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A Pennsylvania tenant’s right to recover a security deposit.

Under Pennsylvania’s Landlord and Tenant Act of 1951, 68 P.S. ‘250.101, et. Seq., a landlord may require a security deposit to be held for tenant caused damages and possible past due rent. See 68 P.S. §250.511 and §250.512. A security deposit is not the same as rent. It is money that actually belongs to the tenant, but is held by the landlord for tenant-caused damages and sometimes past-due rent. Without the agreement of the landlord, a security deposit may not legally be used as the last month’s rent.

Pennsylvania law places a limit on the amount of a security deposit that a landlord may require. Under 68 P.S. §250.511a (a), no landlord may require a sum in excess of two months’ rent to be deposited in escrow for the payment of damages to the leasehold premises and/or default in rent thereof during the first year of any lease. During the second and subsequent years of the lease or during any renewal of the original lease the amount required to be deposited may not exceed one month’s rent. See 68 P.S. §250.511a (b). At the beginning of the second year of a lease the landlord may not keep a security deposit equal to more than one month’s rent and must return any money greater than one month’s rent still being held as a deposit. See 68 P.S. §250.511a (c) After five years the landlord cannot increase a security deposit even if the monthly rent is increased. 68 P.S. §250.511a (d).

Pennsylvania also regulates where residential security deposits must be kept and when interest payments on the security deposits must be made to the tenant. Security deposit monies in excess of $100 and held more than two years must be deposited by the landlord in an approved bank, and the tenant must be notified in writing where the bank and deposit is located. See 68 P.S. §250.511b (a). A landlord is entitled to receive as administrative expenses, a sum equivalent to one per cent per annum upon the security money so deposited, which shall be in lieu of all other administrative and custodial expenses. The balance of the interest paid shall be the money of the tenant making the deposit and will be paid to the tenant annually upon the anniversary date of the commencement of his lease. See 68 P.S. §250.511b (b).

After termination the lease or upon surrender of the lease and acceptance by the landlord of the leasehold premises, a landlord must provide a tenant with a written list of any damages to the leasehold premises for which the landlord claims the tenant is liable. Delivery of the list shall be accompanied by payment of the difference between any sum deposited in escrow, including any unpaid interest thereon, for the payment of damages to the leasehold premises and the actual amount of damages to the leasehold premises caused by the tenant. See 68 P.S. §250.512.

Reasonable wear and tear caused by a tenant’s lawful use of the lead premises is not damages. In 1979, the Pennsylvania Supreme Court officially recognized that an Warranty of Habitability that is implied in every residential lease agreement. Pugh v. Holmes, 486 Pa. 272, 405 A.2d 897 (1979). The Supreme Court decided that landlords who rent property for people to live in must make sure such property is “safe, sanitary and fit for human habitation.” A landlord’s obligations under the Warranty of Habitability cannot be taken from a tenant even if you sign a lease that says you are renting the property “as is” or that you are responsible for all repairs.

The warranty implies that the landlord has placed the rented premises in a livable conditions prior to the occupancy by the tenant; or that he will do so within a reasonable time after the occupancy of the demised residence; that the facilities will remain usable during the entire term of the lease and that the landlord will maintain the demised premises in a condition which will render the premises livable. Any repairs made necessary by reasonable wear and tear are the responsibility of the landlord. Derr v. Cangemi, 66 Pa. D & C 2nd 162 (1974).

A landlord is responsible for all normal wear and tear and must bear that cost as part of the implied Warranty of Habitability whenever he leases a property to a tenant. A landlord can not pass on normal wear and tear expenses to a tenant. Deluca v. Matthews, 2015 Pa. Dist & Cnty. Dec. Lexis 14718.

Assuming that there are valid damages, a landlord must refund the security deposit less the cost of the repairs on the list. If the landlord fails to do this, the tenant cannot be sued for any damages the landlord claims the tenant caused. In addition, if the landlord does not give the tenant this 30-day response, the tenant may sue for double the amount of the security deposit. In order to be able to sue for double the deposit, the tenant must give the landlord written notice of his or her new address once the tenant has moved out. See 68 P.S. §250.512.

