Category Archives: ATF

Trump to Alleviate ITAR Obligations for Firearm and Ammunition Manufacturers and Gunsmiths

As our readers are aware, for almost a decade, I have blogged about the obligation of firearm and ammunition manufacturers to register with the Department of State, Directorate of Defense Trade Control (DDTC) under the International Traffic in Arms Regulations (ITAR), which implement the Arms Export Control Act (AECA), as well as, DDTC’s stepped up enforcement against Federal Firearm Licensees (FFLs) starting in 2012. More recently, the DDTC issued guidance, which placed many gunsmiths out of business because it declared that most gunsmithing activities constituted manufacturing, which in turn required registration at a cost of $2,250, per year, in addition to the compliance costs. After years of requests that firearms and ammunition under Categories I, II and III of the U.S. Munitions List be moved over under the Department of Commerce, today the Department of State has published on its website proposed regulatory changes, which will afford a 45 day comment period, once formally published in the Federal Register. While the proposed changes are monumental, as described below, there are concerns regarding the proposed regulatory changes, which necessitate that those effected obtain competent counsel to timely file comments for DDTC’s consideration. DDTC.jpg

The 42 page proposal provides significant changes in that non-automatic and semi-automatic firearms and ammunition, as well as parts and defense services related thereto, that are currently regulated by Category I, II or III of the U.S. Munitions List will be moved over to the Export Administration Regulations (EAR), which are administered by the Department of Commerce and where there does not exist a registration requirement for the mere manufacture of controlled items, nor is there an annual fee (however, licensing requirements for exports will remain but under EAR). However, fully automatic firearms and ammunition for linked or beltfed firearms will remain under ITAR.

While the proposal is extremely beneficial for many FFLs and it is not surprising that fully automatic firearms are remaining under ITAR, for some unknown reason, silencers, all silencer parts and defense services related thereto, will will remain under ITAR (however, flash suppressors will be moved over under EAR). Additionally, magazine manufacturers that manufacture magazines that have a capacity in excess of 50 rounds must also continue to register under ITAR. This places a monumental burden on small and mid-sized silencer and magazine manufacturers, especially when one considers the compliance requirements and costs, beyond the yearly registration cost of $2,250.

If you or your company wants to file a comment requesting that DDTC consider moving silencers, large capacity magazines, or other items over under EAR, contact Firearms Industry Consulting Group (FICG) to discuss your options, as FICG has a number of attorneys with the necessary experience and understanding of the issues surrounding Administrative Law, the Gun Control Act, the National Firearms Act, and the Arms Export Control Act to ensure that any comment is properly and thorough prepared.

For those interested in some of the comments that FICG has drafted and filed on behalf of Industry Members and itself in opposition to rulemaking by ATF, see:

FICG Files Comment in Opposition to ATF – 41P – ATF’s proposed (and later enacted) rule to impose additional burdens on fictitious entity applications.

FICG Files Comment on behalf of David Goldman, Esq. of GunTrustLawyer.com in Opposition to ATF-41P

FICG Files Comment in Opposition to ATF 51P – ATF’s proposed rule to ATF’s to amend the definitions of “adjudicated as a mental defective” and “committed to a mental institution.”

FICG Files Comment in Opposition to ATF 29P on Behalf of Dead Air Armament – ATF’s advanced notice of proposed rulemaking regarding silencer engravings.

FICG Files Comment in Opposition to ATF’s Proposed Changes to the 4473 Form

 


Firearms Industry Consulting Group® (FICG®) is a registered trademark and division of Civil Rights Defense Firm, P.C., with rights and permissions granted to Prince Law Offices, P.C. to use in this article.

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What Do You Do If You Realize That Your ATF AFMER Report Is In Error?

Recently, I had a client, who timely (prior to April 1st) filed with the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) his Annual Firearm Manufacturing and Export Report (“AFMER”) and after filing it, realized that a firearm manufactured in 2018 was inadvertently included on the form for 2017.  When it was discovered, my client obviously became concerned with the inadvertent inclusion. So what to do?

It’s actually quite simple. Even if you efiled your AFMER (as 90% of manufacturers and exporters do), since there is no ability to efile an amended AFMER through eForms, you must submit a paper copy of the revised AFMER form to ATF, where you write “AMENDED” on the top of the form and mail it to: ATF AFMER PROGRAM, 244 Needy Road, Martinsburg, WV 25405.

