IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA KENT A. LOMONT, et al., Plaintiffs, Civil Action No. 1:00cv01935 (JR) v. LAWRENCE H. SUMMERS, Secretary of the Treasury, and BRADLEY A. BUCKLES, Director, Bureau of Alcohol, Tobacco, and Firearms, Defendants. DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS Dated: November 2, 2000 Respectfully submitted, DAVID W. OGDEN Assistant Attorney General WILMA A. LEWIS United States Attorney, Of Counsel: SANDRA M. SCHRAIBMAN Imelda M. Koett D.C. Bar No. 188599 Shelley Vanneman THOMAS E. CABALLERO Office of the Chief Counsel Attorneys, Civil Division Bureau of Alcohol, Tobacco, and Firearms U.S. Department of Justice 650 Massachusetts Ave.,N.W. P.O. Box 883 Suite 6100 901 E Street, N.W., Room 910 Washington, D.C. 20226 Washington, D.C. 20044 Telephone: (202) 514-3338 Attorneys for Defendants TABLE OF AUTHORITIES FEDERAL CASES: Albuquerque Indian Rights v. Lujan, 930 F.2d 49 (D.C. Cir. 1991) 11,17 Allen v. Wright, 468 U.S. 737 (1984) 10,18 Allied Local and Reg'l Mfrs. v. EPA, 215 F.3d 61 (D.C.Cir. 2000) 40, 42 American Financial Services v. F.T.C., 767 F.2d 957 (D.C. Cir. 1985) 40 Atchinson v. District of Columbia, 73 F.3d 418 (D.C. Cir. 1996) 19 Atlanta Gas Light Co. v. U.S. Dept. of Energy, 666 F.2d 1359 (11th Cir. 1982) 19 Bartholdi Cable Co., Inc. v. F.C.C., 114 F.3d 274 (D.C. Cir. 1997) 40 Bowman Transp. v. Arkansas-Best Freight System, Inc., 419 U.S. 281(1974) 38 Chevron U.S.A. v. Natural Resources Def. Council, 467 U.S. 837 (1984) 33 Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971) 28 City of New York v, United States, 179 F.3d 29 (2d Cir. 1999) 23,24,26 Condon v. Reno, 120 S. Ct. 666 (2000) 24 Dillard v. Baldwin County Comm'rs, 225 F.3d 1271 (11th Cir. 2000) 19 Doe v. ATF, No.3:94CV1699, 1997 WL 852086, at *3-*5 (D. Conn.) [attached at Tab A] passim Dubois v. Thomas, 820 F.2d 943 (8th Cir. 1987) 29 Ethyl Com. v. EPA, 541 F.2d 1, 34 (D.C.Cir. 1976) 40 F.C.C. v. National Citizens Comm. for Broadcasting, 436 U.S. 775 (1978) 38 Farmer v. Higgins, 907 F.2d 1041 (11th Cir. 1990) 39 Florida Audubon Society v. Bentsen, 94 F.3d 658 (D.C. Cir. 1996) 10,11 Fraternal Order of Police v. United States, 173 F.3d 898 (D.C. Cir. 1999) 24 Fraternal Order of Police v. United States, 981 F. Supp. 1 (D.D.C.) , aff'd, 173 F.3d 898 (D.C. Cir. 1999) 25 Gaubert v. Denton, No. Civ.A. 98-2947, 1999 WL 3 50103 (E.D. La. 1999) aff'd, 210 F.3d 368 (5th Cir. 2000) [attached at Tab C] 19 George E. Warren Corp. v. EPA, 159 F.3d 616 (D.C.Cir. 1998) 33 Gillespie v. City of Indianapolis, 185 F.3d 693 (7th Cir. 1999), cert. denied, 120 S.Ct. 934 (2000) 19,24 Gilliard v. Kirk, 633 F. Supp. 1529 (W.D.N.C. 1986) 19 Grand Council of the Crees v. F.E.R.C., 198 F.3d 950 (D.C. Cir. 2000) 11 Heckler v. Chang, 470 U.S. 830 (1985) 29 Hishon v. King & Spaldin 467 U.S. 69 (1984) 19 Hughes v. United States, 953 F.2d 531 (9th Cir. 1992) 29 Independent Petroleum Ass'n of Am. v. Babbitt, 92 F.3d 1248 (D.C.Cir. 1996) 40 Legal Assist. for Vietnamese Asylum Seekers v. Dept. of State, 104 F.3d 1349 (D.C. Cir. 1997) 29 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) 10,11 Maljack Prods. v. Motion Picture Assn., 52 F.3d 373 (D.C. Cir. 1995) 20 Metrolina Family Prac. Group v. Sullivan, 767 F. Supp. 1314 (W.D.N.C. 1989), aff'd, 929 F.2d 693 (4th Cir. 199 1) 19 Minnesota v. United States, 102 F. Supp.2d 1115 (D. Minn. 2000) 27, 28 Modern Muzzleloading, Inc. v. Magaw, 18 F. Supp.2d 29 (D.D.C. 1998) 42 Motor Vehicles Mfrs. Ass'n v. State Farm Mut. Auto Ins., 463 U.S. 29 (1983) 40 Mountain State Legal Foundation v. Glickman, 92 F.3d 1228 (D.C. Cir. 1996) 11 Mountain States Legal Found. v. Costle, 630 F.2d 754 (10th Cir. 1980) 19 Mourning v. Family Publications Servs., 411 U.S. 356 (1973) 38 National Labor Relations Bd. Union v. FLRA, 834 F.2d 191 (D.C. Cir. 1987) 33 National R.R. Passenger Corp. v, Boston & Maine Corp., 503 U.S. 407(1992) 33 * New York v. United States, 505 U.S. 144 (1992) 22, 23, 25, 27 * Printz v. United States, 521 U.S. 898 (1997) 23, 26 Saxbe v. Bustos, 419 U.S. 65 (1974) 39 EEOC v. Associated Dry Goods Corp., 449 U.S. 590 (1981) 39 Senior Civil Liberties Ass'n v. Kemp, 965 F.2d 1030 (11 th Cir. 1992) 19 Shoshone-Bannock Tribes v. Reno, 56 F.3d 1476 (D.C. Cir. 1995) 30 South Dakota v. Dole, 483 U.S. 203 (1987) 27 Sozinsky v. United States, 300 U.S. 506 (1937) 22 * Steele v. National Firearms Act Branch, 755 F.2d 1410 (11 th Cir. 1985) passim Steele v. National Firearms Act Branch, No. 82-2013-civ-SMA (S.D. Fla. Mar. 28, 1983), vacated on other grounds, 755 F.2d 1410 (11th Cir. 1985) [attached at Tab E] 25 Stokwitz v. United States, 831 F.2d 893 (9th Cir. 1987) 21 Talenti v. Clinton, 102 F.3d 573 (D.C. Cir. 1996) 7 Tax Analysts and Advocates v. Blumenthal, 566 F.2d 130 (D.C. Cir. 1977) 31 Tennessee Electric Power Co. v. TVA, 306 U.S. 118 (1939) 19 Thomas Jefferson Univ. v. Shalala, 512 U.S. 504 (1994) 24 Train v. Natural Resources Def Council, 421 U.S. 60 (1975) 38 Udall v. Tallman, 380 U.S. 1 (1965) 38 United States v. Cartwright, 411 U.S. 546 (1973) 38 United States v. Dodge, 61 F.3d 142 (2d Cir. 1995) 22 United States v. Freed, 410 U.S. 601 (1971) 35, 39 United States v. Jones, 976 F.2d 176 (4th Cir. 1992) 22 United States v. Little, 753 F.2d 1420 (9th Cir. 1985) 29 United States v. Marin, 530 F.2d 103 (6th Cir. 1976) 21 United States v. McCutcheon, 446 F.2d 133 (7th Cir. 1971) 21 United States v. Miller, 307 U.S. 174 (1939) 21 United States v. Nathan, 202 F.3d 230 (4th Cir. 2000) 23, 27 United States v. Sheriff, City of New York, 330 F.2d 100 (2d Cir. 1964) 21 University Medical Center v. Shalala, 173 F.3d 438 (D.C. Cir. 1999) 18 Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464 (1932) 10 Vermont Assembly of Home Health Agencies, Inc. v. Shalala, 18 F. Supp. 2d 355 (D. Vt. 1998) 19 Westfall v. Miller, 77 F.3d 868, (5th Cir. 1996) passim Westfall v. Miller, No. 4:93CV273 (E.D. Tex. Mar. 28, 1995) aff'd on standing grounds, 77 F.3d 868 (5th Cir. 1996) [attached at Tab D] 25 York v. Sec. of the Treasury, 774 F.2d 4l7(10th Cir. 1985) 35 INTRODUCTION The National Firearms Act of 1934 ("NFA" or "Act") protects the public welfare and safety by regulating the manufacture, transfer, and possession of a limited set of highly dangerous, gangster-type weapons such as machineguns, sawed-off shotguns and rifles, silencers, bazookas, bombs, and grenades. For over sixty years the Secretary of the Treasury has implemented his authority under that Act to approve the making and transfer of such weapons by requiring individuals who wish to make or receive one of these extremely dangerous weapons to obtain a law enforcement certification affirming that the individual may appropriately receive such weapons. This requirement has been an integral part of the NFA application procedure administered by the Director of the Bureau of Alcohol, Tobacco and Firearms ("ATF"), as the Secretary's delegate, in fulfilling his duty under the NFA to protect public safety by insuring that persons whose possession of NFA covered weapons may pose a threat to the safety of their communities are not allowed to obtain these highly dangerous weapons. Plaintiffs, seven private individuals and two local chief law enforcement officers, now challenge this long-standing regulatory practice by claiming that it has illegally prevented them from either receiving or selling weapons covered by that Act, or that it has unconstitutionally imposed on them a duty to implement a federal regulatory program. Specifically, plaintiffs' claim that ATF's long-standing law enforcement certification requirement should be set aside because it allegedly: a) violates 26 U.S.C. section 6103 by requiring individuals seeking to receive or make NFA covered firearms to reveal their applications to state or local officials; b) infringes the Tenth Amendment by imposing duties on local law enforcement officers; c) interferes with the Secretary's duty to collect federal taxes by allowing state officials to "veto" collection of the federal NFA tax; and d) is outside of the Secretary's authority and is arbitrary and capricious. As discussed in detail below, these challenges all lack merit and should be dismissed. Without even reaching the merits of plaintiffs' claims, this Court should dismiss all but one of the plaintiffs for lack of standing. In order to challenge ATF's regulations that require a state or local law enforcement certification for the transfer and making of NFA weapons, the courts have uniformly required that an individual exhaust all possible avenues for obtaining a certification. As six of the seven private citizen plaintiffs does not allege that they have sought and been denied certification from all possible officials, these six private citizen plaintiffs lack standing. Furthermore, the chief law enforcement officer plaintiffs lack standing because they have not suffered a palpable injury in fact, since the regulation at issue places no mandatory duties on local law enforcement officers. Moreover, any injuries that these two plaintiffs suffer from the regulations result from their own voluntary choice and not from any mandate by ATF. Even if the Court reaches the substance of plaintiffs' challenges to the regulations, it should nonetheless dismiss their complaint for failure to state a claim because each of the challenges raised therein lacks merit as a matter of law. First, ATF's regulations do not violate 26 U.S.C. section 6103, which prohibits disclosure by federal officials of tax returns and return information, because any "disclosure" of tax returns or return information in obtaining a state or local law enforcement certification occurs by the individual himself, and not by any federal official. Second, because the regulations require no duties whatsoever of state and local officials, they neither conscript nor commandeer the officers and therefore do not violate the Tenth Amendment. Third, the certification requirement does not violate the Secretary's duty to collect federal taxes under 26 U.S.C. section 6301, because the certification affects only whether a transfer or making is approved, not whether the Secretary can collect taxes on an approved transfer or making. Simply because the requirement allows the state to affect whether a taxable event occurs does not constitute an infringement on the Secretary's authority to collect taxes that have accrued. Finally, the regulations at issue are within the Secretary's broad authority to implement the National Firearms Act and are not arbitrary and capricious. The Secretary's authority to promote public safety by monitoring the transfer and making of covered firearms permits him to require the law enforcement certification in order to carry out his duty. The certification is clearly relevant to the Secretary's authority to review and make determinations on National Firearm Act applications and to insure that NFA weapons are not placed in the hands of those whose possession of such weapons poses a threat to public safety. For these reasons, the Court should dismiss Plaintiffs' Complaint in its entirety. STATUTORY AND REGULATORY BACKGROUND The National Firearms Act of 1934, as amended by Title II of the Gun Control Act of 1968, 26 U.S.C. sections 5801-5872, regulates the manufacture, possession, and transfer of certain especially dangerous, gangster-type firearms such as machineguns, sawed-off shotguns and rifles, silencers, and destructive devices such as bazookas, bombs missiles, and grenades. See 26 U.S.C. section 5845; Department of the Treasury, Bureau of Alcohol, Tobacco, and Firearms, Federal Firearms Regulations Reference Guide, at 142 (2000) [ATF P 5300.4 (01-00)]. [footnote 1] The NFA was originally passed by Congress in 1934 (Pub. L. No. 474, 48 Stat. 1236-1240), in order to protect the public welfare and safety by monitoring transfers of covered firearms to ensure that they do not fall into the hands of persons intent on misusing them. See Steele v. National Firearms Act Branch, 755 F.2d 1410, 1412 (11th Cir. 1985) (Congress passed NFA "[i]n an effort to regulate the traffic of weapons deemed particularly inimical to public safety"). "The gangster as a law violator must be deprived of his most dangerous weapon, the machine gun." H.R. Rep. No. 1780, 73d Cong., 2d Sess. 1 (1934). [footnote 2] To accomplish this goal, Congress established an interrelated scheme for regulating and taxing certain firearms considered to be "gangster-type" weapons. Among its provisions, the NFA instituted a unique system of registration whereby NFA firearms are registered to their owners in a central registry. See 26 U.S.C. section 5841. In addition, the NFA prohibits the transfer or manufacture of NFA firearms without the prior approval of the Secretary of the Treasury. See id. sections 5812, 5822. The NFA also levies a tax on each transfer or manufacturing of an NFA firearm. See id. sections 5811, 5821. [footnote 3] With regards to the transfer of NFA firearms, the Act provides that: A firearm shall not be transferred unless (1) the transferor of the firearm has filed with the Secretary a written application, in duplicate, for the transfer and registration of the firearm to the transferee on the application form prescribed by the Secretary; (2) any tax payable on the transfer is paid as evidenced by the proper stamp affixed to the original application form; (3) the transferee is identified in the application form in such manner as the Secretary may by regulations prescribe, except that, if such person is an individual, the identification must include his fingerprints and his photograph; (4) the transferor of the firearm is identified in the application form in such manner as the Secretary may by regulations prescribe; (5) the firearm is identified in the application form in such manner as the Secretary may by regulations prescribe; and (6) the application form shows that the Secretary has approved the transfer and the registration of the firearm to the transferee. Applications shall be denied if the transfer, receipt, or possession of the firearm would place the transferee in violation of law. Id. section 5812(a) (emphasis added). [footnote 5] The Act has a similar provision requiring that persons seeking to make an NFA firearm must applyand receive approval from the Secretary before making the weapon. See id. section 5822. As with transfers, "Applications [to make NFA firearms] shall be denied if the making or possession of the firearm would place the person making the firearm in