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Firearms Regulatory Accountability Coalition: Taking On The BATFE

LEARN HOW FRAC IS HOLDING THE BATFE ACCOUNTABLE FOR CONSISTENCY IN GUN LEGISLATION AND LAW ENFORCEMENT

There are numerous advocacy groups for firearms manufacturers and gun owners in the United States. The nonprofit Firearms Regulatory Accountability Coalition (FRAC) may not be making the headlines, but it has a unique mission. 

It holds the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF or BATFE), a government agency with little oversight, accountable for its “arbitrary and capricious” interpretation of current gun legislation.

Where most 2A advocacy groups operate like government watchdogs, FRAC wants to address potential firearms regulations with members of Congress before they become issues on Capitol Hill. 

When it does become a bigger issue, FRAC looks to make sure the BATFE is consistent with policy and when it’s not, FRAC wants to ensure gun owners and industry have a means to challenge the BATFE on its inconsistencies. We spoke with FRAC CEO and U.S. Army veteran Travis White to talk about FRAC’s current focus, its past victories, and its vision for the future.

In the summer of 2021, FRAC worked with Congressman Richard Hudson (R-NC) along with Hero Hunt to bring disabled veterans to the nation’s capital to educate policy makers on how the Biden Administration and DOJ/ATF are going after orthotic devices like the stabilizing pistol brace, specifically designed to help individuals with limited mobility to safely shoot firearms.

RECOIL: Tell us about yourself and what the Firearms Regulatory Accountability Coalition is about?

Travis White: Both myself and the chairman of our board are vets. Prior to this, I worked as the chief deputy prosecutor in a rural county in Idaho. I am an attorney, but I don’t currently work in this position as an attorney. I went to undergrad on the East Coast and attended the University of Wyoming College of Law. I was a SAW gunner in the infantry in Iraq in 2009 and Afghanistan in 2010. We are a veteran-run organization. 

I was working as a prosecutor in rural Idaho and some industry contacts reached out to me and said, “We think you would be well-suited for this job.” They offered it to me, and I looked at what was taking place in this country and made the decision that this was a cause that I needed to stand up for, so I took the position in January 2021.

The industry looked out across the playing field —  or maybe you want to liken it to a legal battlefield — and they noticed that there’s a lot of organizations that do wonderful work, but they focus very broadly on Second Amendment issues. They can sometimes be industry-specific, sometimes can be consumer specific, so there’s that broad Second Amendment focus with a lot of these groups. The industry wanted to put together an ATF-specific, ATF-focused, watchdog group that was just looking at the ATF’s conduct and the regulatory stuff coming out of them. So that’s us. 

So what does that mean? A lot of the general public might look at FRAC and say, well, it’s [about the] Second Amendment. Guns equal the Second Amendment. But in legal terms, we focus a lot on the administrative procedure side of things with Second Amendment ramifications, so we are a regulatory-focused watchdog group with Second Amendment implications involved, but we’re more down in the weeds on the ATF side of things, as opposed to that broad Second Amendment civil rights focus.

In the fall of 2021, FRAC sponsored a Congressional Staff Briefing with House and Senate policy staff discussing the harmful impact of ATF regulations to millions of law-abiding Americans. (Left to right) FRAC’s outside counsel, Travis White (CEO of FRAC), special guest speaker Tim Harmsen (Military Arms Channel), and Alex Bosco (founder of SB Tactical).

What does it mean for FRAC to be “in the weeds on the BATFE side of things?”

TW: When the ATF does things that are crazy and unhinged, we need to know about it and we need to take decisive action on that, on the front end with congressional circles and potentially on the back end with litigation.

Two days ago [March 2, 2022], we had reports coming up of the ATF retroactively invalidating certain Form 1 registrations and even moving to withdraw approved registrations for things people already have, as well as denying people’s Form 1 applications for their suppressors based on frivolous allegations of some kit thing that the ATF has decided after the fact and based on secret guidance that they don’t share with people that they don’t like. 

That would be an example of something that’s “arbitrary and capricious,” which are actual legal terms, just sort of off-the-cuff government conduct that’s not grounded in reality or reached through any rational decision making.

