Dec. 13, 2022
News from Reeves & Dola, LLP
State Department Publishes New Guidelines for Export Compliance Programs

It's been a long time coming, but finally on December 5 the Directorate of Defense Trade Controls (DDTC) published new Compliance Program Guidelines (CPG). This 63-page document presents the following key elements of an effective ITAR compliance program (ICP): 

  1. Management commitment
  2. Registration, jurisdiction and classification, authorizations, and other ITAR activities
  3. Recordkeeping
  4. Reporting and addressing violations
  5. Training
  6. Risk assessment
  7. Audits and monitoring
  8. Compliance manual and templates

DDTC notes these elements are intended to provide a foundation for an ICP’s basic structure and function but are not exhaustive.

ATF Revises the Form 4473 (5300.9)
Firearms Transaction Record

Last week on December 7, 2022, the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") published on its website a revised Form 4473 Firearms Transaction Record. Even though ATF has not yet provided this form for public review and comment, the federal Office of Management and Budget has provided emergency authorization to ATF to immediately use the revised form because of the requirements set forth in the recently passed NICS Denial Notification Act (passed as part of the Consolidated Appropriations Act of 2022) and the Bipartisan Safer Community Act ("BSCA") (signed by the President and became Public Law 117-159 on June 25, 2022). ATF expects to officially publish the form for notice and comment review in the coming months.

The revised form will become mandatory for use on April 1, 2021, but ATF encourages all Federal Firearms Licensees ("FFLs") to begin using the amended form immediately for transfers to non-licensees. You can access the form here for download and print for immediate use, but remember to comply with the recordkeeping requirements by printing and storing the entire Form together, including the instructions. Hard copies of the Revised Form will be available through the ATF Distribution Center beginning February 1, 2023. ATF is also revising the eForm 4473 application and will notify industry when it is ready for use.

The revisions to the form are significant. Please note the following:

  • Any privately made firearm received by a FFL must now be recorded on the ATF Form 4473. “Privately Made Firearm (PMF)” has been added to item 1, Section A. It now reads: “Manufacturer and Importer, if any or Privately made firearm (PMF) (If the manufacturer and importer are both different, include both)”.
 
  • Question 10 is amended: The transferee/buyer is now asked to answer whether they “Reside in City Limits?” regarding their residence address. For example, if a transferee lists their residence city/state as Phoenix, Arizona but they actually reside outside of the city, they will answer “no” to this item.
 
  • The following two prohibiting questions have been added to Section A:
 
  • 21b: “Do you intend to purchase or acquire any firearm listed on this form and any continuation sheet(s) or ammunition, for sale of other disposition to any person described in questions 21(c)-(m) or to a person described in question 21.n.1 who does not fall within a nonimmigrant exception?”

  • 21.c.: “Do you intend to sell or otherwise dispose of any firearm listed on this form and any continuation sheet(s) or ammunition in furtherance of any felony or other offense punishable by imprisonment for a term of more than one year, a Federal crime of terrorism, or a drug trafficking offense?”
 
  • To comply with the BSCA-required 10-day waiting period on certain transfers involving transferees under the age of 21, Section C of the Form has been revised as follows: 
 
  • Prior to the NICS/POC information, an instructional header has been added stating: “Notice: If transferee/buyer is under 21, a waiting period of up to 10 days may apply where notification from NICS is received within 3 business days to further investigate a possible disqualifying juvenile record. A NICS check is only valid for 30 calendar days from the date recorded in question 27a.”

  • Item 27.c. is amended to show the date an FFL may transfer a firearm should NICS or the State agency (conducting the background check) not reply stating more time is needed for the check. It now reads next to the delayed check box: “The firearm(s) may be transferred on ____ if time period is not extended by NICS or the appropriate State agency, and State law allows (optional).” 

  • A box has been added to 27.d. should NICS or the appropriate State agency delay the check as more time is needed to conduct it on a transferee under 21 years of age. It now reads: “Notice of additional delay of transferee under 21 years of age received on  _______ (date), and may be transferred on _________ (date).”

  • Also added to 27.d. is a box for FFLs to check should no response be received from NICS or the appropriate State agency (for transferees under 21 years of age) within 10 business days after the initial delay was given. It now reads: “No response was provided within 10 business days after initial delay for transferee/buyer under 21.”

ATF encourages you to contact your local ATF Industry Operations office or FIPB@atf.gov with any questions regarding the changes to the Form 4473.
The above alert is for informational purposes only and is not intended to be construed or used as legal advice. Receipt of this alert does not establish an attorney-client relationship.

Questions about this alert may be directed to:

Johanna Reeves: 202-715-9941, jreeves@reevesdola.com
Katherine Heubert: 202-715-9940, kheubert@reevesdola.com
About Reeves & Dola
Reeves & Dola is a Washington, DC law firm that specializes in helping clients navigate the highly regulated and complex world of manufacturing, sales and international trade of defense and commercial products. We have a deep understanding of the Federal regulatory process, and use our expertise in working with a variety of Federal agencies to assist our clients with their transactional and regulatory needs.
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