National Shooting Sports Foundation, Inc. v. Jones

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 9, 2013 Decided May 31, 2013

No. 12-5009

THE NATIONAL SHOOTING SPORTS FOUNDATION, INC.,

J&G SALES, LTD. AND FOOTHILLS FIREARMS, LLC,

APPELLANTS

v.

B. TODD JONES, ACTING DIRECTOR,

BUREAU OF ALCOHOL, TOBACCO, FIREARMS & EXPLOSIVES,

APPELLEE

Consolidated with 12-5010

Appeal from the United States District Court

for the District of Columbia

(No. 1:11-cv-01401)

Richard E. Gardiner argued the cause for appellants J&G

Sales, Ltd. and Foothills Firearms, LLC. Stephen P. Halbrook

was on brief.

James B. Vogts argued the cause for appellant National

Shooting Sports Foundation, Inc. Andrew A. Lothson was on

brief.

2

Michael S. Raab, Attorney, United States Department of

Justice, argued the cause for the appellee. Stuart F. Delery,

Acting Assistant Attorney General, Ronald C. Machen Jr.,

United States Attorney, and Anisha S. Dasgupta, Attorney,

were on brief.

Steven G. Reade was on brief for the amicus curiae The

Brady Center to Prevent Gun Violence in support of the

appellee.

Before: HENDERSON and ROGERS, Circuit Judges, and

EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge HENDERSON.

KAREN LECRAFT HENDERSON, Circuit Judge: In July

2011, in an effort to reduce gun trafficking from the United

States to Mexico, the United States Bureau of Alcohol,

Tobacco, Firearms and Explosives (ATF) issued a demand

letter under 18 U.S.C. § 923(g)(5)(A) to a number of federal

firearms licensees (FFLs) in four southwest border states:

Arizona, California, New Mexico and Texas. The demand

letter requires each recipient making two or more sales of a

specific type of firearm to the same buyer within five business

days to file a report with ATF. The report must include

information identifying the FFL, the customer and the

firearm. National Shooting Sports Foundation, Inc., J&G

Sales, Ltd. and Foothills Firearms, LLC (collectively, NSSF),

challenge the demand letter, arguing that ATF lacks statutory

authority to issue it and that ATF acted in an arbitrary and

capricious manner in selecting which FFLs are subject to it.

For the reasons set forth below, we affirm the district court’s

grant of summary judgment to ATF.

3

I. Regulatory/Factual Background

The Gun Control Act of 1968, Pub. L. No. 90-618, 82

Stat. 1213 (codified as amended at 18 U.S.C. §§ 921 et seq.)

(GCA), requires anyone who wishes to “engage in the

business of . . . dealing in firearms” to obtain a license from

ATF. 18 U.S.C. § 923(a).1 Licensees are known as FFLs and

must comply with various provisions of the GCA, including

recordkeeping requirements. See id. § 923(g). In 1968, the

United States Department of the Treasury2 promulgated

regulations to implement certain GCA recordkeeping

requirements. RSM, Inc. v. Buckles, 254 F.3d 61, 64 (4th Cir.

2001). One requirement provided that an FFL “shall, when

required by letter issued by [the Department of the Treasury],

and until notified to the contrary . . . submit on Form 4483,

Report of Firearms Transactions, for the periods and at the

times specified in the letter . . . all record information required

by this subpart, or such lesser record information as the . . .

letter may specify.” 27 C.F.R. § 178.126(a) (1986).

In 1986, the Congress amended the GCA via the Firearm

Owners’ Protection Act, Pub. L. No. 99-308, 100 Stat. 449

(1986) (FOPA). FOPA “was intended to reduce the regulatory

burden on law-abiding firearms owners without incapacitating

1

Unless otherwise noted, all citations to statutes or regulations

are to the most recent version.

2

“The GCA originally granted the Secretary of the Treasury

the authority to issue licenses. The Secretary delegated this

authority to [ATF]. As part of the Homeland Security Act of 2002,

the licensing authority was transferred to the Department of Justice.

The Attorney General of the United States, in turn, delegated the

licensing authority to the newly reconfigured Bureau.” Blaustein &

Reich, Inc. v. Buckles, 365 F.3d 281, 283 n.3 (4th Cir. 2004)

(citation omitted), cert. denied, 543 U.S. 1052 (2005).

4

[ ]ATF’s ability to combat violations of the firearms laws.”

RSM, 254 F.3d at 64. FOPA authorized the Attorney General

to promulgate implementing rules3 but expressly prohibited

any rule establishing a firearms registry of any kind

maintained by “the United States or any State or any political

subdivision thereof.” 18 U.S.C. § 926(a).4

In February 2008, William Hoover (Hoover), the ATF

Assistant Director for Field Operations, testified before a

subcommittee of the United States House of Representatives

regarding an “increased incidence of firearms trafficking to

Mexico” from the United States, which “facilitate[d] the drug

trade” and threatened safety “on both sides of the border.”

Statement of William Hoover, Assistant Director for Field

Operations of ATF Before the U.S. House of Representatives

Committee on Foreign Affairs Subcommittee on the W.

Hemisphere (Feb. 7, 2008) (Joint Appendix (JA) 529-30),

available at http://www.atf.gov/press/releases/2008/02/

020708-testimony-atf-ad-hoover-sw-border.html. Hoover

explained that, while criminals had previously used .38

caliber handguns as their “weapon[ ] of choice,” they were

developing a preference for “higher quality, more powerful

weapons” such as the Colt AR-15 .223 caliber assault rifle

and the AK-47 7.62mm caliber assault rifle. Id. (JA 531).

Hoover believed that ATF could best combat the trafficking

by developing better intelligence, but noted that ATF had

difficulty obtaining such intelligence because it was difficult

to “trace” firearms recovered in Mexico. See id. JA 531-32.

3

FOPA also codified at least one existing rule, 27 C.F.R.

§ 178.126(a) (1986), in the provisions of 18 U.S.C. § 923(g)(5)(a),

quoted infra at Part II.A.

4

FOPA preserves the Attorney General’s “authority to inquire

into the disposition of any firearm in the course of a criminal

investigation.” 18 U.S.C. § 926(a).

5

Tracing entails “tracking the movement of a firearm

involved in a crime from its first sale by the manufacturer or

importer through the distribution chain to the non-licensed

purchaser.” Decl. of Arthur Herbert ¶ 5, Nat’l Shooting Sports

Found., Inc. v. Jones, No. 11-1401 (D.D.C. Sept. 23, 2011)

(JA 43). Law enforcement agencies use tracing “to link a

suspect to a firearm in a criminal investigation; to identify

potential traffickers; and to detect patterns in the sources and

kinds of firearms that are used in crime.” Id. In other words,

tracing serves as a valuable tool for investigating drug crimes.

