Federal Firearms Regulations Options for a New Administration to Reduce or Modify ?rearms Regulations White Paper (Not for public distribution} Ronald Turk Associate Deputy Director (COO), Bureau of Alcohol, Tobacco, Firearms and Explosives (ATP) 6 Jan 2017 924 we? regulated Militia. being necessary to the security ofofree Store, the right afme people to keep and bear Arms, shall notbe infringed." Second Amendment to the United States Constitution Executive Summag: This paper serves to provide the new administration multiple options regarding ?rearms regulations specific to ATP. These general thoughts provide pountial ways to reduce regulations or suggest legislation that promote commerce and defend the second amendment, without significant impact towards ATF's mission of fighting violent firearms crirna or regulating the firearms industry. Two areas of fonts are proffered in this paper: 1) regulatory changes via elimination or modification; and 2} proposed legislation for Congressional action. In addition. a few key areas for further d'ecussion are Identi?ed. Positive steps to further reduce gun violence through enforcement or regulation are also very important but are not the focus of ma paper. Proposed rslgiatory changes for consideration via elimination or modi?cation: 1. New Dealing Exclusively at Gun Shows [or Internet]: For over two years representatives within the fhaarms ?ourishig community have asked for clarification and/or a decBion from ATF regarding a new federal ?rea Ilcerisee applicant requesting to conduct business sohhr at gun shows. ATF has delayed a decision or guidance due to several concerns including what it means to be engaged in the business ?rearms, and ATF's ability to have access to a dealer?s records where they may not have routine business hours. ATF has already recognized FFL activities via the internet without a classic 'storiront? and is considering whether to include gun show only activities in a similar manner. 11m: have changes since ATF provided guidance many years ago to FFLs regarding these Issues. Classic ?brick and mortar? storefronts with an on-hand inventory and set businss hours through the front door often no longer apply In today?s modern marketplace. A question remains as to whether ATF should consider ply changing past policy, or initiate a rqulation rule change process. There is ample room for immediate action on this issue. can simply immediately issue new guidance and adjust past policy to allow for a business to obtain an FFL with no [mention of selling ?rearms out the buslnas front door (whether at guns shows, over the lnternet. or elsewhere). This practice has in fact already been taking place without formal guidance. Provided the business is established ata location in full compliance with state and local laws and ordinances, ATF has the formal business 925 location with which to inspect the licensee. By virtue of buying ?rearms at that business location, maintaining records and doing general business there a 'Iocation' which Is 'engaged In the business" is also established. lfa formal regulation rule change needed for long-term clari?cation. ATF can start that process while Immediately issuing a policy change to the above eflect which would have no negative Impact to public safety. In fact, it would encourage more sales and business through a licensee, Including background checks on sales at gun show events and likely Increase public safety. Minor modi?cations to ATP application forms and questions asked by Investigators during new applicant Inspections are easily amended. Armor Piercing Ammunltlon: ATF has regulatory authority to classify what Is and Is not armor piercing IAPI ammunition. Several major ammunition manufacturing companies have had requests pending for years to produce AP ammunition which is not Intended for use in a handgun and potentially lawful under Federal law. Several years ago ATF. In an effert to approve some of these requests. also proposed to withdraw the 5.56 'green tip? AP ernmo exemption. This created controversy that ultimately staieci any AP ammo classi?cation dedeiom. ATF has been under orders since that time to hold off on any AP ammo determinations. ATP can easily reexamine the Issue and approve many of me requests based on prior established criteria, while leaving the 5.56 'green tip" ammunition exemption Intact. Many of the caliber: beingoonsidered for approval are used in hunting or sporting ?rearms and arguably have a valid sporting purpose. While threats to the public and law enforcement in particular are a seriom consideration, many callbers being considered will generally also penetrate body armor regardless of bullet type or not). If decisional from the Department of Justice were removed. ATF could