ATF’s New Devastating Appropriation Bill – Previous Industry Protections Appear to be Lost

See January 20, 2014 Updated Article on ATF’s Appropriation Bill May Not Be As Devastating As First Thought.

On January 15, 2014, the Congress approved H.R. 3547 – the “Consolidated Appropriations Act of 2014,” which is now awaiting the President’s signature. The Consolidated Appropriations Act of 2014 seemingly removes key protections for the Firearms Industry.

For those unfamiliar, I previously wrote about the last appropriations bill, HR 2112, the “Fiscal Year 2012 Agriculture, Commerce/Justice/Science (CJS) and Transportation/Housing/Urban Development (THUD) Appropriations bills,” in my article ATF Appropriations Bill – New Limitations, Including on the Importability of Shotguns!. While a copy of the prior appropriation bill can be found in that article, since it is important for purposes of this article, you can also download a copy here.

In HR 2112, the restrictions included: 1. the funding of any “consolidating or centralizing, within the Department of Justice, the records, or any portion thereof, of acquisition and disposition of firearms maintained by Federal firearms licensees” (see page 58 of the Bill); 2. the appropriated funds to be utilized to “promulgate or implement any rule requiring a physical inventory of any business licensed under section 923 of title 18, United States Code” (see page 59 of the Bill); 3. “[N]o funds authorized or made available under this or any other Act may be used to deny any application for a license under section 923 of title 18, United States Code, or renewal of such a license due to a lack of business activity, provided that the applicant is otherwise eligible to receive such a license, and is eligible to report business income or to claim an income tax deduction for business expenses under the Internal Revenue Code of 1986” (see, id.); and 4. “no funds appropriated herein shall be used to pay administrative expenses or the compensation of any officer or employee of the United States to implement an amendment or amendments to 27 CFR 478.118 or to change the definition of ‘Curios or relics’ in 27 CFR 478.11 or remove any item from ATF Publication 5300.11 as it existed on January 1, 1994” (see id.)

These were necessary restriction to ensure that ATF was not able to decimate our Industry with overly burdensome and congressionally unsupported regulations. All of these protections are noticeably absent from the Consolidated Appropriations Act of 2014. H.R. 2112 was comprised of almost two, single spaced, pages of restrictions on the ATF’s use of appropriated funds (see page 58 and 59 of the Bill). The new appropriation bill, H.R. 3547, has not even one full, double spaced, page of restrictions on the appropriation of funds (see page 117 and 118 of the Bill).

Interestingly, the Congressional Research Service (CRS) has issued a report on the Consolidated Appropriations Act of 2014 regarding these exclusions – Commerce, Justice, Science, and Related
Agencies: FY2014 Appropriations. The report begins reviewing the ATF’s appropriation on page 27. One of the most interesting comments in the report in relation to the removal of the above provisions is,

Also, the Administration requests the elimination of two long-standing provisos, in the ATF salaries and expenses appropriations language, that prohibit ATF from:

• altering the regulatory definition of “curios and relics,” and

• requiring federally licensed gun dealers to conduct physical inventories (see, pg 28 of the Report)(emphasis added).

Is it any surprise that the President is seeking removal of these provisions?

The Report goes on to suggest that the exclusion of these provisions is not concerning, as the previous appropriations bill made them permanent law. However, there does not appear to be anything in the Consolidated and Further Continuing Appropriations Act, 2013 (P.L. 113-6; March 26, 2013; 127 Stat. 198, 248), that would seem to grant the Congress the ability to make a provision permanent in an appropriations bill, especially where it does not appear in the US Code. UPDATE – See my new article on ATF’s Appropriation Bill May Not Be As Devastating As First Thought.

So, what wasn’t removed from this appropriations bill? Well, luckily, the issue of studying the importability of certain shotguns was never included in the ATF section, but rather, tucked away in a separate section, Section 533 (see pg 188 of the Bill). Consistent with H.R. 2112, H.R. 3547 provides

None of the funds made available by this Act may be used to pay the salaries or expenses of personnel to deny, or fail to act on, an application for the importation of any model of shotgun if — (1) all other requirements of law with respect to the proposed importation are met; and (2) no application for the importation of such model of shotgun, in the same configuration, had been denied by the Attorney General prior to January 1, 2011, on the basis that the shotgun was not particularly suitable for or readily adaptable to sporting purposes.

Additionally, the prior restriction on providing operable firearms to drug cartels is still included in Section 556 (see pg 653).

None of the funds made available under this Act, other than for the national instant criminal background check system established under section 103 of the Brady Handgun Violence Prevention Act, may be used by a Federal law enforcement officer to facilitate the transfer of an operable firearm to an individual if the Federal law enforcement officer knows or suspects that the individual is an agent of a drug cartel unless law enforcement personnel of the United States continuously monitor or control the firearm at all times.

Lastly, as has been the case since 1992, the Congress has again prohibited the appropriated funds from being used for individual federal firearms relief determinations (see pg. 118 of the Bill).

That which is extremely clear from H.R. 3547 is that the Administration is dedicated to destroying our Industry and our Congressional lobbying efforts are NOT sufficient. The removal of the above-mentioned protections for FFLs is indicative of the lack of understanding and comprehension of those issues that face our Industry. If our Industry is to survive this Administration, we must come together, through organizations and trade associations, to challenge the Administration and provide for additional lobbying efforts.