violation of law." Id. ATF has promulgated regulations to implement 26 U.S.C. sections 58.12 and 5822. See 27 C.F.R. section section 179.61- 179.67 (regarding- making of an NFA firearm) and 179.81-179.87 (regarding transfer of an NFA firearm). [footnote 6] These regulations require that an application to make or transfer an NFA firearrn be submitted on ATF Form 1, Application for Tax Paid Making and Registering of Firearms, or ATF Form 4, Application for Tax Paid Transfer and Registration of Firearms. In applying to transfer an NFA firearm, 27 C.F.R. section 179.85 provides that, for a transferee completing an ATF Form 4: If the transferee is an individual, such person shall securely attach to each copy of the application, Form 4 (Firearms), in the space provided on the form, a photograph of the applicant 2 x 2 inches in size, clearly showing a full front view of the features of the applicant with head bare, with the distance from the top of the head to the point of the chin approximately 1 1/4 inches, and which shall have been taken within 1 year prior to the date of the application. The transferee shall attach two properly. completed FBI Forms FD-258 (Fingerprint Card) to the application. The fingerprints must be clear for accurate classification and should be taken by someone properly equipped to take them. A certificate of the local chief of police, sheriff of the county, head of the State police, State or local district attorney or prosecutor, or such other person whose certificate may in a particular case be acceptable to the Director, shall be completed on each copy of the Form 4 (Firearms). The certificate shall state that the certifying official is satisfied that the fingerprints and photographs accompanying the application are those of the applicant and that the certifying official has no information indicating that the receipt or possession of the firearm would place the transferee in violation of State or local law or that the transferee will use the firearm for other than lawful purposes. (Emphasis added.). [footnote 7] A similar provision applies to identification of applicants who are seeking to make an NFA firearm, and also requires a certification by an appropriate state or local law enforcement officer. See 27 C.F.R. section 179.62. In short, the transferee (or maker) of a firearm must include on the application to transfer (or make) a firearm a certification of a state or local official that that official [footnote 8] has no information indicating that the receipt or possession of the firearm would place the transferee (or maker) in violation of state or local law, and that the official has no information indicating that the transferee (or maker) will use the firearm for other than lawful purposes. Finally, the NFA makes it unlawful for any person to transfer, receive, or possess NFA firearms in violation of the Act's provisions. See 26 U.S.C. section 5861. FACTUAL BACKGROUND [footnote 9] Plaintiffs, seven private individuals and two local chief law enforcement officers, filed this action against the Secretary of the Treasury and the Director, ATF. See Complaint for Review of Adverse Agency Actions, for a Declaratory Judgment, and for a Writ of Mandamus ["Complaint"] paras. 2-10. Two of the private individuals allege that their ability to sell or transfer NFA firearms has been obstructed by the inability of prospective transferee buyers to obtain state and local law enforcement certifications for their NFA applications. Five of the private individuals allege that they have attempted to receive or make firearms but have been unable to obtain a certification from a state or local law enforcement officer and so are unable to have their applications approved by ATF. [footnote 10] The two chief law enforcement officers allege that being authorized to sign certifications under the ATF regulations injures them in their official roles as local law enforcement officers. The specific allegations of each plaintiff follows. Plaintiff Lomont alleges that he has lost sales and sales opportunities because of the inability of prospective buyers to obtain the required law enforcement certification on their NFA applications. Specifically, Lomont alleges that two buyers, one in Indiana in 1995 and another in Colorado in 2000, were unable to obtain the certification, and, therefore, that Lomont "lost" their sales because they could not legally receive the NFA firearms Lomont was trying to sell. See id. Para. 16(C). Plaintiff Whelan alleges that he refuses to seek a law enforcement certification because he believes doing so would entail disclosure of his tax information to state and local officers, which he asserts cannot be required under federal law. See id. para. 17(C). Despite having not sought or obtained a certification because of these objections, Whalen submitted an ATF Form 1 application to make a firearm on June 1, 2000; that application had not been approved by ATF at the time plaintiffs' Complaint was filed. See id. Para. 17(D). Plaintiff Larson alleges that he is a "published author on firearms and NFA matters" and that he has a personal and professional interest in firearms. See id. para. 18(A) and (B). Larson alleges that his ability to trade, buy and sell firearms classified as curios and relics is impaired by the inability of other collectors and owners to obtain CLEO certifications on BATF Forms 4 [NFA transfer applications]," as required by ATF regulations. See id. para. 18(C). Plaintiff Kadison alleges that he attempted to receive an NFA firearm in June 1999. See id. para. 19(D). In so doing, he requested a law enforcement certification from the Chief of the Arlington Police Department, who refused to certify Kadison because Kadison would not permit an inspection of his home as required by the Chief of Police before providing a certification on an NFA application. See id. Kadison then sought certification from the Arlington County Sheriff and the Commonwealth's Attorney for Arlington County, both of whom refused his request. See id. He then sought a certification from the Judges of the Arlington County Circuit Court, who did not respond. See id. The firearm vendor submitted the transfer application to ATF without the law enforcement certification; ATF denied the application in August 1999. See id. paras. 19(D) and (E). Plaintiff O'Brien alleges that he purchased a "rare collectible firearm" but has been unable to obtain a law enforcement certification for transfer of the weapon. See id. para. 20(B). O'Brien asserts, similar to Kadison, that he is unable to get a law enforcement certification from the Chief of the Arlington Police Department, unless he agrees to a home inspection purportedly required by that official, which he refuses to do. See id. para. 20(B) and (C). O'Brien asserts that he has sought certifications from the Sheriff of Arlington County, the Commonwealth's Attorney for Arlington, and the Virginia State Police, each of whom allegedly advised him that their policy was not to sign ATF law enforcement certifications. See id. para. 20(D). O'Brien alleges that there are no other officials within his jurisdiction who are available or willing to execute a certification. See id. para. 20(E). Plaintiff Grimes alleges that he contracted to purchase an NFA firearm in approximately June 1999. See id. para. 21(B). Grimes then allegedly sought certifications for his ATF transfer application from the Sheriff of Suffolk County, Virginia, the Commonwealth's Attorney for Suffolk County, the three Circuit Judges presiding in his judicial district, the Chief of Police of the Suffolk Police Department, the Virginia State Police, and the Attorney General of Virginia. See id. para. 21(C). Grimes alleges that each of those officials refused to execute a certification, and that there are "no other officials within [his] jurisdiction who are available and willing to execute a CLEO certificate." See id. Grimes then claims that he submitted his NFA application to ATF, lacking the law enforcement certification. See id. para. 21(D). ATF allegedly cashed the $200 check sent in with the application but had not yet acted on his application prior to the filing of this suit. See id. para. 21(E). Plaintiff Davis alleges that he "desires to add to his collection of firearms" but that the present Chief of Police for his jurisdiction, Anchorage, Alaska, advised him that he does not sign certifications for ATF NFA applications. See id. para. 22(C). Davis alleges that it is not actually the policy of that official not to sign ATF forms; rather, Davis alleges that that official has previously signed forms for "cronies and friends." Id. para. 22(D). Davis further claims that there are no other officials within his jurisdiction available or willing to execute a certification. See id. para. 22(D). Finally, Davis alleges that he submitted an NFA transfer application on June 27, 2000, that was complete except for lacking a law enforcement certification, and that ATF had not acted on his application as of the date on which the Complaint was filed. See id. para. 22(F) and (G). Plaintiff Hose alleges that he is the duly-appointed Chief of the Clinton, Indiana Police Department, and Plaintiff Frank alleges that he is the duly-elected Sheriff of Orange County, Vermont. See id. para. 23(A) and (B). They allege together that they are authorized by ATF regulations to execute law enforcement certifications on NFA applications. See id. para. 23(C). They further allege that because they are authorized to execute certifications by ATF, the regulations injure them by "empower[ing]" them to deny certifications requested by their constituents. See id. para. 23(C). ARGUMENT I. ALL PLAINTIFFS, EXCEPT PLAINTIFF GRIMES, SHOULD BE DISMISSED BECAUSE THEY HAVE FAILED TO PLEAD FACTS SUFFICIENT TO DEMONSTRATE THEIR STANDING TO CHALLENGE ATF'S REGULATIONS "Article III of the Constitution limits the 'judicial power' of the United States to the resolution of 'cases' and 'controversies.'" Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 471 (1932); see also Allen v. Wright, 468 U.S. 737, 750 (1984). A fundamental part of Article III's case or controversy requirement is that a plaintiff must have standing to invoke federal court jurisdiction. See Florida Audubon Society v. Bentsen, 94 F.3d 65 8, 663 (D.C. Cir. 1996) (en banc). In order to satisfy the "irreducible constitutional minimum of standing," a litigant must demonstrate that he or she has suffered an injury in fact that is caused by, or fairly traceable to, the challenged action of the defendant, and that it is likely, as opposed to merely speculative, that the injury can be redressed by a favorable decision of the Court. Id.; see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). "A party that fails to demonstrate any of these prerequisites cannot seek relief from the federal judiciary." Florida Audubon Society, 94 F.3d at 661- 62. In addition to the constitutional minimum, plaintiffs also must demonstrate that they have prudential standing to bring their claims. See Mountain State Legal Foundation v. Glickman, 92 F.3d 1228, 1232 (D.C. Cir. 1996). "To establish prudential standing, plaintiffs generally must show that 'the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute.'" Grand Council of the Crees v. F.E.R.C., 198 F.3d 950, 954 (D.C. Cir. 2000) (quoting Association of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153 (1970)). Plaintiff bears the burden of demonstrating that it has standing to bring its claims. See Florida Audubon Society, 94 F.3d at 666 ("well-established rule that a plaintiff must demonstrate standing"); Albuquergue Indian Rights v. Lujan, 930 F.2d 49, 55 (D.C. Cir. 1991) ("burden is on the plaintiff to allege facts sufficient to support standing") (quoting United Presbyterian Church in the USA v. Reagan, 738 F.2d 1375,1383 (D.C. Cir. 1984)). a. The Non-Chief Law Enforcement Officer Plaintiffs, Except for Grimes, Fail to Demonstrate Standing [footnote 11] The courts have consistently held that in order to have standing to challenge the state or local law enforcement certification requirement in 27 C.F.R. section 179.85, a plaintiff must have "exhausted the remedies available in the regulation," by requesting and being denied certification by all officials who could provide a certification. See Steele, 755 F.2d at 1414-15. Until an individual has pursued all possible avenues for obtaining the necessary certification, he or she is unable to show that the regulation at issue was the cause of their injury, which is the inability to make, transfer, or receive an NFA firearm. See id.; Westfall v. Miller, 77 F.3d 868, 871-73 (5th Cir. 1996) (adopting holding in Steele that "the causation element is satisfied only if the petitioner exhausts the remedies available in the regulation"), Doe v. ATF, No.3:94CV1699,1997 WL 852086, at *3-*5 (D. Conn.)(accepting holdings of Steele and Westfall [attached Tab A]. [footnote 12] As the Court in Steele explained, [Plaintiff's] inability to sell his inventory would be fairly traceable to the purportedly unlawful conduct only if all of the eligible signers listed in the regulation would not sign the form.... Without such an allegation, supported by credible evidence, this court cannot be sure whether the injury was caused by the defendants' actions or by [plaintiff s] failure to pursue all possible avenues listed in the regulation to obtain the required signatures. Id. 755 F.2d at 1415 (emphasis added). [footnote 13] See also Westfall, 77 F.3d at 873 (by failing to seek certification from all possible officials, plaintiff "has failed to establish that he has suffered an injury in fact which is fairly traceable to actions taken by the ATF"); Doe v. ATF, 1997 WL 852086, at *4 (stating that, because plaintiff "has failed to complete the prescribed statutory procedure required to establish an injury" by seeking certification from all possible officials, "[a]ny injury which the plaintiff has suffered is fairly traceable not to actions by ATF but to her own inaction.. .") [footnote 14] Under these standards, all of the plaintiffs except one (Grimes) have failed to plead facts sufficient to give them standing, and therefore, the Court lacks jurisdiction over those claims. 