914 F.2d 475 (4th Cir. 1990), 89-3345, National Rifle Ass'n v. Brady

Docket Nº:89-3345.
Citation:914 F.2d 475
Party Name:NATIONAL RIFLE ASSOCIATION, a not for profit corporation; South Carolina Shooting Association, a not for profit corporation; Greenville Gun Club, a corporation; Palmetto Gun Club, a not for profit association; Robley Moore; William P. Goodman; California Rifle and Pistol Association, a not for profit corporation; Texas State Rifle Association, a no
Case Date:September 13, 1990
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

Page 475

914 F.2d 475 (4th Cir. 1990)

NATIONAL RIFLE ASSOCIATION, a not for profit corporation;

South Carolina Shooting Association, a not for profit

corporation; Greenville Gun Club, a corporation; Palmetto

Gun Club, a not for profit association; Robley Moore;

William P. Goodman; California Rifle and Pistol

Association, a not for profit corporation; Texas State

Rifle Association, a not for profit association; Unified

Sportsmen of Florida, a not for profit association,



Nicholas F. BRADY, Secretary, Department of the Treasury;

Stephen E. Higgins, Director of Bureau of Alcohol, Tobacco

and Firearms, U.S. Department of Treasury, in his official

capacity, Defendants-Appellees.

No. 89-3345.

United States Court of Appeals, Fourth Circuit

September 13, 1990

Argued April 2, 1990.

Rehearing and Rehearing In Banc

Denied Oct. 11, 1990.

Page 476

[Copyrighted Material Omitted]

Page 477

Stephen Porter Halbrook (argued), Fairfax, Va., for plaintiffs-appellants.

Ira C. Lupu, Civ. Div., U.S. Dept. of Justice, Washington, D.C. (Stuart M. Gerson, Asst. Atty. Gen., Michael Jay Singer, Mark B. Stern, Civ. Div., U.S. Dept. of Justice, Washington, D.C., Jack B. Patterson, Imelda Koett, Bureau of Alcohol, Tobacco and Firearms, Washington, D.C., on the brief), for defendants-appellees.

Before SPROUSE and WILKINSON, Circuit Judges, and GARBIS, United States District Judge for the District of Maryland, sitting by designation.

WILKINSON, Circuit Judge:

In this case, we must determine the validity of certain firearms regulations promulgated by the Secretary of the Treasury pursuant to the Gun Control Act of 1968, Pub.L. No. 90-618, as amended by the Firearm Owners Protection Act of 1986, Pub.L. No. 99-308, presently codified at 18 U.S.C. Secs. 921 et seq. The National Rifle Association, along with several other groups and individuals involved with the use and promotion of firearms, challenges the regulations as inconsistent with the Firearm Owners Protection Act. The district court upheld all four regulations at issue here as compatible with the statutory mandate. We hold that two of the four regulations are consistent with the terms of the statute, that the third regulation is in part consistent but in part inconsistent with the statute, and that the fourth regulation is inconsistent with the plain language of the statute. Accordingly, we affirm in part and reverse in part the judgment of the district court.


Congress passed the Gun Control Act of 1968 in order to regulate interstate firearms transactions, primarily through licensing requirements on firearms businesses. Licensees may include importers, manufacturers, dealers, and collectors of firearms. The Secretary of the Treasury was authorized to promulgate regulations to facilitate the enforcement of the Gun Control Act. This responsibility was delegated within the Department of the Treasury to the Bureau of Alcohol, Tobacco and Firearms (BATF).

In 1986, Congress passed the Firearm Owners Protection Act, Pub.L. No. 99-308 (FOPA), which amended several provisions of the Gun Control Act. FOPA was designed to protect the legitimate interests of firearms owners "while preserving the necessary statutory foundation for legitimate law enforcement efforts." S.Rep. No. 98-583, 98th Cong., 2d Sess. 1 (1984). 1 It was intended to reduce the regulatory burden on law-abiding owners of firearms without eviscerating BATF's effectiveness in combatting violations of the firearms laws.

After passage of FOPA, the Secretary of the Treasury initiated a comprehensive review of all regulations implementing the Gun Control Act and issued temporary regulations, effective November 15, 1986, for the enforcement of the amended Act. Some of the temporary regulations were merely repromulgations of regulations which the Secretary had issued prior to the passage of FOPA, while others were new in content. In addition, the Secretary issued a Notice of Proposed Rulemaking requesting comments on the temporary regulations. BATF received over 1500 written

Page 478

comments, including those of the National Rifle Association (NRA) and other interested parties. BATF refused the request of certain of these parties for an oral hearing. On March 31, 1988, the Secretary published the regulations in their final form.