readily apply drafted standards for reviewing AP amrno request while leaving the 5.55 'lreen tip? examption Intact. Many of the Industry?s pending reques: could be decided in a timely manner. meeting statutory requirements and safety concerns with in the law. lie-importation of Certain Department of Belarus Firearms from Foreign Countries: The State Department and ATP have worked over the past several years with the Administration on requests for the Importation of Lam-Hy military ilrearms .ilii'i'r'lig?itfili'. were once ?re?n: era-2:15 to support aliirs. There are surplus ri?es. Fl?liil?. and nth-3r rjm'gnsemtiria-a [Includ?aMl?nrand rinrl {Lari-lire" l'l?ES) and pistols IMIBIIS) Importation authority. Then-.15 39 natal-I: reason why taxpayer funded lei who. cut $1915}. illfiiz'lf-l 4.5 bl 1.: . Syd??ti?i; its-1:1: it represent inv discernable public safety concern, collectors 9L vintage military ?rearms. importation and sale through the Civilian Marksmanship Program would effectively regulate the lawful tra nsfer of these firearms thromh a lioerIsee and a 926 4. background check. dill?! effort from thatdminiwr?em?n@me Stateand ATF -- ?tment? . truncated here? ?radar-full Inportseiiectiveiybe. could easily reverse past decoioru and allow for the safe and legal Importation and sale [E?wwm? a of these 11m; . .1511: 54:, M1 Garand ri?es have been approved for importation in the recent past, setting precedence for this to occur. 1113 11193.19: via-m;- In part due to due to perceived potential to be used in crimes, for which there is little if any evidence for such a concern. 1! U.S.C. 922(0): Current law precludes Federal Firearms Licensees who are registered Special Occupational Taxpayers from tramferring machineguns manufactured post 1386 uniss they are for export or for law enforcementfgovernment use; and there Is no provision for the transfer irom one another. This is detrimental to operating within the small but useful supported Industry my] unlit]. A change In the statute to allow for limited for to trarofer between each other within this community would have no impact on violent crime. Domestic co-production by FFUSOT is also problematicand could be resolved with a change to the statute. Another option to ithative change if supported by the Department ofJustice would be to ATFs ability to provide "variances" to licensees. as ATP has done In the past that would adequately provide form transfers within defense industry FFLs and avoid a requirement to chance the statute. Use of variances In a consistent and fair process within the limited supported FFLISOT community would be viewed favorably by the industry and have no impact on public safety. Firearm Arm or Brace: Manufachrrels) have produced an ?arrn brace? or ?stabilizing brace' which Is dalgned to strap a hanrhun to a forearm to allow a disabled shooter to ?re the ?rearm. ATF determined that the bracewas not a stock and did not constitute creating a short barreled ri?e [thus not a National Firearms Act?rearm subject to a tax and registration}, and that It is sim ply a tool to shoot a handgun with. Howevu. in the determination letter ATF Indicated that if the brace was held to the shoulder and used as a stock it turned into an MFA ?rearm -thus such use would 'redesign" the ?rearm from a pistol to a short-barreled rifle (an MFA ?rearm}. ATF has never before or since made an MFA determination where a shooter's use alone could redeign and thus reclassify a ?rearm. It was either designed and intended for use as a pistol, or is a short barrel-rd rifle and the determination, attempting to balance between the two, continues to create concern across the ?rearms community. ATF can simply amend the determination by 1 continuing to call it a stabilizer brace for firing a handcun {not an 2] removing the Intended use language from the determination; and 3} simply add a cautionary statement to the manufacturedsl requesting a determination Indicating that any attempt by the manufacturer to modify the device or advertise It's capable use as a shoulder stock could change the determlnation and create an Intention to dawn an MFA short barreied rlIIe vs. a brace for a handgun. Another 927 RIP option Is to simply roscind the determination and revert back to an earlier ATF determination on this same manor. which called It a handgun (not an and had no use clause.? While many at ATF are concerned about manufacturing procsses continuing to push the boundarils and limits between a Gun Control Act IGCAJI and Na?onll Firearms Act ?rearm. ATP is left to apply standards based on current lututts and leave it to Congress to amend the NFA and/or GCA requirements further If they chose tooand thojijgg has moonentialyinsgn shooting. Those iirea rm types are nog?rggiyd for such