FRAC and industry representatives meeting with Congressman Greg Steube (R-FL) during a FRAC-led

Like the stabilizing brace ban?

TW: The prime example is the arm bracing issue. The brace issue is something that we’re big on, especially since it transcends so many sectors of the industry. 

Right at the onset of FRAC being stood up, the ATF saw manufacturers posting videos and pictures of people holding them to their shoulder, so they stepped in and said, “These aren’t braces, because they aren’t being used as braces.” They kind of got themselves in a pretzel because there wasn’t really a way under the law to restrict something based on how it was used.  

They pushed forward with it anyway, saying you can’t shoulder it. When that got overturned, the argument became, “Oh, well, there’s tons of these out there, people are using this as a loophole to get around the NFA, and we don’t like the fact that companies are doing this and rubbing it in our faces.” So there wasn’t a public safety issue behind it; it was more that the attorneys at ATF didn’t like the fact that there’s so many of these out there and, allegedly, no one was using them correctly — or not enough people were using them correctly — as braces.

At the end of the Trump administration, that brace rule was withdrawn. There was a lot of coordination behind the scenes and some very high-level conversations and pressure. It’s just an example of the sort of things we’ve dealt with, a previous victory that was right before my time, but that was worked with the team I now have, a real-life thing that we were able to address.

Why is it important to focus on a single government entity? 

TW: The ATF’s broad regulatory authority is, to date, unaccountable. They’ve been delegated by Congress administrative rulemaking authority. So you have enabling statutes that delegate administrative agencies rulemaking authority, like legislative rules and interpretive rules. And then they get deference as well when they make those rules. 

The courts have different levels of deference that come into play for a court to defer to the judgment of an administrative agency when it promulgates its rules. So you end up with an unaccountable process from an agency with broad regulatory authority. We’re going up a hill when it comes to trying to rein that in a little bit, to bring it some accountability, transparency, and fairness, right?

I think when you have any agency that has this much authority in a given field of regulation, you need to have an organization or organizations that are looking squarely at them. I fully support the various other organizations that are looking more broadly, including the civil rights aspect of the Second Amendment, and that’s awesome. I consider them allies, and I wish them all the best and success, but we’re squarely focused on the ATF and, given their history of abuse and the broad authority that they have in this field, I think that that’s certainly necessary.

Jason King, a FRAC director and head of industry outreach, Travis White, FRAC’s CEO, and Adnan Jalil of Alpha Strategies meeting with member companies at SHOT Show 2022.

How does FRAC question that kind of broad authority?

TW: I think sometimes the best offense is a defense, but you still gotta be ready to go on offense. We are looking at potential litigation on several issues down the road, but we like to keep our feelers out in ATF and industry channels to see the issues as they come and try to front-load that in terms of reaching out to Congress, making sure they’re educated and informed, sitting down with Congressional members, and getting ahead of these issues.

The whole purpose of creating FRAC was to have a presence in Washington and find out when regulatory actions are taken against them. I think that’s the whole reason for why we exist; we bring on folks that have the right experience politically. My team has worked with democrats and republicans for over two decades, and so you want to pick your allies in Congress very wisely. We’re able to do that because we have set up relationships.

What happens when you can’t exactly get ahead of the regulation?

TW: So, there is no process right now at the ATF to appeal something formally. You get a determination letter, and if you don’t like what the determination letter says, you can try to fight with ATF over it internally. But there’s no actual ladder to go up. Your next actual legal option is to jump into U.S. District Court and sue them on it.

It doesn’t really happen that often because it’s so expensive, so most gun companies don’t do it. You’re looking at six-figure numbers to pay an attorney to sue the federal government. It has worked in the past, but that’s more of a recent development, probably within the last 10 years. I can think of two instances where a federal determination has been questioned or challenged successfully in the courts.

Congressman Steve Scalise (R-LA), House Minority Whip, and Congressman Richard Hudson (R-NC) with disabled veterans during a press briefing specifically addressing the direct impact to veterans if the stabilizing brace rule is finalized by the DOJ/ATF.

