By Johanna Reeves, Esq.
A year ago, I offered the possibility that Biden may end up being the first president in a long time to successfully implement sweeping gun control measures (see “Biden’s Plans for Gun Control Reform,” Small Arms Review, Vol. 25, No. 5.) Such reform can come out of the Congress in the form of new laws (such as enhanced background checks or restricting sales at gun shows), or out of the executive branch with new agency rules or regulations. For the time being, Congress appears to be stalled in passing any kind of gun legislation, and as we get closer to the midterm elections, it is highly unlikely we will see any change on that front.
The power of federal agencies to implement gun control measures is a different story. We’ve already seen proposed rulemaking come out of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) targeting pistol braces and expanding controls over partially made frames and receivers. While ATF has not yet finalized those rules, the agency is in the process of reviewing the public comments and is working toward finalizing the rules sometime in late summer and early fall, respectively.
In the meantime, there is a “zero tolerance policy” that is sneaking up on the industry for which people need to be prepared. President Biden first announced the policy last June as part of a larger gun control strategy (Fact Sheet: Biden-Harris Administration Announces Comprehensive Strategy to Prevent and Respond to Gun Crime and Ensure Public Safety, White House Briefing Room, Jun. 23, 2021, available at whitehouse.gov). That strategy delineated five main goals: stem the flow of firearms used to commit violence, including by holding rogue firearms dealers accountable for violating federal laws; support local law enforcement with federal tools and resources to help address summer violent crime; invest in evidence-based community violence interventions; expanding summer programming employment opportunities, and other services and supports for teenagers and young adults; and help formerly incarcerated individuals successfully reenter their communities.
Under the first goal of stemming the flow of firearms used to commit violence, the president declared a policy of zero tolerance for “rogue gun dealers that willfully violate the law.” Under this policy, Biden stated that ATF will seek to revoke licenses of dealers the first time they willfully violate federal law by doing any of the following: transfer a firearm to a prohibited person, fail to run a required background check, falsify records, such as a firearms transaction form, fail to respond to an ATF trace request, or refuse to permit ATF to conduct an inspection. And only one instance of any of the above violations is necessary to trigger a license revocation.
These are not empty threats, as evidenced by the large amounts of funding the Biden administration is devoting to reducing gun crime, including prosecution of the referenced rogue dealers. So far, $350 billion has been made available from the American Rescue Plan for enforcement efforts. The president’s fiscal year 2022 budget request sought $9.4 billion for violent crime, gun violence, and police, an 8.9 percent increase over fiscal year 2021. It included an additional $45 million for ATF to support doubling ATF’s capacity to investigate thefts from federally licensed firearms dealers. The president’s fiscal year 2022 budget, if enacted, would increase the number of ATF industry operations investigators assigned to conduct inspections, identify security vulnerabilities, and respond to thefts at federally licensed firearms dealers. Justice Department Fact Sheet on Violent Crime Reduction (available at justice.gov).
We know that ATF is in the process of implementing this zero-tolerance policy. On January 3, 2022, the agency published a revised Federal Firearms Licensee Quick Reference and Best Practices Act (ATF Publication 5300.15). This guide, more than thirty pages long, puts dealers on notice up front with the following proclamation: “To maximize public safety, ATF will, absent extraordinary circumstances, initiate proceedings to revoke the license of any dealer that has committed a willful regulatory violation of the Gun Control Act (GCA) for specified violations. These violations are: Transferring a firearm to a prohibited person; failing to run a required background check: falsifying records, such as a firearms transaction form; failing to respond to an ATF tracing request; or refusing to permit ATF to conduct an inspection in violation of the law.” ATF does not offer what constitutes an extraordinary circumstance, but it is apparent that the dealer would have the burden under this policy to establish a fact that would justify ATF not pursuing license revocation.
Unfortunately, this policy can significantly undermine the important cooperating relationship between industry and the government. Firearms licensees can be a valuable resource to law enforcement because of their direct dealings with the public and their knowledge of the community. If license revocations increase because of this zero-tolerance policy, which they are sure to do, dealers and other licensees may be more reluctant to go to ATF or other law enforcement. Yes, the Justice Department has announced that self-reporting of noncompliance and other proactive behavior will be rewarded, but that may not be enough to allay fears of “ma and pa” dealer becoming the target of enforcement themselves. Indeed, we may see more and more people talking themselves out of voluntarily disclosing violations because, well, what are the odds ATF will find out? Will the reward be worth the risk?
Dealers and other licensees who engage in over-the-counter firearm transfers take note. Now is the time to make sure your house is in order. Review your existing policies and procedures on transfers, recordkeeping, and responding to ATF trace requests, and make sure your employees are educated on the regulatory requirements and restrictions applicable to your business, and then be proactive in ensuring the proper procedures are followed.
This Administration will not let up. Most recently, during his State of the Union address, President Biden made it clear that he has not lost his focus on gun control.
I will do everything in my power to crack down on gun trafficking of ghost guns you can buy online, assemble at home. No serial numbers. Cannot be traced. I asked Congress to pass proven measures to reduce gun violence. Pass universal background checks.
Why should anyone on a terrorist list be able to purchase a weapon? Why? Why?
And folks, ban assault weapons and high-capacity magazines with 100 rounds. You think the deer are wearing Kevlar vests? Repeal the liability shield that makes gun manufacturers the only industry in America that cannot be sued. The only one. Imagine had we done that with the tobacco manufacturers. These laws do not infringe on the Second Amendment. They save lives.
Barely into his second year of his presidency, there can be little doubt that when it comes to gun control, Biden is just getting started.
The information contained in this article is for general informational and educational purposes only and is not intended to be construed or used as legal advice or as legal opinion. You should not rely or act on any information contained in this article without first seeking the advice of an attorney.
About the author
Johanna Reeves is the founding partner of the law firm Reeves & Dola, LLP in Washington, DC (reevesdola.com). For more than 17 years she has dedicated her practice to advising and representing U.S. companies on compliance matters arising under the federal firearms laws and U.S. export controls. Since 2016 she has served as a member of the Defense Trade Advisory Group (DTAG). From 2011 through 2020, Johanna served as Executive Director for the Firearms and Ammunition Import/Export Roundtable (FAIR) Trade Group and she continues to serve in an advisory role. Johanna can be reached at firstname.lastname@example.org or 202-715-9941.
|This article first appeared in Small Arms Review V26N6 (JUNE/JULY 2022)|