MEMO: ATF at a Time of Transition: Underfunded and Unduly Restricted 

Washington, DC — Giffords, the gun safety organization led by former Congresswoman Gabrielle Giffords, released the following statement and memo on the announcement of Regina Lombardo to be Acting Deputy Director of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF).

Statement from David Chipman, senior policy advisor at Giffords

“Regina Lombardo is a career special agent who has served our country at ATF for over 25 years. We support her ascension to the top role at the agency. Congress and the Trump administration must now provide the increased funding and resources she needs to succeed in an agency that has been historically underserved.”

MEMORANDUM

TO Interested Parties FROM David Chipman, Giffords senior policy adviser and retired ATF special agent DATE April 25, 2019 RE ATF at a Time of Transition: Underfunded and Unduly Restricted

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Attorney General William Barr announced this week that Regina Lombardo will begin serving as Acting Deputy Director of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) on May 1. Lombardo, who inherits the position from retiring Deputy Director Thomas Brandon, will be responsible for leading the federal agency tasked with enforcing our nation’s firearms laws and regulating the gun industry. Although Lombardo’s experiences as a career ATF official have prepared her to lead the agency, the transition from one acting deputy director to the next marks the most recent hurdle that ATF will be forced to navigate as it pursues its vital mission in the face of significant obstacles.

Many of the challenges faced by ATF are the result of a decades-long campaign by the gun lobby to starve the agency of the resources and capabilities it needs to adequately carry out its mission. Thanks to the lobbying of the NRA, only one ATF director has been confirmed by the Senate in 13 years. The gun lobby has ensured that the agency remains underfunded and understaffed, and it has successfully advocated for the creation of many appropriations riders which hamper the efforts of ATF to enforce federal firearms laws.

At a time when the number of gun deaths in America is rising , it is critical that the Trump Administration and Congress robustly fund ATF and remove harmful restrictions that prevent the agency from effectively carrying out its mission.

History and Responsibilities of ATF

ATF traces its origins back to the 19th century. At different points in its history, the agency has been involved with law enforcement, tax collection, and the regulation of the various industries under its jurisdiction. The bureau has been housed within the Department of Justice since its transfer from the Department of Treasury in 2002. Today, ATF’s primary mission is to enforce federal firearms laws and uphold public safety. It works alongside agencies such as the Federal Bureau of Investigation (FBI), Drug Enforcement Agency (DEA), and the US Marshals Service to accomplish that mission.

The agency’s involvement with guns began with the National Firearms Act of 1934 (NFA), which was the first federal regulation of the manufacture and transfer of firearms. The NFA imposed an excise tax and registration requirements on a narrow category of particularly dangerous firearms, including machine guns, short-barreled shotguns or rifles, and silencers. ATF is tasked with maintaining the records of NFA weapons and collecting all taxes associated with the transfer of such weapons. Because of this regulatory structure, NFA weapons are very rarely used in crime. ATF is also responsible for the regulation of firearms that don’t fall under the NFA as well as related devices, such as bump stocks, which are designed to make a semi-automatic rifle function like a fully automatic one.

ATF is a vital partner to local and state law enforcement in their efforts to solve gun crimes. If a firearm is unlawfully purchased by a convicted felon, domestic abuser, or other prohibited person, ATF special agents are assigned the dangerous task of retrieving the weapon. The agency is responsible for tracing hundreds of thousands of crime guns each year, using a weapon’s description and serial number to navigate a complex process that seeks to identify the first retail purchaser of the firearm. As part of this work, ATF oversees the National Integrated Ballistic Information Network (NIBIN), which allows images of any marked cartridge cases recovered at crime scenes to be compared to ballistic images previously entered into the database. When a match is found, firearms examiners are able to conclude that the same gun was used in both crimes—critical information that can be used to identify a suspect.

Finally, ATF is responsible for the regulation of federal firearms licensees (FFLs). All new guns are first sold by a licensed dealer, where the sole paper record of the transaction and identity of the purchaser is maintained. Proper oversight of FFLs is critical to keeping trafficked firearms off of the street, either through holding dealers who fail to comply with the law accountable or identifying criminals who exploit lawful dealers through the illegal straw purchasing of guns.

Gun Lobby’s Efforts to Hamstring ATF

Opponents of commonsense gun safety measures often claim that enforcing the laws on the books is all that is needed to save lives from gun violence. However, ATF special agents and investigators are intentionally hampered by restrictions conceived and imposed by the gun lobby.