Although not required, I would recommend sending it certified return receipt, so that you receive back a signed receipt reflecting the date it was received by ATF. Then, you should staple that to a copy of your amended AFMER that you keep for your recordkeeping, so that, if an issue ever arose, you can show the certified receipt of when it was received by ATF and that you had submitted an amended AFMER.

If you or your company is having issues with your AFMER report or other issues related to ATF, contact Firearms Industry Consulting Group today to discuss YOUR rights and legal options.


Firearms Industry Consulting Group® (FICG®) is a registered trademark and division of Civil Rights Defense Firm, P.C., with rights and permissions granted to Prince Law Offices, P.C. to use in this article.

 

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FOIA Filed with ATF over Bump Stock Determinations

Today, Firearms Industry Consulting Group (FICG), on behalf of Firearms Policy Foundation (“FPF”), filed a, expedited Freedom of Information Act (“FOIA”) request with ATF requesting copies of all prior determinations issued by ATF regarding the lawfulness of bump stocks. As the comment period only permits comments to be submitted until June 27, 2018 and in the absence of disclosure of these documents, the public would be denied meaningful opportunity to respond, the FOIA request additionally requests expedited review and processing.

We will post ATF’s response when it is received. In the meanwhile, if you wish to stay apprised of issues relating to ATF attempting to ban bump stocks, please follow Americans Opposed to ATF 2017R-22 and after following, select “See First” under the Following tab so you can be assured to see all of the posts and updates!


Firearms Industry Consulting Group® (FICG®) is a registered trademark and division of Civil Rights Defense Firm, P.C., with rights and permissions granted to Prince Law Offices, P.C. to use in this article.

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ATF Publishes Notice of Proposed Rulemaking RE: Bump-Stock-Type Devices

Today the ATF published a Notice of Proposed Rulemaking regarding Bump-Stock-Type Devices. The comment period is open for 90 days, making comments due on or before June 27, 2018.

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The proposed rule would alter the definition of a machine gun in the regulations pertaining to the National Firearms Act (27 C.F.R. § 479.1, et seq.), the Gun Control Act (27 C.F.R. § 478.1, et seq.), and the Arms Export Control Act (27 C.F.R. § 447.1, et seq.).

Currently, the definition of a machine gun (in the GCA and NFA regulations) is

Any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machine gun, and any combination of parts from which a machine gun can be assembled if such parts are in the possession or under the control of a person.

This change would alter the definition to include the following language

For purposes of this definition, the term “automatically” as it modifies “shoots, is designed to shoot, or can be readily restored to shoot,” means functioning as the result of a self-acting or self-regulating mechanism that allows the firing of multiple rounds through a single function of the trigger; and “single function of the trigger” means a single pull of the trigger. The term “machine gun” includes bump-stock-type devices, i.e., devices that allow a semiautomatic firearm to shoot more than one shot with a single pull of the trigger by harnessing the recoil energy of the semiautomatic firearm to which it is affixed so that the trigger resets and continues firing without additional physical manipulation of the trigger by the shooter.

If you are interested in submitting a comment in opposition to the proposed rule, you may do so by visiting www.regulations.gov and searching the docket “ATF 2017R-22”. (Updated with link: https://www.regulations.gov/document?D=ATF-2018-0001-35714) If you wish to stay up to date on issues relating to this infringement of our rights, join the Facebook page Americans Opposed to ATF 2017R-22, where we will post updates and our submitted comments, as they become available. (Make sure to select “See First” from the Following tab to ensure that you see all of the posts)

All comments must reference the docket number ATF 2017R-22, be legible, and include the commenter’s complete first and last name and full mailing address. ATF will not consider, or respond to, comments that do not meet these requirements or comments containing profanity. In addition, if ATF cannot read your comment due to technical difficulties and cannot contact you for clarification, ATF may not be able to consider your comment.