Does that have a chilling effect on the industry?

TW: If you’re an industry member and you develop a new technology, unless it’s a technology that clearly unequivocally fits into a certain category, they get a determination that says, “This is how we [BATFE] categorize this.” Then, the industry member takes that and goes down that avenue of putting that product to market with that corresponding path of regulatory overhead.

It’s a critical step for most new cutting-edge technology to get that letter of determination issued from ATF so they know how to proceed. That gives them some clarity to be able to proceed to market. When you have a process that industry has to rely on that’s entirely unaccountable, it creates the conditions for ATF to be able to kill technology before it’s born. Sort of regulatory canceling of that technology before it comes to fruition, and so that is what the ATF Accountability Act was aiming to rein in.

What would the ATF Accountability Act of 2021 do? 

TW: It would establish a process whereby you can appeal rulings affecting ATF determination letters up the chain. It would give you two options. You could appeal to a director of industry operations for the ATF, of which there’s several regional ones across the country. 

Or you can appeal it straight up to the administrative law judge, appointed by the Department of Justice, and you would kind of have a hearing, kind of like a mini-trial. In either of those cases, if you don’t like the outcome, you can appeal it to a Federal court.

The ATF doesn’t like it because it puts a non-partisan body in place who can question their determination on what they did. They have a problem with it because they, in their view, should have the final say: they are the experts, and no one should question them.

Adnan Jalil with Alpha Strategies LLC, during a trip to Boise, Idaho, visiting Senator James E. Risch (R-ID), ranking member on the Senate Foreign Relations Committee, to discuss regulatory issues facing the firearms industry and the critical role U.S. firearms manufacturers and innovators play in defending democracies around the world.

What’s the status of the bill? 

TW: We’re working on getting more close sponsors right now. But I think the focus on Capitol Hill is to really educate Congressional staff, House, and Senate members on these ATF regulations. I think we’re just waiting for the right time so that come November, we’re positioned well, the legislation has a ton of cosponsors, and then we can really move it forward from there.

There was a discussion about it on the floor of the Senate, you could probably look it up, where Dick Durbin got into it with a Senator from Indiana over the ATF Accountability Act. I think Dick Durbin’s overall argument was something to the effect of “ATF needs to be catching bad guys and we don’t have time to be fighting over determination” or something like that.

Is that true?

TW: The administrative side of the agency is not gonna be out catching bad guys regardless how many bad guys are out there. That’s the job of the special agents, and they’re not gonna be sitting behind the desk working on these determinations. So it’s really just a fallacy, it’s not an honest argument that they’re making. 

It’s a pretty standard argument the ATF makes anytime someone tries to challenge their power, they’ll just immediately fall back on, “Oh well, we need to be out there catching bad guys.” It’s like, well, that’s not the entire role of your agency. You also are there to regulate the industry and you’re not doing it properly, so this is here to put a check on you for that

.

And that’s really what our focus is: the regulatory side of this. Obviously, that goes hand-in-hand with the enforcement side, making sure that the initial regulatory process is done with mechanisms for accountability in place. The word accountability is literally in our company’s name, so we want accountability, transparency, and fairness to transcend the ATF’s conduct. “ATF: Accountability, Transparency, and Fairness” is what we want from the ATF.

Jason A. Davis is a director at FRAC and founder of The Davis Law Firm in California. With more than 35 years of experience in the firearms industry, Davis has focused primarily on representing firearm industry members in introducing new technologies and designs and navigating legal compliance issues with the ATF and state regulators.

So what can supporters do to help? 

TW: I think the first thing is just to get educated, right? Be aware, follow FRAC. We’ve got a webpage FRACaction.org. We’ve got social media; we mainly use Instagram. So they can follow our postings on there, and do their own independent research on these issues. Then, secondly, if they’re able to, please support us. Any donations they’re able to give goes a long way. We’re very grateful for those. Finally, they can take action directly with their elected officials by writing letters and making their voices heard on these issues with their members of Congress. 

WHERE TO FIND FRAC?

Firearms Regulatory Accountability Coalition Website

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