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BREAKING: BATFE Has Not Changed Anything Relating to Fingerprints for NFA Firearms

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This morning TheFirearmBlog.com posted a story which stated that ATF had revised its ruling in relation to fingerprints for NFA firearms. The article claims that ATF now requires law enforcement agencies to take fingerprints rather than anyone qualified to. To support this position the article links to ATF’s Explosives website.

As always, the information is provided by an anonymous source. Had the source or TheFirearmBlog.com looked at where the information came from, they would have clearly been able to see that this is simply not true. I’m a bit disappointed in TheFirearmBlog.com because usually they are an excellent source for correct information.

The problem is that the link goes to the Explosives portion of the website, NOT the firearms part. This is the same link that SilencerCo had previously used to support its position that Silencer Shop’s Secure Identity Documentation (SID) system would not be acceptable for the purposes of NFA firearms when it had sent an email to a major distributor earlier this year.

The link the article points to states:

How do I get my fingerprints taken?

Fingerprints must be submitted on Fingerprint Identification Cards, FD–258 that have been issued by ATF. The fingerprint cards must contain the following ORI information: WVATF0900; ATF–NATL EXPL LIC, MARTINSBURG WV. These fingerprint cards may be obtained by contacting the Federal Explosives Licensing Center at 877-283-3352 or the ATF Distribution Center at 703-870-7526 or 703-870-7528. The fingerprint cards must be completed by your local law enforcement authority.

Last Reviewed September 23, 2016

Emphasis added. Further if we look at the website the link goes to, we can clearly denote it is in the explosives area by looking at the information found on the left and above the question.

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ATF’s own Q&A relating to ATF 41F states that a licensee may take fingerprints provided they are properly equipped.

Q. May a Federal firearms licensee fingerprint a customer? As an FFL dealer, can we fingerprint our customers?

A. Fingerprints may be taken by anyone who is properly equipped to take them (see instructions on ATF Form 1, Form 4, Form 5, and Form 5320.23). Therefore, applicants may utilize the service of any business or government agency that is properly equipped to take fingerprints.”

As if there were any doubt, let us head to the regulations to review them.

In relation to the transfer of an NFA firearm, 27 C.F.R. § 479.85 Identification of Transferee states:

(a) If the transferee is an individual, such person shall:

….

(2) Attach to the application two properly completed FBI Forms FD-258 (Fingerprint Card). The fingerprints must be clear for accurate classification and should be taken by someone properly equipped to take them.

In relation to the making of an NFA firearm, 27 C.F.R. § 479.63 Identification of Applicant states:

(a) If the applicant is an individual, the applicant shall:

….

(2) Attach to the application two properly completed FBI Forms FD-258 (Fingerprint Card). The fingerprints must be clear for accurate classification and should be taken by someone properly equipped to take them.

(b) If the transferee is not a licensed manufacturer, importer, or dealer qualified under this part and is a partnership, company, association, trust, or corporation, such person shall:

(2) Except as provided in paragraph (c) of this section, attach to the application –

(iv) Two properly completed FBI Forms FD-258 (Fingerprint Card) for each responsible person. The fingerprints must be clear for accurate classification and should be taken by someone properly equipped to take them.

(b) If the applicant is not a licensed manufacturer, importer, or dealer qualified under this part and is a partnership, company (including a Limited Liability Company (LLC)), association, trust, or corporation, the applicant shall:

(2) Except as provided in paragraph (c) of this section, attach to the application –

(iv) Two properly completed FBI Forms FD-258 (Fingerprint Card) for each responsible person. The fingerprints must be clear for accurate classification and should be taken by someone properly equipped to take them.

Once again, we see there is no support for the proposition ATF changed anything. If you are applying to make or transfer an NFA firearm you can roll your own fingerprints, utilize Silencer Shop’s SID kiosk, have your FFL roll your fingerprints or head over to your local law enforcement to have them taken.

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New Regulations for Explosives/Pyrotechnics Industries (Part 2)

 

09/19/2016

OSHA is currently accepting comments for proposed rulemaking. The proposal is for new Process Safety Management rules for the Explosives and Pyrotechnics Industries and comments will be accepted until September 23rd!