1 . Kent A. Lomont Plaintiff Lomont alleges that he "has lost sales and sales opportunities in interstate commerce because CLEOs have refused to sign the CLEO certificate[.]" Complaint para. 16(B). However, as Steele made clear, in order to have an injury caused by the regulation, a firearms seller must do more than allege generally that they would be able to sell NFA firearms but for the certification requirement; rather a seller must allege that "he had a buyer who met the statutory qualification for eligibility." Steele, 755 F.2d at 1415. Lomont's general allegation that he has lost potential business is not enough to establish his standing to challenge the regulation. Lomont further alleges that he "lost the sale" of two firearms because of the failure of two potential purchasers, one in Indiana and the other in Colorado, to obtain the required certifications. See Complaint para. 16(C). These allegations fall short of those necessary to establish standing. As discussed, Steele required that a seller allege that "he had a buyer who met the statutory qualifications for eligibility." 755 F.2d at 1415. Without an allegation that the two buyers were otherwise qualified to possess firearms, Lomont has not demonstrated that the sale was prevented by the regulation and not for reasons other than the inability to obtain a state or local law enforcement certification, e. g. if the buyer was prohibited under other laws from receiving or possessing a firearm. Moreover, absent such an allegation, the Court is unable to determine if it is likely that a judgment for plaintiff would remedy the injury, since even without the certification requirement the seller might not be able to transfer the firearm to the individual. Cf Steele, 755 F.3d at 1415 ("If the sale of [an NFA] weapon would place the transferee in violation of the law, only the striking down of the statute itself, a remedy not requested in the complaint, could relieve [plaintiffs] injury."). Lomont's failure to allege that either of the two buyers that he purportedly "lost" were otherwise qualified to receive an NFA firearm precludes his standing to raise these claims. Moreover, Lomont's allegations also fail to meet the requirement that a prospective transferee must exhaust all potential avenues of obtaining a certification under the regulation. He alleges in the most cursory fashion that the first buyer "was unable to secure a CLEO certificate." Complaint para. 16(C). This allegation is insufficient since it does not allege that the Indiana buyer sought a certification from any - much less all - of the acceptable officials. Similarly, although the Complaint does allege that the second prospective purchaser in Colorado contacted and was denied certification by some of the officials listed in the regulation, plaintiff does not allege that the buyer contacted all possible certifying officials. The allegations state that the Colorado purchaser sought certification from the county sheriff, the district attorney, a district judge, and the Colorado Bureau of Investigation. See id. He has not alleged that he has sought a certification from the chief of police (if any) in his jurisdiction, or from other acceptable officials, such as the state Attorney General, the head of the Colorado State Patrol, and all possible judges in his district. See 27 C.F.R. section 179.85; Federal Firearms Regulations Reference Guide at 144. Accordingly, neither of the alleged buyers meet the requirements to establish Lomont's standing to challenge the regulations. 2. Daniel J. Whalen Plaintiff Whalen alleges that he submitted an application to make an NFA firearm on June 1, 2000, without the required state or local certification, and that he has not yet received a reply to his request. See Complaint para. 17(C), (D). On the face of his allegations, he has not alleged that he is unable to obtain a certification; rather, he alleges that he refused to seek a certification because he "refuses" to disclose information from his ATF Form 1 to state or local officers. See id. These allegations fail on their face to demonstrate standing. Whalen has not alleged that he has exhausted the list of officers who could perform a certification; indeed, he has not alleged that he has sought certification from any official. Such an allegation is entirely insufficient to allege standing under Steele, Westfall, and Doe v. ATF, and, in fact, demonstrates that it was Whalen's own unwillingness to seek certification, and not ATF's regulation, that prevented him from making an NFA firearm. Accordingly, Whalen lacks standing to challenge the regulations. [footnote 15] 3. Eric M. Larson Plaintiff Larson alleges that "[his] ability to trade, buy and sell firearms classified as curios and relics is impaired by the inability of other collectors and owners to obtain CLEO certificates on BATF Forms 4. But for the requirement of CLEO certificates Plaintiff Larson would forthwith transfer and receive such firearms." See id. para. 18(C). These vague allegations of harm clearly fail to establish standing under the holdings of Steele, Westfall, and Doe v. ATF. Larson has not identified any prospective purchasers for his weapons who have sought and failed to attain a state and local certification. Similarly, he does not allege that he has attempted to obtain a certification from any official and been denied. Indeed, there is no allegation that ATF has denied any applications related to Larson. Accordingly, the allegations regarding Plaintiff Larson are insufficient to establish his standing to challenge the ATF regulations. See Steele, 755 F.3d at 1414 ("[Plaintiff s] inability to sell his inventory would be fairly traceable to the purportedly unlawful conduct only if all of the eligible signers listed in the regulation would not sign the form."). 4.James Kadison and Gerald C. O'Brien Plaintiffs Kadison and O'Brien are residents of Arlington County, Virginia, who allege that they have not obtained a certification because they choose not to pursue a certification from an acceptable official, the Arlington Chief of Police, because that official purportedly requires an inspection of an individual's residence prior to certifying an individual for possession of an NFA firearm. See Complaint paras. 19-20. Plaintiff Kadison alleges that he also sought a law enforcement certification from the Sheriff of Arlington County and was denied, and that he also sought a certification from the Judges of the Arlington County Circuit Court, who never responded. See id. para. 19(D). O'Brien alleges that, in addition to the Arlington Chief of Police, he sought certification from the Sheriff of Arlington County, the Commonwealth's Attorney for Arlington County, and the Virginia State police, all of whom denied his request, allegedly advising O'Brien that it was the policy of those offices not to sign such ATF certifications. See id. Neither Kadison nor O'Brien alleges that they were denied certification by the Chief of Police; rather, each alleges that they refused to allow a home inspection that the Chief of Police requires before executing the certification. The case law makes clear, however, that an individual must exhaust all avenues for obtaining a state or local certification before they can demonstrate that their injury results directly from the ATF regulations. See Steele, 755 F.2d at 1415; Westfall, 77 F.3d at 872 ("we find the completion of the statutory procedure necessary to establish [plaintiffs] injury"). [footnote 16] Kadison's and O'Brien's unwillingness to pursue certification from all possible sources - namely, their refusal to accept the certification requirements of the Chief of Police - is not a substitute for actually seeking the Chief's certification and being denied. Indeed, neither plaintiff alleges that the Chief would not certify them if they complied with the Chief's conditions. Accordingly, because they have not sought certifications from all possible officials, Kadison and O'Brien have failed to plead allegations sufficient to demonstrate that they have standing to challenge ATF's regulations. 5. Virgle W. Davis Plaintiff Davis alleges that he sought and was denied a law enforcement certification from the Chief of Police of his jurisdiction. See Complaint para. 22(C). Plaintiff never alleges that he in fact sought and was denied certification from any of the other officials listed in 27 C.F.R. section 179.85. Rather, plaintiff makes the conclusory allegation that no other officials are "available or willing to execute a CLEO certificate." Id. para. 22(E). Such an allegation does not have the necessary particularity to meet plaintiffs burden of pleading facts sufficient to establish his standing, see Albuquerque Indian Rights, 930 F.2d at 55 ("burden is on the plaintiff to allege facts sufficient to support standing") (quoting United Presbyterian Church, 73 8 F.2d at 1383), and cannot substitute for properly alleging that all avenues for obtaining a certification have been exhausted. b. Chief Law Enforcement Officer Plaintiffs Hose and Frank Lack Standing Plaintiff Stephen L. Hose alleges that he is the "duly- appointed" Chief of Police for Clinton, Indiana, and Plaintiff Samuel Frank alleges that he is the "duly-elected" Sheriff of Orange County, Vermont. See Complaint para. 23(A) and (B). Both of these plaintiffs allege that the state and local certification requirement in the ATF regulations at issue injures them in their official duties. [footnote 17] ATF's certification requirement, however, is imposed on individuals seeking to transfer or make NFA firearms; this requirement places no mandatory duties whatsoever on chief law enforcement officers. See 53 Fed. Reg. 10480, 10488 (March 31, 1988) (T.D. ATF-270) ("The [certification] requirement does not ... mandat[e] that [state or local] officials approve or disapprove transactions. On the contrary, these officials have the discretion to execute or not execute the required certifications."), See also Doe v. ATF, 1997 WL 852086, at *7 ("courts considering this regulation have concluded that action on the part of state officials under section 179.85 is discretionary, not mandatory") (citing discussion of district court decisions in Westfall, 77 F.3d at 870, and Steele, 755 F.3d at 1411). Consequently, because ATF's regulations do not require these two plaintiffs to do anything, they have not suffered an injury in fact sufficient to have standing to challenge the regulations. Despite the fact that the regulation requires nothing from Chief Hose or Sheriff Frank, these plaintiffs allege that they have nonetheless suffered three distinct injuries. First, they claim that the regulation harms them by "creating a perception by their constituents that the right to keep and bear arms protected by the Constitutions of Indiana and Vermont are thereby violated." Complaint para. 23(D). Such an allegation qualifies as a mere abstract grievance that is insufficient to establish plaintiffs' standing. Cf. University Medical Center v. Shalala, 173 F.3d 438, 441 (D.C. Cir. 1999) ("The injury must be distinct and palpable and not merely hypothetical, abstract, or conjectural."). Second, Plaintiffs Hose and Frank claim that the regulations injure them by "illegally delegating to them the power to veto the collection of a federal tax." Complaint para. 23(D). Even were this a proper characterization of the regulation (which it is not, see Section II.b. infra.), it causes no injury to them. If they do not wish to exercise whatever putative authority the regulations may give them, they may decline to do so and suffer no penalties whatsoever. Any concern they have regarding the propriety of the federal government's actions merely qualifies as a generalized grievance that is not sufficiently particular to be the basis for Article III standing. See Allen v. Wright, 468 U.S. at 754 ("This Court has repeatedly held that an asserted right to have the Government act in accordance with law is not sufficient, standing alone, to confer jurisdiction on a federal court."). Finally, Plaintiffs Hose and Frank assert that the regulations injure them by "illegally requiring the disclosure to them of protected federal tax returns, return information, and taxpayer return information." Complaint para. 23(D). Again, even if the legal conclusion in this allegation was correct, which it is not, the allegation does not demonstrate any harm to these officials. While disclosure of an individual's tax return information to Plaintiffs Hose and Frank might qualify as an injury to the individual, it cannot constitute an injury to Plaintiffs Hose and Frank since they are not disclosing anything nor are they punished by receiving the putative disclosures. Therefore, such an allegation fails to demonstrate any injury in fact. Moreover, if Chief Hose or Sheriff Frank choose not to do the certifications, they would not receive any alleged disclosures of individual returns. Thus, any putative injury from receiving disclosures of tax information is caused by their own choice to perform certifications, not by any mandate in the regulation. Accordingly, Plaintiffs Frank and Hose have failed to plead allegations sufficient to demonstrate standing to bring their claims. [footnote 18] II. PLAINTIFFS' COMPLAINT SHOULD BE DISMISSED BECAUSE IT FAILS TO STATE A CLAIM ON WHICH RELIEF CAN BE GRANTED A court should dismiss a complaint for failure to state a claim if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Atchinson v. District of Columbia, 73 F.3d 418, 421 (D.C. Cir. 1996). In deciding such a motion, the court should accept as true all well-pleaded factual allegations and draw all reasonable inferences in favor of the plaintiff. "At the same time, we are not to accept inferences drawn by [plaintiff] if they are unsupported by the alleged facts, nor will we accept purely legal conclusions masquerading as factual allegations." See Maljack Prods. v. Motion Picture Assn., 52 F.3d 373, 375 (D.C. Cir. 1995). As discussed below, because plaintiffs' allegations on their face fail to state a claim as a matter of law, the Court should dismiss their complaint. a. ATF's Regulations Do Not Require Or Cause the Disclosure of Any Tax Return Information Protected by 26 U.S.C. section 6103 by Any Federal Officials. The first count in plaintiffs' Complaint asserts that the certifications required by 27 C.F.R. sections 179.63 and 179.85 violates the 26 U.S.C. section 6103(a) prohibition on the disclosure of tax returns or return information by officers of the United States. See Complaint, Count 1. Specifically, Plaintiff Whalen argues that ATF's regulations require him to seek certification from state and local officials on his ATF NFA application forms, and thus, require disclosure of those forms and the information therein to state and local officials from whom he seeks certification. See id. paras. 