snorting activity} as bore, sovota, and ATP should re?elamlnc it?s almost 20 vat-at old study to grins it ug t9 datg Will} sport shooting landmc?gd?yhicmistlvudilf?w than what it Was in 1939 and 1998. Anion Shgai??imm such as three Gun and USPSA have-drastically eagnded since 1993. Additionally this restriction on imam; th esa rifles are already legallv available for manufacture and authorship in the United States. Low trust foreign made ?rearms are srili imported and converted mto ?non-sportlog' configurations. These restrictions have only-glared arbitrary and undefined limits o?gonori, whiie at samg time imposing heavy and unmossary workload on FATD. in order to conii rm they arg "sgorling." to than previously approved fol import are required to be re-Submhtod to FATD over something 5; trivial as a dyilinatig?, imgorts Branch assesses a list oi ?rearms aggroued ior impo_rt_bm has not made this list Eublic; Lists such as this hould be made available to ti: lic that the im ortin gommunm? gag not have gags: ggto what tho standard for importation}; Additionally, the criteria for what is 599 rile: armguo and not subiect to a standard Me sub has determined that Certain non-smiautomatit firearms are non their ease of conveniblliyto Manuf those Inconsistencies could be recti?ed through the publication of a new alonuvith an qLdat-ad Imoorts Branch Guide. 5. Reissue a new Sporting Purpose Study: Since the sunset of thp?sauit ngoons banjg Z__Croatl of Database of Private Latter rulings: The ms has a vast and sophisticated databasa ofprivateiottor rulings ATF's database is Inaccessible to the public and in many cases, to the a if itself, Funds should he requested to form a database where nest [otters are gage available to the ou blic onligo, with Hivil? information rgi?agasjs done with the ms The lnab?y to ?gimme rulings crgates guidance and arbitratv enforcement. 928 .Federgtj7o7rj7 7:79 .7Jf; my .7 I. -- .gn iv. 97513 .;_t77hgl 15197:. 557%.; 5:71.174. 57 (171-: 7o_f agreemcrt m7 ?I'l I 7779) were ill: _c-ly7 to be Lister: i7r1_c_riI_I]7C7 57? 7I3777e7 how -- have beg; IrrfortI-Ii the 777.7I7q:_ I71 r7779 :7i ..7 [Lil-J tel wads-tr?: "I_u7r:n77iike 2- 3- ?warms Liv -- -. - ELI: - 2-.va 1- 77.7.77 . -- s_a7_fe_7ty77m277- - I I 11:: '917-s7g7a7ry77b77wg7d797n on7 I7r7I7I7gor7r7-s7 6-3. Old Regulations Under llevleurIerPoesible Removal or Almonds-sent Belowa list of the firearms and exploslva regulations that are currently under review. They are likely no longer applicable (or portions of which are no longer applicable), and may be removed as part of a ?nal rule to remove expired regulations. 478.40 - Assault Weapons ban 478.40a - prohibition language for assault weapons 478.5703) and - assault weapons and large capacity magazines 478.92 (portions) -AP ammo and large capacity magazines 478.116 [portions] large capacity magazines 478.119 - Importing large capacity magazlns and feeding devices (belts, drums. 478.132 - recent keeping for large capacity feeding devices sold to law enforcement 478.153 -request for large capacity magazines and feeding devices for manufacturer testing 478.171 (portions) - Elpor?ng AP ammo and semi auto assault weapons 479.32ia) and - Reduced importer/manufacturer tax rate 1958. Short taxable year standards 555.11 (portions) -obsolete data: commerce in euplaslves 555.27 (portions) - obsolete dates; explosives background checks . 555.33 (portions) - obsolete dates; licensees and permittees general explosives 555.41 (portions) - obsolete dates; licenses and permits general explosives 555.45 (portions) - obsolete dates; licenses and permits general explosive 555.49 [portionsl - obsolete dates: issuance of licenses and permits 555.51 (portions) - obsolete dates; duration of license and permits 555.5 (portions) - obsolete dates; Change of control. llP?s and employees 555.102 {portions}- obsolete data: authorized operations by permittees 999'.? . - reveaarr 1" 929 555.103 lportionsl - obsolete data; Transactions between licensees and permitteas 555.105 [portions] - obsolete data; distribution to non licensees and non pennl?ees 555.125 (portions) - obsolete dates; records maintained by permittea . 