Firearms Policy Coalition has retained Joshua Prince and myself to draft a comment in opposition on their behalf. To learn more visit: www.defendgunparts.com and Americans Opposes to ATF 2017R-22

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Omnibus Spending Bill, H.R. 3354, Passes House and Provides Funding for Federal Firearms Relief Determinations – IN SENATE

Once again the House omnibus appropriations bill, H.R. 3354, provides funding for ATF to conduct federal firearms relief determinations under 18 U.S.C. § 925(c). Since 1992, Congress has specifically denied ATF the ability to utilize any funds they are appropriated to conduct these determinations. Further, ATF will not allow an individual to fund their own hearing, rendering a person’s options for relief at the federal level limited to Second Amendment as-applied challenges and/or presidential pardons.

 

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It is important that you contact your Senators immediately and demand they pass the bill with the funding for federal firearms relief determinations in the final language.

Who is My Senator?

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If this bill were to pass with funding reinstated for the program, thousands of individuals who are currently prohibited may be able to once again exercise their Second Amendment rights.

 

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Join the Fight to Stop the Regulation of Bump Stocks

As many of our clients and viewers are aware, Firearms Industry Consulting Group® (FICG®) a division of Civil Rights Defense Firm, P.C., has submitted substantial comments in opposition to rulemaking entered into by the Bureau of Alcohol, Tobacco, Firearms and Explosives and spearheaded the opposition to ATF-41P. Unfortunately, as it appears that ATF intends to move forward expeditiously with a proposed rule in relation to bump stocks (and potentially other firearm accessories which purportedly permit or result in higher cyclic rates by the operator), we’re asking for your support so that we can prepare a comprehensive comment with appropriate expert reports, so that if ATF enacts any form of regulation, we will be able to challenge it in court.

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Although we do not yet have the text of any proposed rule, we already know that ATF intends to propose a rule, which will ban, at a minimum, bump stocks. There are also concerns, depending on the language proposed by ATF, whether it could impact competition triggers and other tangentially related parts and accessories. Hence, it is imperative that we begin retaining experts to provide expert opinion on functionality of bump stocks and other parts and accessories, which could be included in any proposed rule. We also must begin formulating all arguments in opposition so that we can ensure that all issues can later be raised in court, if necessary.

Thus, we have set up a page on our website – Challenging Bump Stock Rulemaking – where we have further information about the issue. Unfortunately, we can’t do this without your support. Unlike the Government, we don’t have unlimited funds at our disposal.

Anyone wishing to donate can:

  • Pay via our secure website: Civil Rights Defense Firm, P.C. – Please place “Bump Stock Regulation” in the reference field
  • Mail donations to: Civil Rights Defense Firm, P.C., 646 Lenape Rd, Bechtelsville, PA 19505; or,
  • Call our office at 888-202-9297.

When submitting your donation, please include a note or inform the staff that you are donating in relation to the Bump Stock Regulation.

For those interested in some of the comments that FICG has drafted and filed on behalf of Industry Members and itself in opposition to rulemaking by ATF, see:

FICG Files Comment in Opposition to ATF – 41P – ATF’s proposed (and later enacted) rule to impose additional burdens on fictitious entity applications.

FICG Files Comment on behalf of David Goldman, Esq. of GunTrustLawyer.com in Opposition to ATF-41P

FICG Files Comment in Opposition to ATF 51P – ATF’s proposed rule to ATF’s to amend the definitions of “adjudicated as a mental defective” and “committed to a mental institution.”

FICG Files Comment in Opposition to ATF 29P on Behalf of Dead Air Armament – ATF’s advanced notice of proposed rulemaking regarding silencer engravings.

FICG Files Comment in Opposition to ATF’s Proposed Changes to the 4473 Form

 

 


Firearms Industry Consulting Group® (FICG®) is a registered trademark and division of Civil Rights Defense Firm, P.C., with rights and permissions granted to Prince Law Offices, P.C. to use in this article.

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MONUMENTAL DECISION – Federal Court Rules a Pennsylvania 302 Mental Health Commitment Insufficient to Trigger a Disability under Section 922(g)(4)

We are extremely proud to announce that today Attorney Joshua Prince was successful in having Federal District Court Judge Kim Gibson of the Western District of Pennsylvania rule that an involuntary commitment under Section 302 of Pennsylvania’s Mental Health and Procedures Act (“MHPA”) is insufficient to trigger a federal firearms and ammunition disability under 18 U.S.C. § 922(g)(4).