28-29. Such a requirement, according to plaintiff, results in the compelled disclosure of tax return information by ATF regulation in violation of 26 U.S.C. section 6103(a). However, because any disclosure that may occur in obtaining a certification is a self- disclosure by the individual, plaintiff s claim is without merit. Section 6103(a) of title 26 provides that: Except as otherwise authorized by [title 26] ... No officer or employee of the United States ... shall disclose any return or return information obtained by him in any manner in connection with his service as such an officer or an employee. . ." On the face of plaintiff's allegations, this claim must fail since it is clear that no officer or employee of the United States has disclosed any "return or return information obtained by him." Rather, any "disclosure" of covered information is by the individuals themselves who are seeking to make or receive extremely dangerous NFA firearms. Section 6103(a), which restricts disclosure of return information by officers of the United States, is simply inapplicable to an individual's self- disclosure of his or her own return information. Cf. Stokwitz v. United States, 831 F.2d 893, 895 (9th Cir. 1987) ("Section 6103 establishes a comprehensive scheme for controlling the release by the IRS of information received from taxpayers"). In an attempt to evade this clear barrier to his claim, plaintiff stretches 26 U.S.C. section 6103 beyond the plain scope of its terms by arguing that the regulations at issue "compel" individuals to disclose return information to state and local law enforcement officials in order to receive or make an NFA firearm. See Complaint para. 25. Consequently, plaintiff asserts, the regulations indirectly force individuals to disclose their tax returns to state and local officials. See id. paras. 29, 35. However, the fact that ATF regulations require the individual to obtain a law enforcement certification in order to receive or make an NFA firearm does not alter the fact that the individual him or herself - not an official of the United States - discloses any return information. As the Second Circuit has concluded with regards to the disclosure of tax returns: The disclosure of tax returns which is forbidden by both federal and state law to protect the integrity of the tax reporting and collecting system is an unauthorized disclosure of the filed returns, directed primarily against employees of government in the taxing departments. Disclosure by the taxpayer himself of his copies of returns is not an unauthorized disclosure, even though it be made by reason of legal compulsion. United States v. Sheriff, City of New York, 330 F.2d 100, 101 (2d Cir. 1964) (emphasis added). [footnote 19] Moreover, individuals who wish to make or receive the NFA firearms are not unwillingly "forced" into disclosing return information. Rather, individuals have to obtain state or local certification on the relevant ATF forms only if they want to make or receive an extremely dangerous, gangster-type weapon covered by the NFA. To obtain the privilege of having one of these NFA firearms, see United States v. Miller, 307 U.S. 174,178 (1939); United States v. Marin, 530 F.2d 103, 105-08 (6th Cir. 1976); United States v. McCutcheon, 446 F.2d 133, 135-36 (7th Cir. 1971), individuals provide these ATF forms to state and local officials in order to obtain the necessary certification. By choosing to apply for such a privilege, the individual voluntarily decides to seek certification from state and local law enforcement officials and to reveal any return information incident to obtaining that certification.[footnote 20] In sum, 26 U.S.C. section 6103 does not apply to the voluntary disclosure of an individual's own return information in seeking a certification to make or receive NFA firearms, and, thus, plaintiffs claim that the certification requirement in 27 C.F.R. sections 179.65 and 179.85 violates the provisions of 26 U.S.C. section 6103 should be dismissed. b. The Certification Requirement in ATF's Regulations Does Not Coerce or Commandeer State or Local Officers and, Thus, Does Not Violate the Tenth Amendment Plaintiffs next claim that the state certification requirement in ATF's regulations violates the Tenth Amendment. The Tenth Amendment provides that "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." U.S. Const. Amend. X. In applying the restrictions of this Amendment, the Supreme Court has explained that "[i]f a power is delegated to Congress in the Constitution, the Tenth Amendment expressly disclaims any reservation of that power to the States." New York v. United States, 505 U.S. 144, 156 (1992). Plaintiffs do not challenge the well-established legal proposition that the NFA is a valid enactment under Congress' power to lay and collect taxes, see Sozinsky v. United States, 300 U.S. 506, 513-14 (1937); United States v. Dodge, 61 F.3d 142, 145 (2d Cir. 1995), [footnote 21] and, accordingly, do not claim that the NFA violates substantive areas of state power protected by the Tenth Amendment. Rather, plaintiffs claim that the certification requirements of 27 C.F.R. sections 179.63 and 179.85 violate the Tenth Amendment "by commandeering State and local officers to administer federal law." See Complaint paras. 40, 42. Because the ATF regulations at issue here do not compel state or local officers to administer any federal laws or regulations, they do not run afoul of the Tenth Amendment. Plaintiffs' claim that the regulations "commandeer" state and local officers is based on the Supreme Court's decision in Printz v. United States, 521 U.S. 898, 927-35 (1997), where the Court held unconstitutional the requirement in the interim provisions of the Brady Act that directed chief law enforcement officers to perform background checks on prospective firearm purchasers. The Supreme Court in Printz reaffirmed the Tenth Amendment federalism principle it first enunciated in New York v. United States, that "the Federal Government may not compel the States to enact or administer a federal regulatory program." 505 U.S. at 188 (quoted in Printz, 521 U.S. at 933). However, the Supreme Court did not expand the Tenth Amendment to block all state and federal interaction or cooperation. [footnote 22] In fact, the Court was quite clear in Printz that the problem with the statute in that case was not that it involved state officials, but that it compelled state and local officers to enforce and administer a federal regulatory program. We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the State's officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States' officers, or those of their political subdivisions to administer or enforce a federal regulatory program. Printz, 521 U.S. at 935 (emphasis added). See also id. at 933 ("The mandatory obligation imposed on [state and local officers] to perform background checks on prospective handgun purchasers plainly runs afoul of that rule.") (emphasis added). The dispositive importance for finding a Tenth Amendment violation that the Supreme Court in Printz placed on the compelled and mandatory nature of the requirement on state and local officials has been reaffirmed by subsequent decisions of the courts. See, e.g., Condon v. Reno, 120 S. Ct. 666, 671 (2000) ("In Printz, we invalidated a provision of the Brady Act which commanded 'state and local enforcement officers to conduct background check on prospective handgun purchasers.'") (emphasis added) (quoting Ed=, 521 U.S. at 902); Fraternal Order of Police v. United States, 173 F.3d 898, 908 (D.C. Cir. 1999) (In light of Printz, plaintiffs' "Tenth Amendment challenge fails because [the statute] does not force state officials to do anything affirmative to implement its bar on domestic violence misdemeanants' possession of firearms.") (emphasis added); City of New York, 179 F.3d at 33-34 (explaining that Printz forbade Congress from "conscripting" state and local officers); Gillespie v. City of Indianapolis, 185 F.3d 693, 707- 708 (6th Cir. 1999) (stating that, under Printz, Congress may not "conscript the State's officers directly") (emphasis added and internal quotation marks and citation omitted). In contrast to the statutes at issue in New York and Printz, however, the ATF regulations at issue do not compel the states to enact regulations nor do they commandeer state officials to implement a federal program. In fact, the regulations do not require state or local officers to do anything. As ATF explained in amending these regulations in 1988: The requirement does not unconstitutionally delegate Federal functions to State officials by mandating that these officials approve or disapprove transactions. On the contrary, these officials have the discretion to execute or not execute the required certifications. See 53 Fed. Reg. 10480, 10488 (March 31, 1988). [footnote 23] What the regulations do require is that individuals obtain a certification from a state or local officer in applying to make or receive an NFA firearm. Indicative of the fact that individuals and not State officers are compelled by the regulations is the fact that it is individuals who suffer any burden from failing to comply with the certification requirement, not state and local officers. Cf New York, 505 U.S. at 174 ("The affected States are not compelled by Congress to regulate, because any burden caused by a State's refusal to regulate will fall on [individuals] ... rather than on the State as sovereign."); cf also Fraternal Order of Police v. United States, 981 F. Supp. 1, 6 (D.D.C.), ("Congress has not compelled state regulation where 'any burden caused by a State's refusal to regulate will fall on [individuals], rather than on the State as a sovereign. "') (quoting New York, 505 U.S. at 174), aff'd, 173 F.3d 898 (D.C. Cir. 1999). Put simply, the regulations do not violate the Tenth Amendment because they do not require that a given state or local official undertake any duties to implement federal law or regulations. Furthermore, all the federal courts that have addressed Tenth Amendment challenges to the law enforcement certification requirement of 27 C.F.R. sections 179.63 and 179.85 have found no constitutional infirmity in ATF's regulations. See Westfall v. Miller, No. 4:93CV273 (E.D. Tex. Mar. 28, 1995)[attached at Tab D], slip op. at 5-6 (finding that Tenth Amendment not violated by ATF regulation because state officials do not have to make certification), aff'd on standing grounds, 77 F.3d 868 (5th Cir. 1996); Steele v. National Firearms Act Branch, No. 82-2013-civ- SMA (S.D. Fla. Mar. 28, 1983) [attached at Tab E], slip. op. at 5 (rejecting Tenth Amendment challenge to state certification requirement of ATF regulation, finding that "[t]he sole burden imposed by Section 179.85 is upon the transferee to obtain the certification. No requirement is imposed on Any law enforcement officer by virtue of the regulation; action by a law enforcement officer in this setting is purely discretionary"), vacated on other grounds, 755 F.2d 14 10 (11 th Cir. 1985); Doe v. ATF, 1997. WL 852086, at *7 (holding that Tenth Amendment not violated by 27 C.F.R. section 179.85 because "ATF regulation imposes no mandatory duty on state or local officials"). The court in Doe v. ATF explicitly analyzed the certification requirement in light of the Supreme Court's Printz decision and held that the requirement did not violate the Tenth Amendment. Unlike the Brady Act requirement [held unconstitutional in Printz], the regulation in question in this case does not require action on the part of any state or local official. Although the regulation contains mandatory language, this language is directed toward the transferee and not any state official. Once a state official agrees to provide the certification, however, the regulation mandates the content of the certificate. As noted above, courts considering this regulation have concluded that action on the part of state officials under section 179.85 is discretionary, not mandatory.... This court, like other courts which have considered this question, concludes that the ATF regulation imposes no mandatory duty on state or local officials. Thus, plaintiff cannot prevail on a claim that the regulation violates the Tenth Amendment. Doe v. ATF, 1997 WL 852086, at *7. Recognizing the fatal weakness in their Tenth Amendment "commandeering" claim, plaintiffs argue that the certification requirement, even if it is discretionary and not mandatory, nevertheless violates the Tenth Amendment by placing state and local law enforcement officers in a position of having to choose whether or not to execute NFA firearm certifications. See Complaint para. 41. Such a choice, plaintiffs claim, results in a "political injury" to these officials, because a choice to execute certifications will upset those constituents who "dislike firearms," while a decision not to execute the certifications will upset those constituents who would "perceive" such a decision as violating their putative Second Amendment rights. See id. This alleged political injury - through the indirect effect that the regulation has on the pressures that state and local officers perceive from their constituents - does not violate the Tenth Amendment. Such an injury is too indirect and vague to constitute a violation of the Tenth Amendment. See Printz, 521 U.S. at 935 (holding that Congress cannot "conscript[] the State's officers directly") (emphasis added); City of New York, 179 F.3d at 34 (finding that Printz and New York teach that "Congress may not ... directly compel states or localities to enact or to administer policies or programs adopted by the federal government. It may not directly shift to the states enforcement and administrative responsibilities. . .") (emphasis added); Minnesota v. United States, 102 F. Supp.2d 1115, 1121 (D. Minn. 2000) ("The holdings of New York and Printz are clear: the Tenth Amendment's anti-commandeering principle only prohibits direct federal compulsion.") (emphasis added). The indirect political effects on state and local officials resulting from requests for cooperation by the federal government simply do not infringe on state sovereignty in an unconstitutional manner under the Tenth Amendment. Indeed, plaintiffs' "political injury" argument boils down to a claim that the federal government violates the Tenth Amendment by putting state and local officials in the position of having to make a choice. But this reasoning is contradicted by the numerous situations where the federal government requires states to make choices with political ramifications, such as by conditioning federal grant money on the state's adoption of certain policies or undertaking particular actions. For instance, in South Dakota v. Dole, the Supreme Court rejected a challenge to a federal law that conditioned the state's receipt of a percentage of federal highway funds on the state's adoption of a minimum drinking age of 21. See 483 U.S. 203 (1987). Certainly in that situation the state was forced to make a choice: raise its drinking age to 21, and thereby upset those citizens who support a lower drinking age; or, decline federal highway grant money, and thereby upset those citizens who favored receiving highway funds from the federal government. Yet, the Supreme Court did not even note the possibility of a Tenth Amendment violation in that case. See id. at 210. The reason such federal actions - those that offer states a choice whether to take some action or not - do not infringe state sovereignty in violation of the Tenth Amendment is precisely because they leave the choice up to the state and its citizens. As the Supreme Court in New York explained, "[w]here Congress encourages state regulation rather than compelling it, state governments remain responsive to the local electorate's preferences; state officials remain accountable to the people." 