Purposeful Opposition to Permanent Leaders

During the first 34 years after its establishment as an independent bureau in 1972, ATF had seven different directors. That steady pattern of leadership was upended in 2006 when the NRA successfully lobbied to require Senate confirmation for the position of ATF director. The gun lobby then opposed the nomination of a Republican US Attorney nominated by the Bush administration, as well as the head of the ATF Chicago division nominated by the Obama administration. Forced to deal with this unrelenting gun lobby opposition, the agency has now cycled through six different directors since 2006—five of whom served on a non-permanent basis, including Deputy Director Brandon. When Lombardo takes over at the start of May, ATF will have had as many directors in the past 13 years as it had in the previous 34. The Trump administration has yet to nominate anyone for the full-time director position.

The gun lobby has taken advantage of the disruption caused by frequent turnover among ATF’s leadership to make the agency more amenable to the firearms industry. Last year, the New York Times reported that senior ATF officials routinely overrule the agency’s own investigators and refuse to revoke the licenses of FFLs who brazenly violate the law. While ATF recently took a positive step towards commonsense gun regulation in banning bump stocks, the agency has failed to adequately regulate other products that are likewise intended to skirt the NFA’s intent. As a result, the gun industry is able to easily sell more of these dangerous products to more people.

Underfunded for the Mission

Only a few weeks before announcing his retirement, Deputy Director Brandon told a House Appropriations subcommittee that ATF would lose close to 400 positions under President Trump’s proposed FY20 budget. Brandon warned that ATF “won’t be able to do what it can do today” and described the agency’s funding situation as “trimming into bone.”

While other federal law enforcement agencies grew substantially in the wake of 9/11, ATF has not. The agency had fewer employees in 2017 than it did in 2002, despite tens of millions of guns entering civilian hands in that period of time. While its budget increased by 34% over the ten-year period beginning in 2005, ATF’s budget growth during that time was far outpaced by other federal law enforcement agencies including Immigration and Customs Enforcement (46%), Federal Bureau of Investigation (62%), and Customs and Border Protection (94%).

The lack of sufficient funding for ATF has significant consequences. Although ATF is expected to enforce firearm laws across the entire country, the agency has fewer special agents than the Washington DC Metropolitan Police Department has sworn officers. Agents are tasked with more work than they could ever hope to accomplish and are forced to let certain leads go unpursued. On the regulatory side, only 828 investigators are responsible for regulating 134,738 FFLs across the country. That shortage allows corrupt or irresponsible dealers to go unnoticed. A 2013 government report found that over 58% of FFLs had not been inspected in the past five years, and the Washington Post has reported that dealers are, on average, inspected only about once per decade.

Unreasonably Restricted From Performing its Duties

Unsatisfied with a lack of permanent leadership and outrageously low levels of funding, the gun lobby has also worked to handcuff ATF’s enforcement and regulatory capabilities through several harmful budget riders. Some of these restrictions have impacts that are almost unfathomable. For example, an FFL is required to transfer their records to ATF when it goes out of business, yet an appropriations rider prevents the agency from putting these records into an electronic database searchable by name or personal identification code. As a result, ATF is forced to keep warehouses full of old, rotting, paper records at its tracing center in West Virginia until they can be scanned into non-searchable electronic files. Combing through these old records to find a match is tedious work that can take days or even weeks, slowing down the pace of time-sensitive investigations.

A second rider prohibits ATF from requiring firearms dealers to conduct a physical inventory. There is therefore no guarantee that a dealer will detect a lost or stolen gun. This restriction also allows corrupt dealers to illegally supply traffickers and then claim that their firearms have simply disappeared if ever confronted by law enforcement. A third restriction included in the federal budget every year prevents ATF from asking other agencies for help in carrying out its “functions, missions, or activities.” Taken together with the other riders, it fits neatly into the gun lobby’s continued strategy of starving the ATF of funding while simultaneously precluding the agency from enforcing the law.

Time for Congress and the Administration to Act

As the appropriations process for FY20 plays out over the coming months, it is vital that Congress and the Trump administration provide robust funding for ATF and remove budget riders which unduly burden the agency. All Americans can agree that our federal gun laws must be enforced. It is time that our elected leaders empower ATF to do just that.