Prior to the implementation of 41F, trust applicants were not subject to the Chief Law Enforcement Officer (CLEO) sign-off that was required of individual applicants.
As part of 41F, this requirement was changed from an affirmative ‘sign-off’ to a mere ‘notification’. However, the notification requirement was then extended to apply to all ‘responsible persons‘ of an NFA trust.
Therefore, my trust clients often ask the question:
“Who exactly is my CLEO?”
In Virginia, this question is further complicated by the fact that we have independent cities which are separate and distinct political subdivisions from the counties which surround them (which is not the case in many other states).
So … to answer this question, one must first determine whether they are a resident of an independent city or merely a county. To do this, you may use the Locality Code Lookup tool made available by the Virginia Department of Taxation.
The good news is that once you have identified your jurisdiction, you have a number of choices which all meet the ATF definition of ‘CLEO’:
“the local chief of police, sheriff …, head of the State police, or State or local district attorney or prosecutor are acceptable”
While any of these are acceptable, I would recommend that you notify either the police chief or the sheriff in your jurisdiction. Since 41F removed the sign-off requirement and only requires notice, the selection of which party to notify is no longer critical.
IMPORTANT NOTE: As mentioned above, if you live in an independent city, you are NOT part of the surrounding county and officials serving there are NOT your CLEO.
Disclaimer: As always, this information is presented for educational purposes only and does not give rise to an attorney-client relationship. Additionally, I am licensed to practice law in the Commonwealth of Virginia and this answer may not be appropriate for other jurisdictions.
I was recently contacted by a gun owner who attempted to purchase a stripped lower from an out-of-state dealer and the dealer refused the sale. The dealer had completely confused the issue by telling him that stripped lowers must be sold as ‘pistols’.
The dealer was 100% correct that non-residents may not purchase frames or receivers from a licensed dealer. However, their explanation as to why was just plain wrong.
Let’s see if we can untangle the issue …
18 U.S.C § 922(b)(3) makes it a crime for a dealer to sell any firearm, other than a rifle or shotgun, to a non-resident.
Frames and receivers are neither handguns nor long guns.
Therefore, frames and receivers do not fall withing the exception for rifles and shotguns and cannot be sold to non-residents.
The ATF covered this in the following 2009 Open Letter to FFLs.
The part of the answer from the dealer that was wrong is his assertion that frames or receivers must be sold as ‘pistols’. This is not correct at all. The 4473 recognizes this distinction in box 16 and the associated instructions for this field.
I was recently debating with a gun control advocate about the increased burden that is imposed on law-abiding gun owners when we add more and more records to the NICS system. I was specifically discussing the prevalence of erroneous matches.
Her response to this was to dismiss it out of hand as not a problem since “there is an appeal process that they can use to correct those mistakes.”
If you are familiar with the NICS appeal process and its recent history, you will understand why I groaned at that statement. As of today (May 4, 2018), the following screenshot shows where the FBI is in processing their backlog of NICS appeals.
Let me do the math for you. They are processing appeals received two years and four month ago! This is due in large part to the fact that the FBI, during the Obama Administration, completely stopped processing NICS appeals.
To her credit, the gun control advocate admitted that this is not satisfactory due process and expressed shock at this state of affairs.
That brings us to the Fix NICS Bill which was passed as part of the Consolidated Appropriations Act, 2018. This bill amends the ‘Correction of erroneous system information’ provision of the Brady Handgun Violence Prevention Act, codified at 34 U.S. Code § 40901(g) by adding the following at the end:
For purposes of the preceding sentence, not later than 60 days after the date on which the Attorney General receives such information, the Attorney General shall determine whether or not the prospective transferee is the subject of an erroneous record and remove any records that are determined to be erroneous. In addition to any funds made available under subsection (k), the Attorney General may use such sums as are necessary and otherwise available for the salaries and expenses of the Federal Bureau of Investigation to comply with this subsection.
This seemingly imposes a hard limit of 60 days to reply to NICS appeals. However, I am less than hopeful. There are two reasons for my scepticism:
There are no penalties or requirements imposed on the 61’st day. Without that, the deadline has little meaning. This is backed up by reason number 2.
The text of the existing law (which is two years and 4 months behind) already requires that corrections be made ‘immediately’:
The prospective transferee may submit to the Attorney General information to correct, clarify, or supplement records of the system with respect to the prospective transferee. After receipt of such information, the Attorney General shall immediatelyconsider the information, investigate the matter further, and correct all erroneous Federal records relating to the prospective transferee and give notice of the error to any Federal department or agency or any State that was the source of such erroneous records.
There does appear to be funding for increased staffing in the Fix NICS bill which might provide an incentive to reduce the backlog and live up to the new requirement. We will have to watch their progress over the next few months to see if that is the case.
I received a call from a client last week asking this question. He wanted to start a business manufacturing cast bullets which he would then sell online and at flea markets. He was hoping that, because he was only dealing with bullets, he could avoid some or all of the regulatory burden imposed upon a completed ammunition manufacturer.
