By Johanna Reeves, Esq.
Report on the 17th Annual Firearms Import/Export Conference
On August 1–3, 2018, the F.A.I.R. Trade Group and National Shooting Sports Foundation held their annual Firearms Import/Export Conference. The conference, which takes place every year in Washington, DC, is the only forum devoted to compliance for the firearms and ammunition import and export industries.
The F.A.I.R./NSSF Conference is a pinnacle event, providing invaluable and unequalled access to government import and export regulators from the ATF, the Department of State, the Department of Commerce, Customs and Border Protection, the Department of the Treasury and the Department of Homeland Security. The timing of this year’s conference was quite fortuitous, coming on the heels of the Trump Administration’s proposed rules to transition firearms and ammunition away from the export controls of the State Department over to the Commerce Department. In anticipation of major regulatory changes that are due to take effect within the year, this year’s agenda emphasized the Export Administration Regulations and how the exports of firearms and ammunition will be controlled under these regulations if and when the proposed transition rules are finalized and implemented.
I. August 1—Optional Add-on Sessions
As with previous years, the conference started with three optional add-on sessions. These sessions are an important element to the conference, giving attendees the opportunity to dive into compliance fundamentals in a smaller group atmosphere.
The first session, “Importing Firearms and Ammunition,” was presented by Johanna Reeves, attorney at Reeves & Dola, LLP, and representatives from the ATF Import’s Branch. The second session, “ITAR Exemptions and EAR Exceptions” was presented by Tim Mooney, Senior Export Policy Analyst at the Commerce Department’s Bureau of Industry and Security, and Kim Pritula, an NSSF consultant. This year a third session was offered, titled, “BIS Licensing Process and NSAP-R System.” This session was taught by Lisa Williams, Export Administration Specialist at BIS Office of Exporter Services Outreach and Educational Services Division, Steve Clagett, Director of the BIS Missile and Nuclear Technology Licensing Division, and Taurus Brackett from the Department of Defense, Defense Technology Security Administration licensing directorate.
II. August 2 Presentations
1. ATF Panel and Branch Presentations
ATF has always been a tremendous supporter of this conference. This year was no exception, with the agency bringing more than 30 representatives from the Firearms and Explosives Industry Division (FEID), the Office of Regulatory Affairs, the Firearms and Ammunition Technology Division (FATD), the National Firearms Act (NFA) Division, and the Firearms and Explosives Services Division (Imports Branch). The conference kicked off with a keynote speech from Marvin Richardson, Assistant Director of the Enforcement Programs and Services Division.
Following Mr. Richardson’s opening remarks, ATF officials provided important updates from their respective offices as follows: Krissy Carlson, Chief of the Firearms and Explosives Industry Division, Earl Griffith, Chief of the Firearms and Ammunition Technology Division, Alphonso Hughes, Chief of the National Firearms Act Division, Gary Taylor, Chief of the Firearms and Explosives Services Division and Andrew Lange, Chief of the Office of Regulatory Affairs.
Key take-aways from the ATF panel include:
- ATF is still not able to issue rulings or general industry guidance per the November 16, 2017, Department of Justice memo titled, “Prohibition on Improper Guidance Documents.” This includes newsletters, published rulings and open letters. However, ATF does continue to respond to individual requests for guidance, interpretations, classifications, variances and other similar requests.
- The Form 4473 will be revised in 2020, and ATF is now taking suggestions on proposed changes from industry.
- Current processing time for firearm evaluation is approximately 120 days or more. An evaluation request will be delayed if it does not have enough information. It is important to remember to include spec sheets with the request submission.
- Current processing time for marking variances is approximately 2–4 weeks.
- Industry is encouraged to use eForms. The processing times vary greatly (compare 30 days for a Form 2 to a few days if the same form is submitted through eForms).
- The current processing time for tax paid forms (Form 1; Form 4) is approximately 6–7 months. These forms are still not offered through eForms, but ATF does plan on putting them online.
- If a transfer application is submitted in connection with a government contract, make sure to include this information in the submission.
- Gary Schaible, who many readers have known for a long time, is due to retire at the end of this year. I am sure I speak for many when I say he will be sorely missed!
FESD (Imports Branch):
- The number of Form 6 permit applications have gone down in the last couple of years, likely because of the extension of the form’s validity period (thanks to the F.A.I.R. Trade Group petition).
- Importers are reminded that in order to bring in more than one NFA article, justification must be included with the Form 6 application package.
