IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-50742

10 RING PRECISION, INC., 

 Plaintiff - Appellant

ROBBY BETTS, doing business as Golden States Tactical, 

 Intervenor - Appellant

v.

B. TODD JONES, Acting Director, Bureau of Alcohol, Tobacco, Firearms &

Explosives, in his official capacity, 

 Defendant - Intervenor - Appellee

Appeals from the United States District Court

for the Western District of Texas

Before KING, HIGGINBOTHAM, and CLEMENT, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

In July 2011, as part of an effort to combat the illegal trafficking of

firearms from the United States to Mexico, the Bureau of Alcohol, Tobacco,

Firearms, and Explosives (“ATF”) issued a demand letter to each federal

firearms licensee classified as a “dealer” or “pawnbroker” located in Arizona,

California, New Mexico, and Texas.1 The July 2011 demand letter required its

United States Court of Appeals

Fifth Circuit

F I L E D

July 11, 2013

Lyle W. Cayce

Clerk

1There are nine categories of federal firearms licensees. 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-

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No. 12-50742

recipients to report to ATF whenever “at one time or during any five consecutive

business days, [they] 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.” Appellants argue that

ATF lacked statutory authority to issue the July 2011 demand letter, and, even

if it possessed statutory authority, that its decision to issue the demand letter

to the chosen licensees was arbitrary and capricious. We disagree.

I.

The Gun Control Act of 1968 (“GCA”) requires anyone who wishes to

“engage in the business of . . . dealing in firearms” to obtain a license.2 All

federal firearms licensees (“FFLs”) must create and maintain records of all

firearms transactions, including the name, age, and residence of each individual

who purchases a firearm.

3

In 1986, Congress amended the GCA with the

passage of the Firearms Owners’ Protection Act of 1986 (“FOPA”).4 As part of

FOPA, Congress enacted 18 U.S.C. § 923(g)(5)(A), which permits ATF to issue

demand letters to FFLs to obtain “all record information required to be kept [by

the GCA] or such lesser record information.”5 Relying on that authority, ATF

issued the July 2011 demand letter in response to its documented investigation

of escalating drug violence in Mexico. 

A brief background of that investigation, as well as it findings, is helpful

in understanding ATF’s decision to issue the July 2011 demand letter. In 2007,

list.html.

2

18 U.S.C. § 923(a). The authority to issue licenses has been delegated to ATF. See

Blaustein & Reich, Inc. v. Buckles, 365 F.3d 281, 283 n.3 (4th Cir. 2004), cert denied, 543 U.S.

1052 (2005).

3

18 U.S.C. §§ 922(b)(5), 923(g).

4 Pub. L. No. 99-308, 100 Stat. 449 (1986).

5

18 U.S.C. § 923(g)(5)(A).

2

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ATF began investigating the illegal flow of guns from the United States to

Mexico.6 William Hoover, Assistant Director of Field Operations for ATF,

testified before a subcommittee of the United States House of Representatives

in June 2008 that “trace data over the past three years shows that Texas,

Arizona and California are the three most prolific states, respectively, for

firearms illegally trafficked to Mexico.” He noted that “[although] the [drug

trafficking organizations’] ‘weapons of choice’ had been .38 caliber

handguns . . . cartel members and enforcers have now developed a preference for

higher quality, more powerful weapons,” such as assault rifles. He also

explained that “tracing” of firearms seized in the United States and Mexico plays

“an essential part in ATF’s firearms trafficking investigations.”

In June 2009, the Government Accountability Office (“GAO”) released a

report entitled Firearms Trafficking: U.S. Efforts to Combat Arms Trafficking

to Mexico Face Planning and Coordination Challenges (“the Report”).

7 According

to the Report, “about 27 percent of firearms recovered in Mexico and traced from

fiscal year 2004 to fiscal year 2008 were long guns.”8 Moreover, “[f]rom 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 those

firearms came from Texas, California, and Arizona.”9 The Report explained that

the absence of a multiple sales reporting requirement for long guns poses a

challenge for ATF’s efforts. “[T]he federal multiple sales reporting requirement

6 See OFFICE OF THE INSPECTOR GEN., I-2011-001, REVIEW OF ATF’S PROJECT

GUNRUNNER i (2010).

