By Robert M. Hausman
Firearms testing procedures employed by the Bureau of Alcohol, Tobacco, Firearms & Explosives (ATF) are coming under increasing Congressional scrutiny.
In an October 19, 2005 dated memorandum from the Congressional Research Service (CRS) written in response to inquiries made by members of Congress, ATF officials have informed the CRS that there is no single “firearms testing procedures manual,” given the wide variety of firearms available in both legal and illegal markets.
The report’s author, William J. Krouse, a Specialist in Domestic Security, Domestic Social Policy Division at the CRS, said he was told that there is no “firearms testing procedures manual” by ATF Legislative Specialist Christine Smith in July 2005 as did ATF Inspector Liza Jones in September 2005. Jones also reiterated ATF’s official position on this matter during an Oct. 18, 2005 telephone conversation with Krouse, the report notes. Critics of ATF have requested congressional verification as to whether such a manual exists.
The issue of the methods used by ATF to determine whether a given firearm being examined can be fired in the full-auto mode has long been a bone of contention between defense attorneys and the Bureau. Allegations have been made that ATF’s testing results (in some cases) could not be replicated by private firearm consultants.
To address issues raised by ATF critics, in part, Rep. Phil Gingrey has introduced the “Fairness in Firearm Testing Act” (H.R. 1603) that would require ATF to make video recordings of all firearms and ammunition tests.
ATF Firearms Technology Branch
ATF’s Firearms Technology Branch (FTB) conducts tests to determine whether firearms are subject to the National Firearms Act, among other things. The FTB relies on a very large reference library of actual firearms and technical manuals in testing firearms. The ATF test-fires (at the FTB range) and disassembles firearms sent to them for evaluation. The disassembled firearm under examination is compared with sample firearms in the FTB gun library to verify whether it had been either modified to fire in a fully automatic mode or had been originally configured to fire that way. Following the evaluation, the results are documented in writing and with photographs by a firearms enforcement officer. In criminal cases, the officer will likely testify as to the classification of the firearm.
ATF Classification Letters
ATF regulations, rulings, and classifications are based upon the agency’s best interpretation of current law and reported case law. As such, ATF determinations are subject to the Administrative Procedures Act and can be challenged in federal court; after all other administrative remedies have been exhausted. (5 U.S.C. Section 702 establishes that “(a) person suffering a legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.”)
Upon written request, the FTB issues classification (determination) letters regarding technical aspects of the National Firearms Act and other applicable federal firearms laws. According to the CRS report’s author, ATF has said it maintains over 300 cubic feet of classification letters stored in file cabinets.
In general, these classification letters, once released to the original requestor, are not available to the public, although they can be obtained by outside interested parties through the Freedom of Information Act (FOIA). More often than not, the report discloses, they are redacted to protect the privacy of individuals and proprietary information. As there is no central index of these letters, however, some observers note that it is not a certainty that an individual who files a FOIA request for previously issued classification letters will receive every relevant letter issued by the ATF. Thus, ATF is the final arbitrator as to what classification letters are relevant to a particular FOIA request.
ATF’s findings and certifications made in court during criminal proceedings can be, and have been, successfully challenged by outside firearms experts. It has been suggested that attorneys defending individuals charged with NFA or other technical firearms violations make every effort to obtain all ATF rulings and technical records regarding a particular type of alleged firearm during discovery or through the FOIA process.
Rep. Gingrey’s bill is a Congressional attempt to resolve some of the controversies surrounding the ATF testing process. In addition to mandating that ATF make a digital recording, it would prohibit the Bureau from erasing or editing any such recording. It would also require ATF to furnish a copy of such recordings to defendants in criminal proceedings involving such items and to any person who requests a copy and claims an ownership interest in such a subject item. At last report, Gingrey’s bill was referred to the Committee on the Judiciary’s Subcommittee on Crime, Terrorism and Homeland Security on May 10, 2005.
NRC Licensees & Contractors Can Get New MGs
The Class 3 firearms industry at press time was preparing for a batch of customers who have been newly authorized to possess post-ban machine guns due to an act of Congress.
ATF announced the change by way of a January 30, 2006 open letter which advised of the change which came about through a congressional amendment to the Atomic Energy Act of 1954. Congress amended the Energy Act with the passage of the Energy Policy Act of 2005 (Public Law 109-058) which was signed into law by the President on August 8, 2005.
Although the new provision does not amend the Gun Control Act of 1968 or the National Firearms Act, it does allow for the possession of machine guns by Nuclear Regulatory Commission (NRC) licensees and authorized contractors that provide security to these licensees at nuclear facilities. The language of the new law appears in 42 U.S.C. §2201a. This new provision is a departure from present legal restrictions which do not allow for post-ban machineguns to be imported for, transferred to, or possessed by non-government entities.
