The Bureau Of Alcohol, Tobacco, Firearms And Explosives: Criminal Enforcement, Regulation, And The Administrative Procedure Act

• Published date: 08 March 2024
• Subject Matter: Criminal Law, Corporate Crime
• Law Firm: Wiley Rein
• Author: Mr Michael D. Faucette and Boyd Garriott

As a firearms regulatory agency, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) occupies a strange place. On the one hand, the ATF's own press releases routinely highlight the agency's role in prosecuting individuals accused of violating federal firearms laws. On the other hand, the ATF also promulgates regulations subject to the requirements of the Administrative Procedure Act (APA)'seemingly like any other civil regulatory authority. But the ATF is not like any other agency. The agency's dual role as law enforcer and technocratic regulator renders its actions uniquely vulnerable to APA challenges. Despite these unique vulnerabilities, however, the ATF has historically seen very few APA challenges'though the winds may be shifting.

ATF as Law Enforcer and Civil Regulator

The ATF's dual role as a criminal law enforcer and civil regulator means that its "regulations" are in effect criminal laws, the violation of which may constitute a felony. Consider, for example, the ATF's recent rule amending its interpretation of the phrase "frame or receiver" as used in the National Firearms Act and the Gun Control Act definitions of "firearm." 87 Fed. Reg. 24,652 (Apr. 26, 2022). Those firearm definitions determine whether a gun is subject to pervasive federal regulatory requirements. And while the agency previously defined "frame or receiver" as a single functional item that provided housing for mechanical elements of the firearm, its new interpretation added parts kits and partially complete frames and receivers. Thus, while couched as a technical regulatory measure, the ATF's new rule means that unregistered possession of certain gun parts may now carry a decade behind bars.

The criminal nature of the ATF's regulations affects how courts review the legality of the ATF's interpretations of firearms statutes. The normal rule is for courts to give agencies the benefit of the doubt when they interpret statutes. In Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), the Supreme Court explained that courts should normally defer to an agency's interpretation of ambiguous statutory language. The Court grounded its deference principle in the relative expertise of agencies compared with courts when "implementing policy decisions in a technical and complex arena." But this deference principle does not apply to the ATF's interpretations of criminal statutes.

In 1992'eight years after deciding Chevron'the Supreme Court held that it was bound to reject the ATF's interpretation of an ambiguous firearms statute in a case called United States v. Thompson/Center Arms Co., 504 U.S. 505 (1992). In that case, the Court was tasked with adjudicating the validity of the ATF's interpretation of the terms "making" and "firearm" in the National Firearms Act. The ATF had taken the position that a manufacturer made a firearm when it sold a gun "kit" with pieces that would allow the end user to create either a regulated short-barreled "firearm" or an unregulated long-barreled rifle. But the Court disagreed. Five justices'split between a...