You might ask, “What is ‘Process Safety Management’?”  That is a great question answered in Part 1 of this post click HERE to check it out!

The proposed regulations are expansive and, along with those items mentioned in Part 1, require that employers develop PHAs, SOPs, and Mechanical Integrity Plans.  So welcome to Part 2 let’s get started.

Process Hazard Analyses (PHAs)

Among the proposed regulations is the requirement that all employers perform PHAs.  OSHA defines PHAs as – “A systematic effort designed to identify and analyze hazards associated with the processing or handling of highly hazardous materials; and a method to provide information which will help workers and employers in making decisions that will improve safety.”

At its heart PHAs ares nothing more than identifying processes and identifying what hazards are present. OSHA states that PHAs “attempt[] to determine: the failure points, methods of operations, and other factors that potentially lead to accidents.”

Beyond that, OSHA’s best guidance on the subject was developed by The New Jersey Work Environment Council (WEC) under grant of OSHA. That document is 31 pages long and can be downloaded HERE.  Most businesses have (at a minimum) dozens of processes.  If you fail to identify a hazard within a process, that is a violation.  If you fail to identify a process and the hazards it contains – violation. If you fail to document everything in accordance with those 31 pages of ‘guidance’ – violation.

Seven Steps to PHA Success

Here is a hypothetical – Fictional Enterprises makes Pyrotechnics. The manufacturing is complicated involving over 75 operations.  – Each of these involves one process for purposes of a PHA. Operation 34 states – Technician will mix 3mL of Chemical X with 25cc of Explosive. Technician must then place the mixture in Centrifuge, spinning mixture for exactly 5 minutes at exactly 120 rpm. Fictional Enterprises wants to perform a PHA on Operation 34.

Step 1 – assembling the right team. OSHA stipulates that to perform a PHA your team, “should include engineers, operators, supervisors and other workers who have knowledge of the standards, codes, specifications…which apply to the process….” You assemble Mr. Engineer, Mrs. Supervisor, Ms. Technician, and Homer the technician who performs Operation 34. Your team proceeds to…

Step 2 – develop checklists of applicable regulations and safety standards. Your team examines Operation 34, finding 3 fire safety codes, 5 electrical ordinances, 9 chemical safety standards, and 122 other regulations which may be applicable to Operation 34. Developing the checklist was performed efficiently and only required 42 man hours to complete. The team moves to…

Step 3 – examine those regulations and determine the steps needed to ensure compliance with (or alternatively the non-applicability of) the standards.  All of this must be documented and included in your PHA. Your team continues their efficiency requiring 115 man hours to finish. The team now begins…

Step 4 – performing “What If” evaluations. OSHA defines this as having, “a relatively loose structure” and “only [being] as effective as the quality of questions asked and the answers given.” Even with that precision guidance your team spends 100 man hours in brainstorming the possible “what ifs.” The team now moves to…

Step 5 – Hazard and Operability Study (HazOp). OSHA defines this as “a structured, systematic review that identifies equipment that is being used in a way that it was not designed to be, and which might create hazards or operational problems.”  OSHA notes that this may require an additional “multi-skilled team.” This team must be familiar with, “piping and instrument diagrams” and have a competent understanding of “certain limitations and deviations in flow, temperatures, and pressures…” for your equipment.

Your team enlists the help of Supplier Engineer, Equipment Designer, and Senior Chemist. The team is efficient and prepared documentation for your PHA in only one week.  The Team moves to…

Step 6 – Failure Mode and Effect Analysis (FMEA). OSHA defines this process as a “systematic study of the consequences of failure (breakdown) of certain operational hardware….” This is the only guidance provided and results in your team spending an additional week attempting to figure out the FMEA.  The team moves to…

Step 7 – Fault-Tree Analysis. OSHA describes this as, “draw[ing] a picture (model) that shows what undesirable outcomes might result from a specific initiating event….” Or you make a flow chart of Operation 34, INCLUDING flow routes for if things go wrong.  So instead of just having “Homer runs centrifuge for 5 minutes” you should also include what happens if Homer gets distracted by a certain round raspberry confection and lets the centrifuge spin for 19 minutes.