For those unaware, 18 U.S.C. § 922(g)(4) provides

It shall be unlawful for any person–

(4) who has been adjudicated as a mental defective or who has been committed to a mental institution;

to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

Section 302 of the MHPA permits a physician to involuntarily commit an individual in the absence of any form of due process (i.e. the individual is not provided an attorney, the ability to confront or present witnesses, the ability to challenge or submit evidence, or provided any other requisites of due process).

As a result of a single, isolated 302 commitment, the Bureau of Alcohol, Tobacco, Firearms and Explosives took the position that Mr. Franklin was federally prohibited from possessing and purchasing firearms and ammunition. As a result, he brought a challenge in federal court challenging, inter alia, whether a 302 commitment was sufficient to trigger a prohibition under Section 922(g)(4) and if so, argued that it would be unconstitutional to deny him in perpetuity his Second Amendment rights, as applied to him. As our viewers are aware, Attorney Prince has won two previous Second Amendment as-applied challenges to mental health commitments.

Judge Gibson in reviewing whether Mr. Franklin was “adjudicated as a mental defective” found that the

procedures provided for by Section 302 of the MHPA and that were applied to Mr. Franklin scarcely constitute an ‘adjudication’. The plain meaning of “adjudicated” connotes the involvement of a judicial decision-maker, the resolution of a dispute after consideration of argument by the parties involved, and a deliberative proceeding with some form of due process….Notably, courts, boards, and commissions all function in a neutral judicial or quasi-judicial role, therein greatly differing from the ex parte, non-judicial procedures and non-judicial actors provided for by Section 302 of the MHPA.

The court continued on

Thus, because Mr. Franklin was not “adjudicated as a mental defective” by a court, board, or commission, Section 922(g)( 4) does not provide for a restriction of Mr. Franklin’s ability to own a firearm based on a determination by one of these three “adjudicators.”…Interpreting Section 922(g)( 4) such that individual physicians and other non-neutral actors have lawful authority to wholly strip a person of their ability to a possess a firearm in perpetuity based on a non-adversarial, ex parte decision would raise serious constitutional concerns with the statute, which
the canon of constitutional avoidance requires the Court to avoid if possible

Judge Gibson then turned to whether Mr. Franklin was “committed to a mental institution” and in finding that he was not committed to a mental institution, held that a prohibition under Section 922(g)(4) “presupposes a formal commitment decision by a ‘court, board, commission, or other lawful authority’.” Most importantly,  Judge Gibson declared

By its own terms and effect, Section 302 of the MHPA does not provide for a commitment to a mental institution as defined by 27 C.F.R. § 478.11, nor did Mr. Franklin undergo a commitment to a mental institution for the purposes of Section 922(g)(4).

In deferring to decide Mr. Franklin’s Second and Fifth Amendment claims on the basis of the constitutional avoidance doctrine and resolution of the issue absent review of the constitutional implications, Judge Gibson declared that

the Court cannot deny the serious constitutional doubts raised by the parties’ arguments in the instant matter-both in regard to due process rights of the Fifth Amendment and the right to bear arms under the Second Amendment. The arguments raised in the parties’ briefs, a “fractured vote” by the Third Circuit on a related issue, and recent, disparate decisions by other district courts within the Third Circuit amply demonstrate the seriousness of these constitutional concerns and the appropriateness of constitutional avoidance when a reasonable interpretation of Section 922(g)( 4) avoids consideration of those weighty constitutional issues.

In concluding the decision, Judge Gibson holds

Although the provisions of Section 302 of the MHPA may be sufficient to justify an involuntary emergency examination and treatment, the Court is not persuaded that these non-adversarial, ex parte procedures without notice, a hearing, the opportunity to present evidence, or a judicial or quasi-judicial actor constitute an “adjudication” for the purposes of Section 902(g)(4), nor that a 120-hour-maximum “involuntary emergency examination and treatment” constitutes a “commitment to a mental institution.”

Please join us in congratulating Attorney Prince for this monumental victory!

If you or someone you know has been involuntarily committed and is now prohibited from purchasing and possessing firearms and ammunition, contact Firearms Industry Consulting Group today to discuss YOUR rights and legal options.

 


Firearms Industry Consulting Group® (FICG®) is a registered trademark and division of Civil Rights Defense Firm, P.C., with rights and permissions granted to Prince Law Offices, P.C. to use in this article.

 

 

 

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