Under 68 P.S. §250.512 (e), failure of the tenant to provide the landlord with his new address in writing upon termination of the lease or upon surrender and acceptance of the leasehold premises shall relieve the landlord from any liability under this section.

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Pennsylvania consumers protections under the Fair Credit Extension Uniformity Act

In previous blogs, I have discussed the protections provided consumers under the Federal Fair Debt Collection Practices Act (“FDCPA”). The FDCPA is a powerful deterrence to unscrupulous debt collectors and unlawful debt collection practices. The FDCPA is a comprehensive and reticulated statutory scheme, involving clear definitions, precise requirements, and particularized remedies. The validity of the underlying debt is not relevant or an issue under the FDCPA. There is no exception to liability for violating the FDCPA as a result of fraud on the part of the consumer. As long as the underlying obligation is a “debt” as defined b the FDCPA, the method of collections is irrelevant. The validity of the underlying debt is irrelevant as well.

The FDCPA “provides a remedy for consumers who are subjected to abusive, deceptive, or unfair trade collection practices by debt collectors.” A single violation of the Act triggers statutory liability and remedies. Under the FDCPA, a plaintiff may collect statutory damages even if he has suffered no actual damages. The FDCPA is essentially a strict liability statute, where the degree of the defendant’s culpability is relevant only in computing damages, not in determining liability.

Under the FDCPA, consumers are enforcing the FDCPA essentially acting as private attorney generals. Because consumers are acting as private attorney generals, an award of attorney fees is mandatory in an FDCPA case. That means that the FDCPA is essentially a fee shifting statute. If a consumer can demonstrates that the FDCPA has been violated, the consumer may recover actual damages, statutory, costs and attorney’s fees. The longer the lawsuit goes, the more the consumer can recover in attorney’s fees. The threat of an award of attorney’s fees is a very effective deterrent and leads to mean settlements early in litigation.

The FDCPA is not without its limitations. One of the biggest limitations of the FDCPA is that it only applies to debt collectors as defined by the FDCPA. It does not apply to creditors or assignees of the creditor when the assignment has occurred prior to the consumer’s default on the debt obligation. Attorneys acting as debt collectors are also included in the definition of debt collector under the FDCPA.

Typically when bringing a suit under the FDCPA, a consumer will name the debt collectors, and possible law firm and individual attorney hired by the creditor to collect on the debt for any violations of the FDCPA. However the creditor may not be named under the FDCPA.

From the perspective of obtaining the greatest recovery in a lawsuit, a consumer’s best option is to target the creditor as they usually have the deepest pockets. Under Pennsylvania’s Fair Credit Extension Uniformity Act (“FCEUA”), a consumer may also sue the creditor.

The FCEUA is Pennsylvania’s analogue to the FDCPA and applies to both debt collectors and creditors. A debt collector’s violation of any provision of the FDCPA constitutes a violation of the FCEUA which in turn constitutes a violation of Pennsylvania’s consumer protection law, the Unfair Trade Practices and Consumer Protection Law (“UTPCPL”). The FCEUA allows a consumer to sue the original creditor as well as the debt collector for any violations of the FCEUA. The FCEUA protections mirror the FDCPA’s protections.

The FCEUA also has a two year statute of limitations as opposed to the FDCPA’s one year statute of limitations. Finally, as the FCEUA is also a violation of the UTPCPL, a consumer may recover actual damages or statutory damages whichever is greater, costs and reasonable attorney’s fees. Under the UTPCPL, a court may also award treble damages. Again a very effective deterrent which can lead to early settlements.

Any action by a consumer for unlawful debt collection practices must include claims for violations of the FDCPA as well as the FCEUA. It allows the consumer to sue the creditor as well as include older violations.

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Montgomery District Attorney Requested to Investigate and Charge Lower Merion Township for Proposed Firearm Regulation

As our viewers are aware, we became aware on August 30, 2017, that at its upcoming September 19th meeting, Lower Merion Township is considering a new firearm discharge ordinance, even after the Commonwealth Court struck down its current discharge ordinance and held that municipalities may not regulate discharge.

