Authority of the Bureau of Alcohol, Tobacco, Firearms, and Explosives to Permit Importation of Frames, Receivers, and Barrels of Non-Importable Firearms

Authority of the Bureau of Alcohol, Tobacco, Firearms,
and Explosives to Permit Importation of Frames,
Receivers, and Barrels of Non-Importable Firearms
The Bureau of Alcohol, Tobacco, Firearms, and Explosives does not have authority under the Gun
Control Act of 1968 to permit the importation of the frames, receivers, and barrels of non-importable
firearms, where the importation of those parts is solely for purposes of repair or replacement rather
than for the assembly of a new firearm.
The Bureau may, however, announce that, for a limited time (60 days), it will not take enforcement
action against persons importing frames, receivers, or barrels pursuant to a previously issued permit.

July 6, 2005

MEMORANDUM OPINION FOR THE DIRECTOR
BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES

You asked for our opinion whether the Bureau of Alcohol, Tobacco, Firearms,
and Explosives (“ATF” or “Bureau”) has the authority to permit the importation of
the frames, receivers, and barrels of non-importable firearms, where the importa-
tion of those parts is solely for purposes of repair or replacement rather than for
the assembly of a new firearm. See Letter for Steven G. Bradbury, Acting
Assistant Attorney General, Office of Legal Counsel, from Carl J. Truscott,
Director, Bureau of Alcohol, Tobacco, Firearms, and Explosives (July 1, 2005).
We conclude that ATF does not have such authority. Having been made aware of
this conclusion, you also have asked whether it would be permissible for ATF to
announce that, for a limited time (60 days), it will not take enforcement action
against persons importing frames, receivers, or barrels pursuant to a previously
issued permit. We conclude that, under these circumstances, a temporary policy of
non-enforcement against those acting in good-faith reliance on ATF permits would
represent a reasonable exercise of the Bureau’s enforcement discretion.

I.

The Gun Control Act of 1968, as amended, broadly restricts the importation of
firearms into the United States. See 18 U.S.C. § 922 (2000 & Supp. V 2005).
However, the Act makes an exception for firearms that are “generally recognized
as particularly suitable for or readily adaptable to sporting purposes, excluding
surplus military firearms.” Id. § 925(d)(3) (Supp. V 2005). (In addition, to come
within this exception, the weapon must fall outside the definition of “firearm” in
26 U.S.C. § 5845 (2000).) Because Congress did not define “sporting purposes,”
that authority passed to ATF, which, over the years, has classified an increasingly
wide variety of firearms—including various kinds of semi-automatic rifles—as not
suitable for sporting purposes and thus subject to section 925(d)(3)’s import
prohibition. In 1986, as part of the Firearms Owners’ Protection Act, Pub. L. No.

