Previous Article 90 FR 53 pgs. 13080-13084 - Withdrawing the Attorney General's Delegation of Authority
Type: RULEVolume: 90Number: 53Pages: 13080 - 13084
Pages: 13080, 13081, 13082, 13083, 13084Docket number: [Docket No. OLP-179; AG Order No. 6212-2025]
FR document: [FR Doc. 2025-04872 Filed 3-18-25; 4:15 pm]
Agency: Justice Department
Official PDF Version: PDF Version
[top]
DEPARTMENT OF JUSTICE
Office of the Attorney General
27 CFR Part 478
28 CFR Part 0
[Docket No. OLP-179; AG Order No. 6212-2025]
RIN 1105-AB78
Withdrawing the Attorney General's Delegation of Authority
AGENCY:
Office of the Attorney General, Department of Justice.
ACTION:
Interim final rule; request for comments.
SUMMARY:
This interim final rule ("IFR") amends the Department of Justice ("Department") regulations relating to the Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF") by withdrawing effectively moribund regulations regarding how ATF will adjudicate applications for relief from the disabilities imposed by certain firearms laws and withdrawing a related delegation.
DATES:
Effective date: This interim final rule is effective March 20, 2025.
Comments: Written comments must be submitted on or before June 18, 2025. Comments postmarked on or before that date will be considered timely. The electronic Federal Docket Management System will accept comments until midnight Eastern Time on that date.
ADDRESSES:
If you wish to provide comments regarding this rulemaking, you must submit comments, identified by the agency name and referencing RIN 1105-AB78 or Docket No. OLP-179, by one of the two methods below.
• Federal eRulemaking Portal: www.regulations.gov. Follow the website instructions for submitting comments.
• Mail: Paper comments that duplicate an electronic submission are unnecessary. If you wish to submit a paper comment in lieu of electronic submission, please direct the mail to: Robert Hinchman, Senior Counsel, Office of Legal Policy, U.S. Department of Justice, Room 4252 RFK Building, 950 Pennsylvania Avenue NW, Washington, DC 20530. To ensure proper handling, please reference the agency name and RIN 1105-AB78 or Docket No. OLP-179 on your correspondence. Mailed items must be postmarked on or before the submission deadline.
[top] Comments submitted in a manner other than the ones listed above,
As required by 5 U.S.C. 553(b)(4), a summary of this rule may be found in the docket for this rulemaking at www.regulations.gov.
FOR FURTHER INFORMATION CONTACT:
Robert Hinchman, Senior Counsel, Office of Legal Policy, U.S. Department of Justice, telephone (202) 514-8059 (not a toll-free number).
SUPPLEMENTARY INFORMATION:
I. Public Participation
Interested persons are invited to participate in this rulemaking by submitting written data, views, or arguments on all aspects of this rule. The Department also invites comments that relate to the economic or federalism effects that might result from this rule. Comments that will provide the most assistance to the Department in developing these procedures will reference a specific portion of the rule, explain the reason for any recommended change, and include data, information, or authority that supports such recommended change. Comments must be submitted in English or accompanied by an English translation.
Each submitted comment should include the agency name and reference RIN 1105-AB78 or Docket No. OLP-179 for this rulemaking. Please note that all properly received comments are considered part of the public record and generally may be made available for public inspection at https://www.regulations.gov. Such information includes personally identifying information (such as name, address, etc.) voluntarily submitted by the commenter. The Department may, in its discretion, withhold from public viewing information provided in comments that it determines may impact the privacy of an individual or is offensive. But all submissions may be posted, without change, to the Federal eRulemaking Portal at https://www.regulations.gov. Therefore, you may wish to limit the amount of personal information you include in your submission.
For additional information, please read the Privacy Act notice that is available via the link in the footer of http://www.regulations.gov.
If you want to submit personally identifying information (such as your name, address, etc.) as part of your comment, but do not want it to be posted online, you must include the phrase "PERSONALLY IDENTIFYING INFORMATION" in the first paragraph of your comment and identify what information you want redacted. The redacted personally identifying information will be placed in the agency's public docket file but not posted online.
If you want to submit confidential business information as part of your comment, but do not want it to be posted online, you must include the phrase "CONFIDENTIAL BUSINESS INFORMATION" in the first paragraph of your comment. You also must prominently identify confidential business information to be redacted within the comment. If a comment has so much confidential business information that it cannot be effectively redacted, all or part of that comment may not be posted on www.regulations.gov. The redacted confidential business information will not be placed in the public docket file.