505 U.S. at 168. Cf. Nathan, 202 F.3d at 233 (finding that "voluntary, cooperative venture between" federal government and state and local officials, where "[n]o part of the arrangement involves federal compulsion of the [state] or its law enforcement officials" did not "violate[] principles of federalism embodied in the Tenth Amendment"); Minnesota, 102 F. Supp.2d at 1122 ("The political accountability rationale for striking down federal laws as an infringement on state sovereignty is not implicated" where federal program has not conscripted state officials or commandeered the state into administering or enforcing the program). Here, ATF's regulations do not infringe on state sovereignty because the choice of whether or not to provide certifications is left entirely to the discretion of state and local officials, who "remain responsive to the local electorate's preferences." C. The Secretary Has Not Violated His Duty to Collect Federal Taxes Plaintiffs also claim that the state or local law enforcement certification violates the Secretary's duty to collect taxes under 26 U.S.C. section 6301. See Complaint paras. 42-49. Specifically, plaintiffs allege that, by allowing state and local officers discretion whether to certify individuals, the certification requirement permits those officials to "veto collection of the [transfer or making] tax," the thereby "interfer[ing] with the Secretary's duty to collect federal taxes." See id. para. 44. Plaintiffs' claim lacks merit because the Secretary's duty under 26 U.S.C. section 6301 is not subject to APA review and because the regulations do not permit state and local officials to block or otherwise interfere with the Secretary's ability to collect taxes on completed transfers or makings of NFA firearms. 1. The Court Lacks Jurisdiction Under the Administrative Procedure Act to Review Whether or Not the Secretary Has Properly Performed His Duty Under 26 U.S.C. section 6301 Because That Duty Is Committed to the Secretary's Discretion by Law. Under the APA, agency decisions are not subject to judicial review when they are "committed to agency discretion by law." 5 U.S.C. section 701(a)(2). The Supreme Court has found that this exception to the usual presumption in favor of judicial review applies in situations where statues are drawn in language so broad that "in a given case there is no law to apply." Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410 (1971); Heckler v. Chaney, 470 U.S. 830, 890 (1985) (when a "statute is drawn so that a court would have no meaningful standard against which to judge the agency's exercise of discretion" there is no law to apply). See also Legal Assist. for Vietnamese Asylum Seekers v. Dept. of State, 104 F.3d 1349, 1353 (D.C. Cir. 1997). As the Supreme Court explained, without "judicially manageable standards ... for judging how and when an agency should exercise its discretion, . . it is impossible to evaluate agency action." Heckler, 470 U.S. at 830. The language of 26 U.S.C. section 6301 is drawn in the broadest of terms - "[t]he Secretary shall collect the taxes levied under the internal revenue laws." That provision assigns to the Secretary the duty and authority to administer and enforce the internal revenue laws in the most general manner. Moreover, as is made clear from the section heading in the U.S. Code, that section's purpose is not to proscribe or direct the Secretary's actions, but to authorize the Secretary to undertake the necessary means to collect federal taxes. See 26 U.S.C. section 6301 (section titled "Collection authority"); cf. United States v. Little, 753 F.2d 1420, 1436 (9th Cir. 1985)("Under 26 U.S.C. section 6301, Congress granted the IRS broad authority to collect taxes."); Hughes v. United States, 953 F.2d 531, 536 (9th Cir. 1992). The section grants this authority without providing any "meaningful standards" or other guidelines that a court could use to review the Secretary's compliance with this duty. Consequently, a court, without further guidance, has no basis on which to review the Secretary's authority under 26 U.S.C. section 6301, and thus, that duty is committed to agency discretion by law. [footnote 24] The Secretary's authority under 26 U.S.C. section 6301 is analogous to the requirement of 28 U.S.C. section 517 that "the Attorney General shall supervise all litigation to which the United States, an agency, or officer thereof is a party, and shall direct all United States attorneys, assistant United States attorneys, and special attorneys ... in the discharge of their respective duties." The D.C. Circuit in Shoshone-Bannock Tribes v. Reno found that review of the Attorney General's actions under that section, on its own, was not available under the APA because it was committed to agency discretion by law. See Shoshone- Bannock Tribes v. Reno, 56 F.3d 1476, 1481-82 (D.C. Cir. 1995). [footnote 25] As the D.C. Circuit concluded in that case, the Court here should similarly conclude that 26 U.S.C. section 6301 is drawn in such broad terms that the statute on its own provides no meaningful standards for judicial review and that the duties therein are committed to agency discretion by law. Accordingly, plaintiffs' claim that the Secretary has not fulfilled his duty to collect taxes under that section is not subject to judicial review and should be dismissed. 2. Even if the Secretary's Authority Under 26 U.S.C. section 6301 Is Reviewable, the Secretary Has Not Failed in His Duty to Collect Federal Taxes. Plaintiffs' allegation that the Secretary has failed in his duty to collect federal taxes under 26 U.S.C. section 6301 is without any basis. Plaintiffs claim that the Secretary's regulation requiring individuals to obtain certifications from state or local officials violates 26 U.S.C. section 6301 by allowing those officials the authority to "veto the collection of the tax." Complaint 148. This allegation mischaracterizes the NFA's taxing scheme. As the plain language of the Act makes clear, the NFA imposes taxes on the transfer and making of NFA firearms. See 26 U.S.C. section 5811 (a) ("There shall be levied, collected, and paid on firearms transferred a tax . . . for each firearm transferred.") (emphasis added) and section 5821(a) ("There shall be levied, collected, and paid upon the making of a firearm a tax ... for each firearm made.") (emphasis added). These sections clarify that the taxable event occurs only when an NFA firearm is transferred or made - an event that cannot happen until after the Secretary has approved applications to make or transfer NFA firearms. When an individual fails to obtain a state or local law enforcement certification, the Secretary denies the application as insufficient, and no transfer or making of an NFA firearm occurs. Since the NFA firearm is not transferred or made, no taxable event occurs, and, therefore, no "tax imposed by the internal revenue laws" accrues for the Secretary to collect. [footnote 26] Thus, the certification requirement of 27 C.F.R. sections 179.63 and 179.85 does not interfere with the collection of taxes imposed by the NFA. A review of the Complaint reveals that plaintiffs have not alleged that the Secretary has failed to collect taxes imposed by the NFA, i.e. taxes levied on completed transfers of NFA firearms or on the making of NFA firearms. In fact, no plaintiff has alleged that he or anyone else has transferred or made a firearm with the Secretary's approval without the Secretary collecting any tax due. [footnote 27] Rather, plaintiffs claim that, by requiring a transferee to obtain a certification from state and local officers, ATF's regulations allow these officials to indirectly prevent a transfer from occurring, and to thereby stymie the collection of federal taxes. See Complaint paras. 47- 48. This argument is without legal merit. As discussed, the failure to obtain a certification does not prevent or obstruct the collection of a federal tax; it merely effects whether a taxable event - i.e. the transfer or making of an NFA firearm - will occur. Such state and local action is neither unique nor a violation of 26 U.S.C. section 6301. Indeed, state and local officials affect the occurrence of taxable events under federal law in a variety of circumstances that do not undermine the Secretary's authority to collect taxes. [footnote 28] ATF's regulations do not violate the Secretary's duty to collect federal taxes; they merely permit ATF to obtain information necessary to performing its duties to review applications to transfer or make NFA firearms under the Act. Accordingly, plaintiffs' claim that ATF's certification requirement violates 26 U.S.C. section 6301 is without any legal support and should be dismissed. d. The Certification Requirement in ATF's Regulations Is Within the Agency's Authority Under the NFA and Is a Reasonable Manner for Performing the Duties to Review and Decide on Applications to Make or Transfer NFA Firearms and Not Arbitrary and Capricious Plaintiffs' final claim attacks ATF's regulations by asserting that the law enforcement certification is beyond ATF's authority under the NFA and that the requirement is arbitrary and capricious. As discussed below, these claims lack merit and should be dismissed. 1. The Law Enforcement Certification Requirement Is Within ATF's Authority Under the NFA. Plaintiffs' Complaint alleges that ATF is "without any statutory basis or authority" to require a certification by state or local officers under 27 C.F.R. sections 179.63 and 179.85. This assertion is without merit. The Secretary of the Treasury issued the challenged regulations pursuant his express statutory authority "to proscribe all needful rules and regulations" for the enforcement of the NFA, 26 U.S.C. section 7805(a), and are valid exercises of the Secretary's power under the Act. The Supreme Court has stated that deference is due to executive agencies when Congress delegates authority to the agency to elucidate a specific provision of the statute by regulation, and such regulations are to be given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute. See Chevron U.S.A. v. Natural Resources Def. Council, 467 U.S. 837, 843-44 (1984). Judicial review of whether a regulation is beyond an agency's statutory authority is assessed under the Chevron "two-step" doctrine. See National Labor Relations Bd. Union v. FLRA, 834 F.2d 191, 196-98 (D.C. Cir. 1987); George E. Warren Corp. v. EPA, 159 F.3d 616, 622 (D.C. Cir. 1998) ("Because the EPA is charged with administering the Clean Air Act, we evaluate a challenge to its statutory authority under the familiar two-step analysis of Chevron"). To apply the Chevron analysis: [T]he court asks "whether Congress has directly spoken to the precise question at issue" . . . if so, then we "must give effect to the unambiguously expressed intent of Congress." . . . If the Congress has not addressed the issue, however, then under Chevron step two we will defer to the agency's interpretation if it is reasonable in light of the structure and purpose of the statute. George E. Warren Corp., 159 F.3d at 622 (quoting Chevron, 467 U.S. at 843). An agency's interpretation of the statute that it administers need only be "permissible" for the Court to defer to the agency's position. See Chevron, 467 U.S. at 842-43. This deference has become well established in the case law since Chevron. See National R.R. Passenger Corp. v. Boston & Maine Corp., 503 U.S. 407, 417 (1992) ("Judicial deference to reasonable interpretations by an agency of a statute that it administers is a dominant, well-settled principle of federal law."). The NFA was initially enacted to protect the public welfare and safety by monitoring transfers of covered firearms to ensure that they do not fall into the hands of persons intent on misusing them. To accomplish this goal, Congress enacted an interrelated scheme for certain firearms considered to be especially dangerous weapons. See Steele, 755 F.2d at 1412 (stating that Congress passed the NFA and its subsequent amendments "[i]n an effort to regulate the traffic of weapons deemed particularly inimical to public safety"). [footnote 29] As discussed, the applicable portion of current section 5812 was derived from section 4 of the 1934 Act, which was implemented by Treasury Regulation No. 88, Art. 65 (1934). That article required a person seeking to obtain an NFA firearm to submit a transfer application containing certain personal identifying information and "supported by a certification of the local chief of police, sheriff of the county, United States attorney, United States marshal, or such other person whose certificate may in a particular case be acceptable to the Commissioner, that he is satisfied with the fingerprints and photograph appearing on the applications are those of the applicant and the firearm is intended by the applicant for lawful purposes." Both the NFA and the applicable regulations remained substantially unchanged until 1968. See Internal Revenue Code of 1939, section 2723, 53 Stat. 292; Internal Revenue Code of 1954, section 5814, 68A Stat. 723. See also, 26 C.F.R. section 179.99, 20 Fed. Reg. 6739 (1955), as amended by T.D. 6557, 26 Fed. Reg. 2409 (1961). In 1968, Congress amended current section 5812 to specifically provide that applications to transfer NFA weapons "shall be denied if the transfer, receipt, or possession of the firearm would place the transferee in violation of law." To fulfill Congress' purpose in passing the NFA, the Act provides that individuals seeking to make or to have transferred to them an NFA firearm must, inter alia, submit an application to the Secretary, [footnote 30] include with the application the applicable tax should the application be approved, identify themselves and the firearm on the application in such manner as the Secretary may by regulations prescribe, and receive the Secretary's approval on the application. See 26 U.S.C.sections 5812, 5822. The NFA further provides that "[a]pplications shall be denied if the transfer, receipt or possession of the firearm would place the transferee in violation of law." See id. (section 5822 reads "if the making or possession of the firearm would place the maker. . ."). In issuing regulations to effectuate the statutory scheme, the Secretary has required that the applicant obtain a certification from a state or local law enforcement officer stating that "the certifying official is satisfied that the fingerprints and photograph accompanying the application are those of the applicant and that the certifying official has no information indicating that the receipt or possession of the firearm would place the transferee in violation of state or local law or that the transferee will use the firearm for other than lawful purposes." 