The team is fortunate to have Homer with them and subsequently maps out all the possible faults in only 97 man hours.  Bringing your total time in completing the PHA for Operation 34 to over 800 man hours.

What’s wrong with this picture?

 The first thing you probably noticed was just how many man hours it takes to complete the PHA for one operation. Good thing your company only has 74 more that need to be evaluated…

The next thing that creates a problem is the FMEA.  OSHA provides very little guidance on FMEAs. This could mean they want you to use RAGAGEP but this is never stated. Given that OSHA is explicit in the other sections where they want RAGAGEP it might mean they have some specific standard in mind.  However, if it exists, it is not provided.

Worse still would be if RAGAGEP is to be used –With Aerospace you must often perform FMEAs before you are certified to conduct business.  The American Society for Quality (ASQ) has an excellent write up on their preferred methods for performing FMEAs.  This method is one I am familiar with and find to be successful.  Their write up can be found HERE.  Interestingly, you will note that the ASQ methodology for FMEAs is very similar in description to what OSHA requires for the entire PHA.

This should be of significant concern to business owners because it muddies what OSHA wants.  If they want you to refer to RAGAGEP the ASQ standard is undoubtedly one of the most thorough in the business.  However, if you follow the ASQ methodology you will essentially have a PHA within a PHA. Alternatively, if OSHA wants you to use a specific standard – they do not provide it. In short the FMEA requirement’s lack of clarity puts employers in a catch 22.

Some readers may note that the PHA steps listed above are exactly what is already available in the above referenced guidance document.  This is true and the next problem – the proposed regulations merely create an additional standard which can be cited as requiring employers to be compliant.  So what was before a violation of one PHA requirement can now be a violation of two.

My final gripe before we continue is that OSHA expressly states their reason for promulgating these new regulations are several incidents which could have been prevented had PHAs or other measures been taken.  These new requirements do not assist employers in being better able to conduct PHAs. Neither do they require employers who were previously unregulated to conform.

To the contrary, these new regulations will only serve to confuse businesses by telling them to comply with multiple but un-specified RAGAGEP standards. Confusing and redundant standards do not promote worker safety. They create a culture where employers who are unable to understand what OSHA wants merely give up. OSHA’s response continues to be “just fine them again” rather than actually finding ways to create safety standards that are clear, concise, and focused on the functional application of safe work practices.

In addition to the PHAs employers are also going to be re-required to create Standard Operating Procedures (SOPs) and create Mechanical Integrity Plans.

SOPs, in brief (I promise).

Again, OSHA is only reiterating already promulgated rules on operating procedures. The only new provision is a couple of vague examples encouraging those in the explosive and pyrotechnics industries to look to RAGAGEP for particulars of their industry.  It is also worth noting that as required by several other standards this standard would once again require employees be trained in the procedures and that employers document this training. However, the general requirements for procedures remain the same:

  1. Procedures must be written.
  2. must be clear
  3. must be available to all operators.
  4. must specify steps for
    1. normal operation.
    2. upset conditions
    3. temporary operations
    4. start-up
    5. emergency shutdown
  5. must include Basic Safety Information
  6. must be certified annually for current-ness an adequacy.
    1. Recommended that they be reviewed before each use to verify the current version is in use.

Mechanical Integrity Plans (MIPs)

OSHA’s requirements for Mechanical Integrity Plans are essentially PHAs used to evaluate equipment rather than processes.  So instead of focusing on what an operator is doing you focus on how our example Centrifuge works, in great detail.

OSHA decided to also include an explicit RAGAGEP provision. So in addition to the extreme scrutiny that must be given within the PHA styled process, they also require “employers [to] identify the subset of RAGAGEP most appropriate for their process equipment, document in the MIP which protocols are to be followed, and ensure that inspection and testing is performed accordingly.”  So stated in English, OSHA’s new standard is requiring employers to (1) figure out which standards apply to them; (2) write up how they decided this and how they are complying; and (3) ensure they are complying in the appropriate manner to the standards which the employer had to find themselves.

