Plaintiff's sole objection is based on its claim that the purchase order requirement is a legislative rule rather than an interpretive rule, and therefore must be subject to notice and comment procedures. See 5 U.S.C. § 553(b)(A) and § 553(d)(2).
This argument is without merit. The plain language of 27 C.F.R § 179.111 specifies that the importer must satisfy the Director of the ATF that the firearms are to be imported for a permissible purpose. The purchase order ruling does not modify nor add to this requirement, but merely informs interested parties regarding what will "satisfy" the Director. Accordingly, this ruling is an interpretation or implementation of an existing regulation, which was itself subject to notice and comment and is not under contest in this action.
Interport further argues that, even though 27 C.F.R. § 179.111 requires the importer to satisfy the Director of the ATF that the importer falls within one of the three exceptions, the filing of the proper application should be all that is required by law. Interport has no basis for such an inference.
The ATF has utilized the purchase order requirement since 1980 for the importation of all restricted firearms under the "governmental entities" exception. The purchase order requirement is a reasonable means to ensure compliance with the statutory mandate that weapons be imported only if the importation falls within one of three enumerated exemptions. In view of the potential for fraudulent importation,
the ATF must be permitted to require some proof on the part of weapons importers that the purpose for the purchase of weapons falls within one of the statutory exceptions. The purchase order requirement is a reasonable way to implement the statute and the ATF regulation, and is an appropriate implementation of the statute and rule. Accordingly, the Court will grant defendants' motion for summary judgment.
While the Government had a reasonable basis for taking action under the regulation discussed above, the Government should have exercised a measured, common-sense remedy. The destruction of plaintiffs property, as the Government originally intended, is too severe a remedy in a case such as this. It is uncontested that the plaintiff is a legitimate and licensed weapons importer. While plaintiff must comply with ATF regulations, in this instance plaintiff has been put in a difficult position by virtue of the fact that Customs' determination that FTZ # 3 did not meet standards for secure storage came after plaintiff already had shipped its weapons to FTZ # 3.
Plaintiff is a small business. It has a prior record of proceeding the way it did in this case -- namely, purchasing weapons for police departments and holding them at a foreign trade zone until it could find a buyer for them. Up until June 1994, this procedure was acceptable to the Government. It was only when the storage facility was found not to meet appropriate security standards that these problems arose. Certainly under these circumstances, the Government can be more understanding and a little less bureaucratic. After the Court's intervention, a suitable arrangement was made to store plaintiff's merchandise pending appropriate disposition. The parties will be ordered to notify this Court if for some reason the defendants change their position and again intend to destroy the weapons
When Phillip Howard publishes his sequel to his best-seller book, entitled The Death of Common Sense, here is another example of the Government's inability to deal with a problem without the exercise of common sense. Of course, in fairness it must be pointed out that plaintiff has not acted entirely reasonably on its part. Over the course of these proceedings, every time the Court had obtained the Government's willingness to find a suitable solution to the problem, plaintiff insisted upon the Court making a ruling that would have invalidated the Government's appropriate interpretation of the law and allowed the wholesale importation of assault weapons.
Perhaps the lesson to be learned and what may be missing from Howard's excellent book is that reasonableness and common sense must be exercised by both governmental and private sectors.
UNITED STATES DISTRICT JUDGE
This matter comes before the Court on cross-motions for summary judgment. For the reasons cited in the foregoing opinion, it is hereby ORDERED that defendant's motion for summary judgment be GRANTED, and plaintiffs motion for summary judgment be DENIED. It is further ORDERED that the U.S. Customs Service will not destroy the weapons without prior approval by this Court.
UNITED STATES DISTRICT JUDGE