7 U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-09-709, FIREARMS TRAFFICKING: U.S.

EFFORTS TO COMBAT ARMS TRAFFICKING TO MEXICO FACE PLANNING AND COORDINATION

CHALLENGES (2009).

8

Id. at 28.

9

Id. at 19.

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helps expedite the time required by ATF to complete a gun trace.”10 Because

ATF “does not have information in its multiple sales database on any long guns

recovered in crime in Mexico that may have been purchased through a multiple

sale,”11

it usually cannot use its own records to trace those guns. The Report also

made clear that “ATF has identified multiple sales or purchases of firearms by

a nonlicensee as a ‘significant indicator’ of firearms trafficking.”12 The Report’s

recommendations included a suggestion that ATF investigate potential

approaches “to address the challenges . . . regarding the constraints on the

collection of data that inhibit the ability of law enforcement to conduct timely

investigations.”13

In May 2010, the Office of the Inspector General (“OIG”) issued a review

of ATF’s efforts to combat firearms trafficking, which noted that “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.”14

It also identified data

showing that, of the illegally trafficked guns recovered in Mexico, the percentage

of those that were long guns increased steadily from 20 percent in 2004 to 40

10

Id. at 28. When a firearm is recovered, a law enforcement official makes a “trace

request” by entering specific identifying information (such as the firearm’s serial number and

model) into the ATF Firearms Tracing System, a database maintained by the ATF’s National

Tracing Center. Although FOPA limits ATF’s ability to keep and maintain firearms

transactions records, the GCA permits ATF to maintain records of firearms transactions in

certain circumstances. For example, 18 U.S.C. § 923(g)(3)(A) requires FFLs to report two or

more sales of a pistol or revolver to the same person during any five consecutive business days.

ATF compares the identifying information entered with other firearm transaction records in

the database, including multiple sales report information. “If a trace request is matched to

multiple sales information, the trace can be completed in minutes rather than days or weeks.” 

OFFICE OF THE INSPECTOR GEN., supra note 6, at 10. If the database contains no record

information on the particular firearm, ATF must contact the manufacturer, importer, and/or

wholesaler to identify the final purchaser—a process that can take up to ten days. 

11 U.S. GOV’T ACCOUNTABILITY OFFICE, supra note 7, at 28.

12

Id.

13

Id. at 59.

14 OFFICE OF INSPECTOR GEN., supra note 6, at iv.

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percent in 2008.15In addition, the review noted that, since long guns generally

have a shorter “time-to-crime”16

than handguns, long guns generate more

valuable leads for law enforcement officials,17and that “Mexican cartels are

obtaining long guns in multiple sales.”18 These and other findings led OIG to

conclude that “the mandatory reporting of long gun multiple sales could help

ATF identify, investigate, and refer for prosecution individuals who illegally

traffic long guns into Mexico.”19 Accordingly, OIG recommended that ATF

“explore options for seeking a requirement for reporting multiple sales of long

guns.”20 ATF responded that it would “explore the full range of options to seek

information regarding multiple sales of long guns,” but noted that some options

could “require a change to the [GCA] which is beyond ATF’s . . . authority.”21

On December 17, 2010, ATF responded to these reports and

recommendations by announcing a proposal that would require FFLs in Arizona,

California, New Mexico, and Texas “to report multiple sales or other dispositions

whenever the licensee sells or otherwise disposes of two or more rifles within any

five business consecutive days with the following characteristics: (a) [s]emiautomatic; (b) a caliber greater than .22; and (c) the ability to accept a

detachable magazine.”22 After the initial sixty-day comment period, during

15

Id. at 38.

16

“Time-to-crime is the time from the retail sale of a firearm to the time it is recovered

at a crime scene or is traced.” Blaustein, 365 F.3d at 285.

17 OFFICE OF INSPECTOR GEN., supra note 6, at 38.

18

Id.

19

Id. at 39–40.

20

Id. at 40.

21

Id. at 127.

