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*** R|D ALERT ***

Pursuant to President Trump's Executive Order 13777 and Attorney General Sessions' memo prohibiting certain guidance documents, the Bureau of Alcohol, Tobacco, Firearms and Explosives recently published Ruling 2017-1 Revoking Certain Guidance Documents. The ATF documents are part of the Attorney General's rescission of 25 guidance documents.

The rescinded ATF documents include three rulings, one procedure and two industry circulars determined to be obsolete because of statutory or regulatory amendments, or because of changes to particular forms. The specific documents are as follows:

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 ordnances 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.

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

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