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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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News from the Round Table Discussions at the NSSF Import/Export Conference

It’s that time of year again, the NSSF Import/Export Conference which is held in Washington, D.C. While the conference is designed to help educate companies about the import/export regulations and laws they might encounter while in the business, the conference does provide for round table discussions with ATF, DDTC and other Firearm Industry officials. Some of the officials from ATF that I had the opportunity to sit around the table with were Ted Clutter (Section Chief of the NFA Branch), Earl Griffith (Head of the Firearms and Ammunition Technology Division [FATD]), Max Kingery (Second in Command at FATD) and Edward Courtney (Head of the Firearms Industry Programs Branch).

ATF

General ATF

Marvin Richardson, the Deputy Assistant Director of Enforcement Programs and Services, announced during the ATF Panel Discussion that there would be a new NFA Division (discussed further below).

Andy Graham Deputy Assist Director for Industry Operations reviewed some statistics from this past year.

Inspection statistics:

177 new importer applications

493 inspections occurred, 177 were related to importer applications, the rest were compliance inspections.

There was 1 application denial, 103 applications which were withdrawn for various reasons, 110 compliance inspections resulted in no further action, 36 compliance inspections that resulted in license surrenders,  and 15 special requests for inspections from licensing center.

There were 3 inspections that resulted in warning conferences and 14 inspections that resulted in a warning letter with a recall. There were also 8 inspections that resulted in a warning letter without a recall.

Last fiscal year, base of licensees dropped from ~141,000 to ~139,000.

Alphonso Hughes chief of the Firearms & Explosives Services Division reviewed changes to the structure of different divisions of ATF.

FFL Licensing Center has 20 examiners processing applications. FEL Licensing Center has 10 examiners working for it.

NFA Branch has 24 examiners staffing it. It’s down from 26. There are now 4 sections within the NFA Branch. That’s up from the previous 2. There are 7 vacant examiner positions that they are in the process of filling. Projections into 2017 for additional staff to help the NFA Branch.

Krissy Carlson, the chief of the Firearms and Explosives Industry Division, reviewed the new 4473 that is up for comment (again) on the Federal Register. For more on that see Chief Counsel Joshua Prince’s blog article. They are also introducing a newsletter that they’ve been working on since November! Krissy also mentioned new rulings based on petitions submitted to them.

Andrew Lange the Division Chief of the Officer of Regulatory Affairs spoke about the difference between regulations and rulings. There are a couple of rulemaking proceedings that are in the notice and comment phase. He specifically mentioned the ATF 29P notice and comment period closing today which I filed a comment in Opposition of the Advanced Notice of Proposed Rulemaking on behalf of Dead Air Silencers. You can find that comment here.

Lastly, Earl Griffith, the Chief of the Firearms and Ammunition Technology Division, spoke. There are some promotions within the division. They are on track to do over 1,000 marking variances this year. They are taking about 2-3 weeks to process.

 

nfa branch

NFA Branch

NFA Stats:

307,000 NFA Applications were processed. Last year there were 221,000. On track to receive about 400,000 forms for this year based on last years numbers. They are predicting 469,000 for this year because of ATF 41F (shout out to NFATCA).

Processing time is advertised as 6 months. In the last 5 weeks, they received 126,000 forms on top of the 90,000 they already have. 6 months now may be 8 or 9 months. Sorry guys. Just forget you ever submitted anything.

7,500 applications a week were received before 41F was announced. It doubled after the announcement of ATF 41F. It approached 35,000 in a single week closer to ATF 41F being implemented.

Alphonso said that the non-tax paid forms should be close to a 30 day processing time. He told his examiners to make that a priority.

They received several million dollar days in tax paid forms for the month of July. They cleared 11 million dollars in tax paid applications for the month of July.

They are looking to implement an electronic method for the submission of tax paid forms post 41F. Alphonso mentioned the possibility of electronic submission of the application and RP questionnaires with a matching barcode sheet to mail in the fingerprints.

NFA Branch is going to become a division with several branches within it to modernize the workflow. This is due to congressional oversight inquiries. They are looking for approval on paper in the first quarter of fiscal year 2017. Actual implementation in the 2nd or 3rd quarter. Alphonso will be the Chief of the NFA Division.

I also asked the NFA Branch a number of questions during the round table discussion. Before attending the conference I asked members of AR15.com, other industry related forums, and on Facebook questions they had that they wanted answered. I received a number of good questions which I decided I would ask.

Does ATF intend to bring back eForms for Form 1 and Form 4s?

Sounds like due to funding the eForms system will just be maintained where it is, until there is funding to replace it. In other words…

burea

Is the NFA Branch still accepting corrections to forms submitted that had “non fatal” errors?

Yes. They are.

Does the NFA Branch have any procedures in place for forms which were submitted with credit card information that was rejected for wrong numbers, when the right number was listed on the form, particularly in light ATF 41F going into effect?

Not currently. That is something I am going to follow up with ATF about. I was alerted that it would likely need to be run through the NFA Branch counsel before I received an answer.

Does ATF prioritize Form 3 transfers? Is there any plans to “auto approve” Form 3 transfers using the eForms system after verifying the information on the form?

As stated earlier, the NFA branch is again prioritizing Form 3s. They are trying to process them within 30 days (that’s the goal). There is no plan for “auto approval”.

What constitutes a “fatal error” on a form?