22 Agency Information Collection Activities: Proposed Collection; Comments Requested,

75 Fed. Reg. 79,021, 79,021 (Dec. 17, 2010).

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which ATF received 12,680 comments (8,928 in support and 3,752 in opposition),

ATF extended the comment period for an additional thirty days, clarifying that

the requirement would only apply to FFLs “who are dealers and/or pawnbrokers

in Arizona, California, New Mexico and Texas.”23

ATF issued the challenged demand letter in July 2011 to FFLs who were

dealers and/or pawnbrokers in Arizona, California, New Mexico, and Texas. 10

Ring Precision, Inc., located in Texas, received the demand letter and filed suit

against Kenneth Melson, Acting Director of ATF,24arguing that ATF exceeded

its authority in issuing the July 2011 demand letter and seeking declaratory as

well as injunctive relief under the Administrative Procedure Act. Golden State

Tactical, located in California, also received the demand letter and moved to

intervene as a plaintiff in the case. The district court granted Golden State’s

motion over ATF’s opposition. In response, ATF filed the administrative record

and moved for summary judgment. 10 Ring filed a motion to exclude portions

of the administrative record referencing trace results originating from Mexico,

and, along with Golden State, also moved for summary judgment. The district

court denied 10 Ring’s motion to exclude portions of the record, denied the

Plaintiffs’ cross-motion for summary judgment, and granted summary judgment

in favor of ATF. 10 Ring and Golden State (collectively “Appellants”) timely

appealed.

During the pendency of this appeal, the D.C. Circuit issued its opinion in

National Shooting Sports Foundation, Inc. v. Jones, which upheld the validity

of the July 2011 demand letter against challenges virtually identical to those

23 Agency Information Collection Activities; Proposed Collection Comments Requested:

Report on Multiple Sale or Other Disposition of Certain Rifles, 76 Fed. Reg. 24,058, 24,058

(Apr. 29, 2011).

24 Kenneth Melson stepped down as Acting Director of ATF in September 2011, and,

during the pendency of this suit in district court, was replaced by Todd Jones.

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presented by Appellants.25 As we explain below, we agree with that decision and

join the D.C. Circuit in upholding the validity of the July 2011 demand letter.

II.

“We review a district court’s grant of summary judgment de novo, applying

the same standard as the district court.”26 Summary judgment is proper “if the

movant shows that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.”27

III.

Appellants first argue, based on various provisions of 18 U.S.C. § 923(g),

as well as the Consolidated and Continuing Appropriations Act of 2010, that

ATF lacked statutory authority to issue the July 2011 demand letter. “We

review ATF’s interpretation of the GCA under Chevron U.S.A. Inc. v. Natural

Resources Defense Council, Inc.”

28 Under Chevron, we first ask “whether

Congress has directly spoken to the precise question at issue.”29If it has, “that

is the end of the matter,” and we “must give effect to the unambiguously

expressed intent of Congress.”30If it has not, we defer to the agency’s

interpretation as long as it “is based on a permissible construction of the

statute.”31

25

716 F.3d 200 (D.C. Cir. 2013).

26 Vaughn v. Woodforest Bank, 665 F.3d 632, 635 (5th Cir. 2011).

27 FED. R. CIV. P. 56(a).

28 Nat’l Shooting Sports Found., 716 F.3d at 207 (internal citations omitted).

29 Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842 (1984).

30

Id. at 842–43.

31

Id. at 843.

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

Appellants first contend that ATF exceeded 18 U.S.C. § 923(g)(5)(A)’s

limits on its demand letter authority. Section 923(g)(5)(A) 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.32

Appellants argue that the July 2011 demand letter runs afoul of § 923(g)(5)(A)

because it requires FFLs to report record information they are not otherwise

required to keep. But that is not the case. 18 U.S.C. § 923(g)(1)(A) provides that

FFLs “shall maintain such records of . . . disposition of firearms at [their] place

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

regulations prescribe.”33 One such regulation—27 C.F.R. § 478.124(a)—provides

that FFLs must record on Form 4473 any transaction in which they “sell or

otherwise dispose, temporarily or permanently, of any firearm to any person,

other than another licensee.”34 Form 4473 requires the FFL to record the name,

address, sex, race, date of birth, and place of birth of the buyer; the buyer’s

identification number, type of identification, and identification state; the date

and location of the sale; and the manufacturer, importer, type, model, caliber,

and serial number of the firearm.35 The July 2011 demand letter instructs its

recipients to report to ATF using Form 3310.12. Form 3310.12 requires FFLs

to provide the name, address, sex, race, date of birth, and place of birth of the

32

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

33

Id. § 923(g)(1)(A).

