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ATF FFL audit rules?

Discussion in 'Legal' started by Ryanxia, Aug 16, 2013.

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  1. Ryanxia

    Ryanxia Member

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    I'm looking to find some source information on what the laws are during an ATF audit of an FFL?
    EDIT: My term of audit = compliance inspection.

    Also looking for source information (or to be pointed in the right direction) on whether an FFL must allow an ATF agent to look through his books ALONE without the presence of the owner or even local PD, during an audit or investigation. (I believe the answer to be no but looking to back it up).

    Lastly, if there is any appeal procedure to an administrative warrant on an FFL?

    I know these are specific questions, I've done some looking around but hoping my THR buddies can come through. I've pulled up a few sites from the sticky threads in the legal section and am going to start looking through the walls of text. :)

    Thanks in advance for any help. This is of course purely hypothetical..
     
    Last edited: Aug 16, 2013
  2. dogtown tom

    dogtown tom Member

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    What exactly do you mean by "audit"?
    ATF is limited by Federal law to no more than one compliance inspection per year. A compliance inspection is limited to the dealers bound book, 4473's, Multiple Sale forms, and firearm inventory.

    Any examination of the dealers records beyond a compliance inspection is limited to criminal investigations.........either a firearm trace (typically done by the dealer) or a criminal investigation of the dealer himself.



    During a compliance inspection the IOI will usually request the dealers presence to answer any questions or to assist.

    In a criminal investigation I seriously doubt that any law enforcement agency would allow the subject to sit side by side with agents while they collect evidence or review files.

    If the dealer is not the subject of the investigation, I see no reason why he would not be allowed on his own business premises. I believe ATF would be skewered pretty good if they wouldn't let me in my own house while they are oggling my books.:D




    Not sure what you mean by this.:confused:
    A search warrant is issued during a criminal investigation to uncover evidence of a crime. Once signed by a judge its valid.
    An appeal is filed when you get an unfavorable ruling, administrative penalty or conviction.You don't appeal a search warrant, you appeal the judgement, conviction or penalty.

    ATF has to follow due process and there are procedures to follow when they spank the dealer for errors or ommissions in his records.
     
    Last edited: Aug 16, 2013
  3. Ryanxia

    Ryanxia Member

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    Thanks for your reply Tom. Let me clear a few things up.

    When I said audit I mean compliance inspection. Basically looking for rules on what they are allowed to ask for, can they photocopy/photograph forms/books during an inspection? Can they go back further than a year (I know the FFL has to keep records for 20 years).

    During the IOI compliance check/investigation I'm referring to the legality of the IOI asking the FFL owner to leave while he goes through the records.

    Also, when I used the term investigation I'm referring to a regular investigation of a customer, not the FFL.

    The administrative warrant is something I was told is gotten to dig further into FFL records then is generally legal. To my knowledge during a compliance check the IOI is only allowed to go back one year.
     
  4. dogtown tom

    dogtown tom Member

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    Yes, the IOI will usually have a portable copier/scanner. ATF regs prohibit the IOI from removing 4473's, bound books etc UNLESS he has a warrant to do so. Just about the only time this would happen is when they are actively engaged in a criminal trace and need to preserve evidence. They will give you a receipt for any records removed. This would be highly unusual except in a high profile case.



    Yes they can. But typically they will go no furthur than the date of your previous inspection.

    It's YOUR business premises...........it doesn't shut down because ATF is conducting a compliance inspection. If the IOI asks you to leave, ask for his supervisors name and phone #.



    Criminal investigation of a customer (as opposed to a compliance inspection) is wholly different............you may be asked to leave the room, stand in the corner or butt out, but they cannot ask you to leave your licensed premises.



    A compliance inspection can review any of your records for any length of time. I've never heard any dealer mention a "one year rule" and have never found such limitation in any ATF regulation.
     
  5. Ryanxia

    Ryanxia Member

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    Thanks again Tom for the input. I am however looking for source material. Actual link to laws confirming or denying what you said. I believe a few items to be different but that's why I'm asking. Looking for the actual written laws. The ATF like any other alphabet agency still has its boundaries and I'd like to know exactly what they are. Specifically where it states that they can or cannot copy records (scanner/camera, which is making copies) and if they are within their right to make the FFL leave the room.