Id. ¶ 7 (JA 44). Tracing begins when a law enforcement

officer recovers a firearm used in a crime and makes a “trace

request” by entering the firearm’s identifying information—

e.g., serial number, caliber, make and model—into a database

called the “ATF Firearms Tracing System.” Id. ¶ 6 (JA 44).

ATF compares the identifying information to other firearms

transactions records to “determine[ ] the firearm’s entry point

into U.S. commerce and its path through the distribution

chain.” Id. ¶ 7 (JA 44); see also id. ¶¶ 7-10, 39-42 (JA 44-45,

52-53). Because FOPA limits ATF’s ability to collect and

maintain firearms transactions records, however, most of the

records are kept by individual FFLs and not routinely

provided to ATF. See, e.g., J&G Sales Ltd. v. Truscott, 473

F.3d 1043, 1045 (9th Cir.) (“Rather than submitting all of

their transaction records to the Bureau, FFLs keep their

records on their own premises. . . . in part because [FOPA] . .

. . ban[s] . . . creating a centralized registration system . . . .

”), cert. denied, 552 U.S. 887 (2007); see also Decl. of Arthur

Herbert ¶ 8 (JA 44-45) (“[An FFL’s] records are not routinely

provided to ATF . . . . ”). Therefore, ATF often “relies upon

FFL records when it seeks to trace a firearm.” J&G Sales, 473

F.3d at 1045. Specifically, ATF “must contact the

manufacturer(s) or importer, then the wholesaler, and then the

[FFL], who then provides [within twenty-four hours, see 18

U.S.C. § 923(g)(7)] information about to whom the firearm

6

was sold.” Decl. of Arthur Herbert ¶ 40 (JA 52). Tracing

typically takes “ten to twelve days on average to complete.”

Id.

The GCA permits ATF to maintain records of firearms

transactions in certain circumstances. For example, if an FFL

goes out of business, the GCA generally requires that the FFL

deliver his records to ATF.5 18 U.S.C. § 923(g)(4). The GCA

further requires that an FFL report to ATF sales of two or

more “pistols, or revolvers, or any combination of pistols and

revolvers” to the same buyer within five business days; the

report is due by the close of business on the day the multiple

sale occurs. Id. § 923(g)(3)(A). Additionally, the GCA

permits ATF to send demand letters to FFLs to obtain “record

information” therein specified. Id. § 923(g)(5)(A).

If ATF is able to match a trace request with the records it

maintains, it can complete a trace request more quickly. See

Decl. of Arthur Herbert ¶¶ 39, 41-42 (JA 52-53). For

example, “[m]ultiple sales reports [of handguns pursuant to

18 U.S.C. § 923(g)(3)(A)] are entered into ATF’s Firearms

Tracing System . . . . When a firearm is traced, it is checked

against these reports. A match expedites tracing because ATF

does not need to contact all active FFLs in the distribution

chain (e.g., manufacturers and distributors), but instead only

needs to contact the retail dealer.” Id. ¶ 41 (JA 52-53).

Therefore, when ATF conducts a trace pertaining to records in

its own possession, it can generate more timely and valuable

investigative leads for law enforcement. Id. ¶¶ 42-45 (JA 53-

54).

5

An FFL going out of business does not deliver his records to

ATF if (1) he is succeeded by a new FFL; or (2) “where State law

or local ordinance requires the delivery of records to other [sic]

responsible authority.” 18 U.S.C. § 923(g)(4).

7

As noted, ATF struggles to trace firearms recovered from

gun trafficking operations into Mexico. Specifically, Mexican

cartels have made long guns (i.e. rifles and shotguns) their

new “weapons of choice.” U.S. DEP’T OF JUSTICE, OFFICE OF

THE INSPECTOR GEN., REVIEW OF ATF’S PROJECT

GUNRUNNER iv (Nov. 2010) (JA 382) (hereinafter OIG

REPORT). Because—unlike multiple sales of pistols—there is

no requirement that an FFL report multiple sales of long guns,

however, ATF usually cannot use its own records to conduct a

trace request involving Mexican gun trafficking. See id. (JA

382); U.S. GOV’T ACCOUNTABILITY OFFICE, FIREARMS

TRAFFICKING: U.S. EFFORTS TO COMBAT ARMS TRAFFICKING

TO MEXICO FACE PLANNING AND COORDINATION

CHALLENGES 28 (June 2009) (JA 582) (hereinafter GAO

REPORT). Thus, a June 2009 report prepared by the

Government Accountability Office (GAO) regarding Mexican

arms trafficking recommended that ATF investigate

“approaches to address the challenges law enforcement

officials raised in this report regarding the constraints on the

collection of data that inhibit the ability of law enforcement to

conduct timely investigations.” GAO REPORT at 59 (JA 613).

Similarly, a May 2010 report by the Office of the Inspector

General (OIG) of the United States Department of Justice

found, inter alia, “the lack of a reporting requirement for

multiple sales of long guns . . . hinders ATF’s ability to

disrupt the flow of illegal weapons into Mexico.” OIG

REPORT at iv (JA 382). The OIG report explained that (1) “the

percentage of crime guns recovered in Mexico that were long

guns steadily increased each year from 20 percent in FY 2004

to 48 percent in FY 2009,” id. at 38 (JA 428); (2) “long guns

tend to have a shorter time-to-crime than handguns, and

shorter time-to-crime intervals generate more valuable leads

for ATF,” id.; and (3) “Mexican cartels are obtaining long

guns in multiple sales,” id. It concluded that “mandatory

reporting of long gun multiple sales could help ATF identify,

8

investigate, and refer for prosecution individuals who illegally

traffic long guns into Mexico,” id. at 39-40 (JA 429-30), and

recommended that ATF “explore options for seeking a

requirement for reporting multiple sales of long guns,” id. at

40, 94 (JA 430, 484). ATF responded that it “would explore

the full range of options” but that some options “may require

a change to the Gun Control Act.” Id. at 127 (JA 517).

On December 17, 2010, ATF announced a proposed

information collection program requiring each FFL to “report

multiple sales or other dispositions whenever the [FFL] sells

or otherwise disposes of two or more rifles within any five

consecutive business days with the following characteristics:

(a) [s]emi automatic; (b) a caliber greater than .22; and (c) the

ability to accept a detachable magazine.” Agency Information

Collection Activities: Proposed Collection, 75 Fed. Reg.