34

27 C.F.R. § 478.124(a).

35 See id. § 478.124(c)(1), (4).

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buyer;the buyer’s identification number, type of identification, and identification

state; the date and location of sale; and the manufacturer, importer, model,

caliber, and serial number of the firearm. The July 2011 demand letter’s

reporting requirement complies with § 923(g)(5)(A) because FFLs are already

required to maintain that record information under § 923(g)(1)(A) and its

implementing regulations. Therefore, the text of § 923(g)(5)(A) “unambiguously

authorizes the demand letter,” and “our inquiry ends at Chevron step one.”36

Appellants nonetheless urge that the July 2011 demand letter requires

FFLs to report information beyond what they are required to keep because Form

4473 does not include information regarding the firearm’s mechanism of action,

the type of ammunition feeding source, or the number of days between sales of

rifles to a single buyer. They point out that the demand letter instructs them to

report “whenever, at one time or during any five consecutive business days,

[they] sell or otherwise dispose of two or more semi-automatic rifles capable of

accepting a detachable magazine with a caliber greater than .22 (including

.223/5.56 caliber) to an unlicensed person.” But that argument “confuses the

conditions precedent to submission with the information submitted.”37If the

FFL has “at one time or during any five consecutive business days, [sold] or

otherwise dispose[d] of 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 mechanism of action, its type of ammunition feeding source, or

the number of days between sales of rifles to a single buyer. 

In a variation on the same argument, Appellants contend that the July

2011 demand letter runs afoul of § 923(g)(5)(A) because an FFL cannot

36 Nat’l Shooting Sports Found., 716 F.3d at 208.

37

Id.

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determine, using Form 4473, whether a particular rifle sale must be reported,

because Form 4473 does not contain information regarding the rifle’s type of

action and ammunition feeding source. Assuming arguendo that inability to

determine, based on “record information required to be kept,” whether a

particular sale must be reported could invalidate a demand letter, Appellants’

assertion belies reality. As the D.C. Circuit explained in rejecting the same

argument:

[Appellants] fail[] 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

. . . 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 “semiautomatic” and “capable of accepting a detachable magazine.”38

In another iteration of the argument, Appellants point out that 27 C.F.R.

§ 478.124(b) permits FFLs to retain the Form 4473s in alphabetical,

chronological, or numerical order,39and argue that, unless the FFL keeps the

forms in chronological order, “Forms 4473 could not be used to determine

whether a qualifying rifle had been sold to the same person within five (5)

consecutive business days.” But Appellants offer no reason why this purported

administrative difficulty invalidates the July 2011 demand letter. The GCA

requires an FFL who sells two or more pistols or revolvers to the same person

at one time or during any five consecutive days to report to ATF.40 Thus, prior

to the July 2011 demand letter, FFLs were required to search their records for

multiple sales of a particular type of firearm to the same customer. Moreover,

38

Id. at 209.

39

27 C.F.R. § 478.124(b).

40

18 U.S.C. § 923(g)(3)(A).

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“[t]he 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,” especially given that “there is nothing preventing an FFL

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

manner.”41

B. Sections 923(g)(1)(A), 923(g)(1)(B), 923(g)(3)(A), and 923(g)(7)

Appellants next argue that §§ 923(g)(1)(A), 923(g)(1)(B), 923(g)(3)(A), and

923(g)(7) must be read to limit ATF’s demand letter authority, because otherwise

“ATF could send a broad demand letter for information which otherwise must

be obtained pursuant to the specific procedures, and for the specific reasons set

forth, in these other provisions.”42 We disagree.

Section 923(g)(1)(A) authorizes ATF to inspect a licensee’s records and

inventory if it has “reasonable cause to believe a violation . . . has occurred and

that evidence thereof may be found on such premises.”43 Prior to conducting an

inspection under this section, ATF must secure a warrant from a magistrate

judge.44 Section 923(g)(1)(B) provides an exception to the warrant requirement

of § 923(g)(1)(A) by authorizing ATF to conduct an inspection of a licensee’s

records and inventory “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

41 Nat’l Shooting Sports Found., 716 F.3d at 209.

42 Appellants also argue that “[t]he legislative history reveals that Congress intended

that § 923(g)(5)(A) was limited to information from FFLs (1) who were in violation of the law,

and (2) about specific firearms dispositions necessary for bona fide criminal investigations.” 