OSHA states, “employers are completely unfamiliar with [] RAGAGEP references, consultation with a professional [] is advised.” This can be roughly translated as OSHA saying, “Good luck complying!”

Closing Remarks (and the people rejoice)

This whole section of proposed regulation is a farce.  It is an attempt by OSHA to satisfy an executive order by promulgating a new rule that says nothing more than “do our existing rules” and “find what rules apply and then follow them.”  I cannot reiterate enough that this does not promote worker safety.  No sane person wants their employees to be endangered.  However, no employer can commit to thousands of man hours just to guess at whether they are being compliant with an OSHA Standard.

If your business is in the explosives or pyrotechnics industry I implore you to consider submitting an official comment to OSHA.  OSHA is accepting comments through THIS FRIDAY, September the 23rd.  Click HERE to submit a comment or download the proposed regulations. Comments made to these proposed rules really can affect OSHA’s actions!

Whether you are in the Explosives industry and would like to submit an official comment or you just want to make sure your business is compliant with existing OSHA requirements Prince Law Offices is happy to be of assistance.  Just call 888-313-0416 to schedule an appointment.


Jonathan Moore  served as Manager of Corrective Actions and Director of Corporate Compliance for an Aerospace Manufacturing Company. He  now serves as Prince Law Offices in-house OSHA Consultant while attending law school at the Pennsylvania State University School of Law.

 

 

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First Step to Starting Your Business

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Prince Law Offices, P.C. attorney Jeffrey A. Franklin will be presenting at “First Step to Starting Your Business” in cooperation with the Kutztown University of Pennsylvania Small Business Development Center.  
First Step to Starting Your Business (Lancaster, PA)
Date: Nov 4, 2016 10:30am – 12:30pm
Registration Deadline: 11/4/2016 8:00 AM (EDT)
Point of Contact: Kutztown SBDC (877) 472-7232
Center: Kutztown SBDC
Fee: None
Location: 454 New Holland Ave Suite 300 Lancaster, PA 17602 , Lancaster PA 17602
 
This workshop covers a number of critical issues relevant to starting and operating a small business. Professional presenters include attorneys, insurance agents, accountants, financial specialists and zoning and codes staff. The workshop is designed for both entrepreneurs thinking about opening their first business and existing business owners looking for a “checkup”.
Desire more specific assistance regarding your business formation, agreements, intellectual property, trademarks, zoning, real estate law, cyber security, insurance, etc., contact attorney Jeffrey A. Franklin at Prince Law Offices, P.C.

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MONUMENTAL Decision from the Superior Court Vacating Its Prior Decision Regarding Weapons on School Property!

As our viewers are aware, I previously wrote about the devastating decision in Commonwealth v. Goslin from the Superior Court in relation to carrying a weapon on school property and the “other lawful purpose” defense.

After the decision, Mr. Goslin contacted me and we, pro-bono, filed a Motion for Reconsideration/Reargument en banc, wherein, inter alia, we argued that the Superior Court should permit new briefs to be filed and oral argument, after vacating the court’s July 6, 2016 decision. Today, the Superior Court GRANTED the motion, withdrew the July 6, 2016 decisions and scheduled re-briefing and argument.

Accordingly, the Superior Court’s July 6, 2016 decision is no longer valid and we will have an opportunity to re-argue the matter. Unfortunately, the court only provided several weeks to submit briefs and Mr. Goslin is not in a position to fund the briefing and argument. Therefore, if you are in a position to be able to help fund this matter, Mr. Goslin would greatly appreciate donations which can be made online through our Firm’s escrow account here – https://secure.lawpay.com/pages/princelaw/trust. Simply place Goslin Appeal in the Matter No/Client Name box.

We will keep our viewers apprised of the Superior Court’s ultimate decision in this matter

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OSHA Inspector’s Warrant Request DENIED

09/02/2016

One of the most common questions asked about OSHA Inspections is, “Do I have to let them in my business?” My short answer has always been – No you do not, but it is often advisable that you do so.