79,021, 79,021 (Dec. 17, 2010). After a sixty-day comment

period, ATF received 12,680 comments (8,928 in support and

3,752 in opposition). Agency Information Collection

Activities; Proposed Collection Comments Requested: Report

of Multiple Sale or Other Disposition of Certain Rifles, 76

Fed. Reg. 24,058, 24,058 (Apr. 29, 2011). ATF subsequently

extended the comment period for an additional thirty days and

clarified that the multiple-reporting requirement applied only

to FFLs classified as licensed “dealers and/or pawnbrokers”

located in Arizona, California, New Mexico and Texas. Id.

Accordingly, in July 2011, ATF sent a demand letter to

each FFL classified as a “licensed dealer[ or] pawnbroker[ ]”6

6

There are eleven categories of FFLs. See United States

Department of Justice, The Bureau of Alcohol, Tobacco, Firearms

and Explosives, ATF Online—Statistics—Listing of Federal

Firearms Licensees, http://www.atf.gov/about/foia/ffl-list.html.

Type 01 is a dealer in firearms other than destructive devices. Id.

Type 02 is a pawnbroker in firearms other than destructive devices.

9

and located “in Arizona, California, New Mexico and Texas.”

Letter from Charles Houser, Chief, Nat’l Tracing Ctr., to Fed.

Firearms Licensees 1 (Jul. 12, 2011) (JA 32) (hereinafter July

2011 Demand Letter). The demand letter stated in pertinent

part:

You must submit to the Bureau of Alcohol, Tobacco,

Firearms and Explosives (ATF) reports of multiple sales

or other dispositions whenever, at one time or during

any five consecutive business days, you sell or

otherwise dispose of two or more semi-automatic rifles

capable of accepting a detachable magazine and with a

caliber greater than .22 (including .223/5.56 caliber) to

an unlicensed person. You are required to report all

such sales that occur on or after August 14, 2011. You

must continue reporting multiple sales for the rifles

subject to this demand letter until we provide written

notice to stop.

The required information must be submitted on ATF

Form 3310.12, Report of Multiple Sale or Other

Disposition of Certain Rifles, no later than the close of

business on the day the multiple sale or other

disposition takes place.

Id.

National Shooting Sports Foundation, J&G Sales and

Foothills Firearms filed separate actions against ATF on

August 3, 2011, and the district court subsequently

consolidated them, Order Consolidating Cases, Nat’l Shooting

Sports Found., Inc. v. Jones, 11-cv-1401 (Aug. 18, 2011).

NSSF sought, inter alia, to enjoin ATF from requiring the

Id. The July 2011 demand letter is directed to Type 01 and Type 02

FFLs.

10

submission of the information requested by the demand letter

and to require ATF to destroy any information already

submitted. Nat’l Shooting Sports Found., Inc. v. Jones, 840 F.

Supp. 2d 310, 312 (D.D.C. 2012). On January 13, 2012, the

district court granted ATF’s motion for summary judgment

and denied NSSF’s cross-motions for summary judgment. Id.

at 323. NSSF timely appealed. Our jurisdiction arises under

28 U.S.C. § 1291.

II.

NSSF’s primary challenge is that ATF lacks statutory

authority to issue the demand letter for multiple reasons.

Alternatively, it argues that ATF arbitrarily and capriciously

failed to tailor the demand letter.7 We reject both arguments.

A. Section 923(g)(5)(A)

NSSF first argues that ATF’s demand letter authority, 18

U.S.C. § 923(g)(5)(A), does not authorize ATF to issue the

letter issued in July 2011. We review ATF’s interpretation of

the GCA under Chevron U.S.A. Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837 (1984). See Resolution

Trust Corp. v. Walde, 18 F.3d 943, 948 (D.C. Cir. 1994)

(applying Chevron to construction of administrative subpoena

powers).

Under Chevron, we ask first “whether Congress has

directly spoken to the precise question at issue,” in which case

we as well as the agency “must give effect to the

unambiguously expressed intent of Congress.” Chevron, 467

7

National Shooting Sports Foundation’s brief in this court

asserts that ATF’s action is arbitrary and capricious while the brief

submitted by J&G Sales and Foothills Firearms asserts that ATF

lacks statutory authority to issue the demand letter. Each brief

incorporates the arguments of the other.

11

U.S. at 842-43. If the “statute is silent or ambiguous with

respect to the specific issue,” however, we move to the second

step and defer to the agency’s interpretation as long as it is

“based on a permissible construction of the statute.” Id.

Section 923(g)(5)(A) of the GCA provides:

Each licensee shall, when required by letter issued by

the Attorney General, and until notified to the contrary

in writing by the Attorney General, submit on a form

specified by the Attorney General, for periods and at the

times specified in such letter, all record information

required to be kept by this chapter or such lesser record

information as the Attorney General in such letter may

specify.

18 U.S.C. § 923(g)(5)(A) (emphasis added). NSSF argues that

the demand letter is unlawful because the information it

requests is not “record information required to be kept by this

chapter or such lesser record information.” We disagree.

“[T]his chapter” is Chapter 44 of Title 18 of the United

States Code. 18 U.S.C. § 923(g)(1)(A)—part of Chapter 44—

provides that an FFL must “maintain such records of

importation, production, shipment, receipt, sale, or other

disposition of firearms at his place of business for such

period, and in such form, as the Attorney General may by

regulations prescribe.” 27 C.F.R. § 478.124(a) provides in

turn that an FFL must record firearms transactions with non-

FFLs (i.e. customers) on a Form 4473. The customer initially

provides certain identifying information8 on the Form 4473.

8

Specifically, the transferee must disclose his “name, sex,

residence address (including county or similar political

subdivision), date and place of birth; height, weight and race of the

transferee; the transferee’s country of citizenship; the transferee’s

INS–issued alien number or admission number; the transferee’s

12

Id. § 478.124(c)(1), (d), (e). Additionally, the FFL must

record on the Form 4473 “the name of the manufacturer, the

name of the importer (if any), the type, model, caliber or

gauge, and the serial number of the firearm.” Id.

§ 478.124(c)(4). The FFL is required to keep these forms in

either “alphabetical (by name of purchaser), chronological (by

date of disposition), or numerical (by transaction serial

number) order.” Id. § 478.124(b).

The FFL must also create a “Firearms Acquisition and

Disposition Record.” Upon acquiring a firearm, the FFL must

record “the date of receipt, the name and address or the name

and license number of the person from whom received, the

name of the manufacturer and importer (if any), the model,

serial number, type, and the caliber or gauge.” Id.

§ 478.125(e). Similarly, no later than seven days after selling

the firearm to a non-FFL, the FFL must record “the date of

the sale . . . the name and address of the [customer] . . . or the

firearms transaction record, Form 4473, serial number if the

licensed dealer transferring the firearm serially numbers the

Forms 4473 and files them numerically.” Id.