But we will not analyze legislative history because the GCA’s text is clear. Nat’l Shooting

Sports Found., 716 F.3d at 211–12; see also Ratzlaf v. United States, 510 U.S. 135, 147–48

(1994); J & G Sales, Inc. v. Truscott, 473 F.3d 1043, 1050 (9th Cir. 2007); Blaustein & Reich,

Inc., 365 F.3d at 288 n. 15.

43

18 U.S.C. § 923(g)(1)(A).

44

Id.

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disposition of one or more particular firearms in the course of a bona fide

criminal investigation.”45 Appellants contend that upholding ATF’s authority to

issue the July 2011 demand letter would allow ATF to circumvent the

requirements of §§ 923(g)(1)(A) and 923(g)(1)(B) because ATF could simply send

a demand letter for a record without securing a warrant or establishing that the

record relates to an ongoing criminal investigation. We are not persuaded. 

Appellants “erroneously conflate[] provisions that apply in two different

contexts. The inspection provisions of 18 U.S.C. § 923(g)(1) 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.”46 Given the distinct

purposes of these provisions, we conclude that §§ 923(g)(1)(A) and 923(g)(1)(B)

do not circumscribe ATF’s demand letter authority.

Appellants next argue that § 923(g)(3)(A) demonstrates Congress’s intent

to limit ATF’s ability to request reports of multiple sales to multiple sales of

handguns. Section 923(g)(3)(A) requires all FFLs 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 . . . to an unlicensed person.”47 Appellants argue that

“[b]y including only ‘pistols or revolvers’ and not including ‘firearms’ in

§ 923(g)(3)(A), Congress expressed its intent to limit multiple sale reporting to

pistols or revolvers.” This argument also fails to persuade. Section 923(g)(3)(A)

in no way purports to limit ATF’s ability to issue a demand letter requiring

reporting of multiple sales of other firearms. “Simply because the Congress

45

18 U.S.C. § 923(g)(1)(B)(i), (iii).

46 Nat’l Shooting Sports Found., 716 F.3d at 210 (emphasis in original). Other circuits

have noted that §§ 923(g)(1)(A) and 923(g)(1)(B) serve distinct purposes from those served by

ATF’s demand letter authority. See, e.g., J & G Sales, 473 F.3d at 1050; RSM, Inc. v. Buckles,

254 F.3d 61, 66 (4th Cir. 2001).

47

18 U.S.C. § 923(g)(3)(A).

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imposes a duty in one circumstance does not mean that it has necessarily

foreclosed the agency from imposing another duty in a different

circumstance. . . . In [§] 923(g)(5)(A), the Congress authorized ATF to require

additional reporting beyond the reporting required in [§] 923(g)(3)(A).”48

Finally, Appellants contend that § 923(g)(7) “explicitly defines and limits

the purpose and procedure under which ATF may require information for

traces.” Section 923(g)(7) provides that licensees must “respond immediately to,

and in no event later than 24 hours after the receipt of, a request by [ATF] for

information contained in the records required to be kept by this chapter as may

be required for determining the disposition of 1 or more firearms in the course

of a bona fide criminal investigation.”

49 Appellants contend that ATF should not

be able to use a demand letter to circumvent § 923(g)(7)’s requirement of a “bona

fide criminal investigation.” But § 923(g)(7) does not purport to restrict ATF’s

demand letter authority; it merely specifies the duties of an FFL that receives

a trace request.50“Simply 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 [ATF] is

prohibited from seeking further FFL record information by demand letter.”51

 

C. Section 926(a)

Appellants next contend that the July 2011 demand letter runs afoul of 

§ 926(a), which prohibits ATF from promulgating a “rule or regulation” that

requires record information obtained from licensees to be “recorded at or

48 Nat’l Shooting Sports Found., 716 F.3d at 211.

49

18 U.S.C. § 923(g)(7) (emphasis added).

50 Other circuits have reached the same conclusion regarding the interplay between

§§ 923(g)(7) and 923(g)(5)(A). See Nat’l Shooting Sports Found., 716 F.3d at 210–11; J & G

Sales, 473 F.3d at 1050; RSM, 254 F.3d at 66.