- ATF is currently working on a definition of “specially designed” to incorporate into the permanent import regulations in 27 C.F.R. Part 447.
- The F.A.I.R. Trade Group Form 9 petition (requesting ATF revise the form to be a notice of NFA firearms exported rather than an application) is still under review; although it is expected ATF will grant the petition and revise the form accordingly. Unfortunately, the timing is unknown, especially in light of the restrictions imposed on federal agencies by the Executive Orders.
After the panel, Ted Clutter, Section Chief of NFA Industry Processing Branch, presented on NFA imports and exports. For those who recall, ATF segregated NFA operations in 2017 into a distinct division (the National Firearms Act Division) made up of two branches: the Industry Processing Branch and the Government Support Branch. With the creation of IPB and the devotion of certain personnel and resources to industry forms processing, we have seen a reduction in forms processing time. Mr. Clutter’s presentation included a review of common errors on the Forms 2 and 9.
The next ATF segment was led by FATD and focused on firearm import evaluations. FATD was followed by Field Operations. Messrs. Stephen Albro, Director of Industry Operations for the Charlotte Field Division, and Adam Rogers, Director of Industry Operations for the Louisville Field Division, reviewed the firearms inspection programs and current enforcement trends.
2. Lunch Keynote Speaker
This year’s lunch keynote speaker was Richard Ashooh, Assistant Secretary of Commerce for Export Administration. He gave a lively and entertaining overview of the Commerce controls over exports and the upcoming transition of firearms and ammunition into this side of U.S. export controls.
3. Round Table Sessions
A regular feature of the conference is the round table sessions, during which attendees have the opportunity to speak informally with representatives from federal agencies and outside experts. This year, F.A.I.R. and NSSF offered 24 tables with representatives from the ATF, The Department of Commerce: Bureau of Industry and Security (BIS), Office of Export Enforcement (OEE), Census Bureau, U.S. Department of State Directorate of Defense Trade Controls (DDTC), Customs and Border Protection (CBP), Alcohol and Tobacco Tax and Trade Bureau (TTB) and an Industry Topic Table.
III. August 3 Presentations
1. Overview of Proposed Transition Rules
The final day of the conference began with a brief overview by Kevin Wolf of the proposed rules that DDTC and BIS published which, if made final, will move many types of firearms, ammunition and related parts and components from ITAR control to EAR control. Mr. Wolf, who is now partner at Akin Gump Strauss Hauer & Feld LLP, previously served in the Obama Administration as Assistant Secretary of Commerce for Export Administration.
2. BIS Presentation–Introduction to the EAR
Timothy Mooney, Senior Export Policy Analyst, BIS walked through the basics of the Export Administration Regulations (EAR). The session focused on important EAR terms, the basics of EAR licensing requirements, how to read an Export Control Classification Number (ECCN) and other introductory concepts under the EAR.
3. BIS/DDTC Presentation—Order of Review and “Specially Designed”
The next panel was led by Steven Clagett, Director, Missile & Nuclear Technology Licensing Division, BIS and Simon Courtman, Commodity Jurisdiction Analyst, DDTC. This discussion covered the Order of Review process and “specially designed” analysis, which will apply to the revised USML Categories I, II and III once the rules are published in final, hopefully next year.
4. BIS Presentation—Technology, Public Domain and Deemed Exports
Steve Clagett and Tim Mooney took the stage again to wrap up the conference with a presentation that walked through EAR controls on “technology” as it relates to the firearms trade, including a discussion of the new ECCNs that have been created to control those items that will move from the USML, important definitions and the concept of “deemed exports” under the EAR.
As always, this year’s conference was packed with important regulatory updates and offered a valuable and unique opportunity for industry to interact with the government regulators. Mark your calendars for next year’s conference, which will be held July 30–Aug. 1, 2019, at the Trump International Hotel in Washington, DC. For more information about the conference, please contact the author at the contact information below.
***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. Receipt of this article does not establish an attorney-client relationship.
About the Author
Johanna Reeves is the founding partner of the law firm Reeves & Dola, LLP in Washington, DC (reevesdola.com). For more than 15 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 2011, Johanna has served as Executive Director for the Firearms and Ammunition Import/Export Roundtable (F.A.I.R.) Trade Group (http://fairtradegroup.org). She has also served as a member of the Defense Trade Advisory Group (DTAG) since 2016. Johanna can be reached at email@example.com or 202-715-9941.
This article first appeared in Small Arms Review V22N10 (December 2018)