NSSF urges that the July 2011 demand letter requires the

FFL to report information beyond what he is currently

required to record. As noted, it requires the FFL to submit

“reports of multiple sales or other dispositions whenever, at

one time or during any five consecutive business days, you

sell or otherwise dispose of two or more semi-automatic rifles

State of residence; and certification by the transferee that the

transferee is not prohibited by the Act from transporting or shipping

a firearm in interstate or foreign commerce or receiving a firearm

which has been shipped or transported in interstate or foreign

commerce or possessing a firearm in or affecting commerce.” 27

C.F.R. § 478.124(c)(1).

13

capable of accepting a detachable magazine and with a caliber

greater than .22 (including .223/5.56 caliber) to an unlicensed

person [i.e. a non-FFL].” July 2011 Demand Letter at 1 (JA

32). NSSF contends that the demand letter requires that an

FFL submit three types of information the GCA does not

currently require FFLs to record: (1) “the firearm’s type of

action” (semi-automatic); (2) “the firearm’s type of

ammunition feeding source” (capable of accepting a

detachable magazine); and (3) “the number of days between

sales of rifles to the same person.” Opening Br. for J&G

Sales, Ltd. and Foothills Firearms, LLC 12 (hereinafter FF

Opening Br.).

We disagree. The GCA unambiguously authorizes the

demand letter and thus our inquiry ends at Chevron step one.

NSSF’s argument confuses the conditions precedent to

submission with the information submitted. The demand letter

provides that, if the conditions precedent are satisfied—that

is, the FFL has sold “two or more semi-automatic rifles

capable of accepting a detachable magazine and with a caliber

greater than .22 . . . to [the same] unlicensed person”—then

the FFL has a duty to submit the information requested on

Form 3310.12. But Form 3310.12 does not require that the

FFL report the rifle’s type of action or the rifle’s ammunition

feeding source or the number of days between sales to the

same person. Rather, Form 3310.12 requires that the FFL

report basic identifying information about the FFL and the

customer as well as the rifle’s serial number, manufacturer,

importer, model, caliber and sale date—all information

“required to be kept” under the GCA, 18 U.S.C.

§ 923(g)(5)(A), and its implementing regulations. See Bureau

of Alcohol, Tobacco, Firearms and Explosives, Form

3310.12, https://www.atf.gov/files/forms/download/atf-f-

3310-12.pdf (JA 34). By limiting its applicability in this

manner, the demand letter requires information only about a

limited subset of firearms transactions: those that satisfy the

14

conditions precedent.9 In other words, the July 2011 demand

letter’s conditions precedent are not being used to require

additional information from FFLs, but instead limit the scope

of the information demanded.

NSSF maintains that ATF’s interpretation of the demand

letter is flawed because an FFL cannot determine, using only

information he is required to record, whether certain rifle

sales must be reported. Even assuming arguendo that such a

gap could invalidate the demand letter, NSSF nevertheless

fails to show that an FFL cannot use information he already is

required to record to determine whether certain rifle sales

satisfy the conditions precedent. First, in determining the

number of business days between sales to the same person,

the FFL can examine both the sale date and the customer

name, information he is required to record pursuant to 27

C.F.R. § 478.124. NSSF responds that the search could be too

costly for certain FFLs. It relies on 27 C.F.R. § 478.124(b),

which permits the FFL to retain his Form 4473s in

alphabetical, chronological or numerical order; NSSF argues

that, if an FFL chooses to retain his Form 4473s in some order

other than chronological, searching the records would be

9

NSSF also complains that FFLs ordinarily have seven days

from the transaction date to record the sale or disposition of a

firearm in a Firearms Acquisition and Disposition Record, 27

C.F.R. § 478.125(e), and that, because the demand letter requires

that FFLs report multiple sales by the close of business on the day

of the second sale, it contravenes section 478.125(e). The demand

letter, however, does not require that FFLs record any information

in a Firearms Acquisition and Disposition Record; it simply

requires that FFLs report certain sales. NSSF thus improperly

conflates the recording requirement of section 478.125(e) with the

requirement that an FFL respond to a demand letter set forth in 18

U.S.C. § 923(g)(5)(A).

15

particularly difficult. Searching records for multiple sales of a

particular type of firearm to the same customer, however, is

nothing new for FFLs. Since 1975, an FFL who sells “two or

more pistols or revolvers [to the same person] at one time, or

during any five consecutive business days” has been required

to submit a report to ATF similar to the one at issue. See 18

U.S.C. § 923(g)(3)(A); Pistols and Revolvers; Reporting

Requirement on Multiple Sales, 40 Fed. Reg. 19,201 (May 2,

1975). The fact that an FFL chooses to keep his records in

alphabetical or numerical order does not mean that the FFL

can complain if his choice may not always be the least

burdensome. Moreover, there is nothing preventing an FFL

from maintaining records in a less burdensome (in this case,

chronological) manner.

Second, NSSF fails to explain why an FFL cannot

determine a rifle’s type of action and ammunition feeding

source using his record of the rifle’s serial number,

manufacturer and/or model name. To argue, as NSSF does,

that an FFL—who purchases and sells firearms for a living—

would price and sell rifles without knowing its type of action

and ammunition feeding source blinks reality. And even

assuming an FFL could somehow not determine the

characteristics of his own rifles, ATF provides a web site and

telephone number that the FFL can use to obtain assistance in

determining whether a rifle is “semi-automatic” and “capable

of accepting a detachable magazine.” See Bureau of Alcohol,

Tobacco, Firearms and Explosives, Q&As for the Report of

Multiple Sale or Other Disposition of Certain Rifles,

http://www.atf.gov/files/firearms/industry/080911-qa-

multiple-rifles.pdf. While NSSF argues that it is possible that

a rifle has no model designation, see 27 C.F.R.

§ 478.92(a)(1)(ii)(A) (manufacturer must engrave on each

firearm “[t]he model, if such designation has been made”

(emphasis added)), there is no record evidence of a rifle with

no model name, nor does the record evince that the absence of

16

a model name causes or could cause the confusion of which

NSSF complains.10 In any event, NSSF does not show that an

FFL could not determine the type of action or ammunition

feeding source of a rifle lacking a model name from the

manufacturer information the FFL does possess.

B. Section 923(g)(1)(A) and Legislative History

NSSF argues that the demand letter violates 18 U.S.C.