555.125 lportions) - obsolete dates: transaction records 555.142 lportlons) - obsolete dates; relief from disab?ities 555.201 (portions) - obsolete dates; storage 555.224 lportions) - obsolete data; table of distances Proposed mislative Action: Silencers: Current Federal law requires ATP to regulate silencers under the National Firearms Act (N This requires a federal tax payment of 5200 for transfers, ATF approval, and entry of the silencerinto a national NFA database. In the past several years opinions about silencers have changes across the U5. Thar use to reduce noise at ?rearms ranges and applications within the sporting and hunting industry are well recognized. Generally speaking 42 states now allow for silencers to be teed for sporting purposes. This wide acceptance of silencers and changes within many states? laws has created a signi?cant demand across the country. ATF has had a signi?cant backlog on silencer applications. Depite'spendin: over $1 million annually in overtime and temporary duty upenses, and dedicating over 33 additional full-time and contract positions since 2011 to support NFA procaine overthe past several years the processing time now at! months. Despite these efforts processing time are still unacceptable to the eyes of many looking to acquire a silencer. The time and effort spent by silencer manufacturers, the public applying for an MFA weapon. and ATF all fall back to an arguably archaic view of silo-leer: from many decada ago. Over the past 10 van, ATF has averaged less than 44 defendants recommended for silencer-related violations for prmecution a year; of those only six defendants recommended for prosewtion had prior criminal convictions Ifelons}. Further, what these statistic do not show is the very minimal actual use of silencers in cr'anlnal shootings. Silencer are not viewed as a threat to public safety and could be classi?ed as regular (not firearms. A change in the Federal Statute would allow for the efficient flow of commerce without eacuslve oversight and taxation with no detrimental effects. it would abo allow ATP to substantially reduce other NFA time and re-dedlcate some resources towards other critical missions In need. 930 ,9 Firearms industry Proposabto Allow for Interstate Sale of Firean-ns at Gun Shows: ATF, based on Department of Justice input has a longstanding interpretation of 18 05. C. 9230') and supporting regulations that does not allow a Federal Firearms Licensee li-?FLl to travel out of state and conduct ?rearms sales Many FFLs in the ?rearms ind ustry would like to be able to travel to other states at venues like a gun show and conduct business ATP and have interpreted this to be not allowed under the law. While many legal opinions differand think the statute could allow for a more favorable interpretation, it appears that a legislative change would be required to allow for Interstate licensee sales at gun shows. ATF currently allows an to travel to another state; display ?rearms for sale and take orders. but not to transier on site [this must take placeuback at the FFL's business location in their home state, and only to a resident of their home state}; similarly. can transfer ?rearms out of state to another licensee under an 'adyance consignment" before the gun show to the out of state licensee in a somewhat convoluted procss where the travelinaftransferrlm FFL is no longer making the sale. A change to the statute to allow FFLs to operate at guns shows out of state (where allowed by individual state laws) would haw: no detrimental e?ect on public safety and still provide ATF a means to trace ?rearms. it would be viewed favorably by the broad firearms community. Since an FFL has a license, maintains records and conducts background checks for sales, provided they are in compliance with state and local laws there is no apparent harm or risk to public safety in allowing them to do so but not for the current statute requiring in-state only sals. Salu would be documented and traceable. and a background check would be completed. 3.3. Need {oran ATP Con?rmed Director: Since moving from the Treasury to the Justice Department in 2003 ATP has had only one Senate con?rmed Director. The agency needs a presidenth?y nominated and Senate con?rmed Director that has the support and backing of the Administration to lead ATF. This will enable the agency to be fully in with leadership, and to maximize the agency?s potential regarding priorities, budgets and support. 93 RIF 13 U5.C. 922(0): As previously mentioned, current law precludes Federal Firearms Licensees who are registered Special Occupational Taxpayers from transferring machineguns manufactured post 1386 unlus they are for export or for law onlorcemontllovormnent use; and there is no provision for the transfer from one FFIJSOT to another. This is detrimental to operating within the small but useful DOD supported industry. A change in the statute to allow for limited approval for to transfer between each other within this community would have no impact on violent crime Domestic co?production by also problematic and could be resolved with a change to the statute. Another option ifsupported by the Department oflustice would he to re-instituteATFs ability to provide ?variance? to licensees. as ATF has done in the past that would adequately provide form transfers within defense Industry FFLs and avoid a requirement to changethe statute. However, without a legislative fix such ?variances" would be easily susceptible to change or withdrawal over time. lir1 ,lliai-y'l'x-n .31.: [hp-1 His! "ii" ?isMIN :J'nii. Waging! ?1190" - 5" an rat-'- mar 535'? r3 ca.