II. Background
A. Statutory Framework
Federal law prohibits several categories of persons from "possess[ing] in or affecting commerce, any firearm or ammunition." 18 U.S.C. 922(g). By statute, it also provides that any "person who is prohibited from possessing, shipping, transporting, or receiving firearms or ammunition may make application to the Attorney General for relief from th[at] disabilit[y]" and that "the Attorney General may grant such relief if it is established to his satisfaction that the circumstances regarding the disability, and the applicant's record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest." 18 U.S.C. 925(c).
The first version of these provisions was enacted in 1968, see Omnibus Crime Control and Safe Streets Act of 1968, Public Law 90-351, 82 Stat. 197 (Jun. 19, 1968). Initially, the Secretary of the Treasury was empowered to provide relief only to a "person who has been convicted of a crime punishable by imprisonment for a term exceeding one year (other than a crime involving the use of a firearm or other weapon or a violation of this chapter or of the National Firearms Act)." Id. at 233. Over time, however, that authority was transferred to the Attorney General and expanded to allow the Attorney General to provide relief to any "person who is prohibited from possessing, shipping, transporting, or receiving firearms or ammunition" and to allow such a person to "make application to the Attorney General for relief from the disabilities imposed by Federal laws." 18 U.S.C. 925(c).
Regulations establishing a process to implement the relief-from-disabilities provisions of 18 U.S.C. 925(c) were also first promulgated in 1968. See Internal Revenue Service, Department of the Treasury, 33 FR 18555 (Dec. 14, 1968). Initially, those regulations delegated the Secretary of the Treasury's authority to adjudicate applications to remove disabilities under 18 U.S.C. 925(c) to the Commissioner of the Internal Revenue Service. See 26 CFR 178.144 (1968). Treasury Department Order 221 (June 6, 1972) created the forerunner of ATF, within the Department of the Treasury, effective July 1, 1972. See 37 FR 11696. In 1975, the Secretary of the Treasury "transfer[red] the functions, powers and duties of the Internal Revenue Service arising under laws relating to alcohol, tobacco, firearms, and explosives" to this new entity. See Alcohol, Tobacco, and Firearms, 40 FR 16835 (Apr. 15, 1975).
Under title XI, subtitle B, section 1111 of the Homeland Security Act of 2002, Public Law 107-296, 116 Stat. 2135 (2002) ("HSA"), the "authorities, functions, personnel, and assets" of the Bureau of Alcohol, Tobacco and Firearms, Department of the Treasury were transferred to the Department, with the exception of certain enumerated authorities retained by the Department of the Treasury. Id. 1111(c)(2), (d). In short, the HSA created two separate agencies, ATF in the Department and the Alcohol and Tobacco Tax and Trade Bureau in the Department of the Treasury.
[top] Under 28 U.S.C. 509, "[a]ll functions of other officers of the Department of Justice and all functions of agencies and employees of the Department of Justice are vested in the Attorney General," except for functions not relevant here. Moreover, the HSA expressly provided that "the Attorney General may make such provisions as the Attorney General determines appropriate to authorize the performance by any officer, employee, or agency of the Department of Justice of any function transferred to the Attorney General under this section." HSA 1111; see also 28 U.S.C. 510 ("The Attorney General may from time to time make such provisions as he considers appropriate authorizing the performance
Pursuant to this statutory authority, and consistent with historical practice, the Attorney General delegated authority to adjudicate requests for relief from disabilities on the use of firearms as imposed by Federal law to ATF. See 27 CFR 478.144; Reorganization of Title 27, Code of Federal Regulations, 68 FR 3744 (Jan. 24, 2003). This delegation was effectuated through a final rule that took immediate effect and was exempt from notice-and-comment rulemaking. 68 FR 3747.
In the early 1990s, Congress became concerned about the number of resources that ATF was using to adjudicate requests to relieve individual Americans from disabilities on their ownership of firearms. S. Rep. 102-353 ("The Committee believes that the approximately 40 man-years spent annually to investigate and act upon these investigations and applications would be better utilized to crack down on violent crime."). Congressional reports also stated that judging whether applicants posed "a danger to public safety" was "a very difficult and subjective task," id., and that "too many felons . . . whose gun ownership rights were restored went on to commit crimes with firearms," H.R. Rep. 104-183 (1996). To allow ATF to return to its core function of investigating violations of federal firearms laws, see id. ("The Committee expects ATF to redeploy the positions and funding presently supporting firearms disability relief to the Armed Career Criminal program."), Congress provided in 1992 that "none of the funds appropriated herein shall be available to investigate or act upon applications for relief from Federal firearms disabilities under 18 U.S.C. 925(c)." Treasury, Postal Service, and General Government Appropriations Act, 1993, Public Law 102-393, 106 Stat 1729 (1992).
