Not having learned from the debacle that is ATF 41P/F, the National Firearms Act Trade and Collector Association (“NFATCA”) has once again petitioned the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) to enter into rulemaking, this time in relation to silencer engravings.
In a proposed rule that will be published tomorrow, May 4, 2016, in the Federal Register as ATF-29P, the ATF, based on a petition received from the NFATCA, is seeking to restrict silencer marking to the tube of the silencer. You can download a pre-published copy of ATF29P, here.
So, how did ATF come to formulate ATF-29p and enter into rulemaking? A petition by the NFATCA, because it didn’t like ATF’s prior guidance, which provided for MORE marking locations for manufacturers and makers.
On April 17, 2008, ATF issued guidance to silencer manufacturers and makers regarding the engraving requirements and locations. Specifically, ATF stated:
The silencer must be marked in accordance with 27 C.F.R. §§ 478.92 and 479.102. The regulations require that the markings be conspicuous and legible, meaning that the markings may be placed on any external part, such as the outer tube or end cap. ATF strongly recommends that manufacturers place all required markings on the outer tube of the silencer, as this is the accepted industry standard. Moreover, this practice eliminates the need to remark in the event an end cap bearing the markings is damaged and requires replacement. (Emphasis added)
However, NFATCA wasn’t happy with this guidance and sought to have ATF restrict the marking location strictly to the silencer tube.
Specifically, ATF-29P declares:
ATF received a petition filed on behalf of the National Firearms Act Trade and Collectors Association (NFATCA). NFATCA is a trade group representing the firearms and import community. Some of its members primarily manufacture, transport, and possess silencers for lawful use.
According to the petitioner, the industry’s response to ATF’s guidance was not favorable: “There has been an overwhelmingly negative response from the members of our trade to this particular guidance. . . . there is strong policy agreement between ATF and our trade that only the silencer [outer] tube should be marked in accordance with the marking requirements of Parts 478 and 479 of Title 27 of the Code of Federal Regulations. . . . Allowing end caps to be the possible marking location for silencers does constitute a serious public safety issue in the areas of diversion, tracing, and evasion of other NFA rules.”
Really? A public safety concern? On what basis? (Maybe they’ll also petition to have the lettering size increased from 1/16th to 1″ and the depth from .003 to .3 in case the officer doesn’t have his/her glasses with him/her). What does this remind you of? That’s right, NFATCA’s petition, which resulted in ATF-41P.
BUT, NFATCA didn’t stop there. No, it wanted to drive its point home so that ATF would take action:
In addition, the petitioner stated that “[w]e have also been further advised that the Bureau does not see how they would be able to take any adverse legal action against a person or entity that should decide to mark the end caps of a silencer without promulgating a change in the regulations.”
So, let’s analyze this sentence. The “we” refers to NFATCA, which has been “advised that the Bureau does not see how they [sic] would be able to take any adverse legal action.” So, NFATCA, which lauds itself as the representative of the NFA community is seeking to have ATF implement new regulations so that ATF can prosecute our community??? Yeah, that makes sense. What was I thinking? And, let’s not take too much time to consider how NFATCA came into this information regarding the Bureau’s inability to prosecute and NFATCA’s desire for the Bureau to prosecute where a manufacturer or maker complied with ATF’s guidance…
As we documented in our Comment in Opposition to ATF-41P and the accompanying Exhibits, pages 28-30 and Exhibit 25, the President of the NFATCA, John Brown, has a long history with the ATF:
Indeed, as Richard Vasquez — ATF’s Chief of the Firearms Training Branch and previous Assistant and Acting Chief of the Firearms Technology Branch — testified under oath only last year, Mr. Brown “interacted with ATF a lot,” was a friend since at least 2006, had personally transferred two firearms to him, had transferred firearms to other ATF employees, visited ATF “to meet and become personal with a lot of the offices” over a period of years, and provided him with information to pass along to ATF for ATF’s use in a forfeiture proceeding. See Exhibit 25(A), pp. 202, 208-09, 226-32, 251, 255-56. Mr. Brown apparently went so far as to forward e-mails he had received from a FFL involved in litigation with ATF to ATF for ATF’s use in the litigation against the FFL. Id., pp. 232, 270. Indeed, Mr. Brown was not surprised to be characterized as a “confidential source” for Acting Chief Vasquez and ATF. Exhibit 25(E), pp. 611-12. Despite having acquired three machineguns illegally manufactured by George D. Clark, Mr. Brown seems to be the only FFL in that situation that ATF never referred for prosecution. Exhibits 25(A), pp. 255-56, 278; 25(C), pp. 396-97. In fact, ATF knowingly left Mr. Brown in possession of that contraband for six weeks and then promptly destroyed that evidence before the completion of prosecutions of other individuals in possession of Mr. Clark’s machineguns. Exhibit 25(A), pp. 215-26, 278. In addition, during this same time period Mr. Brown, together with the attorney he reportedly hired to prepare the NFATCA petition upon which ATF now relies, hired two thirty-year veterans of ATF who simultaneously worked together with ATF to draft the National Firearms Act Handbook. See id., pp. 227-30 Ernie Lintner — a specialist in ATF’s NFA Branch and one-time Acting Chief of that Branch — testified that he and other ATF employees met Mr. Brown at his place of business to discuss those revisions. See Exhibit 25(B), pp. 282, 332-34. And another NFA Branch employee, Daniel Pickney, testified to additional meetings held at ATF’s Martinsburg, West Virginia, facility. See Exhibit 25(D), pp. 444-45, 459.
As particularly pertinent to this proceeding, Mr. Lintner testified that he and Gary Schaible — another former Acting Chief of the NFA Branch — met with Mr. Brown “about some suggested regulatory changes that we wanted to try and make.” See Exhibit 25(B), pp. 333-34. That is, ATF employees testified under oath that regulatory changes that ATF wanted to advance — quite likely the subject of this proceeding — were the subject of a meeting with Mr. Brown, confirming his statement about working “inside ATF”. Indeed, Mr. Brown testified that NFATCA “deals with ATF on a weekly basis” setting up “meetings with very high-level agenda.” See Exhibit 25(E), p. 650. As noted above, multiple FOIA requests have sought documents from such meetings, at least one dating back to January 2013. See supra note 4.
It appears clear based on the the information provided in ATF-29P and the testimony provided relating to John Brown, that NFATCA is operating as a proxy for ATF, so that ATF can implement further regulations on our community. There is simply no basis for a putative representative of the NFA community to repeatedly request further more restrictive regulations on lawful conduct.
Regardless, the Firearms Industry Consulting Group is prepared to represent silencer manufacturers, makers and other interested parties in this rulemaking. If you desire to file a comment in opposition to ATF-29P, contact us today to discuss your options. As there are only 90 days to file comments, time is of the essence.