- Fol number. Thargare severil Hie (91,161,2ngfilmy: I differ-2'4 turn": xi . V- 71.. .. r- 1' i5 being: :15, yawn-1'3: -- mu: martini: I 1digitalWinn? .. . .. I. I: I'll 1' . .. - Jim-1'3 I: livid-J iv: r! 932 416. National Concealed Carry: Various proposals exist for concealed carry permits to be valid across the nation. ATF would have limited. ifany direct oversight over such a program and should have no signi?cant concems. Re uleto Areas rF Di ussi n: 1. Demand letter 2 (Di. 2): Via readation ATF currently requires Federal Firearm licensees across the nation that have had 10 or more guns traced to them in a previous year with a tlme-to-crime ofthree years oriess to provide copies of limited Information from used ?rearms they acquired the previous year to ATF. This equates to limited ?teed? or 'gray market" gun {no purchaser information is directly stored by ATP. only gun information) that can be used to open up more trace results for secondary market ?rearms. This information an be useful to further crime gun trace capabilities by creating a pointer to allow for a morecurrerrt firearms traceto a secondary purchaser. The number of ?10' guntraces in a year back to a particular FFL is determined by ATF. This number was shifted downward from 25 guns in previous years to 10 more recently. ATP is currently re-examlning the program and anticipate a change to the number (somewhere in the vicinity of 15 or more) based on trend and data analysis. Some have argued that DL2 creates a burden on ?rearms dealers to provide ATF information on used firearms thatmay become. but are not necessarily crime guns. An increase In the fir earms requirement above 10 would likely have a positive impact on the ?rearms industry and still meet program objectives. 2. Banned Letter 3 (Ill. 5): Via regulation ATP require Federal Firearms Licensees iFFLsi in several Southwest Bord. States to record and submit multiple sols records for certain semi-automatic ri?es capable of shooting with a detached magazine (although not de?ned as such by law or regulation, this applies to the sale of more than one rifle commonly referred to as an ?modem sporting ri?es?, sold to the same person at the same time). This requirement came into effect several years ago in an attempt to curb the flow of rifles from commerce to the criminal clement via illegal firearms traffickers into Mexico and South America. There are examples wharethis regulation has proven effective and may provides deterrent effect. Over the past five years. ATF has over 40,1130 multiple sales reports involving over 90,000 ri?es; opened over 300 investigations and recommended approximately 374 defendants for prosecution. DL 3 places some burden on the ?rearms industry via reporting requirements. The elimination of DL 3 could have a detrimental effect towards ATFs criminal enforcement mission based on the numbers of investigations and defendants seen to date, but can be further discussed regarding utility and impact. 933 ?.__Pending ATF Regulation Reprdin' FFI. Records Retention [20 yam): ATP Currently has a regulation pending at. the Department ofJustice to increase the requirements for Federal Firearms Licensees (FFLs) to retain recor? indefinitely. The current standard is 20 years, and records older than 20 years can be destroyed. The intent of the change from 20 years to Inde?nite retention is to provide access to records for firea traca over longer periods of time. Practically however, crime guns are not frequently recovered with times to crimes from purchases over 20 years old. Also, older firearms possessed by criminals frequently transfer hands several times and a trace will often not lead to the criminal after so much time has passed. ATF has averaged approximately 1.200 failed traces a year over the past 5 years due to rotords destruction, accounting for less than one half of one percent of traces conduct nationally each year. While such an extension is arguably a viable law enforcement intelligence tool, much ofthe iirearms industry is opposed to such a chame and its limited value of such data questions the merits for the need to change this longstanding rule in 'rr- Conclusions: There are many regulatory change that can be made by or through ATF that would have an immediate. positive impact on commerce and industry without signi?cantly hindering ATFs mission or adversely affecting public safety. Congress can ako act to clarify statutes to remove ATP from unnecessary bureaucratic procases without putting the public at risk. Opportunities currently existto review many of these ?rearms issue at hand and to take reasonable corrective steps to din-regulate or lesson burdens on the firearms industry with no discernible impact to public safety. Alleviating some ofth-e concerns would continue to support 934 relatlonsHp across the ?re-nus and sporting with ATF, and allow ATF to further focus procious personnel and mourns on the mbslon to combat gun vblence. Note: The opinion ?