27 C.F.R. sections 179.85 and 179.63 (same as applied to maker of NFA firearm). As noted above, the challenged regulations were issued pursuant to the Secretary's express statutory authority to prescribe all needful rules and regulations for the enforcement of the NFA under 26 U.S.C. section 7805(a). This statutory provision grants the Secretary broad authority to implement the NFA. See York v. Sec. of the Treasury, 774 F.2d 417, 419 (10th Cir. 1985). The mandate of the Secretary under the NFA is to protect the public safety and welfare by, inter alia, monitoring transfers of NFA firearms to ensure that they do not fall into the hands of persons intent on misusing them. The statute has a broad prophylactic purpose. The Supreme Court in United States v. Freed, 410 U.S. 601, 609 (1971), noted that the NFA is a regulatory measure in the "interest of the public safety" concerning "highly dangerous offensive weapons." In light of this statutory purpose and the language of the Act providing the Secretary with discretion regarding the content and approval of applications to transfer or make NFA firearms, the ATF regulations at issue here are reasonably related to the purpose of the enabling legislation and fall within the authority delegated to the agency by the statute. The state and local law enforcement certification simply provides the Secretary and his delegate access to information patently relevant for informed execution of his statutory duty to deny transfer applications that would "place the transferee in violation of the law." 26 U.S.C. section 5812. Requiring the transferee applicant to have a local law enforcement official certify the applicant's identity and that the photograph and fingerprints are those of the applicant flows directly from the broad authority provided the Secretary to prescribe regulations that delineate the manner for providing such identification. See 26 U.S.C. section 5812(a)(3). Moreover, it is reasonable for ATF to consider state and local law enforcement officials generally to be better situated to take fingerprints and verify the identity of an individual, and, therefore, it is rational for the agency to require the applicant to obtain such a verification of identity from these officials. Similarly, the requirement that the transferee obtain certification that a law enforcement official "has no information indicating that the receipt or possession of the firearm would place the transferee in violation of State or local law" comes directly from the statutory requirement that applications to transfer or make an NFA firearm shall be denied if the making, receipt, or possession would place the individual in violation of law. Indeed, the regulatory language essentially tracks that of the statute, merely specifying two categories of possible violations of law - state and local. It is a legitimate exercise of the Secretary's authority to prescribe the manner and content of NFA firearm applications to require that an individual obtain a certification from a state or local law enforcement official since such an official would normally be the most knowledgeable on the nuances of state and local law and their application to the individual in question. [footnote 31] The portion of the official's certification stating that he has no information that the transferee will use the firearm for other than lawful purposes is also reasonably related to the NFA's purposes. On its face and by definition, use of NFA firearms for other than lawful purposes would place the transferee in violation of law. [footnote 32] Plaintiff asserts there is no provision in 26 U.S.C. section 5812, or elsewhere in the Act, for denying the transfer of an NFA firearm for such prospective misuse of the weapon. However, the Act clearly states that application for a transfer must be submitted to the Secretary, and that no transfer of an NFA firearm may occur prior to the Secretary's approval, See 26 U.S.C. section 5812. While the statute does provide one basis on which the Secretary shall deny an application to transfer - when the "transfer, receipt, or possession of the firearm would place the transferee in violation of law" - there is no language that would indicate that this provision is the exclusive basis for denying transfer applications. Congress did not say that applications shall only be denied for this reason, or that the Secretary must approve transfers that are not denied on that basis. [footnote 33] Consequently, on the face of the statute, the Secretary has authority to issue regulations requiring a certification on this additional criteria as well, since that criteria - that the transferee will use the firearm for other than lawful purposes - is a permissible consideration in making a determination on application to transfer or make NFA firearms. See Steele, 755 F.3d at 1415 ("The challenged regulation is merely a method of effectuating congressional dictates."). Even if the statutory language is ambiguous regarding criteria that the Secretary may employ to deny or approve transfer applications, ATF's interpretation in its regulations that it can seek information about future illegal misuse of the NFA firearm by the transferee, and can appropriately deny a transfer on that basis, is a permissible and reasonable one. Indeed, if the only basis for denying a transfer was that the receipt or possession by the transferee would place the transferee in violation of law, then the Secretary would have to approve transfers despite the fact that there may be important public safety reasons to deny it. [footnote 34] The fact that Congress specifically made it illegal for a federal firearms licensee to sell or deliver machineguns and destructive devices covered by the NFA "except as specifically authorized by the Secretary consistent with public safety and necessity." 18 U.S.C. section 922(b)(4) (emphasis added), further supports ATF's interpretation that it may consider public safety and other factors when reviewing applications to transfer or make NFA firearms. Where the agency regulation may reasonably be seen to advance the statutory purpose and to implement the congressional mandate in some rational manner, the action must be upheld as a valid exercise of agency power. See Mourning v. Family Publications Servs., 411 U.S. 356, 372-73 (1973); United States v. Cartwright, 411 U.S. 546, 550 (1973). The Secretary is mandated by statute to protect public safety and welfare by monitoring the transfer of NFA firearms to ensure that they do not fall into the hands of those intent on misusing them. The challenged certification is an integral part of the NFA's regulatory scheme and is a necessary tool in the enforcement of the Act. The scope of judicial review of such administrative interpretations of the agency's governing law is extremely narrow; a regulation may be overturned only if it is clearly inconsistent with the statute or without any rational basis. See F.C.C. v. National Citizens Comm. for Broadcasting, 436 U.S. 775 (1978); Bowman Transp. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285-286 (1974). Furthermore, the substance of the challenged certification has been in effect for over 60 years. Courts afford great weight to the longstanding interpretation of a statute by the agency charged with its administration, see Udall v. Tallman, 380 U.S. 1, 16 (1965); Train v. Natural Resources Def. Council, 421 U.S. 60,87 (1975); Farmer v. Higgins, 907 F.2d 1041,1045 (11th Cir. 1990), especially where, as is the case here, Congress has reenacted the statute without pertinent change. See Saxbe v. Bustos, 419 U.S. 65,74 (1974). In the over 60 years during which the law enforcement certification has been required, Congress has never expressed disapproval of the certification requirement, despite amending the Act various times, and its silence in this regard is evidence of its consent to the agency's practice. See EEOC v. Associated Dry Goods Corp., 449 U.S. 590, 598-99 (1981). In addition, the law enforcement certification in ATF's regulations was upheld as a valid exercise of the agency's statutory authority by the only court to reach the issue. See Steele, No. 82-2013, slip op. at 4-5. The district court in Steele explained: The certification requirement of section 179.85, mandating the certification of a local law enforcement officer would not place the transferee in violation of state or local law or that the transferee will use the firearm for other than lawful purposes, is a clear outgrowth of the statute's mandate that "applications shall be denied . . ." if transfer would violate the law. * * * Plaintiff's contention that the regulation is unauthorized is simply without merit. Steele, No. 82-2013, slip op. at 5. Additionally, in United States v. Freed, the Supreme Court, in upholding the constitutionality of the amended NFA, made specific reference to the disputed law enforcement certification. The Court noted that applications to transfer an NFA weapon must be supported by the photograph and fingerprints of the transferee and "by a certificate of a local or federal law enforcement official that he is satisfied that the photographs and fingerprints are those of the transferee and that the weapon is intended for lawful uses." Freed, 401 U.S. at 605. Despite its discussion of these provisions, the Court's opinion did not question or even imply that this certification was outside ATF's authority. In sum, the certification requirement of 26 U.S.C. sections 179.63 and 179.85 should be upheld as a valid exercise of the authority granted to the Secretary by 26 U.S.C. section 7805 to prescribe regulations and to implement the provisions of 26 U.S.C. sections 5812 and 5822. 2. ATF's Regulations Requiring a Certification by State and Local Officers Are Not Arbitrary and Capricious. Plaintiffs' related challenge that the certification requirement is arbitrary, capricious, or an abuse of discretion by ATF, is similarly without merit. "This arbitrary and capricious standard of review is a highly deferential one, which presumes the agency's actions to be valid ... [and] requires affirmance if a rational basis exists for the agency's decision. "American Financial Services v. F.T.C., 767 F.2d 957, 985 (D.C. Cir. 1985) (citing Environmental Def. Fund. v. Costle, 657 F.2d 275, 283 (D.C. Cir. 1981) and Ethyl Corp. v. EPA, 541 F.2d 1, 34 (D.C. Cir. 1976) (en banc)(citations omitted)). The Supreme Court has explained that "[t]he scope of review under the 'arbitrary and capricious' standard is narrow and a court is not to substitute its judgment for that of the agency." Motor Vehicles Mfrs. Ass'n v. State Farm Mut. Auto Ins., 463 U.S. 29,42-43 (1983) (citation omitted); see also Ethyl Co1p., 541 F.2d at 36; American Fin. Servs., 767 F.2d at 985. Rather, a reviewing court "only look(s) to see whether the agency action reflects a clear error in judgement." Bartholdi Cable Co., Inc. v. F.C.C., 114 F.3d 274,279 (D.C. Cir. 1997) (internal quotation marks and citation omitted), As this Circuit has recently explained: "Our role [in performing judicial review under the arbitrary and capricious standard], of course, is to determine neither whether [the agency's] approach was 'ideal,' nor whether it was the 'most appropriate,' but only whether it was reasonable." Allied Local and Reg'l Mfrs. v. EPA, 215 F.3d 61, 73 (D.C. Cir. 2000)(citing Ethyl Corp., 541 F.2d at 36). [footnote 35] First, plaintiffs allege that the certification requirement is arbitrary and capricious because it is unreasonable for ATF to "foist" its duty to make determinations regarding NFA transfers on to state and local officials. See Complaint para. 55. That argument is without basis. Under 27 C.F.R. section 179.85, the Secretary maintains the final decision-making authority on whether or not to approve an application to transfer an NFA firearm.