§ 923(g)(1)(A)’s requirement that an FFL “shall not be

required to submit to the Attorney General reports and

information with respect to such records and the contents

thereof, except as expressly required by this section.” While

section 923(g)(5)(A) expressly grants ATF the authority to

issue a demand letter, NSSF argues that ATF is using this

authority to circumvent more specific provisions contained in

section 923(g). See, e.g., Gozlon-Peretz v. United States, 498

U.S. 395, 407 (1991) (“A specific provision controls over one

of more general application.”). We disagree.

NSSF first relies on section 923(g)(1)(A) and (B).

Section 923(g)(1)(A) provides in part that ATF may inspect

an FFL’s premises if it obtains a warrant by showing

“reasonable cause to believe a violation of [the GCA] has

10

At oral argument, NSSF’s counsel conceded that there is no

record evidence establishing that the absence of a model name

causes confusion:

THE COURT: . . . . There’s no record evidence in this case

from you indicating this confusion about model number and

what a model number means, right?

MR. GARDINER: . . . [T]here is no evidence in the record

concerning that, that’s correct . . . .

Oral Argument at 36:15-36:28, Nat’l Shooting Sports Found. v.

Jones, No. 12-5009 (D.C. Cir. Jan. 9, 2013).

17

occurred and that evidence thereof may be found on such

premises.” 18 U.S.C. § 923(g)(1)(A). Similarly, under 18

U.S.C. § 923(g)(1)(B)(i) and (iii), ATF may “inspect or

examine the inventory and records of a[n FFL] without such

reasonable cause or warrant . . . in the course of a reasonable

inquiry during the course of a criminal investigation of a

person or persons other than the [FFL]” or if “required for

determining the disposition of one or more particular firearms

in the course of a bona fide criminal investigation.” NSSF

contends that, by issuing the July 2011 demand letter, ATF

can “circumvent the limits of [the above-discussed

provisions] by sending a demand letter for records without

there being either ‘reasonable cause’ to believe a violation has

occurred or without there being any criminal investigation.”

FF Opening Br. 30. In so contending, NSSF erroneously

conflates provisions that apply in two different contexts. The

inspection provisions of 18 U.S.C. § 923(g)(1)(A) and (B)

apply to entry onto an FFL’s premises. By contrast, section

923(g)(5)(A) simply authorizes ATF to require the FFL to

submit information. Further, two sister circuits, addressing

challenges to other demand letters sent by ATF to FFLs,

squarely rejected this argument, explaining that “section

923(g)(1)(B) is aimed at preventing warrantless, on-site

searches of FFLs’ records. In contrast, issuance of a letter

under section 923(g)(5)(A) does not involve the entry of

[ ]ATF agents onto an FFL’s premises.” RSM, 254 F.3d at 66

(emphasis added); J&G Sales, 473 F.3d at 1050 (“When the

Bureau merely sends a demand letter . . . , no physical

intrusion whatsoever occurs. This is a difference that

matters.”).

Next, NSSF relies on section 923(g)(7) which requires an

FFL to respond within 24 hours to a trace request aimed at

“determining the disposition of 1 or more firearms in the

course of a bona fide criminal investigation.” 18 U.S.C.

§ 923(g)(7). It argues that, by issuing a demand letter, ATF

18

can “circumvent the ‘bona fide criminal investigation’

requirement . . . and compel information to be reported within

less than 24 hours.” FF Opening Br. 31. We agree with our

sister circuits’ rejection of this argument, to wit, section

923(g)(7)’s specific trace request requirements do not purport

to bear on section 923(g)(5)(A)’s demand letter requirements.

RSM, 254 F.3d at 66 (“Section 923(g)(7) does not purport

either to address or restrict [ ]ATF’s section 923(g)(5)(A)

authority to issue letters. Instead, it establishes the duties of

FFLs when they receive a trace request.”); J&G Sales, 473

F.3d at 1050 (“[Section] 923(g)(7) imposes speedy reporting

requirements on FFLs in the context of criminal

investigations, and neither explicitly nor implicitly serves to

limit the Bureau’s power under § 923(g)(5)(A).”).

NSSF also relies on section 923(g)(3)(A) which requires

an FFL to “prepare a report of multiple sales or other

dispositions whenever the licensee sells or otherwise disposes

of, at one time or during any five consecutive business days,

two or more pistols, or revolvers, or any combination of

pistols and revolvers totalling [sic] two or more.” 18 U.S.C.

§ 923(g)(3)(A). It argues that, because the Congress expressly

imposed a multiple reporting requirement for handguns only,

it intended to preclude multiple sales reporting for other types

of firearms. In support, NSSF cites a number of expressio

unius est exclusio alterius cases. See, e.g., Russello v. United

States, 464 U.S. 16, 23 (1983). The Ninth Circuit rejected a

similar argument, explaining that “[s]imply because some

provisions of § 923 impose specific duties upon FFLs to

respond to certain requests within a specified time frame and

to provide record information sua sponte does not mean that

the Bureau is prohibited from seeking further FFL record

information by demand letter.” J&G Sales, 473 F.3d at 1050.

We agree. While expressio unius may be useful in certain

circumstances, it is “not consistently applied” if it “disregards

[ ] other plausible explanations for an omission.” Clinchfield

19

Coal Co. v. Fed. Mine Safety & Health Review Comm’n, 895

F.2d 773, 779 (D.C. Cir.) (citations omitted), cert. denied, 498

U.S. 849 (1990); Cheney R.R. Co. v. ICC, 902 F.2d 66, 69

(D.C. Cir.) (“Whatever its general force, we think [expressio

unius] an especially feeble helper in an administrative setting,

where Congress is presumed to have left to reasonable agency

discretion questions that it has not directly resolved.”), cert.

denied, 498 U.S. 985 (1990). Again, NSSF uses a statutory

requirement that all FFLs report multiple handgun sales to

argue that another requirement—giving ATF the authority to

require additional reporting upon request—violates

congressional intent. Simply because the Congress imposes a

duty in one circumstance does not mean that it has necessarily

foreclosed the agency from imposing another duty in a

different circumstance. Instead, the “Congress may have

meant that in the second context the choice should be up to

the agency.” Clinchfield, 895 F.2d at 779. In section

923(g)(5)(A), the Congress authorized ATF to require

additional reporting beyond the reporting required in section

923(g)(3)(A).

In sum, although section 923(g)(1)(A) prevents ATF

from directing an FFL to submit records “except as expressly

required by this section,” the GCA expressly grants authority

under section 923(g)(5)(A) to require disclosure of

information via a demand letter. As the Ninth Circuit

explained, “[i]t is certainly true that § 923(g)(1)(A) limits the

Bureau’s ability to procure information from FFLs to the

express requirements of § 923, but it does not eviscerate the

content of § 923(g)(5)(A).” J&G Sales, 473 F.3d at 1049.

