International Legal Affairs: V8N1
Dealing with the U.S. Government: U.S. State Department versus the Bureau of Alcohol, Tobacco, Firearms, and Explosives
Dealing with the U.S. Government is not always the easiest or most straight forward exercise. Numerous Federal agencies are involved in the import and export of arms from the United States – U.S. Customs, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), the U.S. State Department, the U.S. Commerce Department, and even the U.S. Census Bureau. The two main agencies are obviously the State Department, and ATF. While both agencies have defined roles in the import and export realm, there are surprising overlaps within the two agencies.
Exports from the United States
When dealing with exports from the U.S., we often talk of ITAR, DDTC, and the U.S. State Department. The U.S. State Department is currently tasked with the review and approval of most export licenses. Centerfire rifles, crew served weapons systems, ammunition, and explosives are all governed by the U.S. State Department. These exports are normally conducted on a DSP-5 export license for permanent exports from the U.S.
One would be led to believe that the U.S. State Department is the de-facto authority on export of firearms from the U.S., but this would not be true. For the export of shotguns, shotgun ammunition, night vision equipment, and some body armor, the U.S. Commerce Department governs. The U.S. Commerce Department has its own forms and license submission process; in general terms, the forms used by the U.S. State Department are not compatible with the forms used by the U.S. Commerce Department in seeking export approval.
To add further confusion to the export process, ATF get involved in the export of firearms governed by the National Firearms Act (NFA.) NFA-regulated firearms are recorded within an ATF managed registry that tracks for all NFA firearms within the U.S., whether assigned to a police department, a firearms dealer, or an individual. When an NFA registered firearm is exported, ATF requires the submission of an ATF Form 9 for export approval. This author has often argued that the ATF Form 9 should be a notice-based submission – ATF should have no discretion to “approve” an export when the U.S. State Department has already given its blessing to the export transaction via an approved DSP-5. As an aside, there is a basis for such notice-based filings, most notably the ATF Form 2, informing ATF that a manufacturer has manufactured an NFA firearm. In an ideal world, an ATF Form 9 would merely serve as notice to ATF that an NFA firearm has been exported, and that the NFA registry needs to be updated to reflect the export. Sadly, this is not the state of the ATF Form 9.
Submission of an ATF Form 9 requires the inclusion of an approved U.S. State Department DSP-5 as a required document. As a result, there’s really no basis for ATF to deny a Form 9 except possibly for errors in descriptions or serial numbers. Nevertheless, under the current regulations, ATF requires an approved Form 9 prior to shipping any NFA firearm from the U.S. Submission of an ATF Form 9 can typically add 30 days or more to the approval process needed for an export transaction.
Imports into the United States
Imports into the United States require (in most cases) an approved ATF Form 6. Bear in mind that there are many exceptions to this rule; far too many to list and cover within this brief space. The ATF Form 6 process is pretty straight forward – licensed importer sends in a completed Form 6 application, the application is reviewed by ATF, and the application is either approved or denied. This is probably the most basic and easiest means of importing firearms into the U.S. Potential issues arise when attempts to import firearms deemed “non-sporting” by ATF are pursued.
The import of NFA firearms into the United States can pose issues for importers. ATF is unlikely to grant an import unless specific documentation is provided from a law enforcement agency or the U.S. Government. This paperwork may not always be available, particularly when firearms are being imported into the U.S. for use within a trade show or exhibition. In some cases, a previously exported firearm may need to be returned to a U.S. manufacturer for repair. In these cases, a temporary import may be better suited to the transaction. Recall however that ATF only governs permanent imports into the United States. Likewise, NFA firearms that are not recorded within the NFA registry (generally) do not require ATF oversight. Instead, for the temporary import of a firearm into the U.S., we turn back to the U.S. State Department for review and approval.
The temporary import of firearms into the U.S. is governed by the U.S. State Department via the DSP-61. Use of the DSP-61 allows importers wide latitude in describing a number of different situations and transactions. As discussed above, the temporary import of a firearm for use and display at a trade show is one use. In the case of NFA firearms transiting the U.S. – namely, from one foreign manufacturer to an end user in a third country, a DSP-61 is needed as a form of transit license. Approval of a DSP-61 in these cases is not automatic, and are sometimes denied.
One experience involving a DSP-61 comes to mind, where a Chinese based manufacturer was legally exporting shotguns to Canada. While legal in both China and Canada, the shotguns met the U.S. definition of a short barreled shotgun. As a result, the shipment required an approved DSP-61 to transit through the U.S. from China to Canada. The sporting shotguns (that is, the shotguns with barrels longer than 18-inches) passed through the U.S. without ATF or State Department involvement or oversight; it was the short barreled shotgun characteristics that invoked State Department governance.
Submission of a DSP-61 was submitted on behalf of the Canadian importer, where it was reviewed and ultimately denied by the U.S. State Department on the basis of foreign policy. The end result required the Canadian based importer to return the shotguns to China and start the shipping process from the beginning, adding significant shipping costs and delays to delivery.
Exemptions from Temporary Import Permits
There are other cases of temporary imports where no import permit is needed for the import of firearms into the United States. Most notable are cases where lawfully exported firearms are delivered to a foreign end user, but later require inspection and/or repair. In these cases, a DSP-61 could be used to affect a temporary import, but there are exemptions within the regulations that allow for faster and more cost effective transactions.
Within the ITAR regulations are temporary import license exemptions. Some of these exemptions may be found at 22 CFR 123.4. Notably, 22 CFR 123.4(a)(1) specifically allows for the import of U.S.-original defense items without an import license where the defense items are to be serviced, inspected, tested, calibrated, or repaired. Use of the 22 CFR 123.4 exemption makes temporary imports into the U.S. easy and convenient – usually one need only reference the regulation during the U.S. Customs clearance process.
Imports and exports to and from the United States are not clearly regulated, and a number of unexpected U.S. Government agencies often get involved in international transactions. Knowing the commodity being shipped, knowing the applicable regulations, knowing how to apply the applicable regulations, and knowing how to structure a transaction all lead to a successful transaction. U.S. export reform is underway, with some aspects of exports being transferred between the U.S. State and Commerce Departments. Sadly, export reform has not come to small arms and ammunition, so these commodities are still governed by the U.S. State Department. At this time there is no discussion of reforming U.S. import controls.
While most U.S. based importers are well versed in the regulations, there are times when an outside expert may be needed. In these cases, a penny spent on prevention may prevent a pound of aggravation. The cost of an expert may add to the final cost of the transaction, but ultimately ease the transaction through the regulatory scheme.
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 manages Hurricane Butterfly, an import/export company that assists firearm manufacturers, resellers, and collectors from around the world wade through the regulatory quagmire of U.S. import/export regulations. He may be found online at HurricaneButterfly.net
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.