It is within your rights as a business owner to require that OSHA inspectors present a Warrant to enter your premises. However, history shows that OSHA is almost always granted a warrant. Furthermore, requiring a warrant usually only serves to alienate you from the inspectors and heighten their suspicion that you are hiding something.

A Magistrate Judge from the Georgia’s Northern District has decided that this is not necessarily an acceptable practice.  Magistrate Judge J. Clay Fuller held that OSHA needed to establish “probable cause” before they could obtain an expanded warrant to search a poultry plant.  The case arose when OSHA responded to a worker complaint and injury report at a poultry plant. OSHA has an obligation to respond to injury reports and this obligation is expressed to the extent that if an OSHA inspector is driving by a business and sees an ambulance in the parking lot they are expected to stop and at least briefly investigate the reason for the ambulance. Traditionally however, once an OSHA inspector is on site they will begin an inspection that far exceeds the area and scope of the injury or complaint that brought them there.

What does that mean exactly? An example – Business A reports an employee was injured by a garage door that fell and broke the leg of an employee while shooting a commercial.  OSHA shows up to investigate but rather than just inspect the area where the accident happens they inspect every corner of the facility, questioning employees who were not present or involved in the reported incident.  The OSHA inspector finds that the employer was not at fault for the injury that was reported, but fines the employer $40,000 for violations that are unrelated and which had resulted in no injuries.

The folks at the Mar-Jac Poultry Company objected to exactly this expansive practice.  When OSHA arrived they showed the OSHA inspector where the incident occurred, but declined to allow the OSHA inspector to begin an unrestricted inspection of their facility without a warrant.

OSHA applied for a warrant stating that they had a Special Emphasis Program which instructed them to investigate multiple aspects of Poultry related businesses, many of these aspects are unrelated to the reported injury at the company in question.  Magistrate Judge Fuller has held that merely having a program targeting a group does not create probable cause to come and inspect that organization.  Judge Fuller stated that if OSHA did not have to show probable cause then, “[these inspections could] become tools of harassment.” Judge Fuller acknowledged that the injury which was reported did provide probable cause for OSHA to investigate some aspects of the business which were related to the incident but recommended that a warrant to justify an inspection beyond that point should be denied.

A particularly interesting point is that Judge Fuller stated that a worker complaint was not sufficient justification for an OSHA inspector to receive a warrant to just waltz in and perform a wall to wall and top to bottom inspection. This makes sense as in criminal cases warrants have to be very specifically tailored and generally judges frown on signing warrants for “fishing expeditions.” Yet, OSHA has historically been able to say to a Judge, “Look an employee complained so we need access to inspect every corner of the employer’s facility” and Judges have generally said, “Okay, have at it.”

This decision by Judge Fuller is a major win for Business owners and those concerned with an ever expansive government bureaucracy. However, the case is now before the Federal District Court for the Northern District of Georgia who have the power to overturn Judge Fuller’s decision. We will provide updates as they become available.

If your business has had problems with OSHA or would like to know what you can do to protect yourself from OSHA inspections please contact our office at 888-313-0416.


Jonathan Moore is Prince Law Office’s in-house OSHA Consultant. He served as Manager of Corrective Actions and Director of Corporate Compliance for an Aerospace Manufacturing Company. He now attends law school at the Pennsylvania State University School of Law while working for Prince Law Offices.

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ATF Just Banned Ammunition – Well Not Really…

The internet is a blaze with articles declaring that ATF just banned ammunition sales as a result of a June 2016 Explosives Newsletter; however, it isn’t exactly true (at least, not anymore). The ATF publishes newsletters which provide insight into complex subjects, shifting policies, and guidance on ATF’s plans to enforce regulations. In the June 2016 Explosives Newsletter ATF ‘clarified’ that Nitrocellulose is a high explosive subject to the requirements of the Safe Explosives Act and other laws governing the sale, storage, and transport of high explosives. You may be thinking – “Well great…but what is Nitrocellulose and what does that have to do with ammo?”