51 J & G Sales, 473 F.3d at 1050.

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transferred to a facility owned, managed, or controlled by the United States or

any State or political subdivision thereof” or that establishes a “system of

registration of firearms, firearms owners, or firearms transactions or

dispositions.”52 Appellants concede that the July 2011 demand letter is not a

rule or regulation,53and thus falls outside the plain language of § 926(a)’s

prohibition. But, they nonetheless maintain that the July 2011 demand letter

runs afoul of congressional intent as evidenced by § 926(a)’s prohibition. They

point to the Fourth Circuit’s observation that “while [§] 926(a) does not directly

prohibit [ATF’s] issuance of the letter in this case, that provision clearly

demonstrates Congress’s concern about any attempt by [ATF] to establish a

national firearms registry.”54In evaluating the same argument, the D.C. Circuit

concluded that “ATF’s demand letter authority is not unlimited”—“Congress

intended to prevent ATF from ‘establish[ing] a national firearms registry’ by

‘issu[ing] limitless demand letters under [§] 923(g)(5)(A) in a backdoor effort to

avoid [§] 926(a)’s protections for law-abiding firearms owners.’”55 We agree. But,

like the D.C. Circuit, we conclude that the July 2011 demand letter does not run

afoul of § 926(a)’s prohibition. Although the demand letter was sent to more

FFLs than the demand letters at issue in prior cases,56

it seeks only to obtain a

narrow subset of information relating to a specific set of transactions—the sale

of two or more rifles of a specific type to the same person in a five day

52

18 U.S.C. § 926(a).

53 See Nat’l Shooting Sports Found., 716 F.3d at 212; J & G Sales, 437 F.3d at 1051;

RSM, 254 F.3d at 66.

54 RSM, 254 F.3d at 67.

55 Nat’l Shooting Sports Found., 716 F.3d at 212–13 (quoting RSM, 254 F.3d at 67)

(alterations in original).

56 See, e.g., J & G Sales, 473 F.3d at 1046 (demand letter sent to approximately 450

FFLs, constituting 0.6% of FFLs nationwide); Blaustein & Reich, 365 F.3d at 283 (demand

letter sent to approximately 450 FFLs, constituting 0.6% of FFLs nationwide); RSM, 254 F.3d

at 63 (demand letter sent to approximately 41 FFLs, constituting 0.1% of nationwide FFLs).

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period—from a specific set of FFLs—FFLs in four border states who are licensed

dealers and pawnbrokers.57

D. Consolidated and Continuing Appropriations Act of 2012

The Consolidated and Continuing Appropriations Act of 2012 allocates

funding to ATF. An appropriations rider to the Act prohibits ATF from using the

allocated funds “for 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].”58 Appellants argue that the July 2011 demand letter runs afoul of the

rider because it requires recipients to transmit records of their dispositions of

firearms to the National Tracing Center, which are, in turn, processed by ATF

employees whose salaries are taken from the annual appropriations fund.

We conclude that the rider does not prohibit ATF from issuing the July

2011 demand letter. Because FOPA clearly contemplates ATF’s collection of

some firearms records,59

it cannot be said that the appropriations rider prohibits

any collection of firearms transaction records.60“The plain meaning of

consolidating or centralizing does not prohibit the mere collection of some

limited information. Both consolidating and centralizing connote a large-scale

enterprise relating to a substantial amount of information.”61 We conclude that

57 See Nat’l Shooting Sports Found., 716 F.3d at 214 (“[B]ecause 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

‘nationwide firearms registry.’”).

58 Pub. L. No. 112-55, 125 Stat. 552, 609 (2011).

59 See 18 U.S.C. § 923(g)(3), (4).

60 See Colautti v. Franklin, 439 U.S. 379, 392 (1979) (explaining that it is an

“elementary canon of construction that a statute should be interpreted so as not to render one

part inoperative”).

61 Blaustein, 365 F.3d at 289.

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the July 2011 demand letter falls short of “consolidating or centralizing . . .

records.” It only requires reporting of a narrow subset of information relating

to a specific set of transactions—the sale of two or more rifles of a specific type

to the same person in a five day period—from a specific set of FFLs—FFLs in

four border states that are licensed dealers and pawnbrokers.62

IV.