Since then, ATF has been unable to effectuate its regulatory authority to act on individual applications due to an identical appropriations rider enacted annually. See, e.g., Consolidated Appropriations Act, 2024, Public Law 118-42, 138 Stat. 25, 139 (2024) (" Provided, That none of the funds appropriated herein shall be available to investigate or act upon applications for relief from Federal firearms disabilities under section 925(c) of title 18, United States Code"); see also Is there a way for a prohibited person to restore their right to receive or possess firearms and ammunition?, Bureau of Alcohol, Tobacco, Firearms and Explosives, https://www.atf.gov/firearms/qa/there-way-prohibited-person-restore-their-right-receive-or-possess-firearms-and (last visited February 15, 2025) ("Although federal law provides a means for the relief of firearms disabilities, ATF's annual appropriation since October 1992 has prohibited the expending of any funds to investigate or act upon applications for relief from federal firearms disabilities submitted by individuals.").
ATF is, however, able to act on applications for relief from disabilities under 18 U.S.C. 925(c) filed by corporations, which are historically far less common. See, e.g., Consolidated Appropriations Act, 2024, Public Law 118-42, 138 Stat. 25, 139 (2024) (" Provided further, That such funds shall be available to investigate and act upon applications filed by corporations for relief from Federal firearms disabilities under section 925(c) of title 18, United States Code"). It has not received such an application since 2018, rendering ATF's existing regulations effectively moribund.
Nevertheless, as noted above, when it passed the HSA, Congress chose to transfer authority to remove individual firearms disabilities from the Secretary of the Treasury to the Attorney General. As a result, 18 U.S.C. 925(c) continues to provide a remedy to remove disabilities from firearms possession for certain individuals even though ATF has been unable to act on any application for such relief since 1992 due to the annual appropriations rider. 1 This confusing state of affairs has taken on greater significance given developments in Second Amendment jurisprudence since 1992.
Footnotes:
1 ? Accord Calloway v. DC, 216 F.3d 1, 11 (D.C. Cir. 2000) (recognizing the "very strong presumption' that appropriation acts do not amend substantive statutes"); Bldg. & Const. Trades Dep't, AFL-CIO v. Martin, 961 F.2d 269, 273-74 (D.C. Cir. 1992) (same) (citing, inter alia, TVA v. Hill, 437 U.S. 153, 190 (1978). Minis v. United States, 40 U.S. (15 Pet.) 443 (1841); National Treasury Employees Union v. Devine, 733 F.2d 114, 120 (D.C. Cir. 1984); General Accounting Office, Principles of Federal Appropriations Law. 2-33 to 2-34 (3d ed. 2017).
B. Withdrawal of Delegation of Authority to ATF To Implement 18 U.S.C. 925(c)
In Executive Order 14206 of February 6, 2025 ( Protecting Second Amendment Rights ), the President reaffirmed our national commitment to "[t]he Second Amendment [as] an indispensable safeguard of security and liberty," and directed that "[w]ithin 30 days of the date of this order, the Attorney General shall examine all orders, regulations, guidance, plans, international agreements, and other actions of executive departments and agencies (agencies) to assess any ongoing infringements of the Second Amendment rights of our citizens." Consistent with this Order and with the Department's own strong support for all constitutional rights, including "the right of the people to keep and bear arms" enshrined in the Second Amendment, the Department has begun that review process in earnest and will provide the President with a plan as required by Order 14206. The Department simultaneously recognizes that no constitutional right is limitless; consequently, it also supports existing laws that ensure, for example, that violent and dangerous persons remain disabled from lawfully acquiring firearms. From the Department's perspective, regardless of whether the Second Amendment requires an individualized restoration process for persons subject to 18 U.S.C. 922(g), 18 U.S.C. 925(c) reflects an appropriate avenue to restore firearm rights to certain individuals who no longer warrant such disability based on a combination of the nature of their past criminal activity and their subsequent and current law-abiding behavior while screening out others for whom full restoration of firearm rights would not be appropriate.
