ATF’s new lost-in-transit reporting requirements for FFLs: how to comply

As specialists in the complex realm of firearm logistics, we’re no strangers to sorting through complex regulations.

In fact, it’s in our mission statement to “transform complex international trade into surprising simplicity” — something we do by rigorously studying the regulations then building systems to efficiently accomplish a goal while maintaining strict compliance. While international firearm logistics are our historical specialty, as a Federal Firearms Licensee (FFL) we’re also under the authority of the ATF’s domestic firearms regulations.

Summary

Among the many Executive Orders announced by President Obama in January 2016 was a final rule from ATF regarding the requirement for FFLs to report firearms stolen or lost in transit. The new requirements come into effect on February 11, 2016. Without getting into the politics and legal considerations around such a rule, the rule as it is written is unclear when it comes to real-life implementation, namely in the way an FFL is required to record such records in their required Acquisition and Disposition (A&D) bound books. Here we’ll digest the 42 pages of fine print in the official ATF document (available at this link) into practical real-world application for FFLs.

Background on ‘Acquisition & Disposition’ (“A&D”) Records

FFLs are required to keep precise and detailed records of each firearm they receive (‘acquire’) and sell or transfer (‘dispose’). These records include factors such as the date received or transferred, the name/address/license number of whom the firearm was acquired from or disposed to, and detailed information about the firearm including serial number, manufacturer, importer (if any), model, type and caliber. These records are kept on-site at the licensee’s premises in a precise format and are subject to warrantless inspection by ATF, the result of which can be revocation of a license in the case of a recordkeeping violation. In the absence of a national firearms registry in the U.S., these A&D records are used to facilitate ‘firearms tracing’ — the process by which law enforcement attempts to ‘trace’ the last known owner of a firearm believed to have been used in a crime by first contacting the manufacturer or importer, who then has 24 hours to notify ATF to whom the firearm was disposed to in their A&D records, and so forth.

By their nature, accurate A&D records can be used to determine which firearms are presently in an FFLs inventory (those which have been acquired, but have not yet been disposed). By regulatory definition and historical precedence, firearms should also only be recorded when they are actually physically acquired by an FFL, and when they are actually physically disposed from their inventory.

The Firearm Loss & Theft In-Transit Reporting Process

Here’s an example scenario of what is likely a typical ‘loss or theft in transit’ case:

1. We (Borderview, an FFL in Washington State) use UPS to ship a rifle purchased by John Smith, to his local FFL in Utah, “Tom’s Outdoors”, then record the Disposition information in our A&D records;
2. After a week John Smith contacts us, because his gun hasn’t arrived to Tom’s Outdoors. So, we track the shipment on the carrier’s website — and sure enough, it hasn’t been delivered but shows it left a UPS facility in Spokane, WA four days ago and hasn’t been scanned since.
3. We contact UPS, who confirms that the package is missing. At this point we’ve become aware of, or “discover[ed]” the loss in transit, and as the sending FFL are required under the new regulations to follow a certain reporting and record-keeping protocol.
4. We call ATF’s designated toll-free number and make a report over the phone, and complete a written Theft/Loss Report on ATF’s designated form. (This fulfills the requirement of 27 CFR 478.39a(2)(b) without any issue).
5. We then proceed to report the loss to the ‘appropriate local authorities’. This is a tough one in the case of a firearm lost or stolen in transit, as by the very nature of being ‘stolen or lost in-transit’ it’s not known exactly where the gun went missing. The regulations attempt to address this situation by saying: “If the location of the theft or loss is known, the local law enforcement agency at that location would be the appropriate local authority”, stating that otherwise our local law enforcement in our town would be appropriate. So, we’d most likely report to the Spokane Police Department. — though really the location of the theft or loss it not ‘known’ as it likely happened at any point after leaving Spokane. So far, so good — other than the inherent inability for the “location of the theft or loss [to be] known” in the majority of cases.

What’s unclear: Real-World Record-keeping Requirements for Firearms Lost or Stolen In-Transit

First, it should be said that we maintain a very good working relationship with the ATF — through their local office in Seattle, the Imports Branch in West Virginia and at headquarters in DC. We raised the questions in this section with one of the ATF Program Managers who wrote the new rule, and she assured us that she has drafted a ‘Frequently Asked Questions’ to address these concerns which should be posted on the ATF’s website in the future.