On September 29, 1988, the NRA, six other gun associations, a gun show promoter, and a gunsmith (hereinafter collectively referred to as the NRA) filed suit challenging several of the newly published regulations as contrary to FOPA. They also contended that the Gun Control Act ensured an opportunity for an oral hearing, which had not been afforded them by BATF. On cross-motions for summary judgment, the district court upheld all but one of the challenged regulations and ruled that the NRA was not entitled to an oral hearing.

The NRA appeals. 2


We must first address the appropriate standard of review to govern our examination of the regulations at issue. In the usual challenge to an agency's construction of a statute it administers, our review is conducted according to the standards set forth in Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), and its progeny. The Supreme Court has made plain that "[i]f the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Id. at 842-43, 104 S.Ct. at 2781. If, on the other hand, "the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." Id. at 843, 104 S.Ct. at 2782; see also Motley v. Heckler, 800 F.2d 1253, 1254-55 (4th Cir.1986) ("[W]here Congress has entrusted an agency with implementation of a statutory scheme, that agency's interpretation of the statutory terms is entitled to substantial deference."). Thus, "a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency," Chevron, 467 U.S. at 844, 104 S.Ct. at 2782, but instead must uphold the agency's interpretation as long as it is "rational and consistent with the statute." NLRB v. United Food & Commercial Workers, 484 U.S. 112, 123, 108 S.Ct. 413, 421, 98 L.Ed.2d 429 (1987); see also Sullivan v. Everhart, --- U.S. ----, 110 S.Ct. 960, 964, 108 L.Ed.2d 72 (1990).

Here, however, the NRA contends that through an amendment to the Gun Control Act contained in FOPA Congress intended to restrict severely BATF's ability to promulgate regulations and to dispense with the deference that courts would customarily accord those regulations. Prior to passage of FOPA, the Gun Control Act's enabling provision stated that "[t]he Secretary may prescribe such rules and regulations as he deems reasonably necessary to carry out the provisions of this chapter." FOPA amended this provision to read: "The Secretary may prescribe only such rules and regulations as are necessary to carry out the provisions of this chapter...." 18 U.S.C. Sec. 926. The NRA argues that the change of language in the enabling provision evinces a congressional intent to eliminate most of the regulations adopted by BATF, preserving only those that are truly necessary to further the purposes of the Gun Control Act. The NRA also points to a number of statements in the legislative history of FOPA by individual members of Congress in support of its interpretation of the significance of the change of language in Sec. 926. Thus, the NRA maintains that we should not defer to BATF's interpretation of the Gun Control Act as manifested in its regulations, but rather should strike down the regulations if we do not find them strictly necessary

Page 479

and the least restrictive means of accomplishing the purposes of the Act.

The change in language in Sec. 926 surely counsels BATF not to stray from the directives of the statute, but it is not of the decisive import that the NRA contends. Under the NRA's reading of the amended Sec. 926, it would be the courts, and not BATF, that would have responsibility to determine when a regulation is "necessary" to carry out the purposes of the Gun Control Act. The amended language, however, retains the regulatory function in the Secretary. It does not divest him of his primary role in the implementation of this legislation. BATF, moreover, is better equipped than the courts for such an endeavor, having the technical expertise essential to determinations of statutory enforcement. See Wilson v. Lyng, 856 F.2d 630, 636 (4th Cir.1988). Also, BATF, as opposed to the courts, is "in a position to provide nationally uniform interpretations of statutory terms." Id. Because Sec. 926 authorizes the Secretary to promulgate those regulations which are "necessary," it almost inevitably confers some measure of discretion to determine what regulations are in fact "necessary." Absent a clearer message from Congress that it wishes courts to replace BATF in this role, we are hesitant to work a fundamental alteration in the relationship between the agency and the courts.

The argument that BATF retains statutory discretion to promulgate regulations is bolstered by the specific grants of rulemaking authority in a number of the areas implicated by this litigation. FOPA specifically provides that a licensee "shall 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 Secretary may by regulations prescribe." 18 U.S.C. Sec. 923(g)(1)(A). Similarly, 18 U.S.C. Sec. 923(g)(2) provides that "[e]ach licensed collector shall maintain in a bound volume the nature of which the Secretary may by regulations prescribe, records of the receipt, sale, or...

To continue reading