As a result, in a letter sent today, Attorney Joshua Prince formally requested that Montgomery County District Attorney Kevin Steele open an investigation into this matter and file appropriate charges, including for violations of Section 6120 and official oppression.

We hope that District Attorney Steele will take a proactive approach, similar to that of Lancaster County District Attorney Crag Stedman, who recently sent out letters to all law enforcement agencies in Lancaster County advising that municipal regulation of firearms and ammunition is unlawful. Regardless, we would again urge everyone, especially residents and taxpayers in Lower Merion Township, to make the Commissioners aware of your position. The hearing on September 19th will start at 7:30 PM at Township Administration Bldg – 2nd Floor Board Room, 75 East Lancaster Ave, 2nd Floor Board Room Ardmore, Pennsylvania 19003-2323. Their telephone number is 610-649-4000 and you can contact the individual commissioners here.

If your rights have been violated by an illegal firearm or ammunition ordinance or regulation promulgated by a state agency, county, municipality or township, 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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ATF releases 2017 Report on Firearm Commerce in the United States (Numbers, Bar Graphs, and Pie Charts!)

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ATF has released its annual Firearms Commerce in the United States Statistical Update for 2017. As my one friend put it, “[t]his is like fantasy football stats for silencer dorks.” It’s actually like that for a lot more than the silencer crowd, but I digress.

The Annual Firearms Manufacturing and Exportation Report (AFMER) is only current through 2015. This is because AFMER data is not published until one year after the close of a calendar reporting year because the information provided by those whole filed a report is protected from immediate disclosure by the Trade Secrets Act. Which is why you see a two year lag (2015 data reporting in the beginning of 2016 and a year delay between its reporting and publication).

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In 2015, there were a total of 9,358,661 firearms manufactured. This was up from 2014’s number of 9,050,626 by about 3.3%. Interestingly the number of exports fell by about 20%, from 420,932 in 2014 down to 343,456.

The total number of imports rose from 3,930,211 in 2015 to 5,137,771 in 2016 (imports are not included not the AFMER report which is why the numbers are more current). Interestingly, it was handguns that account for a little over 1.2 million more firearms imported in 2016. And as you may have guessed Austria leads the charge with handguns imported, accounting for over 1.3 million coming into the country. Probably a safe bet that Glock is responsible for the majority of those.

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For those of you NFA junkies, in 2016, there was $6,018,000 in occupational taxes paid (SOTs). This is up again from the year prior and slightly under double that of 2012. Taxes paid were $62,596,000 for 2016, almost double the year before (thanks ATF 41F). Interestingly, there were 6,547 record checks, which means that ATF searched the National Firearms Registration and Transfer Record (NFRTR) that many times to determine if a firearm was possessed lawfully or if the transfer was performed lawfully.

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In 2016, there were 49,985 Form 1s and 133,911 Form 4s filed. These numbers were up from the year prior, but not by a significant margin for the Form 4s (Form 1s were up by about 17,000). While the number of forms process by the NFA Branch was up about a million from the year prior, it was the Form 2s that accounted for almost half of that number. For those that are unaware, Form 2s are used by industry to give notice to ATF that they produced or imported a NFA firearm.

As far as NFA firearms registered by state, Texas leads with 588,696. California follows with 344,622. Florida, Virginia, and Pennsylvania round out the top 5. Interestingly, Connecticut leads the charge with registered machine guns, sitting at 52,965. However, when you consider law enforcement, it starts to make sense.

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There are currently 57,345 licensed collectors of curios or relics, making it the most popular license type. It is followed closely by dealer in firearms, of which there are 56,754 active licenses. ATF reports 137,464 active licenses. Texas holds 10,954 of those licenses, making it the state with the most.

In 2016, 16 license applications were denied. This number is down almost 50% from the year prior. As for compliance inspections, ATF performed 9,790 last year. This equates to 7.1% of all licensees in 2016 being inspected.