With a simple reading, the new requirements within in 27 CFR 478.39a may appear to require FFLs to make nonsensical and duplicative entries in their A&D records for firearms lost or stolen in-transit. Here’s what section (e) and (f) of the new 27 CFR 478.39a regulations say:

Disposition Entry

The new regulations require that FFLs make a Disposition entry in their A&D books to reflect the loss or theft of a firearm in-transit. However, properly completed records will already have a Disposition entry for the firearm that was shipped. So, are we supposed to make a new Disposition entry on a blank line in our books? Presumably not. Or, are we supposed to modify and notate on the existing entry? While this may not appear to be compliant with the requirement to “reflect the theft or loss of a firearm as a disposition entry“, because it would simply be a notation and not a Disposition entry, it is in fact what ATF wants. On page 29 of the ATF’s full-length document, it says:

“…ATF understands that there will be instances in which licensees must make corrections to the existing disposition information in their A&D Records to reflect the theft or loss of firearms. In those instances, the FFL should draw a single line through the disposition information. If there is room in the disposition block, the FFL should record the date of the theft or loss, the ATF-Issued Incident Number, and the local authority Incident Number. The licensee should then initial and date the changes. Alternatively, if there is no room in the disposition block to legibly record the required information, the FFL should line-out the disposition information and initial and date the change. The FFL should then make a new entry in the next available line in the current A&D Record. In that case, the FFL must enter a reference to the new book, page, and line number in the disposition side of the updated record, and use the new entry to record the date of the theft or loss, the ATFIssued Incident Number, and the local authority Incident Number.”

So, while the regulation by itself is not clear, the real-world procedure has been clarified by ATF deep within the accompanying 42 pages of text. Users of a hand-written bound book can follow the above procedure exactly as written, while software vendors will need to implement compliant solutions if not already in place.

Acquisition Entry

Seemingly even more troublesome at first glance is ATF’s requirement to “re-enter the firearm in the Record of Acquisition and Disposition as an acquisition or disposition entry as appropriate” if the whereabouts of a firearm are later discovered. Simply put, an altogether new acquisition entry would make no sense simply because a firearm lost in shipping is later found. Take our example scenario above: suppose UPS calls us back the following day and notifies us that the package has been located and will be delivered in Utah the following day. We’ve now “discover[ed] its whereabouts” and are thus required to re-enter the firearm into our A&D records. But, it would be nonsensical to make a new Acquisition entry simply because UPS told us they found the gun and will deliver it the following day. And, if we did make a new Acquisition entry it would leave an open Disposition entry, making it appear as if the firearm were still in our inventory (not to mention the fact that recording an Acquisition of a firearm not in our possession is historically non-compliant).

The real-world procedure provided by ATF for corrections to existing disposition information would actually apply in this case, too. Rather than making a new acquisition entry, the FFL should re-update the existing disposition by drawing a single line through the existing information and replacing it with the correct disposition information, and in the case of hand-written records initialing and dating the changes. Again, software vendors will need to provide compliant means for making these changes.

Conclusion

Hopefully ATF will publish an FAQ on the topic soon. Better yet, the regulations themselves should be changed to be more clear, however this seems very unlikely given the lengthy rule-making process required to do so and the fact that this was published as a final rule with the blue-ink signature of Attorney General Loretta Lynch with prominent announcement by the President.

Meanwhile FFLs should do the following:

1. design and implement a procedure to comply with the new regulations consistent with your A&D record-keeping method;
2. train employees to act accordingly when anyone ‘becomes aware’ of a firearm missing in transit;
3. larger volume shippers should consider a proactive and systematized approach to tracking shipments to ensure delivery.

Final Word

As we currently ship almost exclusively internationally and very little domestically within the U.S., this new regulation raises a different set of questions for us. We realize this is not the case for 99% of FFLs, but adding reporting requirements for the shipper of firearms begs the question of how firearms sent internationally are to be handled in the case of loss or theft in transit. While very very rare, we’d do our best to comply with the regulations as written, but it’s not altogether clear what if any jurisdiction these regulations have over shipments that have left the commerce and borders of the United States.