(and within this whitepuperare not thus: a] ti! Menu literate nerdy the ideas and opinbnsof this writer. They are pmviderlfur the new team's consideration and nut intended to be public. They are also generui thoughts that cannot be taken as exacting language rnyurding puiiey or quotabie speci?cs Additional speci?c details can be MM to ?nite: these general discussion: The men and women are overwhelming!? fantastic group album! wiring civil semantic bait to reduce violent crime and ensure public safety Hula-user: combating gun violence is key. Fairly regulating the ?rearms and explains industries tuba Important. As then-earns ?inventions latte date over the nut jaw mthsund years this paper is client! to pmvide mformot insightm pater-run! padre-tire my: to limit reputation and mtinue ta mum our second amendment freedom whiiefucudng an misdun to protect uuruatiorl. 935 Mark eames? 1/9/2017 5:59 PM Re: Draft Ideas To ronaldtu lb; I am on it. Best regards. Mark On Jan 9, 2017. at 4:20 PM, Murrow. Hello Mark. Attached is a draft of what I mentioned, intended to identify potential "hot" regulatory issues for the new team. Please disregard any poor use of my English language skills this was written solely by me (with the exception of an EPS darted section regarding old regs proposed for removal from the books), and not edited well yet If I am missing the mark on a major issue or disregarding a major discussion point any feedback you have would be appreciated. My hope is that the agency can demonstrate ?exibility where appropriate and identify areas for further discussion. recognizing that solving everyone's concerns on each side would be dit?cutt as well See you next week. Ron Mark Barnes Attomey at Law l350 St. NW. Suite 260 Washington. D.C. 20005 Tel. (202) 626-0089 Fax {202 GEE-OMB Pager: This e-mnil is con?dent'nl and is legally privileged. ?you have received it in tenor, you are on notice of its status Flmse notify us Immedlntely by reply e-rnnil and then delete Ihismage?-nrn you-system. Please do noteopy or meit mm orduclm its contents many other perm. Todu so eouldviotute suite and Fedcml privacy laws. Thank you foryour cooperation Please collect Mark ailment Associates at 202-626-0089 if you and assistance 92] RIP "1912017 7:37 PM Capy Got a chance to read this on the ?ight back to DC. Some great additional thoughts, many of which I agree with and will include. I appreciate the time you and Mark took on this - thanks again. Ron From: To: ronatdtum Cc: Mark Barnes Sent: Tuesday, January 17, 2017 11:46:48 AM Subject: Draft ideas-MB Edits Hi Ron. Mark asked me to send back the changes to your draft. Please let me know if you have any questions. Mmey Mark Barnes Associates 1350 1 St. NW, Suite 260 Washington, 0.0. 20005 Tel. (202) 62- 'Admitlsd lo the Maryland Bar om. Not admitted in the District ofGolunhia. Practice llniled to Federal agencies only. This email is con?dential and is legally privileged. If you have received it in error. you are on notice of its status. Please notify us immediately by reply e-mail and then delete this message from your system. Please do not copy it or use it for any purposes. or disclose its contents to any other person. To do so could violate state and Federal privacy laws. Thank you for your cooperation. Please contact Mark Barnes 8: Associates at 202-826-0089 if you need assistance. 922 RIP (6) mmowmem Draft Ideas-MB Edits Copy Mark Barnes ib :E-i To ronaidtu [b i 6 Hi Ron, Mark asked me to send back the changes to your draft. Please let me know if you have any questions. it) II Attorney Mark Barnes 8- Associates 1350] St. N.W.. Suite 260 Washington. DC. 20005 Tel. (202152? ?Admilled to the Maryland Bar only. Not admitted it the District olColumbla. Pm "allied to Fedlrul sperms only. This e-mail con?dential and is legally privileged. If you have received it in error, you are on notice of its status. Please notify us immediately by reply e-mail and then delete this message from your system. Please do not copy it or use it for any purposes. or disclose its contents to any other person. To do so could violate state and Federal privacy laws. Thank you for your cooperation. Please contact Mark Barnes 8. Associates at 202-626-0089 if you need assistance. - White Paper Turk ?nal draft 1.2017_mb_edits.docx (271 KB) 923 RIP