[footnote 36] What the regulation requires is that the individual submit appropriate information to allow the Secretary to make a reasoned and informed determination. Such information regarding the state and local legal and public safety ramifications of the transferee's receipt of the NFA firearm is certainly pertinent to the Secretary's review and decision on an application to transfer an NFA firearm. [footnote 37] State and local officers are in a better position to evaluate the nuances of state and local law regarding possession or ownership of firearms, any recent legislative enactments, as well as the possible threat that an individual may misuse the firearm. Moreover, given that these extremely dangerous, gangster-type weapons represent potential threats to the safety of the communities where these weapons are present, the certification permits the state and local officials who are responsible for maintaining the peace and protecting their citizens against such dangers to provide input to the Secretary regarding the potential transfer and the effects that an NFA firearm will have on public safety in their community. Those concerns regarding public safety are appropriately taken into consideration by the Secretary in administering the NFA. [footnote 38] Indeed, the fact that an individual has sought and been denied a law enforcement certification is a proper basis for the Secretary to deny an application based on the public safety concerns that such a failure to obtain certification indicates - either from the individual's criminal history, the individual's potential to misuse the weapon, and/or the threat that the individual's possession of an NFA firearm would pose to the community. Plaintiffs next argue that the state or local law enforcement certification requirement is unreasonable because ATF is "as competent, able and well-equipped" to make these legal determinations regarding potential transferees, especially in light of the recent activation of the National Instant Criminal Background Check System (NICS). See Complaint 58-64. However, the legal question for the Court in reviewing ATF's regulations is not whether the agency's position constitutes the best approach to implementing the statute, nor even whether there may be other reasonable ways to administer the Act; rather, the question is whether the agency's decision is reasonable and not a "clear error of judgement." See Allied Local and Reg'l Mfrs. Caucus, 215 F.3d at 73 ("Our role, of course, is to determine neither whether [the agency's] approach was 'ideal,' nor whether it was the 'most appropriate,' but only whether it was reasonable.") (citing Ethyl Corp., 541 F.2d at 36); cf. Modem Muzzleloading, Inc. v. Magaw, 18 F. Supp.2d 29, 37 (D.D.C. 1998) ("[D]efendant does not bear the burden of convincing the Court that its position is better. Instead, it merely need convince the Court that the decision was not arbitrary and capricious."). Consequently, as a matter of law, plaintiffs' allegation that ATF could obtain the information through other possible means, i.e. that the agency could have chosen another rational scheme to implement the statute, does not make this otherwise reasonable regulation arbitrary and capricious. Moreover, plaintiffs' assertion that ATF could obtain the same information that it receives by way of the law enforcement certification from federal databases is incorrect. Federal law requires background checks through the NICS on all firearm purchases by individuals from a federally licensed firearm dealer in order to determine whether a prospective purchaser is prohibited from possessing a firearm by federal or state law. See 18 U.S.C. section 922(t). The NICS system and other federal databases cannot provide the thorough understanding of state laws that state and local officials possess, nor can they determine whether local officials have information indicating that an individual intends to use an NFA firearm for an unlawful purpose. [footnote 39] Indeed, the fact that ATF amended its NFA regulations after the NICS became operational to require a NICS background check on a proposed transferee before deciding whether to approve or deny an NFA transfer application, see 27 C.F.R. section 179.86, yet nonetheless elected to continue requiring a state or local law enforcement certification, demonstrates that ATF considers state and local certifications to provide additional information to it that the agency cannot receive by merely contacting the NICS. Finally, plaintiffs allege that the state and local law enforcement certifications, as applied in certain situations, result in an arbitrary and capricious result. First, plaintiffs allege that, in certain jurisdictions, local officers have placed conditions on their willingness to certify individuals on NFA transfer applications. Specifically, Plaintiffs Kadison and O'Brien allege that the Chief of Police for Arlington County, Virginia, requires an inspection of an individual's residence before certifying that individual for receipt of an NFA firearm. See Complaint paras. 66-67. Plaintiffs assert that such a condition is an impermissible infringement on their Fourth Amendment rights. See id. The fact that state and local officials require various information and actions from individuals seeking a law enforcement certification does not render arbitrary and capricious that requirement of ATF's regulations. Individuals seeking a certification are voluntarily requesting that a local official execute a certification regarding the propriety of their possession of an extremely dangerous, gangster-type weapon. Prior to making such a certification, a local officer may take certain, necessary steps to insure that there are no reasons that would preclude the individual from receiving the weapon, and also to provide some assurance to the official that the individual's possession of an NFA firearm will not endanger that individual, his or her family, or the surrounding community. The possession of an NFA firearm - which. presents serious threats to public safety if used in an unlawful manner -is a privilege that may appropriately be regulated. An individual seeking such a privilege, and requesting that a local officer execute a certification for his receipt of an NFA firearm, has to accept necessary, relevant, and reasonable conditions that an official may require before executing the certification. It is not unreasonable to leave to the discretion of the certifying officials what information or requirements they need to provide the certification required by the regulations. Plaintiffs' further assertion that, because various state and local law enforcement officers choose not to provide certifications, the regulation produces arbitrary and capricious results as applied in various jurisdictions, is without merit. As previously discussed, the law enforcement certification is an important part of the Secretary's administration of the NFA and provides ATF with vital information regarding an individual requesting to make or receive an NFA firearm. Similarly, the certification allows state and local law enforcement officials to provide input regarding the introduction of these gangster-type weapons into their communities, and thus helps further the statutory purpose of protecting public safety. The fact that some state and local officials choose not to perform NFA certifications does not undermine the reasonableness of the regulation. Rather, such circumstances demonstrate that ATF has appropriately chosen to take into account the concerns of local communities and to exercise caution in reviewing NFA applications by limiting the transfer and making of these extremely dangerous firearms to situations where local law enforcement officials can certify that they have found no indication of illegal activity or of public safety concerns. Accordingly, plaintiffs' claim that ATF's regulations are arbitrary and capricious in violation of the APA should be dismissed. CONCLUSION For the foregoing reasons, the Court should dismiss plaintiffs' Complaint in its entirety. Dated: November 2, 2000 Respectfully submitted, DAVID W. OGDEN Assistant Attorney General WILMA A. LEWIS United States Attorney ______________________ Of Counsel: SANDRA M. SCHRAIBMAN Imelda M. Koett D.C. Bar No. 188599 Shelley Vanneman THOMAS E. CABALLERO Office of the Chief Counsel Attorneys, Civil Division Bureau of Alcohol, Tobacco, and Firearms U.S. Department of Justice 650 Massachusetts Ave., N.W. P.O. Box 883 Suite 6100 901 E Street, N. W., Room 9 10 Washington, D.C. 20226 Washington, D.C. 20044 Telephone: (202) 514-3338 Attorneys for Defendants CERTIFICATE OF SERVICE I hereby certify that on November 2, 2000, a true and correct copy of the foregoing Memorandum in Support of Defendants' Motion to Dismiss was served by Federal Express, overnight delivery, enclosed in an envelope with postage thereon prepaid, on: Stephen P. Halbrook, Esq. 10560 Main Street, Suite 404 Fairfax, VA 22030-7182 James H. Jeffries, III., Esq. 3019 Lake Forest Drive Greensboro, NC 27408 ______________________________ THOMAS E. CABALLERO FOOTNOTES 1. Specifically, a "firearm," for purposes of the NFA, is defined as (1) a shotgun having a barrel or barrels of less than 18 inches in length; (2) a weapon made from a shotgun if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length; (3) a rifle having a barrel or barrel of less than 16 inches in length; (4) a weapon made from a rifle if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 16 inches in length; (5) any other weapon, as defined by 26 U.S.C. section5845(e); (6) a machinegun; (7) any silencer, as defined in 18 U.S.C. section 921; and (8) a destructive device. 26 U.S.C. section 5845(a). Defendants will refer to firearms covered by the NFA as "NFA firearms." 2. It is important to note that the NFA only applies to a limited group of extremely dangerous firearms and destructive devices. The manufacture, possession, and transfer of other firearms, such as most handguns as well as shotguns and rifles of ordinary length, are regulated by other statutes - primarily the Gun Control Act - and not by the NFA. 3. The authority to approve such transfers has been delegated to the Director, ATF. See T.D. Order No. 120-01 (June 1972), formerly T.D. Order No. 221, 37 Fed. Reg. 11696, and 27 C.F.R. sections 179.84 and 179.62. This authority has been delegated by the Director, ATF, to the NFA Branch. See ATF Order No. 1100.1F para. 17(d)(3). 4. The NFA provides certain exceptions from the transfer and making taxes. For example, the NFA exempts from those taxes NFA firearms made on behalf of or. transferred to the United States, or one of its departments or agencies. See 26 U.S.C. section 5852. However, even though a particular transfer or making of an NFA firearm may be exempted from tax, it remains subject to the NFA provisions requiring the Secretary's prior approval of the transfer or making. See, e.g., 27 C.F.R. sections 179.62, 179.69, 179.89, and 179.90. 5. The requirement for approval of the Secretary in order to transfer an NFA firearm was part of the original 1934 Act. Section 4 of the 1934 Act provided in pertinent part: (a) It shall be unlawful for any person to transfer a firearm except in pursuance of a written order from the person seeking to obtain such article, on an application form issued in blank in duplicate for that purpose by the Commissioner. Such order shall identify the applicant by such means of identification as may be prescribed by regulations under this Act: Provided, that, if the appellant is an individual, such identification shall include fingerprints and a photograph thereof. (b) The Commissioner, with the approval of the Secretary, shall cause suitable forms to be prepared for the purposes above mentioned, and shall cause the same to be distributed to collectors of internal revenue. In 1968, Congress amended these sections of the NFA (now codified at section 5812) to specifically add the provision that states that applications to transfer NFA weapons "shall be denied if the transfer, receipt, or possession of the firearm would place the transferee in violation of law." 6. The Secretary of the Treasury has express statutory authority "to proscribe all needful rules and regulations," to implement the NFA's provisions. See 26 U.S.C. section 7805(a). This authority has been delegated to the Director, ATE See T.D. Order No. 120-01 (June 1972), formerly T.D. Order No. 221, 37 Fed. Reg. 11696. 7. This regulation and the required certification are derived from a provision of the original regulations implementing the NFA, see Treasury Regulation No. 88, Art. 65 (1934). Article 65 required a person seeking to obtain an NFA firearm to submit an application containing certain personal information, and that: The application must be supported by a certificate of the local chief of police, sheriff of the county, United States attorney, United States marshal, or such other person whose certificate may in a particular case be acceptable to the Commissioner, that he is satisfied that the fingerprints and photograph appearing on the applications are those of the applicant and the firearm is intended by the applicant for lawful purposes. 8. The regulations states that a transferee must obtain the certification of the local chief of police, sheriff of the county, head of the state police, state or local district attorney or prosecutor, or such other person whose certificate may in a particular case be acceptable to the Director, ATF. Other acceptable officials include the state Attorney General and state judges if they preside over a court of general jurisdiction and have the authority to conduct jury trials in felony cases. See Federal Firearms Regulations Reference Guide at 144. In addition, prior to 1985, the regulation provided that the required certification could be made by United States Attorneys or United States Marshals. These federal officials were removed from the regulation because "the certifications required them to perform services outside their normal operations as they did not have direct access to the background data necessary to provide proper certifications." See 50 Fed. Reg. 41680, 41681 (October 15, 1985). 9. Defendants dispute many of the allegations asserted in plaintiffs' Complaint. However, for purposes only of this motion to dismiss and in accordance with the standards applicable to such motions, the well-pled material allegations in plaintiffs' Complaint are accepted as true. See Talenti v. Clinton, 102 F.3d 573, 574-75 (D.C. Cir. 1996). 10. Each of the five private individuals seeking to acquire an NFA firearm alleges that he is legally qualified in all respects to own and possess firearms. 11. For the limited purposes of this motion, defendants acknowledge that Plaintiff Grimes, on the face of the Complaint, has alleged sufficient facts to demonstrate that he has standing to challenge the regulation. Of course, Grimes will have to provide evidence to prove his allegations and demonstrate he has standing should the case proceed and before any findings or judgment could be rendered in his favor. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). Although defendants recognize Grimes' standing for purposes of this motion, it is nevertheless important for the Court to scrutinize the other plaintiffs' standing, as the claims that may be raised in this case depend in part on which parties the Court finds have standing. 