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.