Recently in ATF / BATFE Category

April 17, 2014

ATF eForms back online within the week

Today Marvin G. Richardson, Deputy Assistant Director of the ATF Enforcement Programs and Services sent a letter stating that ATF eForms is expected online this week.

  • The ATF has reduced the backlog of applications from 80,000 to 73,000.
  • Adding 15 additional staff to help process NFA applications
  • Cross training an additional 15 staff to assist in NFA processing
  • Prioritizing Form 3 and Form 4 paper application processing while eForms is being bolstered
  • Hired a private company to assist in enhancing the functionality of eForms
  • Will limit maintenance to Wednesdays
  • Will bring eForms back online for Form 6 and 6A.
  • Will allow Forms 1,2,5,9,5300.11 and 10 online over the next few weeks
  • Allow Form 4 and Form 1 processing in a new and improved eForms in the short-term
In the letter he states that electronic submission saves over 3 month in processing time, but I have personally seen that it can save a year in some cases. He further states that NFA applications re up over 380 percent in the last few years from 41,600 in 2005 to 199,900 in 2013. Many of these new applications have been because of new laws in many states legalizing suppressors and short barrel riffles. Gun Trusts have made these items available to many who live in areas where the CLEO will not sign a Form 4 or Form 1. To find out more about how a Gun Trust can help you protect your family and friends from violations of Gun Laws contact us.

This is good news and it looks like ATF is interested in maintaining eForms into the future.

April 17, 2014

Status Update on 41P

The Americans Opposed to ATF 41P reported today that the American Silencer Association has talks with the ATF during the Shot Show where the ATF stated that they never anticipated the number of comments to 41P that they received and only had one person working part-time on addressing the comments. At that time ATF anticipated that it would take a year or two before they were able to determine whether they were going to move forward and if so to what extent they would try to implement any changes.
There were several major comments to 41P including ours that can be reviewed at htttp://www.GunTrustLawyer.com/41p.html which should be able to challenge the ATF if the ATF should try to implement the changes because of the numerous violations of the Administrative Procedures Act.

So what does this mean?
We are still recommending purchasing what you think you may way sooner rather than later in case changes are made. While a challenge to the changes may be successful, there is no guarantee that it would be. The good news is that the June 1st date that everyone has been anticipating may come and go with no announcement or just a new self imposed deadline. On the other hand, the ATF may have devoted more resources since the SHOT show and may try to make an announcement in June. We are about 6 weeks away from knowing more and as we find out more or see others reporting on this issue we will keep you updated. We have been hearing that there has been a substantial increase in the number of NFA firearms that are being sold and supplies within the dealers are starting to become constrained. With the ATF removing access to the electronic filing of ATF forms, the time to replenish the supply, get permission to manufacture more, and time to obtain approval of Form 4s and Form 1s will probably increase. There is a chance that the ATF will resolve the issues with the electronic filing and this could create an opportunity for a faster processing time. To check on the status of the ATF eForms portal visit https://www.atfonline.gov/EForms/.

April 6, 2014

ATF takes down eForms "until further notice"

eforms_logo.jpgIf you were planning on submitting a form electronically to save time, you may not be able to use eForms. I logged onto the ATF eForms website yesterday and saw the following message:

The eForms software is not performing to our expectations. As a result, we are taking the eForms system down until further notice. We apologize for any inconvenience and appreciate your patience as we work with our industry partners to deliver a quality product. Any eForm submitted will continue to be processed. The finalized forms will be sent to the user via email.

Until the eForms system is returned to service for the industry, all imports forms (Forms 6 Part I and 6A), NFA forms (1, 2, 3, 4, 5, 9 and 10), and AFMER reports (Form 5300.11) must be submitted via paper, including any eForms in draft status.

Copy of submitted or finalized eForm
Direct a request to eForms.Request@atf.gov
Status queries
Contact the NFA Branch at (304) 616-4550
Contact the Firearms and Explosives Imports Branch at (304) 616-4550
Other eForms questions
Direct the question to eForms.admin@atf.gov

April 6, 2014

ATF Says it is OK to fire SB-15 Pistol from the Shoulder

sig_arm_brace_sb15.jpgIn a response to a recent letter the the ATF, the ATF stated:

FTB has previously determined (see FTB #99146) that the firing of a weapon from a particular position, such as placing the receiver extension of an AR-15 type pistol on the user's shoulder, does not change the classification of a weapon. Further, certain firearm accessories such as the SIG stability brace have not been classified by the FTB as shoulder stocks and, therefore, using the brace improperly does not constitute a design change. Using an accessory improperly would not change the classification of a weapon under Federal law. However, the FTB cannot recommend using a weapon (or weapon accessory) in a manner not intended by the manufacturer.

The Letter that Sig sends with the SB-15 states that it is ok to use the brace as intended and does not create a firearm subject to the NFA. Previously this left many concerned that if someone was to use the brace not as intended an SBR would be created. This letter from the ATF clears up the issue and states that just because an accessory was not used as intended, the firearms is not reclassified by ATF.

If you would like a copy of the letter from the ATF for your records it can be downloaded.

March 10, 2014

Straw Purchases and Gun Trusts

In the last 3 weeks we have received more calls about arrests or seizures involving the ATF and straw purchases than in the previous 7 years. (NOTE: none of these calls were from people using our gun trusts) We felt it important for individuals and those involved with Gun Trusts to understand the concept and how to make sure they are not involved in a straw purchase.
If you are in Florida and have been arrested for a straw purchase or have had firearms seized regarding a straw purchase, contact an attorney who is familiar with straw purchases and firearms. If you are in another state you should look for someone who deals with criminal law and is familiar with firearms. This type of representation can be a very expensive as it is typically a federal charge and most criminal lawyers do not practice in the federal courts.

