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Legally Armed: V22N5

By Teresa G. Ficaretta, Esq. and Johanna Reeves, Esq.

ATF Compliance Inspections of DOD Contractors*

On October 20, 2017, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) posted on its website a document titled, “Department of Defense Contractor Inspections: ATF Inspection Process.” This document (the “Contractor Inspection Guidelines”) describes a procedure for ATF field divisions to conduct warrantless compliance inspections of contractors who are licensed under federal law to engage in the business of manufacturing, importing or dealing in firearms or explosives. It is important that Department of Defense (DOD) contractors who are federal firearms or explosives licensees carefully review this process with legal counsel and consider the potential consequences. The full document is available on ATF’s website at: https://www.atf.gov/firearms/docs/guide/department-defense-contractor-inspections-atf-inspection-process-firearms/download (last visited February 5, 2018).

I. ATF’s Authority to Inspect Federal Firearms and Explosives Licensees

It is important we review the Contractor Inspection Guidelines in the context of ATF’s authority to conduct warrantless inspections. ATF implements the inspection programs for federal firearms licensees (“FFLs”) and federal explosives licensees (“FELs”) through Industry Operations, which is the regulatory enforcement section under the Office of Field Operations. The Deputy Assistant Director (DAD) of Industry Operations at ATF headquarters is responsible for directing and coordinating both the FEL and FFL compliance inspection programs. The DAD of Industry Operations reports to the Assistant Director for Field Operations. The FFL and FEL compliance inspections are conducted by Industry Operations Investigators (IOIs) at the respective ATF field division. IOIs do not have legal authority to arrest individuals, they do not carry firearms nor do they conduct criminal or undercover investigations.

A. ATF Warrantless Inspections of Federal Firearms Licensees

In Small Arms Review, Vol. 19, No. 10, p. 16 (Dec. 2015), “Legally Armed” examined ATF’s inspection authority under the Gun Control Act of 1968 (GCA), 18 U.S.C. §923(g)(1)(A). For review, the following are the critical points of ATF’s statutory ability to conduct warrantless inspections of FFLs:

1. Congress authorizes ATF to inspect federally licensed manufacturers, importers, dealers and collectors of firearms without reasonable cause or warrant in limited circumstances: