b)(3)) makes it unlawful for a federally licensed importer, manufacturer, dealer, or collector to sell or deliver any firearm to any person whom the licensee knows or has reasonable cause to believe does not reside in the state in which the licensee’s place of business is located. The statute contains two exceptions to this prohibition. One exception is the sale or delivery of a rifle or shotgun to a resident of a state other than the licensee’s place of business as long as (i) the transferee meets in person with the licensed transferor to accomplish the transfer; and (ii) the sale, delivery and receipt of the rifle or shotgun fully complies with the requirements in both states. It is important to note that the GCA places a presumption, absent evidence to the contrary, that any licensed manufacturer, importer, or dealer has actual knowledge of the laws and published ordinances of both states. The second exception is for a firearm loan or rental to any person for temporary use for lawful sporting purposes.
4. Industry Circular 75-10 and ATF Procedure 75-4. These guidance documents were incorporated into the Application for Explosives License or Permit, Form 5400.13/16.