Finally, NSSF contends that the legislative history of

FOPA shows that the Congress intended section 923(g)(5)(A)

to be limited to “(1) information from FFLs who were in

violation of the law, and (2) information from any FFLs about

specific firearms dispositions necessary for bona fide criminal

20

investigations.” FF Opening Br. 38. Our sister circuits found

no need to analyze legislative history once they concluded

that the text of section 923(g)(5)(A) and its surrounding

provisions plainly foreclosed arguments similar to those

NSSF makes to us. J&G Sales, 473 F.3d at 1050 (“Because

we find that—even after considering § 923(g)(5)(A) in its

broader context—the statute is clear, we need not address

J&G’s exhaustive discussion of 18 U.S.C. § 923’s legislative

history.”); Blaustein & Reich, Inc. v. Buckles, 365 F.3d 281,

288 n.15 (4th Cir. 2004) (“Bob’s Gun Shop included in its

briefs considerable discussion of the legislative history of

§ 923(g)(5)(A) and § 926(a), which it claims shows that

Congress intended to limit the use of demand letters to

criminal investigations and to noncompliant FFLs. Because

we find the statute unambiguous on its face, we do not resort

to legislative history to determine what Congress intended its

enactments to mean.”), cert. denied, 543 U.S. 1052 (2005).

We likewise need not resort to the legislative history. “[W]e

do not resort to legislative history to cloud a statutory text that

is clear.” Ratzlaf v. United States, 510 U.S. 135, 147-48

(1994).

C. Section 926(a) and Creation of a “National Firearms

Registry”

NSSF also contends that the July 2011 demand letter

violates section 926(a), which provides that the Attorney

General “may prescribe only such rules and regulations as are

necessary to carry out the provisions of this chapter.” 18

U.S.C. § 926(a). That section goes on to say:

No such rule or regulation prescribed after the date of

the enactment of the Firearms Owners’ Protection Act

[of 1986] may require that records required to be

maintained under this chapter or any portion of the

contents of such records, be recorded at or transferred to

a facility owned, managed, or controlled by the United

21

States or any State or any political subdivision thereof,

nor that any system of registration of firearms, firearms

owners, or firearms transactions or dispositions be

established. Nothing in this section expands or restricts

the [Attorney General’s] authority to inquire into the

disposition of any firearm in the course of a criminal

investigation.

Id. NSSF’s argument fails under the plain text of this

provision. Section 926(a) applies to a “rule or regulation” that

is “prescribed after the date of the enactment of the [FOPA].”

The words “rule or regulation” are not mere surplusage; in

fact, section 926(b) explains that “rule or regulation” refers to

rules created after “ninety days public notice” while giving

“interested parties opportunity for hearing.” 18 U.S.C.

§ 926(b). The demand letter is not a rule or regulation and,

therefore, section 926(a) does not apply. See J&G Sales, 473

F.3d at 1051; RSM, 254 F.3d at 66. Furthermore, the

authority on which ATF relies to issue the demand letter, 18

U.S.C. § 923(g)(5)(A), is itself a statutory provision, not a

regulation. RSM, 254 F.3d at 66 (rejecting identical argument

because “Section 923(g)(5)(A) is a statute, not a rule or

regulation”). Even if we ignored the difference between a

statute and a regulation, section 923(g)(5)(A) was enacted as

part of FOPA and thus was not “prescribed after the date of

the enactment of” FOPA.

NSSF also argues that the July 2011 demand letter

unlawfully creates a national firearms registry. ATF’s demand

letter authority is not unlimited. We agree with our sister

circuits that the Congress intended to prevent ATF from

“establish[ing] a national firearms registry” by “issu[ing]

limitless demand letters under section 923(g)(5)(A) in a

backdoor effort to avoid section 926(a)’s protections for law-

abiding firearms owners.” RSM, 254 F.3d at 67; see also J&G

Sales, 473 F.3d at 1045. For example, since 1978, the

22

Congress has enacted an annual appropriations rider

prohibiting the Government from spending appropriated funds

on salaries or administrative expenses “in connection with

consolidating or centralizing, within the Department of

Justice, the records, or any portion thereof, of acquisition and

disposition of firearms maintained by [FFLs].” Consolidated

and Further Continuing Appropriations Act, 2012, Pub. L.

No. 112-55, § 4, tit. II, 125 Stat. 552, 609 (2011); see also

Executive Office Appropriations Act, Pub. L. No. 95-429, tit.

I, 92 Stat. 1001, 1002 (1978).11 Similarly, section 926(a)

11

NSSF argues that the appropriations rider makes unlawful

the demand letter because the demand letter requires information to

be sent to “ATF’s National Tracing Center” and thus requires the

centralization of records. FF Opening Br. 44 (emphasis in original).

The Congress enacted section 923(g)(5) in 1986, after enacting the

first appropriations rider, so it could not have intended to authorize

the record collection in section 923(g)(5) while simultaneously

prohibiting it. See RSM, 254 F.3d at 68 (“Congress has amended the

Gun Control Act several times, most notably with FOPA, since it

originally passed the appropriations rider in 1978. Were we to

adopt plaintiffs’ view of the rider, it would render several

provisions of FOPA inoperative. When it passed FOPA, Congress

clearly envisioned some sort of collection of firearms records, so

long as it was incidental to some other statutory function

specifically delegated to [ ]ATF.” (citations omitted)); see also

J&G Sales, 473 F.3d at 1045 (“Despite this ban on creating a

centralized registration system, Congress has authorized the Bureau

to maintain at least two sets of transaction records.”). In fact, the

rider was “first passed in response to a proposed [ ]ATF regulation

which would have required all FFLs to submit a quarterly report of

all of their firearms dispositions.” RSM, 254 F.3d at 67 (citing

Firearms Regulations, 43 Fed. Reg. 11,800, 11,800 (Mar. 21,

1978)). Specifically, “Congress was alarmed by [ ]ATF’s attempt to

secure the records of all FFLs nationally and the accompanying

invasion of lawful firearms owners’ privacy.” Id.

23

prohibits ATF from promulgating a rule or regulation

establishing “any system of registration of firearms, firearms

owners, or firearms transactions or dispositions.” 18 U.S.C.

§ 926(a).