[top] However, ATF, which currently has regulatory authority to act on applications made under 18 U.S.C. 925(c), has been forbidden from utilizing any of its appropriated funds for staffing to process requests by individuals for over 30 years. The Department respects congressional appropriations prerogatives, and it expects its forthcoming plan under Executive Order 14206 to include legislative proposals to modify or rescind the rider. It is also undertaking a broader examination of how to address the drain on resources that caused Congress to impose the rider in the first instance, including by addressing any potential inefficiencies in the regulatory process created by 26 CFR 178.144. Although the specific contours of any
Footnotes:
2 ?Absent such a clear statement by Congress, an agency is presumed to have the inherent authority to reconsider its prior decisions. E.g., Ivy Sports Medicine, LLC v. Burwell, 767 F.3d 81, 86 (D.C. Cir. 2014) (Kavanaugh, J.) ("[A]dministrative agencies are assumed to possess at least some inherent authority to revisit their prior decisions, at least if done in a timely fashion. . . . "[I]nherent authority for timely administrative reconsideration is premised on the notion that the power to reconsider is inherent in the power to decide." (quotation marks and citations omitted)); Macktal v. Chao, 286 F.3d 822, 825-26 (5th Cir. 2002) ("It is generally accepted that in the absence of a specific statutory limitation, an administrative agency has the inherent authority to reconsider its decisions.") (collecting cases); Mazaleski v. Treusdell, 562 F.2d 701, 720 (D.C. Cir. 1977) ("We have many times held that an agency has the inherent power to reconsider and change a decision if it does so within a reasonable period of time.").
Revising 28 CFR 0.130 and removing 27 CFR 478.144 further provides the Department a clean slate on which to build a new approach to implementing 18 U.S.C. 925(c) without the baggage of no-longer-necessary procedures- e.g., a requirement to file an application "in triplicate," 27 CFR 478.144(b). With such a clean slate, the Department anticipates future actions, including rulemaking consistent with applicable law, to give full effect to 18 U.S.C. 925(c) while simultaneously ensuring that violent or dangerous individuals remain disabled from lawfully acquiring firearms.
III. Regulatory Requirements
A. Administrative Procedure Act
Notice and comment is unnecessary because this is a rule of management or personnel as well as a rule of agency organization, procedure, or practice. See 5 U.S.C. 553(a)(2), (b)(A). For the same reasons, this rule is not subject to a 30-day delay in effective date. See 5 U.S.C. 553(a)(2), (d). The interim rule relates to an internal delegation of authority and relates to a matter of agency organization, procedure, or practice. See 5 U.S.C. 553(a)(2), (b)(A).
Removing effectively defunct regulations addressing how the Attorney General's statutory authority will be exercised does not adversely affect members of the public and involves an agency management decision that is exempt from the notice-and-comment rulemaking procedures of the Administrative Procedure Act ("APA"). See United States v. Saunders, 951 F.2d 1065, 1068 (9th Cir. 1991) (delegations of authority have "no legal impact on, or significance for, the general public," and "simply effect[?] a shifting of responsibilities wholly internal to the Treasury Department"); Lonsdale v. United States, 919 F.2d 1440, 1446 (10th Cir. 1990) ("APA does not require publication of [rules] which internally delegate authority to enforce the Internal Revenue laws"); United States v. Goodman, 605 F.2d 870, 887-88 (5th Cir. 1979) (unpublished delegation of authority from Attorney General to Acting Administrator of the Drug Enforcement Agency did not violate APA); Hogg v. United States, 428 F.2d 274, 280 (6th Cir. 1970) (where taxpayer would not be adversely affected by the internal delegations of authority from the Attorney General, APA does not require publication).
This rule is exempt from the usual requirements of prior notice and comment and a 30-day delay in effective date because it relates to a matter of agency organization, procedure, or practice. See 5 U.S.C. 553(b). For similar reasons, the original rule delegating the Attorney General's 925(c) authority to ATF also did not go through a notice-and-comment process, see 68 FR at 3747, in contrast to the Department of the Treasury's 1968 rule that set forth substantive standards for consideration of 925(c) applications, see 33 FR 18555. Because ATF's existing rule was published, however, the Department nonetheless has-in the exercise of its discretion-deemed it appropriate to publish its revocation in the form of an IFR. Cf. 44 U.S.C. 1510(e) (noting that publication "shall be prima facie evidence of the text of the documents and of the fact that they are in effect on and after the date of publication"). Due to the significance of the removal of firearms disabilities process, it is also providing the public with opportunity for post-promulgation comment before the Department issues a final rule on these matters. Providing such an opportunity is not, however, committing the Department to waive its exemption from the APA's notice-and-comment process in this or future rulemakings regarding the removal of firearms disabilities under section 925(c). Accord Buschmann v. Schweiker, 676 F.2d 352, 356 n.4 (9th Cir. 1982) (finding that an agency had waived its exemption to the extent that it bound itself to using APA procedures); Rodway v. U.S. Dep't of Agric., 514 F.3d 809, 814 (D.C. Cir. 1975) (same).