    The reason I ask is hypothetically some IOI's try to overstep their bounds quite often and there are plenty of situations where an FFL has pointed out they cannot do what they claim they can and they concede.

    The other reason is the hypothetical situation of the compliance inspection AND customer investigations is because of the event where an IOI might try to confuse the FFL that this is a combination of inspection/vague investigation.
     
  6. dogtown tom

    dogtown tom Member

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    Source? How about ATF?:D
    http://www.atf.gov/content/library?qt-library_tabs=2

    More specifically, read CFR 478 http://www.ecfr.gov/cgi-bin/text-idx?c=ecfr&SID=447a3002cd8fe279c52e06185d078716&tpl=/ecfrbrowse/Title27/27cfr478_main_02.tpl

    I can't point you to a law or regulation that doesn't exist.
    If there is no law or ATF regulation that says ATF cannot copy records.........then guess what..............they can copy records. Since there IS a law that says the IOI cannot remove records, the IOI's were issued portable scanner/copiers.

    In regards to asking you to leave while they inspect your records, again, there is no law or ATF regulation that mentions anything of the sort. While no regulation or law prohibits you from being in the room or on your premises, I'm quite sure that interfering with the inspection will cause the IOI to walk out. He'll come back with a search warrant and seize your records.


    Why are you worried they will ask you to leave your premises? I've talked to dozens of dealers and never has any of them been asked to leave.:confused:



    Again, if you feel the IOI is out of bounds........call his supervisor.


    It won't be confusing because you'll never know if he's interested in a particular customer and it will be none of your business if he is.

    You seem to be confused with compliance inspection vs criminal investigation. While an inspection might lead into an investigation..............they aren't done at the same tme or by the same ATF employee. Industry Operations Investigators do compliance inspections. They don't carry guns or handcuffs and don't arrest people. Special Agents conduct criminal investigations and do carry guns and do arrest people. Special Agents do not get involved in compliance inspections unless an IOI (beancounter) tells them there are criminal violations of Federal firearms law.
    If you have a Special Agent looking at your books call your lawyer.:uhoh:




    In any event 478.23 is the section that permits ATF to conduct inspections and investigations.
     
    Last edited: Aug 16, 2013
  7. Ryanxia

    Ryanxia Member

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    EDIT: Just reread your first statement in your last post. Thanks for the advise.

    I appreciate your last example of the confusion on what constitutes an inspection or a customer investigation because in my hypothetical example the IOI is also claiming to conduct a customer investigation at the same time of the inspection.

    You've been very helpful but do you happen to know of any source on that statement that a customer investigation cannot be conducted by an IOI?
     
  8. Ryanxia

    Ryanxia Member

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    Also, in this hypothetical situation the FFL was asked to leave while the IOI was given free reign of all records to copy/remove/do with as he pleases.
     
  9. theautobahn

    theautobahn Member

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    I'm just spitballing here to see what sticks, so don't beat me up too badly...

    This is a little vague, but 478.23 says...

    Does "seize" refer to the physical taking of a 4473 or could it refer to copies, scans, etc. of said form?

    And this is a stretch, but MIGHT it be inferred from the "material evidence of a violation of law" portion that they are only allowed to take / make record (scans, copies, etc.) of forms that are either filled out incorrectly (illegally) or part of a criminal investigation (in which case it would not involve an IOI anyway).
     
  10. Ryanxia

    Ryanxia Member

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    Thanks autobahn. That's the kind of referencing I'm looking for. (Even if it does cause more of a headache lol)
     
  11. dogtown tom

    dogtown tom Member

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    Well, again my source is ATF. Start on their home page and click on "Careers"......that will explain the various job duties in ATF.