A national firearms registry is a large-scale collection of

records. Blaustein & Reich, 365 F.3d at 289 (“Both

consolidating and centralizing connote a large-scale enterprise

relating to a substantial amount of information.”); see also

J&G Sales, 473 F.3d at 1049 (ATF demand letter “do[es] not

come close to” creating national firearms registry by

“seek[ing] a limited amount of information”). But the July

2011 demand letter reaches only (1) FFLs in four states; (2)

who are licensed dealers and pawnbrokers; (3) and who sell

two or more rifles of a specific type; (4) to the same person;

(5) in a five-business-day period. The record discloses that the

letter requires information about the covered transactions

from only approximately seven percent of the total number of

FFLs nationwide. It is true that, as NSSF emphasizes, ATF

sent the demand letter to a larger percentage of FFLs than was

involved in the cases before our sister circuits, see J&G Sales,

473 F.3d at 1046 (0.6% of nationwide FFLs); Blaustein &

Reich, 365 F.3d at 285 (same as in J&G Sales); RSM, 254

F.3d at 63 (0.1% of nationwide FFLs). Those cases, however,

do not purport to establish the ceiling above which a demand

letter becomes a national firearms registry. And the demand

letter is in most respects quite narrow. For example, unlike in

RSM, where FFLs had to report information on “firearms

purchases and sales for the past three years, and on a monthly

basis thereafter,” RSM, 254 F.3d at 63, the July 2011 demand

letter requires the reporting of only a limited number of sales

and only on a prospective basis. In short, because ATF sent

the demand letter to only seven percent of FFLs nationwide

and required information on only a small number of

transactions, the July 2011 demand letter does not come close

to creating a “national firearms registry.”

24

D. APA Challenge

Under the Administrative Procedure Act, 5 U.S.C. §§ 701

et seq. (APA), we “set aside agency action, findings, and

conclusions” that are “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.” 5 U.S.C.

§ 706(2)(A). An agency must “examine the relevant data and

articulate a satisfactory explanation for its action including a

rational connection between the facts found and the choice

made” to allow us to evaluate the agency’s decision-making

process. Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto.

Ins. Co., 463 U.S. 29, 43 (1983) (quotation marks omitted).

We may not uphold agency action based on speculation, see

Williams Gas Processing-Gulf Coast Co. v. FERC, 475 F.3d

319, 328-29 (D.C. Cir. 2006), or on the post hoc

rationalization of the agency’s appellate counsel, State Farm,

463 U.S. at 50. We do not defer to an agency’s “conclusory or

unsupported suppositions.” McDonnell Douglas Corp. v. U.S.

Dep’t of the Air Force, 375 F.3d 1182, 1187 (D.C. Cir. 2004).

“We will, however, uphold a decision of less than ideal clarity

if the agency’s path may reasonably be discerned.” State

Farm, 463 U.S. at 43 (quotation marks omitted).

NSSF argues that ATF acted arbitrarily in sending the

demand letter to qualifying FFLs located in Arizona,

California, New Mexico and Texas instead of considering

“actual geographic proximity to the border with Mexico,

evidence of established patterns of illegal trafficking

activities, and evidence of actual sales of firearms by

identified retail sellers under circumstances that ATF

considers indicative of illegal firearms trafficking.” Opening

Br. for National Shooting Sports Foundation 15-16

(hereinafter NSSF Opening Br.). NSSF suggests that ATF

could have used its own data to identify the proximity of each

FFL to Mexico, determine how many rifles each FFL sold in a

given year or determine how many rifles sold by an FFL were

25

recovered in Mexico and how soon they were recovered after

sale. According to NSSF, ATF’s data “demonstrated that the

overwhelming majority of retail sellers in the United States

and, more specifically, in the Border States, had not sold a

single rifle that was later recovered in Mexico.” NSSF

Opening Br. 20. Rather, “[s]ales of rifles recovered in Mexico

were heavily concentrated among relatively few specifically

identified retail sellers.” NSSF Opening Br. 20-21. NSSF thus

raises two separate concerns. First, it argues that ATF drew an

improper line in determining which FFLs to target. Second,

NSSF argues that ATF failed to explain why it did not target

FFLs based on NSSF’s alternative targeting method.

This line-drawing argument fails. An agency has “wide

discretion” in making line-drawing decisions and “[t]he

relevant question is whether the agency’s numbers are within

a zone of reasonableness, not whether its numbers are

precisely right.” WorldCom, Inc. v. FCC, 238 F.3d 449, 462

(D.C. Cir. 2001) (quotation marks omitted). An agency “is not

required to identify the optimal threshold with pinpoint

precision. It is only required to identify the standard and

explain its relationship to the underlying regulatory

concerns.” Id. at 461-62; see also ExxonMobil Gas Mktg. Co.

v. FERC, 297 F.3d 1071, 1085 (D.C. Cir. 2002) (“We are

generally unwilling to review line-drawing performed by the

Commission unless a petitioner can demonstrate that lines

drawn . . . are patently unreasonable, having no relationship to

the underlying regulatory problem.” (quotation marks omitted

and ellipsis in original)), cert. denied, 540 U.S. 937 (2003);

Leather Indus. of Am., Inc. v. EPA, 40 F.3d 392, 409 (D.C.

Cir. 1994) (“Where the agency’s line-drawing does not appear

irrational and the [challenger] has not shown that the

consequences of the line-drawing are in any respect dire . . .

we will leave that line-drawing to the agency’s discretion.”).

Here, ATF’s line-drawing plainly satisfies the standard

because the problem ATF sought to address is most severe in

26

Arizona, California, New Mexico and Texas. “According to

ATF trace data from the ATF Firearms Tracing System, the

top four source locations by state for all firearms recovered in

Mexico that were submitted for tracing and successfully

traced to non-licensed purchasers between December 1, 2006

and August 31, 2010, were Texas, Arizona, California and

New Mexico.” Decl. of Arthur Herbert ¶ 34 (JA 51); see also

GAO REPORT at 19 (JA 573) (“From fiscal year 2004 to fiscal

year 2008, most of the firearms seized in Mexico and traced

came from U.S. Southwest border states. In particular, about

70 percent of these firearms came from Texas, California, and

Arizona.”).

Nor is ATF’s targeting method arbitrary and capricious

based on its failure to explain why it did not adopt the NSSF’s

alternative targeting method. While an agency must consider

and explain its rejection of “reasonably obvious

alternative[s],” Natural Res. Def. Council, Inc. v. SEC, 606

F.2d 1031, 1053 (D.C. Cir. 1979), it need not consider every

alternative proposed nor respond to every comment made,

Thompson v. Clark, 741 F.2d 401, 408 (D.C. Cir. 1984)

(agency need not “respond to every comment, or [ ] analyze

every issue or alternative raised by the comments, no matter

how insubstantial”). Rather, an agency must consider only

“significant and viable” and “obvious” alternatives. City of

Brookings Mun. Tel. Co. v. FCC, 822 F.2d 1153, 1169 (D.C.