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99-308, § 105(2)(C), 100 Stat. 449, 459 (1986), Congress amended section
925(d)(3) to provide that “in any case where the Attorney General 1 has not
authorized the importation of the firearm pursuant to this paragraph, it shall be
unlawful to import any frame, receiver, or barrel of such firearm which would be
prohibited if assembled.” Since 2001, however, ATF has continued to allow the
importation of frames, receivers, and barrels of non-importable firearms, albeit
only for the repair or replacement of the corresponding parts of firearms that are
already in the country. To that end, the Bureau has issued permits authorizing
importers to bring such parts into the United States for that purpose. This excep-
tion has allowed owners of machine guns, surplus military firearms, and nonsport-
ing firearms to acquire parts needed to repair firearms they lawfully acquired and
lawfully possess.
We have now determined that ATF’s practice is not authorized by the statute.
Our conclusion is compelled by the unambiguous language of section 925(d)(3).
See United States v. Alvarez-Sanchez, 511 U.S. 350, 356 (1994) (“When interpret-
ing a statute, we look first and foremost to its text.”). The language added by the
Firearm Owners’ Protection Act is clear. It addresses “any” case in which a
firearm is non-importable because it has been deemed to fall outside of the
“sporting purposes” exception. Within that category of weapons, the statute
mandates that “it shall be unlawful to import any frame, receiver, or barrel of such
firearm which would be prohibited if assembled.” 18 U.S.C. § 925(d)(3) (emphasis
added). “Any” is a word that in ordinary usage is understood to have an “expan-
sive meaning.” United States v. Gonzales, 520 U.S. 1, 5 (1997). Read naturally,
therefore, section 925(d)(3) bars the importation of every frame, receiver, or barrel
of every firearm that comes within its scope and admits of no exceptions to that
comprehensive ban. Cf. Brogan v. United States, 522 U.S. 398 (1998) (refusing to
read into a statutory prohibition on “any false statement” an implied limitation for
the mere denial of wrongdoing).
Although we recognize that the word “any” is not invariably as expansive as its
ordinary meaning suggests, see Small v. United States, 544 U.S. 385 (2005)
(holding that “any court” as used in 18 U.S.C. § 922(g)(1) did not include foreign
courts), we find no textual or contextual indications that—as used in section
925(d)(3)—the term admits of any implicit exception. Indeed, the situation here is
far different from the one that confronted the Supreme Court in Small, where the
phrase “any court” had to be read against a general presumption that Congress
legislates with domestic concerns in mind. 544 U.S. at 388–89. That presumption

1
The Attorney General has delegated his statutory authority under chapter 44 of title 18 (which
includes sections 922 and 925) to ATF. See 28 C.F.R. § 0.130(a)(1) (2004); cf. 28 U.S.C. § 510 (2000)
(allowing the Attorney General to “make such provisions as he considers appropriate authorizing the
performance by any other officer, employee, or agency of the Department of Justice of any function of
the Attorney General”).

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created at least some reason to doubt that the statute necessarily covered foreign
convictions. In addition, the Court identified important differences between the
two categories of convictions, which would have been indiscriminately conflated
if “any” were interpreted broadly. Id. at 389–90. Finally, the Court noted that
reading the statute to include foreign courts would introduce anomalies that
Congress was unlikely to have expected or intended. Id. at 391–92.
Here, in contrast, there are no background principles of statutory construction
that would ordinarily work to distinguish parts used for replacement from parts
used for any other purpose. In this context, affording “any” its natural sweep
would not implicate concerns about extraterritoriality, federalism, 2 constitutionali-
ty, 3 or any other concern that would support reading otherwise-broad statutory
language narrowly. And, whereas in Small, it was plausible to think that the use of
the phrase “any court” in a federal statute might be limited to courts within the
purview of Congress (i.e. domestic courts), here there is simply no linguistic
context, be it casual conversation or federal legislation, where “any frame,
receiver, or barrel . . . which would be prohibited if assembled” can be read to
leave out a subset of frames, receivers, or barrels of a prohibited firearm. Nor are
we aware of any relevant context from the time of section 925(d)(3)’s amendment
that would suggest giving special treatment to replacement parts so as to exempt
them from the statute’s seemingly general prohibition.
Finally, no absurd or even anomalous results would flow from interpreting the
statute to mean what it says. It is perfectly reasonable for Congress to have wanted
to bar the importation of all frames, receivers, and barrels of firearms that could
not be imported if fully assembled, rather than merely those frames, receivers, and
barrels that were to be used for purposes other than repair or replacement. Indeed,
insofar as one purpose of the import ban was to reduce over time the number of
non-sporting firearms in the United States that could be put to illicit ends, ATF’s
implied exception, which would allow such weapons to be continually reconstitut-
ed from imported parts, would seem to frustrate that purpose. Of course, if
Congress had intended for section 925(d)(3) to include a repair or replacement
exception, it could have enacted one. Because it did not, and because nothing
inconsistent with the statutory purpose would occur in the absence of such an
exception, we are not free to read into the statute a limitation that does not appear
in its text.
Nor may ATF invoke its general regulatory authority to engraft a repair or
replacement exception onto the statute’s blanket importation ban. Although the

2
E.g., Nixon v. Mo. Municipal League, 541 U.S. 125 (2004) (refusing to adopt a broad reading of
“any entity” where doing so would have resulted in federal interference in the relationship between
states and their political subdivisions).
3
E.g., INS v. St. Cyr, 533 U.S. 289, 299–300 (2001) (discussing and applying the constitutional
avoidance canon).