    I would imagine a significant number of criminal investigations of customers began with an IOI seeing something odd in a dealers books or 4473's. They would also assist criminal investigations by performing traces.
    Their job description is pretty clear:
    Enough with the hypothetical BS please. If it isn't you being inspected you don't have first hand knowledge and aren't likely getting the whole story. That said, an ATF IOI could ask the dealer to stand on his head in the corner.......doesn't mean the dealer has to do it. In you hypothetical you say the IOI was free to "copy/remove/do with as he pleases".....that simply isn't true. ATF regs and Federal law is clear.....he cannot remove records at will. See the last paragraph of 478.23


    Again, this is why the IOI is issued a copier! Making copies isn't "seizing" anything.:banghead:
     
  12. Ryanxia

    Ryanxia Member

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    I will continue my hypothetical questions. Like you said, the IOI could ask the dealer to stand on his head, doesn't mean he has to do it.. Where can I see what he has to do and what he doesn't? Because without citing actual laws it's all hearsay. If you just want to offer opinion I still thank you but I'm looking for the actual current laws.
     
  13. dogtown tom

    dogtown tom Member

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    No, you just want to engage in mental masturbation in a hypothetical sense.

    I've posted the link to the ATF Library where you can find every Federal law related to firearms. I also posted a link to CFR 478 Commerce in Firearms and Ammunition where you can read regulations that apply to dealers.

    Knock yourself out sunshine.
     
  14. Ryanxia

    Ryanxia Member

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    You edited one of your posts to add those links, my apologies I did not see them. I will certainly read them. Thanks again.

    EDIT: Also please don't be inappropriate, I'm not engaging in 'mental masturbation' I just chose to treat this as a hypothetical situation. If you disapprove that's your choice. Thank you again for your input.
     
    Last edited: Aug 17, 2013
  15. theautobahn

    theautobahn Member

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    Let's start over...

    Gentlemen, gentlemen... we're all on the same side here. :D

    With some more information on the situation gained after the posts above, I think the question should be...

    If the FBI is not legally allowed to record SN's and other firearms information during the NICS check because it would constitute a "registry", how is the ATF scanning 4473's or A&D pages any different than the FBI taking the information during the NICS check?

    And as far as making copies of records, when you read section C along with section D of 478.23, I would say that copies are not allowed.

    Section C relates to IO investigations and says that an IOI is allowed once per year "...for the purpose of inspecting or examining the records, documents...". It doesn't say anything about copying or scanning.

    Section D relates specifically to seizing records or documents that are proof of violations of law, not seizing anything during the course of a normal IO investigation.
     
  16. dogtown tom

    dogtown tom Member

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    Because Federal law specifically prohibits the FBI from keeping records of approved transactions beyond the end of the NICS business day.
    There is no Federal law prohibiting ATF from copying 4473's.



    Really?:rolleyes:
    Based on what?
    Nothing in either of those says anything about making copies.




    Exactly. It also does not say the IOI cannot make copies.




    If you think making copies is the same as seizing records you need to read a dictionary.
     
  17. theautobahn

    theautobahn Member

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    Jeez, I'm usually the one making snarky, sarcastic comments (although usually not in such an instigating way).

    Generally, laws are written to PROHIBIT acts. However, some laws (as above), are written to provide a course of action or state what IS allowed.

    Section C states that the ATF "MAY" do one IOI per year "for the purpose of inspecting or examining the records, documents, firearms, and ammunition..."

    If you think "inspecting or examining" is the same as "copying or scanning", then I would submit that you keep your dictionary as you need it more than I do.
     
  18. dogtown tom

    dogtown tom Member

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    I never made such a statement , nor did I try and link the two.

    If you had any idea of Federal firearms law or ATF regulations you would understand why an IOI would tote around a copier.
     
  19. theautobahn

    theautobahn Member

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    This whole thread is about confirming that the investigator performing an IO is allowed to copy / scan 4473's and/or A&D's. So I would submit that if YOU had any idea of "Federal firearms law or ATF regulations in relation to an IO investigator toting around a copier" (paraphrased), this thread would have been much, much shorter. But I have yet to see where you cited which law or regulation allows them to make copies of said documents, which would basically be creating a gun registry.

    Geez, the FBI isn't allowed to keep records, so let's try to create a loophole in which the ATF can create records during their IOI's. And it blows my mind how many FFL's roll over for this. :banghead:
     
  20. Frank Ettin

    Frank Ettin Moderator

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    Quite enough bickering.

    The OP's friend has really life questions. For an authoritative answer he should consult a qualified lawyer or put his questions in writing to the ATF.
     
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