12. The cited opinion in Doe v. ATF was a recommended ruling by the magistrate judge on cross-motions for surnmary judgment. Neither party objected to the recommendation and the district court subsequently approved and adopted the magistrate judge's recommendation as its ruling and judgment. See PACER docket sheet for Doe v. ATF, No. 3:94CV 1 699(D. Conn.) [attached at Tab B]. 13. While Steele involved a seller of NFA firearms, Westfall and Doe v. ATF, both of which involved prospective transferees of NFA firearms, clarified that the analysis in Steele is as fully applicable to claims brought by those seeking to receive or purchase NFA firearms, as it is to sellers and transferors of such firearms. 14. The court of appeals in Westfall also noted that if the plaintiff was able to obtain a certification from one of the officials he had not yet approached, then plaintiff would no longer have a legally-cognizable injury. See Westfall, 77 F.3d at 872. 15. Whalen's further allegation that he "has determined that the King County, Washington Chief of Police has been encouraged by BATF officials not to sign CLEO certificates on BATF forms," Complaint I 17(E), is simply irrelevant. Whalen specifically alleges that he refuses to "disclose" his application form to any state and local officials, and, therefore, he fails to allege that he sought certification from this Chief of Police or any other appropriate official. See id. para. 17(C). Unsubstantiated allegations regarding contacts between ATF and the Kings County Chief of Police are thus completely inapposite to the question of Whalen's standing. 16. The court in Westfall recognized that this precondition for standing placed a burden on plaintiff, but nevertheless affirmed that meeting that condition was necessary to demonstrate an injury in fact. As the court there explained: We fully understand that, as the regulation is written, [plaintiff] may possibly have to face more rejection or even go outside of the five mile radius of his home in order to exhaust the regulation's list of certifying officials. We also acknowledge that this process may prove to be cumbersome, frustrating, or even inconvenient for [plaintiff]. Nevertheless, we find the completion of the statutory procedure necessary to establish [plaintiffs] injury. Westfall, 77 F.3d at 872. 17. Unlike the individuals discussed previously, these plaintiffs do not allege an injury from the inability to transfer, make, or receive NFA firearms. 18. Concomitantly, because no burden is placed on state or local law enforcement officials by the regulation, there is no injury- in-fact to a state or its citizens, and, therefore, no private individual has standing to raise a Tenth Amendment challenge to the certification requirement. Moreover, it is questionable at best whether private individual plaintiffs ever have standing to assert Tenth Amendment claims, because the Tenth Amendment speaks to "rights reserved to the States respectively." U.S. Const. Amend. X. The Supreme Court has held that, "absent the states or their officers," private parties "have no standing . . . to raise any question under the [Tenth] [A]mendment." Tennessee Electric Power Co. v. TVA, 306 U.S. 118, 144 (1939); see also Mountain States Le-gal Found. v. Costle, 630 F.2d 754, 768, 770-771 (10th Cir. 1980) (finding that a non-profit corporation lacked standing to raise a Tenth Amendment challenge to the action of the Administrator of the Environmental Protection Agency); Vermont Assembly of Home Health Agencies, Inc. v. Shalala, 18 F. Supp. 2d 355, 370 (D. Vt. 1998) (holding that private home health agencies in Vermont lack standing to bring a Tenth Amendment challenge to a federal Medicare reimbursement provision of the Balanced Budget Act of 1997, stating that "the Tenth Amendment protects only States, not private parties"); Gaubert v. Denton, No. Civ. A. 98- 2947,1999 WL 350103, at *5 (E.D. La. 1999), aff'd, 210 F.3d 368 (5th Cir. 2000) [attached at Tab C] (dismissing for lack of standing individual's Tenth Amendment challenge to provisions of Federal Highway Safety Act, stating that "Tennessee Electric remains binding authority. . . [and] has never been overruled"). But see Dillard v. Baldwin County Comm'rs, 225 F.3d 1271, 1276-77 (11th Cir. 2000); Gillespie v. Ci1y of Indianapolis, 185 F.3d 693, 700-04 (7th Cir. 1999) (finding that individual had standing to raise Tenth Amendment claim), cert. denied, 120 S.Ct. 934 (2000); Atlanta Gas Light Co. v. U.S. Dept. of Energy, 666 F.2d 1359,1369 n.16 (11th Cir. 1982); Senior Civil Liberties Ass'n v. Kemp, 965 F.2d 1030,1033 n.6 (11th Cir. 1992); Metrolina Family Prac. Group v. Sullivan, 767 F. Supp. 1314 (W.D.N.C. 1989), aff'd, 929 F.2d 693 (4th Cir. 1991); Gilliard v. Kirk, 633 F. Supp. 1529,1549 (W.D.N.C. 1986). 19. While this case pre-dates the current provision, 26 U.S.C. section 6103, its reasoning is sound and is not contradicted by the language or restrictions found in that section. 20. It is important to note that any alleged "return information" incidentally disclosed in obtaining a certification is information on the ATF Forms 1 and 4 which pertains directly to the transfer or making of a covered firearm. 21. Even where a court has questioned whether portions of the Act are proper under Congress' taxing power, the court has alternatively found the NFA a valid enactment under Congress' power to regulate interstate commerce. See United States v. Jones, 976 F.2d 176, 184 (4th Cir. 1992). 22. Indeed, courts have specifically noted that "States remain free . . . after Printz ... voluntarily to cooperate with federal law enforcement efforts." United States v. Nathan, 202 F.3d 230,233 (4th Cir. 2000)(internal quotation omitted). Cf City of New York v. United States, 179 F.3d 29, 35 (2d Cir. 1999) (finding Tenth Amendment does not forbid voluntary cooperation between federal and state authorities, which is necessary to the functioning of a system of dual sovereignties). 23. Even if there were an ambiguity as to whether any duties or requirements were placed on state or local law enforcement officials by the regulation, the Secretary's interpretation clarifies that no such requirement exists. An agency's interpretation of its own regulation is accorded the highest deference by courts. See Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994). 24. The presence of the word "shall" does not limit the Secretary's discretion. In Heckler, the Supreme Court ruled that, even though the statute at issue read that violators of a legal provision "shall be imprisoned," the enforcement provision in the law was discretionary and not mandatory. Heckler, 470 U.S. at 836; see also Dubois v. Thomas, 820 F.2d 943, 948 (8th Cir. 1987) (interpreting "shall" in enforcement provision as discretionary under the "rule of Chaney"). 25. The court of appeals in that case also found that the statute conferring authority on the Attorney General to represent Indian Tribes, 25 U.S.C. section 175 ("In all State and Territories where there are reservations or allotted Indians the United States attorney shall represent them in all suits at law and in equity"), provided no "meaningful standard" to limit the Attorney General's discretion under 28 U.S.C. section 517, and, thus, her decision not to file claims to off-reservation water rights in state court on behalf of plaintiff Indian tribes was committed to agency discretion by law and not subject to judicial review. See Shoshone-Bannock Tribes, 56 F.3d at 1481-1482. 26. ATF regulations provide that when an application to make or transfer an NFA firearm is denied, the Secretary refunds the payment submitted with the application in anticipation of the tax. See 27 C.F.R. sections 179.64 and 179.86 (providing for return of the "remittance submitted by the applicant" for payment of tax upon denial of an application to make or transfer firearms). 27. Nor is it clear that an individual would have standing to sue the Secretary for failure to collect a tax owed by the individual, as no practical injury would exist from a failure to have a tax collected from oneself Similarly, an individual would lack standing to challenge the Secretary's failure to collect taxes on other individuals. Cf. Tax Analysts and Advocates v. Blumenthal, 566 F.2d 130 (D.C. Cir. 1977). Moreover, plaintiffs' injury regarding their inability to be approved to make and transfer NFA weapons does not fall within the zone of interests protected by 26 U.S.C. section 6301 - a statutory provision that authorizes the Secretary to collect federal taxes - such as to give them prudential standing to raise a claim under that provision. 28. For instance, the federal Internal Revenue Code levies taxes on gambling winnings, see 26 U.S.C. section 4401, yet states may, and many do, prohibit or otherwise limit gambling within their state. Certainly one cannot reasonably assert that state action making gambling illegal, though indirectly preventing a taxable event from occurring, constitutes an infringement on the Secretary's duty to collect taxes on gambling winnings. 29. By requiring the Secretary to maintain a central registry of NFA firearms, see 26 U.S.C. section 5841 - in direct contrast to other statutes that regulate firearms generally and that explicitly prohibit firearm registry, see, e.g., 18 U.S.C. section 926 - Congress has indicated its heightened concern with the public safety dangers posed by NFA firearms as compared to firearms generally. 30. For transfers, the transferor submits the finished form to the agency. See 26 U.S.C. section 5812. 31. Indeed, plaintiffs have not pointed to any provision of the NFA that prohibits the Secretary from requiring state or local certifications before approving the transfer of an NFA firearm, or that would prevent the Secretary from allowing state and local officials from providing important information to the Secretary regarding prospective transferees. 32. Significantly, the "violation of law" language in 26 U.S.C. section 5812 also requires consideration of provisions of federal law, such as 18 U.S.C. section 922(b)(4), which makes it illegal for a federal firearms licensee to sell or deliver a machinegun "except as specifically authorized by the Secretary consistent with public safety and necessity." 18 U.S.C. section 922(b)(4) (emphasis added). 33. As 18 U.S.C. section 923(c) and (d) demonstrate, when Congress intended to guide the Secretary's consideration and decision on applications filed regarding gun control matters, it understood how to do it. See 18 U.S.C. section 923(c) ("Upon the filing of a proper application and payment of the prescribed fee, the Secretary shall issue to a qualified applicant the appropriate license 18 U.S.C. section 923(d) ("Any application [for a federal license] submitted under subsection [section 923(a) or (b)] shall be approved if"the conditions of section 923(d)(1)(A) - (G) are met). Congress gave the Secretary limited discretion to deny applicants under the GCA. By contrast, Congress has continued to preserve the broad discretionary language in 26 U.S.C. sections 5812 and 5822 of the NFA - a weighty indication that it did not want to limit the Secretary's discretion in deciding whether to approve or deny applications to transfer or make NFA firearms. The added provision of section 5812 indicates, at most, that Congress wanted to insure that the Secretary would not have discretion to approve transfers to persons whose possession would be in violation of law. 34. For instance, the transferee may be the subject of a serious law enforcement investigation, a member of a terrorist organization purportedly seeking to take action against the United States, or have some other indication that he or she poses a threat to public safety. Under plaintiffs' narrow interpretation of the Act, the Secretary would be bound to approve transfers to the above persons as long as there were no current legal prohibitors to their possessing firearms generally. Not only would such approvals undermine public safety, but an interpretation of the Act preventing the Secretary from considering such information regarding threats to public safety, and denying applications on that basis, would contradict the very intent and purpose of Congress in enacting the NFA. 35. As the D.C. Circuit has explained, the arbitrary and capricious standard overlaps with the Chevron step two analysis. See Independent Petroleum Ass'n of Am. v. Babbitt, 92 F.3d 1248, 1258 (D.C. Cir. 1996)("As we have noted in the past, 'Chevron review and arbitrary and capricious review overlap at the margins. "')(quoting Arent v. Shalala, 70 F.3d 610, 615 (D.C. Cir. 1995)). Thus, many of the reasons presented for upholding the regulations as reasonable interpretations of the NFA within the agency's authority are also relevant to demonstrating that the regulation is not arbitrary and capricious, and, accordingly, may be reiterated in this section. 36. For instance, a transferee may obtain the required state or local certification where the official certifies that the he or she "has no information that the receipt of the firearm would place the transferee in violation of State or local law," but the Secretary may deny the transfer if the Secretary uncovers that the transfer would violate federal law. Or, the Secretary may uncover an ongoing federal criminal investigation of the transferee and deny the application on that basis. 37. Similarly, it is eminently rational to require an applicant to obtain a certification from law enforcement officials regarding the authenticity of the fingerprints and photograph submitted with an application to transfer. State and local officials are uniquely situated to authenticate the transferee's fingerprints and photograph. 38. Congress itself has recognized the important role of states and localities in regulating the possession of firearms and has thus provided that the NFA's regulation of the transfer and manufacture of NFA firearms, and the Gun Control Act's regulation of firearms generally, do not displace or broadly preempt state controls or regulations on firearms. See 26 U.S.C. sections 5812, 5822 (Secretary shall deny NFA applications to transfer or manufacture if transferee's or maker's possession would violate law, including state and local law); 18 U.S.C. section 927. 39. For instance, a check of federal databases would not reveal if the transferee was the subject of an on-going criminal investigation by state or local police.