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Bureau has rulemaking authority with respect to the federal firearms laws, see 18
U.S.C. § 926 (2000 & Supp. V 2005), that authority cannot be used to undermine
an unambiguous statutory command. An agency may not rewrite a statute in the
guise of interpreting it. See, e.g., Ind. Mich. Power Co. v. Dep’t of Energy, 88 F.3d
1272, 1276 (D.C. Cir. 1996). More specifically, a general grant of rulemaking
authority does not confer on an agency the power to create exceptions from the
plain language of a statute. See, e.g., Natural Res. Def. Council, Inc. v. Costle, 568
F.2d 1369, 1372 (D.C. Cir. 1977) (holding that where a statute required permits
for pollution discharges from “any point source,” EPA lacked the power to exempt
certain categories of point sources from that requirement). 4 Indeed, it is a cardinal
rule of administrative law that where “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.” Chevron, U.S.A., Inc. v. Natural
Res. Def. Council, Inc., 467. U.S. 837, 842-43 (1984).
Here, as discussed above, the text of section 925(d(3) speaks “to the precise
question at issue,” thus foreclosing the agency from making a different choice.
Chevron, 467 U.S. at 842. Congress has banned the importation of all frames,
receivers, and barrels of all firearms that ATF has classified as not suited for sport,
as well as those parts of all surplus military firearms and all “firearms” as defined
in 26 U.S.C. § 5845. The statute leaves no gap to be filled and therefore delegates
no policy judgment to ATF about whether to allow such imports for particular
purposes. Accord Nat’l Cable & Telecomm. Ass’n v. Brand X Internet, 545 U.S.
967, 980–81 (2005). ATF cannot “pry apart the clear words of the act in order to
create a gap into which it can wedge its policy preference.” Brungart v. BellSouth
Telecomm., Inc., 231 F.3d 791,797 (11th Cir. 2000). In sum, then, because a repair
or replacement exception “goes beyond the meaning that the statute can bear,”
MCI Telecomm. Corp. v. AT&T Co., 512 U.S. 218, 229 (1994), recognizing such
an exception represents an impermissible use of ATF’s regulatory power. See
Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450 (2002) (“The inquiry ceases if
‘the statutory language is unambiguous and the statutory scheme is coherent and
consistent.’”) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997)).

II.

Our conclusion that ATF lacks the statutory authority to issue permits for the
importation of frames, receivers, and barrels for repair or replacement means, of

4
More recently, the Ninth Circuit followed Costle when it rejected the EPA’s similar attempt to
“exempt from NPDES permit requirements that which clearly meets the statutory definition of a point
source by ‘defining’ it as a non-point source. Allowing the EPA to contravene the intent of Congress,
by simply substituting the word ‘define’ for the word ‘exempt,’ would turn Costle on its head.” League
of Wilderness Defenders v. Forsgren, 309 F.3d 1181, 1190 (9th Cir. 2002).