B. Regulatory Flexibility Act
Under the Regulatory Flexibility Act ("RFA"), a regulatory flexibility analysis is not required when a rule is exempt from notice-and-comment rulemaking under 5 U.S.C. 553(b) or other law. 5 U.S.C. 603(a), 604(a). Because this is a rule of internal agency organization and therefore is exempt from notice-and-comment rulemaking, no RFA analysis under 5 U.S.C. 603 or 604 is required for this rule.
C. Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year (adjusted for inflation), and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.
D. Executive Orders 12866 (Regulatory Planning and Review) and 13563 (Improving Regulation and Regulatory Review)
[top] This rule is limited to agency organization, management, or personnel matters and is therefore not subject to review by the Office of Management and Budget pursuant to section 3(d)(3) of Executive Order 12866, Regulatory Planning and Review. Nevertheless, the Department certifies that this regulation has been drafted in accordance with the principles of Executive Order 12866, section 1(b), and Executive Order 13563. Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health, and safety effects, distributive impacts, and equity). The benefits of this rule include providing the Department a clean slate to reconsider its approach to
E. Executive Order 13132-Federalism
This rule will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.
F. Executive Order 12988-Civil Justice Reform
This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.
G. Paperwork Reduction Act
The provisions of the Paperwork Reduction Act of 1995, Public Law 104-13, 44 U.S.C. chapter 35, and its implementing regulations, 5 CFR part 1320, do not apply to this final rule because there are no new or revised recordkeeping or reporting requirements.
H. Congressional Review Act
This is not a major rule as defined by 5 U.S.C. 804(2). This action pertains to agency organization, management, and personnel and, accordingly, is not a "rule" as that term is used in 5 U.S.C. 804(3). Therefore, the reports to Congress and the Government Accountability Office specified by 5 U.S.C. 801 are not required.
I. Executive Order 14192-Regulatory Costs
Executive Order 14192, titled "Unleashing Prosperity Through Deregulation," was issued on January 31, 2025. Section 3(a) of Executive Order 14192 requires an agency, unless prohibited by law, to identify at least ten existing regulations to be repealed when the agency publicly proposes for notice and comment or otherwise promulgates a new regulation. In furtherance of this requirement, section 3(c) of Executive Order 14192 requires that the new incremental costs associated with new regulations shall, to the extent permitted by law, be offset by the elimination of existing costs associated with at least ten prior regulations. This interim final rule is a deregulatory action under Executive Order 14192 because it withdraws the Attorney General's delegation of authority to ATF to adjudicate applications for relief from the disabilities imposed by 18 U.S.C. 922 pursuant to 18 U.S.C. 925(c).
List of Subjects
27 CFR Part 478
Administrative practice and procedure, Arms and munitions, Customs duties and inspection, Exports, Imports, Intergovernmental relations, Law enforcement officers, Military personnel, Penalties, Reporting and recordkeeping requirements, Research, Seizures and forfeitures, Transportation.
28 CFR Part 0
Authority delegations (Government agencies), Government employees, Organization and functions (Government agencies).
Accordingly, for the reasons discussed in the preamble, 27 CFR part 478 and 28 CFR part 0 are amended as follows:
Title 27-Alcohol, Tobacco Products and Firearms
PART 478-COMMERCE IN FIREARMS AND AMMUNITION
1. The authority citation for 27 CFR part 478 continues to read as follows:
Authority:
5 U.S.C. 552(a); 18 U.S.C. 921-931
§?478.144 [Removed and Reserved].
2. Remove and reserve §?478.144.
Title 28-Judicial Administration
PART 0-ORGANIZATION OF THE DEPARTMENT OF JUSTICE
3. The authority citation for part 0 continues to read as follows:
Authority:
5 U.S.C. 301; 28 U.S.C. 509, 510, 515-519.
4. In §?0.130, revise paragraph (a)(1) to read as follows:
§?0.130 General functions.
(a) * * *
(1) 18 U.S.C. chapters 40 (related to explosives); 44 (related to firearms), except for 18 U.S.C. 925(c); 59 (related to liquor trafficking); and 114 (related to trafficking in contraband cigarettes);
Dated: March 12, 2025.
Pamela J. Bondi,
Attorney General.
[FR Doc. 2025-04872 Filed 3-18-25; 4:15 pm]
BILLING CODE 4410-BB-P