Cir. 1987); see also City of Alexandria, Va. v. Slater, 198 F.3d

862, 867-68 (D.C. Cir. 1999) (agency decision narrowing

alternatives by “focus[ing] primarily on transportation and

safety issues” was reasonable (quotation marks omitted)),

cert. denied, 531 U.S. 820 (2000). As we have explained:

[O]nly comments which, if true, raise points relevant to

the agency’s decision and which, if adopted, would

require a change in an agency’s proposed rule cast

doubt on the reasonableness of a position taken by the

27

agency. Moreover, comments which themselves are

purely speculative and do not disclose the factual or

policy basis on which they rest require no response.

There must be some basis for thinking a position taken

in opposition to the agency is true.

Home Box Office, Inc. v. FCC, 567 F.2d 9, 35 n.58 (D.C. Cir.)

(per curiam), cert. denied, 434 U.S. 829 (1977); see also Pub.

Citizen, Inc. v. FAA, 988 F.2d 186, 197 (D.C. Cir. 1993).

While ATF did not specifically explain why it did not

adopt NSSF’s alternative targeting strategy, the record reveals

that the alternative was not a “significant problem[ ] raised by

the comments.” NSSF relies on only one source from the

administrative record: an August 2009 pamphlet authored by

“Mayors Against Illegal Guns,” which makes forty separate

general recommendations on a wide variety of topics with the

goal of “enhanc[ing] enforcement” of firearms laws. See

MAYORS AGAINST ILLEGAL GUNS, A BLUEPRINT FOR FED.

ACTION ON ILLEGAL GUNS: REGULATION, ENFORCEMENT, AND

BEST PRACTICES TO COMBAT ILLEGAL GUN TRAFFICKING 1-3

(Aug. 2009) (JA 325-27). One recommendation, in an effort

to reduce all firearms crimes (not simply those occurring in

Mexico), was to require FFLs “to report multiple sales of

suspect long guns if in the prior year they had 15 or more

traces or three or more traces of suspect long guns.” Id. at 31

(JA 355) (endnote omitted). The pamphlet did not address the

proposed demand letter nor did it address the targeting

strategy NSSF proposes here. While NSSF argues that “there

is substantial, uncontradicted evidence in the administrative

record of rational alternatives to the choice made by ATF to

direct the demand letter to each licensed retail seller located in

the four Border States,” NSSF Opening Br. 29, it fails to cite

a single page in the administrative record containing such

evidence. See generally D.C. CIR. R. 28(b) (“When citing to

the record . . . , citations must refer to specific pages of the

28

source”); Anna Jacques Hosp. v. Sebelius, 583 F.3d 1, 7 (D.C.

Cir. 2009) (“Federal Rule of Appellate Procedure 28(a)(9)(A)

requires parties to provide ‘citations to the authorities and

parts of the record on which they rely’ to bolster their

arguments.” (brackets omitted)). In fact, in National Shooting

Sports Foundation’s own comments filed with ATF (the only

comments any of the three appellants placed in the

administrative record filed with this court), it did not refer to

the targeting proposal pressed before us or any variant

thereof. See JA 720-23;12 cf. Clark-Cowlitz Joint Operating

Agency v. FERC, 826 F.2d 1074, 1085 n.11 (D.C. Cir. 1987)

(en banc) (finding alternative not “obvious” when the

“alternative was not so ‘obvious’ as to occur to [the

commenter] itself”), cert. denied, 485 U.S. 913 (1988).

NSSF contends that its alternative targeting proposal was

so obvious based on data in ATF’s possession that ATF

should have addressed it. Unlike the precedent relied on by

NSSF, ATF has not rescinded a policy or reversed course

without explaining why it did not take a more limited action.

See, e.g., State Farm, 463 U.S. at 46-48 (agency’s

abandonment of passive restraint requirement arbitrary and

capricious because agency gave no consideration to requiring

12

While National Shooting Sports did comment that firearms

purchasers could avoid detection by “shift[ing] their trafficking

activities outside the four[ ]states of this proposed requirement,” JA

723, NSSF’s present proposal to target only individual dealers

instead of entire states raises the same concern. ATF notes that if

the demand letter targeted only certain dealers rather than entire

states, purchasers could simply travel to another dealer, instead of

another state, to avoid detection. ATF Br. 52-54. Moreover, ATF

notes that adopting NSSF’s proposal would “require ATF to

constantly adjust the specific licensees subject to the reporting

requirement.” ATF Br. 55.

29

airbag technology rather than rescinding passive restraint

technology altogether); Int’l Ladies’ Garment Workers’

Union v. Donovan, 722 F.2d 795, 812 (D.C. Cir. 1983) (“This

case is a classic example of an agency attempt to modify a

longstanding policy by rescinding regulations embodying that

policy.”), cert. denied, 469 U.S. 820 (1984); Office of

Commc’ns of United Church of Christ v. FCC, 707 F.2d

1413, 1440 (D.C. Cir. 1983) (FCC improperly eliminated

requirement that radio licensees maintain programming logs

without considering benefit of retaining modified form of

logs); Action on Smoking & Health v. CAB, 699 F.2d 1209,

1216, 1218 (D.C. Cir. 1983) (agency’s decision to eliminate

requirement failed to give sufficient consideration to narrower

alternatives). Although NSSF has carefully combed through

ATF’s data and suggested an alternative targeting mechanism,

the fact that ATF could have narrowed the scope of the

demand letter does not mean that its failure to do so was

arbitrary and capricious, particularly because NSSF has failed

to point to any evidence showing that narrowing the

geographic scope of the demand letter was a serious issue

raised by any commenter.13 ATF’s decision to direct its July

2011 demand letter to FFLs based on their geographic

location was therefore not arbitrary and capricious.14

13

ATF concluded in response to comments that “the overall

burden of this collection will be minimal to FFLs” as it affects

FFLs in “four southwest border states,” does not affect FFLs “who

do not make multiple sales” of certain rifles to the same person in a

five-business-day period and will take an FFL only twelve minutes

to fill out each report. JA 748.

14

The fact that the demand letters reviewed in J&G Sales and

Blaustein & Reich targeted specific FFLs based on whether the FFL

had ten or more traces within the period between sale and recovery

of three years or less does not make that option “obvious” here.

30

For the foregoing reasons, we affirm the district court’s

grant of summary judgment to ATF.

So ordered.

J&G Sales, 473 F.3d at 1051-53; Blaustein & Reich, 365 F.3d at

291-92. The demand letters in J&G Sales and Blaustein & Reich

targeted FFLs whose sales may have led to firearms trafficking

because the firearms they sold were the subject of a

disproportionate number of trace requests. See, e.g., J&G Sales,

473 F.3d at 1046; Blaustein & Reich, 365 F.2d at 285.