International Legal Affairs: V7N4
Recalls and Warrantees
Firearms, like most mechanical items, occasionally break. Parts can fail, and barrels become worn. If the firearm was made in the United States and is used domestically, there’s usually no issue in getting the firearm repaired. The owner finds a competent gunsmith to effectuate the return, or contacts the manufacturer. But what happens when the firearms has been exported out of the U.S.? How does a foreign firearms owner fix a U.S. made rifle when there may not be an overseas service center or competent gunsmith available?
For years, critics have accused Remington Firearms of designing a defective trigger for the Model 700 rifle. Multiple class action lawsuits have been filed against Remington, seeking a repair or recall of the alleged defect. On April 16, 2015, a preliminary agreement was approved in U.S. Federal Court by U.S. District Judge Ortrie Smith. The preliminary agreement endorses a settlement of several class-action lawsuits filed by consumers who said the Model 700 and other Remington rifles are defective and dangerous.
It is important to note that this is a preliminary settlement. Remington does not admit the trigger mechanism is defective and denies any wrongdoing. In addition, Remington’s offer to replace the trigger mechanisms on millions of rifles won’t be final until Smith issues a final order after a hearing scheduled in December 2015. The proposed rifles include the Remington bolt-action model 700, Seven, Sportsman 78, models 673, 710, 715, 770, 600, 660, XP-100, 721, 722 and 725 rifles, and could total over 7.85 million firearms. Without question, some of these firearms were exported out of the United States.
Thankfully, Remington maintains a robust international service and repair network. A full list of international service centers may be found on Remington’s website at: http://www.remington.com/pages/support/parts-information/international-authorized-repair-centers.aspx
Nevertheless, not every U.S. firearm manufacturer maintains an international network of repair centers. What happens if a firearm needs to be returned to the U.S. for repair? How does one temporarily import (and presumably, re-export) a rifle made in the U.S.?
The U.S. State Department governs the import and temporary import of ITAR restricted items into the United States. In contrast, the U.S. Department of Justice, Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) governs the permanent import of firearms into the U.S. Since the subject firearm would be coming into the U.S. for repair and being returned to the owner, a temporary import would apply. It is important to note that although this article discusses the temporary import of firearms, the same guidance may also apply to other ITAR restricted items, such as ITAR regulated optics or electronics.
Perhaps the easiest method of temporarily importing a firearm into the U.S. is use of an import permit exemption. Firearms made and exported from the U.S. may be temporarily imported back into the U.S. under 22 C.F.R. 123.4(a)(1). Imports under a 123.4(a)(1) exemption are fairly easy – as long as the basic requirements are met. The firearms being returned must be of U.S. origin. In addition, the customs entry into the U.S. must reflect that the goods are being imported under exemption. If the firearms do not enter the U.S. properly under exemption, an export permit may be required to subsequently return the firearms to their foreign owner. While in the U.S., the firearm may be serviced, to include inspection, testing, calibration or repair, including overhaul, reconditioning and one-to-one replacement of any defective items, parts or components. The temporary import may not be enhanced, upgraded, or otherwise altered to change he basic performance of the item. Finally, the temporary import must be returned to the country from which it was imported.
In terms of cost, items imported under a 123.4(a)(1) exemption will not be subject to A U.S State Department license application fee. Shipping charges and customs clearance fees will likely apply. As the customs entry is very specific and nuanced, the cost for customs clearance may be slightly greater than a more common type of entry, especially if U.S. Customs agents are not familiar with the requirements of the exemption.
What about cases where the import will be upgraded and enhanced, or is not of U.S. origin? In these cases, a DSP-61 temporary import license would be appropriate. The application for a DSP-61 is scrutinized by the U.S. State Department, and requires that the applicant describe the transaction with appropriate documents. The required documents will vary depending upon the work to be performed and the type of article being imported. In general terms, U.S. State Department will ask for documents describing the 5 Ws: Who, What, Where, Why, and When. In other words: Who owns the item being imported into the U.S.? Who will perform the work? What work is being performed, and how will the item be enhanced or upgraded? Why does the work need to be performed? When will the item be re-exported from the United States? Answering these questions with documents that describe the transaction will likely result in the U.S State Department agreeing to review (but not necessarily approve) the temporary license application. The license fee is $250, and once approved, the temporary import license is good for four years.
As noted above, shipping charges and customs clearance fees will apply to either type of import. In some cases, the shipping charges may be significant. In the case of a defective rifle, the shipping costs alone may far exceed the value of the rifle being shipped.
Readers are cautioned against looking to 22 CFR 123.28 as a possible exemption to allow the export of repair items. On March 11, 2011, the U.S State Department proposed a rule allowing the export of parts for the repair of previously-licensed US-origin defense articles. Although proposed, the rule never took effect, and as of publication, has not been implemented. There are other exemptions within the International Traffic in Arms Regulations (ITAR) that may fit individual situations. As with all exemptions, the rule must fit the situation exactly, and responsibility for using the exemption properly lies with the U.S. party relying upon the exemption.
The required supply and logistics for the repairs proposed by Remington are massive, and will likely take years to complete. Thankfully, Remington has the resources to accomplish such a gigantic task – to include international service centers that can perform the necessary repairs. Thankfully, there is a means by which the repairs can be made for foreign owners of the affected Remington firearms. For others, take comfort in knowing that if a U.S. made firearm is damaged or needs repair, it can come back into thhe United States with a minimum amount of hassle and paperwork.
Mr. Wong is a Washington licensed attorney. He regularly provides legal counsel to the firearm and defense industry via his law firm, The Firearms Law Group. Mr. Wong also maintains Hurricane Butterfly, an import/export company that assists firearm manufacturers and foreign buyers wade through the regulatory morass of U.S. import/export regulations.
The guidance provided within this article was correct and current at the time it was written. Policies and regulations change frequently. The preceding article is not intended as legal advice, and should not be taken as legal advice. If the reader has specific legal questions, seek competent legal counsel.