Before this new statute may take effect, the law states that the NRC must establish guidelines for implementation that are approved by the Attorney General of the U.S. (AG). Toward this end, ATF has met with the NRC to offer assistance in developing guidelines that will enable NRC licensees, contractors and FFLs to comply with all Federal laws and regulations that govern their conduct of business.
The NRC is reported as being in the process of preparing draft guidelines, but the approval process within the NRC and by the AG is detailed. For that reason, ATF advises, the implementation will take some time. In the meantime, ATF does not have authority to process import or transfer applications filed pursuant to the new regulations.
Trade Report: U.S. 2004 Ammo Sales Rose
Ammunition sales in the U.S. were reported as rising in all categories during 2004, according to the Ammunition Trade Report (2004) available on the “members only” section of the National Shooting Sports Foundation web site.
While the full report is only available to survey participants, IFT was able to discern the following excerpts. In response to the query, “Considering your domestic commercial sales of ammunition and components, please report the percentage change in shipments (units) over last year” (percentage change in 2004 sales over 2003), respondents replied that centerfire rifle sales were up 5.7%, centerfire pistol ammo sales were up 16.2%, rimfire ammo rose 7.6%, shotshells gained 13.4% and component bullets saw a 1.2% increase. The percentage of survey participants’ domestic shotshell shipments (units) that were comprised of non-toxic shotshells was 8.1%.
In response to the query asking what percentage of respondents’ shipments (in units) that went to wholesalers during calendar year 2004 (for only domestic commercial sales), the reply was: centerfire rifle 43.7%, centerfire pistol 38%, rimfire 26.3%, shotshells 29.5%, and component bullets 38.1%.
Respondents reported that the percentage of ammunition sold in 2004 that was imported into the U.S. (weighted average) was: 11.7% out of the total centerfire ammunition sales and 0.1% of the total rimfire sales.
Canadians Elect New Government
Paul Martin, Canada’s Liberal party prime minister who had proposed a handgun ban, has been defeated at the polls.
Conservative leader Stephen Harper will become Canada’s next prime minister, as Canadians have elected a Tory minority government and ended a 12-year reign of Liberal rule.
The Tories appeared to make significant gains in Ontario and Quebec, leading or elected in at least two dozen seats in Central Canada.
Martin had campaigned on his record as the former finance minister and his implementation of eight consecutive balanced budgets. He also promised to lower personal income taxes, create a national child-care plan, ban handguns, and subsidize post-secondary students.
Gun-owning Canadians reacted swiftly to Martin’s proposed handgun ban and many otherwise left-leaning newspapers editorialized against it, turning the issue against Martin. The new Harper government is expected to have closer ties to the American Bush Administration, and issues related to firearms commerce between the two countries may be eased.
XM-8 Project Reported Dead
The U.S. Army’s XM-8 weapon family project is reported as being suspended indefinitely. The government’s move was seen by analysts as a signal that the project is being written off as far as the military is concerned.
Last summer the U.S. Army had temporarily suspended the Request for Proposal (RFP) for the acquisition of the new family of small weapons - Objective Individual Combat Weapon Increment 1 (OICW-1). Increment 1 would have opened the door for the new H&K XM-8 weapon family, which was touted as the successor to the M16A4 assault rifle, M249 SAW light machine gun, and even the M9 pistol via a cut-down version.
M9 Pistol Magazine Contract Awarded
TACOM Rock Island Arsenal has awarded a five-year indefinite-delivery/indefinite-quantity contract to Airtronic Services, Inc. in Elk Grove Village, IL for the production of Beretta M9 Pistol Magazines. Airtronic Services is a woman-owned manufacturer of firearms, destructive devices and components for military use.
The contract requires Airtronic to initially produce 900,000 magazines for $4,059,000. The maximum number of magazines to be produced is 14 million units at $63 million ($4.50 each). Airtronic noted that the previous vendor, Checkmate, had charged $8.51 each.
TACOM’s award did not remain uncontested. PHT Corporation filed a bid protest with the US Government Accountability Office, maintaining that the agency improperly evaluated the past performance record of Airtronic, and that Airtronic’s price was unreasonably low.
In decision file B-297313, the GAO denied the bid protest, stating: “Where solicitation defined relevant past performance as performance on contracts with a value over $500,000 that demonstrates the successful manufacture of M9 magazine cartridge or similar item, award to offeror with no relevant past performance was reasonable where source selection authority recognized the awardee’s lack of relevant past performance, but nonetheless reasonably concluded, consistent with the solicitation, that the awardee’s overall past performance record justified a ‘moderate’ risk rating.”
The author publishes two of the small arms industry’s most widely read trade newsletters, The International Firearms Trade which covers the world firearms scene, and The New Firearms Business which covers the domestic market. He also offers FFL-mailing lists to firms interested in direct marketing efforts to the industry. He may be reached at: FirearmsB@aol.com.
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