As always, the annual report helps give some insight as to ongoings within the firearms industry.

 

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South Heidelberg Township To Require Firearm Renters To Do What?!?!

Over the weekend, it was reported by Reporter Keith Dmochowski of the Reading Eagle that during the South Heidelberg Township Board of Supervisors meeting on Thursday, August 10th, the Board of Supervisors agreed to require C.P. Tactical Solutions Inc. to enter into “a written agreement requiring background checks for gun rentals.” The article goes on to declare:

Solicitor Michael Gombar said that holding C.P. Tactical Solutions Inc. to a signed pledge will ensure that firearms are rented responsibly, despite the fact that background screenings for firearm rentals are not mandated by the township.

More interestingly, Solicitor Gombar further stated, in relation to a question as to why the Township hasn’t enacted an ordinance requiring such background checks of all firearm businesses, that

[t]he concern with putting anything into law is not necessarily that this company will not abide by it, but that the NRA and other gun-rights lobbies make it their point to find municipalities that are setting regulations, and fight them.

Nevertheless, Solicitor Gombar went on to declare that:

the terms of the agreement would allow police and code officers to perform random checks as a safeguard against potential violations…[and] that legal action would be pursued if the shop fails to provide background checks after signing the agreement. (emphasis added).

As a result, Firearms Industry Consulting Group® (FICG®), a division of Civil Rights Defense Firm, P.C., filed a letter on behalf of its client, Firearm Owners Against Crime (FOAC), advising that any such agreement would result in felony and misdemeanor violations under the law and that FOAC was considering legal action, if the Township proceeded with the agreement. It appears that Solicitor Gombar and the elected Township Officials have failed to review federal and state law, both of which preclude the use of the background checks system (NICS and PICS, respectively), except in relation to the sale or transfer of ownership of a firearm. As an onsite firearm rental does not constitute a sale or transfer of a firearm, any use of NICS or PICS would be abusive and result in violations of federal and state law. They also appear unaware of the confidentiality provisions of Pennsylvania law, which also provide for civil liability, where confidentiality is breached.

If you or someone you know has been the victim of an unlawful municipal firearm or ammunition regulation or ordinance, contact FICG today to discuss your 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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News from the 16th Annual NSSF Import/Export Conference in Washington, D.C.

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Attorney Joshua Prince and I attended the Annual NSSF Import/Export Conference in Washington, D.C. this week. There were a variety of presentations that were given on a variety of topics including: Federal Search Warrants and Regulatory Site Visits, Chemical Facility Anti-Terrorism Standards, Foreign Military Sales, ATF Panel Discussion, and Round Table Discussions (the best part in my opinion) on Day 1. On Day 2’s agenda is Prohibited and Embargoed Countries, DDTC Presentation on Information Technology, and a presentation from DDTC on Licensing and Agreements.

As most of our readers are more concerned with up-to-date statistics and information from ATF, this blog article will only address those and information learned at the Round Table Discussions.

ATF Panel

Sitting on the ATF Panel giving updates were: Marvin Richardson (Assistant Director, Enforcement Programs and Services), Curtis Gilbert (Deputy Assistant Director Enforcement Program and Services), Andrew Graham (Deputy Assistant Director Industry Operations), Earl Griffith (Chief of the Firearms Ammunition Technology Division), Alphonso Hughes (Division Chief, National Firearms Act Division), Gary Taylor (Firearms and Explosives Services Division), Andrew Lange (Division Chief of the Office of Regulatory Affairs), and Krissy Carlson (Division Chief of the Firearms and Explosives Industry Enforcement Programs and Services).

Industry Operations

Andy Graham stated that there are currently 791 Industry Operations Investigators (IOIs) not including the administrative staff. In 2018 they hope to add 48 more. There are two classes, one in February and one in July.

There are currently ~1,100 firearm importers and ~230 destructive device importers. There are about 162 active inspections occurring with regard to those licensees.

Office of Regulatory Affairs

Andrew Lange announced regulations.atf.gov, a website that had the most up to date regulations pertaining to ATF. The website is actually the first government website that I’ve perused that was functional and useful! The information is pulled directly from the Federal Register, so if ATF implements a final rule, it will automatically update.