A few examples I was given were 1) wrong serial number, 2) no serial number, 3) wrong address.

Firearms and Ammunition Technology Division

If you have a sample you want a determination request on prior to SHOT Show 2017, you must submit it to FATD no later than the end of September.

Office of Regulatory Affairs

For those who had questions regarding why comments reflected in the docket for regulatory changes were not all displayed, I learned a few things. First, if the comment contains just vulgarity, it will not be displayed. ATF will retain it and it will likely be subject to a FOIA request, but it won’t be displayed on regulations.gov. They also may be available for viewing in the reading room.

As for the timeline for comments submitted being displayed on regulations.gov, I was told that depending how much workload they had, it could be very quick or take a while.

Itar

DDTC

Unfortunately, the question that most people wanted answered “Do I have to register under ITAR?” is not one that was able to be asked to someone at DDTC who handles registration. However, the guidance that DDTC issued on July 22nd, available here, tells you whether you have to register under ITAR or not. Additionally, the guidance also tells an individual how to inquire with DDTC as to whether the need to register.

 

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A Round Table Discussion with ATF

Having had the opportunity to sit around a table with different members of ATF, a few different things were learned.

atf

And don’t worry, the cartoon doesn’t reflect the attitude of those I spoke to.

NFA Branch

In regards to the NFA Branch and processing times, it appears that they are aiming for a processing time of about 90 days for Form 1s and Form 4s. They are currently around the 120 day mark and are working diligently to improve that time. They have gone from 9 to 26 examiners, which should allow them to meet that goal after everyone has been brought up to speed.

Trusts account for the majority of Form 1s and Form 4s that the branch is receiving. I also learned that there is a substantial increase in Form 1 submissions since the introduction of the eForms system. Additionally, the processing times for eForm and paper form submissions are now currently running about the same time, so there is not necessarily any advantage time-wise to utilize the eForms system.

Form-4

Furthermore, I learned that ATF hoped to have had the eForm 4s back by SHOT but they indicated that did not look like it would happen. They are currently in discussions with a contractor regarding the system.

There was also a question asked of the NFA branch in relation to 3D printed parts. The attendee asked if he printed a part, that was technically a NFA firearm, would he need to notify the branch of its creation and/or destruction. The answer was yes, provided the part was functional, it would be controlled by the NFA.

Imports Branch

The Import section fielded a question relating to the “sporting purpose” exemption. Disappointingly, there does not seem to be any hope in the near future for it to be revisited in order to consider such sports as 3-Gun, USPSA, IDPA or other shooting sports.

Firearms and Ammunition Technology Division

I also had the opportunity to sit down with the Firearms and Ammunition Technology Division (FATD).

For Industry Members, if you’re looking to receive a determination on your product, you can expect it to take about 120 days. That means if you WANT a determination on your product prior to SHOT 2016, you need to have your submission to FATD before September.

They did state that they would not give you priority just because your attending SHOT and need a determination prior to it. So you have to get moving on the product and submission now. If you’re an industry member and require a letter with your submission please contact us, as letters for determinations are something we handle on a frequent basis.

USA-1Shot-Cover-670x449

The new product on the block that is catching a lot of attention by the industry seems to be the APS 1 Shot Dynamic Pistol Rest. Having had the opportunity to sit down with FATD and discuss the dynamic pistol rest, I can say several issues have arisen. Contrary to the claims of the company, ATF stated that it has no record of receiving any samples of the product in order to issue a determination. Additionally, FATD stated they welcome a sample to be submitted for a determination. This is in stark contrast to the statement that the company has proffered that ATF will not issue a determination.

The company had stated in a Recoil Web article:

“We asked the ATF their opinion and they had none, as it is not a permanent part of the weapon…”

Furthermore, having shown FATD a picture of the product, I was immediately informed that it was a shoulder stock and ATF had previously ruled on “friction stocks” in other determinations. It would behoove APS to submit a sample to ATF in order to have a formal determination on the product, so that individuals can know whether possession of the product with a handgun would potentially subject them to criminal prosecution or not.

Firearms Industry Operations

Good news for licensees. Is there a topic you want ATF to cover for training? Apparently, you can either call your local field office or headquarters to request a seminar on the particular topic. Furthermore, if you receive or have received conflicting information from your local field office, you may want to contact the Firearms Industry Programs Branch to get a “final determination” on the matter. Of course, I’d recommend you get it in writing, which they stated they usually provide a copy of their decision to the field office as well as the licensee with the question.

ATF 41p

ATF 41P was mentioned several times. The news? ATF is still reviewing comments and there is no news as to when/if they will move forward with any kind of final rule. Additionally there are 4 reviewers for the comments and all of them have been assigned to ATF 41P.

ATF 51P

ATF 51P has had no action as far as the review of comments on it yet.

General Rulemaking

ATF stated that the priority for rulemaking determinations were ATF 41p, ATF 51P and Reporting of Losses of Firearms in Transit.

Federal Firearms Relief

If the appropriations bill is enacted as written, Federal Firearms Relief would become available again, for the first time since 1992. ATF stated that if the appropriations bill is implemented, they do not currently have an action plan in place to address the forecasted river of applications it will receive.

ATF Ruling 2013-5

ATF also stated that it would be entering into rulemaking to clarify the electronic record keeping for FFLS in relation to Ruling 2013-5. Issues that would be addressed include cloud storage, the maintenance of records offsite but on a server and tracking changes in the bound book.

 

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