Specifically:
He had no intention of manufacturing any ammunition components other than cast bullets;
He had no intention of selling any ammunition components other than case bullets; and
He would simply have been manufacturing, and then selling, shaped lumps of inert metal.
Looking at it from that perspective, your initial inclination might be to conclude that he did not need to have an FFL. After all, the active components of completed ammunition are the primers and the powder, neither of which he was going to manufacture or sell.
However, the actual answer is “Yes. You do need a Federal Firearms License (FFL) to manufacture and sell cast bullets.”
“Why is this?” you ask. It is because, despite the fact that the bullet is nothing more than shaped metal, it is an ammunition component. And federal law requires you to have an FFL if you are going to ‘engage in the business of manufacturing ammunition for purposes of sale or distribution’. The specific requirement may be found in 18 U.S.C. § 923 which reads (emphasis added):
(a) No person shall engage in the business of … manufacturing ammunition, until he has filed an application with and received a license to do so from the Attorney General. The application shall be in such form and contain only that information necessary to determine eligibility for licensing as the Attorney General shall by regulation prescribe and shall include a photograph and fingerprints of the applicant. Each applicant shall pay a fee for obtaining such a license, a separate fee being required for each place in which the applicant is to do business, as follows:
(1) If the applicant is a manufacturer—
…
(C) of ammunition for firearms, other than ammunition for destructive devices or armor piercing ammunition, a fee of $10 per year.
“But wait” I hear you cry. “That says ‘ammunition’, not components.”
And you would be correct if that were where the analysis ended. But, as is often the case in statutory interpretation, one must look to the definition of terms. In this case, 18 U.S.C. § 921 provides us the definition of ‘ammunition’.
(a) As used in this chapter
…
(17)
(A) The term “ammunition” means ammunition or cartridge cases, primers, bullets, or propellent powder designed for use in any firearm.
Taking these two statutes together, it is clear that bullets are included in the definition of ‘ammunition’ for purposes of licensing. But the bad news for my client didn’t end there.
We also needed to discuss ITAR registration.
ITAR stands for the International Traffic in Arms Regulations which were promulgated to implement the provisions of the Arms Export Control Act of 1976 (AECA). The relevant section (emphasis added) is as follows:
Any person who engages in the United States in the business of either manufacturing or exporting defense articles or furnishing defense services is required to register with the Directorate of Defense Trade Controls. For the purpose of this subchapter, engaging in the business of manufacturing or exporting defense articles or furnishing defense services requires only one occasion of manufacturing or exporting a defense article or furnishing a defense service. Manufacturers who do not engage in exporting must nevertheless register.
As for what constitutes ‘defense articles’, 22 CFR 121.1 contains a complete listing under what is known as The United States Munitions List (USML). The relevant section is contained in Category III of the list in subsection f:
(1) The components, parts, accessories and attachments controlled in this category include, but are not limited to cartridge cases, powder bags (or other propellant charges), bullets, jackets, cores, shells (excluding shotgun shells), projectiles (including canister rounds and submunitions therefor), boosters, firing components therefor, primers, and other detonating devices for the defense articles controlled in this category.
The short answer is that, those licensed to manufacture and sell cast bullets are also required to register for ITAR and pay the registration fee.
So … how bad is this fee? It’s pretty bad. If you are not engaged in exporting then you would be considered a ‘Tier 1’ registrant. Therefore you would only have to pay the lowest possible fee.
A set fee of $2,250 per year is required for new registrants or registrants for whom the Directorate of Defense Trade Controls has not reviewed, adjudicated or issued a response to any applications during a 12-month period ending 90 days prior to expiration of the current registration.
These fees and licensing requirements represent a real barrier to entry into the industry and I look forward to the day when the reach of ITAR is limited to true export items.
Having said all of that, we are still left with the fact that, as it stands today, anyone who is planning to manufacture and sell cast bullets will require both an FFL and yearly ITAR registration.
In my latest article I discussed how permanently attached muzzle devices become part of the barrel length and overall length of a firearm.
With that understanding, a client asked me to revisit my earlier article about vertical foregrips. As I noted in that article, the ATF’s position is as follows:
a) Adding a vertical fore-grip to a pistol generally makes it an AOW subject to the requirements of the National Firearms Act (NFA).
b) However, if the overall length (OAL) of the pistol is greater than 26 inches then adding a vertical fore-grip doesn’t result in the pistol becoming an AOW.
Therefore, if you have a pistol with an OAL which is less than 26 inches and you add a permanently attached muzzle device such that the new OAL exceeds 26 inches then a vertical foregrip may be added to the the resulting firearm without making it an AOW.
However, as the ATF made clear in their opinion letter on this issue (see below), concealing this firearm would make it an AOW so caution is advised when transporting or using a firearm thus constructed.
Finally, since a firearm thusly configured is no longer considered a handgun, it would no longer be concealable under a Virginia Concealed Handgun Permit.
If you have any further questions, do not hesitate to contact me.
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