The website features the ability to see the history of a particular regulation (so you can see the changes over time) and defined terms are hot linked so they will populate on the right hand side, meaning you can read a provision and see the definition of terms which are defined at the same time (allowing a reader to have better context or understanding). Even cooler is that it links to ruling that were issued. I’m genuinely impressed with the system. If only the eForms system worked as well.

Phase 2 is expected to be rolled out in September of this year.

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Firearms Ammunition Technology Division

Earl Griffith introduced the Firearms Ammunition Technology Division or “FATD”. They hired six more firearms enforcement officers who have now completed a significant amount of training (if I recall it was about a year to a year and a half, I didn’t write down the length of time), bringing the total to twelve. They are responsible for the evaluation of samples sent to FATD.

Currently, FATD is running about 30-90 days on most evaluations. They have currently issued about 800 marking variances which are taking about 30 days to issue. So far this year there have been about 250 product evaluations.

NFA Division

As was published in the most recent ATF FFL Newsletter, the NFA Branch has been transformed into the National Firearms Act Division, which became effective April 3, 2017. The Division will be led by Division Chief Alphonso Hughes, the previous Chief of the Firearms and Explosives Services Division. The new division, consists of two branches – the Industry Processing Branch (IPB), dealing with industry and the Government Support Branch (GSB) dealing with government related matters.

Alphonso stated that the NFA Division was going to undergo a full evaluation of the internal business processes in the first quarter of 2018. It would involve outside eyes looking in.

The former 2-3 month time period for application data entry has now been reduced to ~72 hours. For those with access to eForms…use them. eForms result in faster turnaround on approvals. While they can’t auto approve at this point, they are automating as much as possible. Form 2-3s are hovering around 10 days or under (eForms from my understanding).

41F – Everyone’s favorite topic (sarcasm if you couldn’t tell). There were ~280,000 applications received from the announcement of the final rule until it went into effect. That was about a full years worth of applications. They are on the downward slope of pre 41F paperwork.

ATF is working overtime to process these forms. They are currently working 7 days a week to reduce the wait times and are literally working overtime hours to accomplish that goal (up to 20 hours per person in addition to their standard work week).

Pre 41F, they were receiving ~35,000 forms a week and processing about 8,000 forms a week. Post 41F they were receiving about 5-6,000 form a week and processing 8-9,000 forms a week. They are currently predicting a 6-7 month turn around if you submit a form today.

In January, six additional examiners were hired. They are going to continue to push for resources in FY 2018-19.

Alphonso was also asked about the possibility of the reopening of the MG registry. He replied that it was not within the NFA division’s purview to address the issue (and he isn’t wrong. The original statutory language read “The Secretary of the Treasury, after publication in the Federal Register of his intention to do so, is authorized to establish such periods of amnesty, not to exceed ninety days in the case of any single period, and immunity from liability during any such period, as the Secretary determines will contribute to the purpose of this title.” 82 Stat. 1235, § 207(d). As ATF was transferred to DOJ, the power would now be held by the Attorney General. See 27 CFR 479.101(b)).

Firearms and Explosives Industry Enforcement Programs and Services

Last, but not least, was Krissy, who stressed eForms usage for industry. She was also asked about the possibility of the HPA passing. As you probably guessed, this is in the hands of Congress and not ATF. ATF holds no opinions on proposed legislation.

Round Tables

ATF Firearms and Explosives Industry Division 

I followed up on a question that arose last week at the NICS Retailer Event at FBI. While there, someone had asked about the new 4473 and question 12.d.2, specifically whether or not someone had to complete the question.

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The answer I received was “yes”, the form must be completed. This question has seemed to cause a lot of confusion on the new form.

There was also the question of “sex” on the 4473. Some states have now recognized a new gender. ATF has provided limited guidance, simply saying the individual has to complete the form. However, it is suggested, after discussion with ATF, if a licensee is unsure or uncomfortable with the person’s response, that they can document the transaction, etc. in the notes section of the 4473. A photocopy of the identification (a standard practice in a  lot of shops anyway) is suggested. ATF is still in the preliminary stages of looking into this issue and only provided guidance in relation to the question must be answered.