Alternatively, Appellants argue that, even if ATF had statutory authority

to issue the July 2011 demand letter, its decision to do so was arbitrary and

capricious. We will set aside an agency action if it is “arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law.”

63 Review under

that standard is “narrow” and we must be mindful “not to substitute [our]

judgment for that of the agency.”64 However, we must also ensure that the

agency “examine[d] the relevant data and articulate[d] a satisfactory

explanation for its action.”65 We “consider whether the decision was based on a

consideration of relevant factors and whether there was a clear error of

62 Demand letters upheld previously have required reporting of a broader set of

transactions. For example, in RSM, Inc. v. Buckles, ATF required the targeted FFLs to

produce record information regarding firearm purchases and sales in the prior three years.

254 F.3d at 63. And, in Blaustein & Reich, Inc. v. Buckles, ATF required the targeted FFLs

to submit record information relating to their purchases of secondhand firearms in 1999. 365

F.3d at 283. Admittedly, the demand letters at issue in those cases were sent to far fewer

FFLs than the July 2011 demand letter.

63

5 U.S.C. § 706(2)(A).

64 Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29,

43 (1983).

65

Id.

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judgment.”66 We will uphold an agency’s action “if its reasons and policy choices

satisfy minimum standards of rationality.”67

Appellants allege that ATF’s issuance of the July 2011 demand letter was

arbitrary and capricious for two reasons. First, because “[t]he tracing system

queries 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,” Appellants argue that ATF improperly

determined which FFLs to target. Second, Appellants argue that ATF neglected

to consider alternatives to sending the demand letter to FFLs in the four border

states. Neither of these arguments survives the “highly deferential arbitrary

and capricious standard of judicial review.”68

Appellants’ first argument fails because, given the data that ATF

identified as supporting its decision, Appellants cannot convincingly argue that

there is no “rational connection” between the facts in the administrative record

and the FFLs targeted by the June 2011 demand letter.69 As explained in the

GAO Report, “[f]rom 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.”70 Moreover, according to ATF trace data, from fiscal year 2008

through fiscal year 2010, of the 5,799 rifles greater than .22 caliber that were

66

Id. (internal quotations omitted).

67 Medina Cnty. Envt’l. Action Ass’n v. Surface Transp. Bd., 602 F.3d 687, 699 (5th Cir.

2010) (internal quotations omitted).

68 Abbeville Gen. Hosp. v. Ramsey, 3 F.3d 797, 801 (5th Cir. 1993) (quotation marks

omitted).

69 Motor Vehicle Mfrs., 463 U.S. at 43 (quoting Burlington Truck Lines v. United States,

371 U.S. 156, 168 (1962)).

70 U.S. GOV’T ACCOUNTABILITY OFFICE, supra note 8, at 19.

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traced from Mexico to an identified first retail purchaser in the United States,

4,568 were traced to retailers in Arizona, California, New Mexico, and Texas.

Appellants’ second argument—that ATF’s decision to issue the July 2011

demand letter was arbitrary and capricious because it failed to consider other

feasible alternatives—is also unpersuasive. Appellants argue that ATF should

have considered feasible alternatives “such as actual geographic proximity of

retail sellers to the border with Mexico, known patterns of illegal firearms

trafficking in Mexico, and specifically identified retail sources of rifles recovered

in Mexico over the previous three years.” Because “[s]ales of rifles recovered in

Mexico were heavily concentrated among relatively few specifically identified

retail sellers,” Appellants suggest that ATF should have used trace data “to

determine how many rifles each retail seller sold and how soon after the sales

the rifles were recovered by law enforcement authorities in Mexico” and tailored

the July 2011 demand letter accordingly. This argument misunderstands the

scope of an agency’s duty to consider alternatives. In deciding a course of action,

agencies are not required to consider all potential alternatives.71

“While an

agency must consider and explain its rejection of ‘reasonably obvious

alternative[s],’ it need not consider every alternative proposed nor respond to

every comment made. Rather, an agency must consider only ‘significant and

viable’ and ‘obvious’ alternatives.”72 The alternatives posed by Appellants do not

meet these criteria. For one, Appellants have not shown that these alternatives

were a serious issue raised by any commenter.73 Appellants try to argue that

71 See Motor Vehicle Mfrs., 463 U.S. at 51 (“[W]e [do not] broadly require an agency to

consider all policy alternatives in reaching decision.”).

72 Nat’l Shooting Sports Found., 716 F.3d at 215 (internal citations omitted).

73

In fact, Appellants fail to point to any comments in the administrative record raising

these alternatives. Appellants do point to an August 2009 pamphlet authored by “Mayors

Against Illegal Guns,” which includes a recommendation that ATF issue a demand letter

requiring dealers “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.” MAYORS AGAINST ILLEGAL

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these alternatives should have been “obvious” to ATF given the data in the

administrative record. But the cases Appellants cite in support of that

contention involve either alternatives raised during the comment period or an

agency rescinding a policy or reversing course without providing explanation as

to why it did not adopt narrower alternatives. In short, “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 [Appellants have] failed

to point to any evidence showing that narrowing the geographic scope of the

demand letter was a serious issue raised by any commenter.”74 We therefore

conclude that “ATF's decision to direct its July 2011 demand letter to FFLs

based on their geographic location was . . . not arbitrary and capricious.”75

V.

Before concluding, we pause to consider whether the district court should

have excluded portions of the administrative record referencing the results of

Mexican traces. 10 Ring argues that trace data should have been excluded

because the funding, development, and implementation of ATF’s system of

tracing firearms recovered in Mexico are contrary to law and the intentions of

Congress. Specifically, 10 Ring contends that § 923(g)(7) only permits trace

requests that are made in the course of a domestic bona fide criminal

investigation. But § 923(g)(7)’s plain language merely requires that the trace

request be made “in the course of a bona fide criminal investigation.”76 And,

GUNS, A BLUEPRINT FOR FEDERAL ACTION ON ILLEGALGUNS 31 (2009). But that pamphlet did

not address the proposed demand letter, nor did Mayors Against Illegal Guns suggest that

alternative in its comment to the July 2011 demand letter proposal.

74 Nat’l Shooting Sports Found., 716 F.3d at 217.

75

Id.

76

18 U.S.C. § 923(g)(7). Nor does the presumption that Congress intended its statutes

to have domestic, not extraterritorial, application mean that the Mexican traces were

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Congress has recognized that ATF conducts trace requests by law enforcement

officials in other nations.77

10 Ring also argues that the Privacy Act bars

disclosure of purchaser information to Mexican authorities. But the Privacy Act

is inapplicable to use of the Firearms Tracing System. The Privacy Act

stipulates the conditions upon which an agency may disclose “any record which

is contained in a system of records.” 5 U.S.C. § 552a defines “system of records”

as “a group of any records under the control of any agency from which

information is retrieved by the name of the individual or by some identifying

number, symbol, or other identifying particular assigned to the individual.”78

The Firearms Tracing System is not a “system of records,” because traces are

conducted by entering an identifying characteristic of the firearm, not the

individual, into ATF’s database.79 

Because Appellants have not offered any authority indicating that the

Mexican trace results should have been excluded, we conclude that the district

court permissibly denied 10 Ring’s motion to exclude portions of the

administrative record. 

conducted unlawfully. The presumption against extraterritoriality has no bearing here

because the Mexican government conducting traces using ATF’s database is simply not an

“extraterritorial application” of the GCA.

77 See, e.g., S. REP. NO. 112-158, at 63 (2012); H. Rep. No. 108-576, at 29 (2004).

78

5 U.S.C. § 552a(a)(5) (emphasis added).

79

10 Ring also argues that funding of the Mexican traces was unlawful because the

administrative record does not contain documents establishing that the funding of ATF’s

eTrace 4.0 system “complied with [31 U.S.C.] § 9703(g)(4)(C).” In the absence of clear and

convincing evidence to the contrary, “[a] presumption of regularity attaches to the actions of

Government agencies.” U.S. Postal Serv. v. Gregory, 534 U.S. 1, 10 (2001). 10 Ring has

offered no evidence to rebut that presumption. It attempts to argue that the presumption of

regularity does not apply because there is no evidence that the Director took any action to

comply with § 9703(g)(4)(C), but it cites no cases indicating that the presumption of regularity

does not apply to purported agency inaction.

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VI.

The judgment of the district court is AFFIRMED.

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