The answer to that is simple – most ammunition used in the United States is powered by smokeless gunpowders. Unlike black powder which is a fairly straight forward mix of chemicals, smokeless powders are proprietary blends of different chemicals each unique to the manufacturer. Unique that is except for the base chemical – Nitrocellulose.

The FBI Laboratory Services explains, “All smokeless powders can be placed into one of three different classes according to the…composition of their primary energetic ingredients. A single-base powder contains NITROCELLULOSE, whereas a double-base powder contains NITROCELLULOSE and nitroglyverine. …[T]riple-base powders are NITROCELLULOSE, nitroglycerine, and nitroguanidine….” Or put another way – If your ammunition uses any type of smokeless powder the odds are that it contains Nitrocellulose.

Okay, okay but what does all this mean? – High explosives are subject to extremely stringent regulations. These regulations mean that not just anyone can manufacture, store, or purchase high explosives. High explosives have to be secured in specialized magazines which are more like a bunker than what you insert into your pistol or rifle. High explosives have to be reported and anyone who manufacturers or sells these items have to be thoroughly subjected to background checks and all of their employees (referred to as “responsible persons”) have to be checked out and licensed. Even within the licensing structure there are different requirements.

If smokeless powders are now considered high explosives then ammunition can no longer be sold on store shelves. Manufacturers need to completely redesign their operations, rebuilding their facilities and ensuring their personnel meet the stringent requirements. Simply put, if ATF intends to enforce this new designation ammunition is going to be almost impossible to acquire.

Fortunately, it seems ATF did exactly what it does best – jump the gun. On August 31, 2016 ATF posted an addendum to their June 2016 newsletter. The addendum is merely one paragraph long and suffices to say:

[C]ontact from industry members…has brought to our attention issues that were not fully addressed…and require further consultation and consideration with the industry. Accordingly, ATF has and will conduct further industry outreach….”

In other words, someone at ATF received a question about Nitrocellulose and never stopped to think about the implications of clarifying it as a high explosive. Thankfully, at this time, ATF has concluded, “[i]n the interim, previously authorized industry practices concerning wetted Nitrocellulose will not be affected.

We here at Prince Law Offices and the Firearms Industry Consulting Group will be sure to update you as ATF releases more information.

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DOH Announces Important Updates On PA’s Medical Marijuana Program Including Draft Regulations for Growers/Processors.

On August 18, 2016, Secretary of Health, Karen Murphy held a press conference to give four important updates on Pennsylvania’s Medical Marijuana Program. One update was the previous announcement of John Collins named as the director of the Office of Medical Marijuana.

The biggest update was Secretary Murphy’s announcement that the Department of Health finished drafting temporary regulations for growers/processors. The DOH website includes two sets of draft regulations. The first is a general set of regulations focused primarily on the permit and application process. The second set of draft regulations is titled as specific set for growers/processors and is primarily focused on operational requirements. The draft regulations will be available for review and feedback on the DOH’s website until August 26, 2018. This is an important opportunity for those interested in Pennsylvania’s Medical Marijuana Program to help shape the regulations with any input and feedback.

The second update was the release of a survey on the DOH’s website seeking input from the patient and caregiver community. The update states that the survey’s purpose is to help in drafting regulations but the survey is primarily focused in what patient /caregiver information should be required in their respective applications and what information should be on the their respective identification cards. The questions concerning information visible on the identification cards may raise some issues with regards to privacy.

The third update was concerning Safe Harbor Letter. The Secretary announced that 53 Safe Harbor Letters had been approved to date and that the DOH is processing another ten more applications. The Safe Harbor Letter allows parents, legal guardians, caregivers and spouses of minors under the age of 18 certified with serious with medical conditions to posses marijuana in its approved from for the minor within Pennsylvania. The next question is where will these 53 possessors of Safe Harbor Letters obtain the approved form of medical marijuana. Maryland has just started to issue dispensary permits and that may in the near future be an initial source of medical marijuana.

If you would like to read more of Secretary Murphy’s updates, you may visit the website below.

Four Important Updates You Need to Know About PA’s Medical Marijuana Program

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