NFA Division

A common question I receive is whether or not you have to notify the NFA Branch of a change in configuration. I was informed that an individual can write a letter to ATF adding another configuration to a registered receiver. For instance, if the Form 1 or 4 is approved for a 10.5″ 5.56 gun and a person has a 8″ 300 Blackout upper, they can notify the NFA branch of the additional configuration. It was strongly encouraged that an individual do such, even if the change is temporary.

It was reported that the NFA Branch had little to no issues with the electronic fingerprint submissions. They advised that most prints they received were fine.

Lastly, for those curious about the process within the NFA Branch regarding trust applications, I was given this simplified process.

The application is received along with the payment. Payment is cashed and the data entry occurs. After the data is entered (it is kept in the order received) it is submitted to NICS for a check. Obviously the more Responsible Persons the more room for error, delays, etc. If a delay comes back on one person, the entire application is held up. This work is done by the legal assistants. By the time it hits the examiner, it is ready for approval or denial.

As I’m writing this, it I realized I forgot to ask about the disparity between approvals and postmark dates.

Firearms Ammunition Technology Division

Form 1 silencer builders have been in a constant state of argument as to what they can or can’t do. As of where we stand today, it is the opinion of FATD that a Form 1 maker CANNOT repair their silencer. They cannot replace a baffle if it is destroyed, repair a damaged endcap, or shorten the silencer. While not the answer the community wants to hear, that is the current position. Essentially, you’d have to file a new Form 1 and build a new silencer.

For those wondering about the new Autoglove, FATD has not seen a sample of that product.

If you’re thinking about building a clone of a firearm that has been approved as a non NFA firearm (ala Tac 14 or Shockwave, etc.) there is no requirement that you submit a determination request (which is true of any domestically built firearm). However, it was strongly encouraged to ensure your compliance.

 

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Breaking News: ATF To Issue Two Monumental Determinations

Today, at the NSSF/FAIR Trade Group’s 16th Annual Firearms Import/Export Conference, during the roundtable discussions, the Firearms and Ammunition Technology Division (FATD) stated that it is working on two monumental determinations regarding modular silencers and vertical/angled foregrips.

First, in relation to vertical/angled foregrips, it was disclosed that FATD has received numerous requests for determination. These requests vary greatly in form and substance and resulted in Branch Chief Curtis stating that some form of determination would be issued to the Firearms Industry; hopefully in the coming weeks. He even mentioned that at this point, the degree of the angled foregrip would have to be addressed in the determination, after review of all past determinations, including ones issued by his predecessors and ones which may be in conflict.

Second, in relation to modular silencers, FATD acknowledged that it currently has pending before it a request for determination of legality from a modular silencer manufacture. Division Chief Griffith and Branch Chief Curtis raised concern over the determination request and the issues that must be addressed, including whether modular silencer are legal, when reduced in size. In essence, the concern stems from there arguably existing additional silencer parts that are not part of the modular silencer’s configuration, when it is reduced in length. In the event that ATF would rule that modular silencers are generally lawful, it raises a plethora of other issues, including where the markings must be placed (which is interrelated to ATF’s currently pending rulemaking: ATF-29P) or whether such silencers would require either specific location markings or multiple markings.

This means that if you are a silencer manufacturer, who manufactures modular silencers, there is still time to submit legal arguments to FATD as to the general legality of modular silencers. If you wish to submit legal arguments, contact Firearms Industry Consulting Group (FICG) today to discuss your options.

Although ATF was reluctant to state whether these determinations would be in the form of “policy determinations,” “guidance” or “formal rulings,”  and stated that it could not provide an exact timeframe for these determinations, it was stated that they are overdue and should be expected in the very near future.

Stay tuned for a blog article from Attorney Adam Kraut on other news and revelations from the 16th Annual Firearms Import/Export Conference!


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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