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course, that ATF must stop granting applications for such permits. You have
advised us that you have already done so. We are aware, however, that importers
who already hold permits issued by ATF may well suffer considerable economic
hardship if those permits were invalidated and their operations immediately shut
down. Those importers acted in good-faith reliance on the Bureau’s erroneous
conclusion that it possessed the legal authority to recognize a repair or replace-
ment exception. Possessing what they reasonably believed were valid permits,
those importers entered into binding contracts with foreign suppliers and made
investments that would likely be unrecoverable if all importations were stopped
suddenly and without warning. Indeed, parts may be in transit to the United States
now.
In an effort to alleviate this potential unfairness, you have asked whether, for a
limited period of time, ATF may refrain from taking enforcement action against
current permit-holders who continue to import frames, receivers, or barrels in
accordance with the terms of their permits. We understand that ATF will achieve
this result by notifying Customs and Border Protection that—as of 60 days from
the date on which ATF notifies industry of its new policy—repair or replacement
permits should no longer be accepted to release the frames, receivers, and barrels
of non-importable firearms into the United States. Under these circumstances, we
believe that this approach would be a permissible exercise of ATF’s enforcement
discretion.
The Supreme Court has recognized that “an agency’s decision not to prosecute
or enforce, whether through civil or criminal process, is a decision generally
committed to an agency’s absolute discretion.” Heckler v. Chaney, 470 U.S. 821,
831 (1985); cf. United States v. Nixon, 418 U.S. 683, 693 (1974) (“[T]he Execu-
tive Branch has exclusive authority and absolute discretion to decide whether to
prosecute a case.”); Vaca v. Sipes, 386 U.S. 171, 182 (1967) (recognizing that the
NLRB has “unreviewable discretion to refuse to institute an unfair labor practice
complaint”). This is so because an agency’s decision about whether to enforce the
laws over which it has jurisdiction “involves a complicated balancing of a
numbers of factors which are peculiarly within its expertise.” Heckler, 470 U.S. at
831. These factors include how best to spend agency resources; the agency’s
likelihood of success if it decides to enforce; whether the particular enforcement
action fits within the agency’s overall policies; and, to some extent, concerns for
individual liberty and property rights, which may be implicated when the agency
acts, but usually not when the agency declines to act. Id. at 831–32; see also Wayte
v. United States, 470 U.S. 598, 607–08 (1985).
ATF is entitled to balance these considerations to assure existing permit-
holders that, for a short time, no enforcement action will be taken against them. It
would be difficult to gainsay ATF’s conclusion that its limited resources are best
not spent enforcing the ban against importers for taking action that the Bureau had
specifically authorized them to take. Moreover, it is entirely appropriate for an

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agency to rely on equitable considerations in deciding when to bring an enforce-
ment action and against whom. Cf. Interim Designation of Acceptable Documents
for Employment Verification, 62 Fed. Reg. 51001, 51001–02 (Sept. 30, 1997)
(“[I]n order to minimize confusion and disruption, [INS] will exercise its discre-
tion to forego enforcement actions against employers who continue to act in
reliance upon and in compliance with existing employment verification forms,
guidance, and procedures.”). Here, given that existing permit-holders acted
reasonably in structuring their businesses and making contracts on the assumption
that the permits were valid, those considerations are particularly compelling.
We emphasize that we are not suggesting that ATF (or any other federal agen-
cy) may use its enforcement discretion simply to allow or encourage private
parties to flout statutory bans. Rather, we believe that the unusual circumstances
now presented—where ATF’s misapprehension of its authority induced reasonable
reliance on the part of regulated parties—allow ATF to set aside a limited period
during which it will decline to visit the consequences of its own legal error upon
those who would otherwise endure significant financial hardship. By merely
delaying enforcement, ATF is not suggesting that the statutory ban on importation
does not merit enforcement. Once the 60-day window closes, no further importa-
tions will be allowed, and anyone who subsequently violates section 925(d)(3) will
be subject to punishment, whether or not he previously had a permit. In the
meantime, however, that window represents an appropriate compromise between
ATF’s important obligation to enforce the law in an evenhanded manner and its
desire not to impose the costs of its mistakes on those who relied in good faith
upon them.

III.

For these reasons, we conclude that although ATF lacks the statutory authority
to grant permits for the importation of frames, receivers, and barrels of non-
importable firearms, the Bureau may exercise its discretion not to bring enforce-
ment proceedings against individuals who, for a limited time, continue to import
such parts in good-faith reliance on previously issued importation permits.

STEVEN G. BRADBURY
Acting Assistant Attorney General
Office of Legal Counsel

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