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FRAC, ASA Call-To-Action on eForm 1 Silencers

FRAC and ASA send letters chiding ATF for the agency operating under what they call secret rules.

We recently posted about new BATFE eForm1 disapprovals. In response to these new-and-unexplained denials, the Firearms Regulator Accountability Coalition (FRAC) released a letter calling out the agency for operating under secret rules, now signed by twenty members of congress.

This isn't the only letter currently circulating among congressional members about the lack of transparency. Republican House Judiciary Committee members Andy Biggs (AZ-5) and Ranking Member Jim Jordan (OH-4) are currently circulating another letter amongst members of the House demanding answers from ATF regarding their sudden denial of Form 1 applications. We're told this letter came about because of a flood of constituent contacts to House members.
Stealth Project Suppressors Full Lineup
While the contents of the Congressional letter won't be disclosed until it's sent to the Bureau, the American Suppressor Association (ASA) is encouraging citizens to contact their representatives with the following suggested talking points:

Encourage your Representative to sign on to the letter to ATF being circulated by Republican House Judiciary Committee members Andy Biggs (AZ-5) and Ranking Member Jim Jordan (OH-4).

Insist that ATF publish clear, understandable guidance before it attempts to make felons out of ordinary, law-abiding Americans.

ATF has approved tens of thousands of Form 1's for suppressors, many of which were made using the kits ATF seeks to outlaw. It's unconscionable for ATF to try to make criminals out of people who received or sought approval to make suppressors under ATF’s then-current understanding of the law. Rather than punish those who are following the law, ATF should focus on the criminals who aren’t.

The Hearing Protection Act (H.R.95/S.2050) would remove suppressors from the outdated and antiquated National Firearms Act, and get ATF out of the business of defining what is and what isn’t a suppressor.

The ASA has taken the extra step of integrating a direct contact form on their webpage. To help make it easier to have your own voice heard.

The full contents of the signed FRAC letter:

It reads:

Attorney General Garland and Acting Director Richardson:

We write to express our grave concern over the Bureau of Alcohol, Tobacco, Firearms & Explosives’ (ATF) continued pattern of enforcing secret guidance. This secret guidance was brought to our attention by those who have received recent threatening letters where the ATF makes blanket threats based on the recipient allegedly purchasing and possessing various firearms accessories, none of which are illegal based on any statute or regulation. These letters are in addition to an internal ATF email ordering seizure of various items and referring to those in possession as “defendants.” We find this pattern of secret regulation incredibly troubling.

In the letters, the ATF claims–without offering any explanation as to why–that popular item known as “solvent traps” and “forced reset triggers” (FRT) are unregistered silencers and machine guns, respectively, and therefore subject to regulation under the National Firearms Act (NFA), 26, U.S.C. §§5801-5872. One such letter threatens that “[p]ossession of any of the unregistered silencer devices could result in prosecution for criminal violation of Federal law” and instructs recipients to contact their local ATF field office within 30 days to “coordinate the abandonment of any silencers.” The transfer or possession of an unregistered silencer or machine gun carries with it a penalty of up to ten years in prison.

Similarly, an ATF email dated January 26, 2022 ordered ATF agents to search out and demand “voluntary” surrender of two models of forced reset triggers, or otherwise “[i]f the manufacturer/seller refuses to abandon the items, please take custody of the items, and seize them for forfeiture.” The ATF email referred to those law-abiding citizens in possession of such triggers as “defendants.” Despite the significant criminal consequences attached to the unlawful manufacture, sale and possession of NFA items, ATF has never issued any public guidance differentiating a silencer from a solvent trap, or informing the public that it considers certain forced reset triggers to be machine guns. Notwithstanding the glaring absence of any such public guidance, the classification of a solvent trap as a silencer is contrary to the plain language of 18 U.S.C. §921(a)(24).

In addition to the ATF’s threatening letters, it has recently come to our attention that ATF has formulated secret internal guidance documents “to assist ATF personnel tasked with differentiating so-called ‘solvent-traps’ from firearm silencers” and to assist “with identifying certain machinegun conversion devices commonly referred to as” FRTs.5 These documents contain summaries of the standards that the Firearms and Ammunition Technology Division purportedly uses to classify items. Disturbingly, ATF made these documents available only to those tasked with enforcing the law, rather than those who strive to comply with it. Indeed, ATF marked these documents as “Law Enforcement Sensitive” to conceal them from the firearms industry and the American public.

We find the ATF’s attempt to conceal its interpretations of the law disturbing. In a free society, “Every citizen is presumed to know the law.” Thus, as the Supreme Court has said, “‘it needs no argument to show that all should have free access’ to [the law’s] contents,” including, in addition to the text of a statute, to those materials which constitute “the authentic exposition and interpretation of the law.”

Our government, including the ATF, has a duty to inform Americans what they must do to comply with federal law, especially when the conduct involves the exercise of an enumerated constitutional right and violations could result in a penalty of up to ten years in prison. The use of “secret” law is anathema to our system of government. The United States Court of Appeals for the Seventh Circuit said, “[a] designation by an unnamed official, using unspecified criteria, that is put in a desk drawer, taken out only for use at a criminal trial, and immune from any evaluation by the judiciary, is the sort of tactic usually associated with totalitarian régimes.” 10 Yet, that is exactly what the ATF has done in this and other cases.

With this attempted secret regulation, the ATF shows an abject disregard for the fundamental principles of due process and accountable governance. Federal agencies cannot enforce the law in this manner.

In light of the above, we respectfully request that the U.S. Department of Justice and the ATF provide the following no later than March 25, 2022:

  • All internal instructions, directives, or guidance to any and all employees and/or contractors assigned to or working with the Firearms & Ammunition Technology Division containing criteria, factors, or “indicators” to be used to make the determination of whether a “solvent trap” is classified as a silencer subject to regulation under the National Firearms Act.
  • All internal instructions, directives, or guidance to any and all employees and/or contractors assigned to or working with the Firearms & Ammunition Technology Division containing criteria, factors, or “indicators” to be used to make the determination of whether a “forced reset trigger” is classified as a machine gun subject to regulation under the National Firearms Act.
  • Copies of all publications through which the ATF has made such guidance and criteria available to ATF Agents, including all Firearms & Ammunition Technology Division Technical Bulletins issued regarding “solvent traps” and “forced reset triggers”, including copies of each.
  • An explanation as to how these bulletins are used by law enforcement.
  • An explanation as to why documents with similar guidance have not been made available to the public.

The ATF is charged by law with enforcing the nation’s federal firearms laws and providing regulatory oversight of the firearms industry. ATF simply has no authority to conceal public guidance and then enforce it on unsuspecting Americans. The ATF must issue only those regulations authorized by Congress, provide notice of the proposed regulations, and then provide the American people with an opportunity to comment before a new rule goes into effect.

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