A straw purchase is any purchase wherein an agent agrees to acquire a good or service for someone who is able or unable or unwilling to purchase the good or service himself, and the agent transfers the goods/services to that person after purchasing them.

Several sources incorrectly state that "Straw purchases are legal except in cases where the ultimate receiver of goods or services uses those goods or services in the commission of a crime with the prior knowledge of the straw purchaser, or if the ultimate possessor is not legally able to purchase the goods/services." While the above statement may be correct in some cases, it is not correct when dealing with firearms.

If the straw purchaser of the firearm lies about the identity of the ultimate possessor of the gun, he or she can be charged with making false statements on a Federal Firearms Transaction Record. If a firearm is purchased as a gift, the transaction is not a straw purchase, and the person buying the gift is considered the end user.

There is currently a supreme court case on this topic where a family member bought a gun for a relative so that he could get a "police discount" and then was arrested for making a straw purchase because he lied on the 4473 where he stated that he was the intended purchaser. Both parties were legally able to purchase the item and neither was a prohibited person.

If you have a gun trust you should be very careful not to do straw purchases where the trust purchases something for someone not associated with the trust or a person associated with your gun trust purchased items for someone else. We generally see people make mistakes when transactions across state lines are involved or someone is under the age of 21 wants to purchase an NFA firearm. The instructions which came with your gun trust should cover these issues. It is important that you not add someone on to your trust only for the purpose of buying a gun or NFA firearms that you could not otherwise purchase.

February 13, 2014

ATF Forms Processing Time

Today the ATF released new processing times based upon December 2013. The are now reporting the the average times for processing an ATF Form 1 to make and register a firearms is 9 months and the average time on an ATF Form 4 to transfer and register a NFA firearm in 9 months. We have seen significantly reduced times when applying electronically. Below are the times for each type of transfer and or application as reported by the ATF. It is interesting to see that they are taking 3 months to approve / process a transfer on a Form 3 and 2 months on a form 2. That means, it is taking ATF 2 months to approve the manufacture and 3 months to approve the transfer to a dealer. More than 5 months are required just to make and send a suppressor to your dealer so that you can wait an additional 9 months to take it home. The ATF will update this information every 90 days so we can see the trend.

As more people file electronically, we could start to experience longer wait times but for now we are hearing that many electronic Form 4s and Form 1s are taking between 3-6 months instead of 9-12 months for the traditional forms.
ATF times1.jpg
ATF times2.jpg

January 16, 2014

ATF Publisheds eForms 101 Instructions

ATF_Logo.jpgUsing an eForm to file your Form 1 or Form 4 can save several months processing time. We have seen that it can reduce the time from 9-12 months to 3-6 months. As we have outlined before, the ATFonline.gov website is not the easiest to use or understand and thus there have been many questions which ATF has attempted to address in this guide.

The Topics covered include:

How Do I Register To Use eForms?
FFL, EIN and AECA Associations
Password Complexity Rule Missing from eForms Registration Instructions
Navigating through eForms
Icons/Buttons/Symbols Used in eForms
Adding Attachments to eForms Submissions
Who Can Submit An eForm 1 Or eForm 4
eForm Down Everyday At NOON -1:00PM Eastern Time For Maintenance
Make Sure Your Submissions Are Correct
How to Identify the Applicant Maker or Transferee on an eForm 1, 4 or 5.
eForms Refund Processing
Identification of the maker or manufacturer of a firearm on Form 1
Payment of Making or Transfer Tax
Duplicate Applications in Your Draft Folder - Dont delete them
NFA - PDF issue with Form 4
Average Processing Times
What are those 'non eForms' records that appear in my folders?
Name Field Length Limitation Forms 1, 4 and 5
Use of P.O. Boxes

It's important to do electronic forms correctly the first time as there is not currently a way to fix a mistake or amend them like with the paper applications.

December 14, 2013

NRA-ILA's Comment to 41p

While the NRA's comment is only 17 pages it incorporates many comments and references many including mine. On page one of the NRA's comment they state

Many Hundreds of comments already published in opposition to 41P exhaustively catalog its various problems and potential for absurd consequences. For example, a comment submitted by David M. Goldman details how 41P is based on an unsophisticated and inaccurate view of the law governing trusts and estate planning.

The NRA's comment primarily leads with the following 3 issues.

  1. It is illegal for the BATFE to impose requirements that it is not authorized to do.
  2. The requirements could block those who are lawfully entitled to possess NFA firearms from doing so.
  3. ATF failed to justify the costly and consequential changes that 41P would pose.
To review the full comment please see my 41P comment page.

*[I have slightly modified that the NRA states as the Florida Bar as well as many other reserve the word specialize or expert for someone who has been board certified and while most states offer board certification in estate law, none offers such a designation for gun law. While I focus on Gun Trust and gun law, it would be wrong to refer to me an expert or to say I specialize because it would indicate board certification.]

December 11, 2013

Final action on 41P not expected until 6/2014

While ATF could change what is published, they have updated their Unified Agenda Statement for 41P to show that Final Action is not expected until June of 2014.

This date could continue to roll forward or with enough political pressure the date could be moved up. The June date should be thought of a target date that may or may not change as we get closer to it. You might think of it like "average life expectancy". You could die sooner, you could die at the average age, or you could live many years longer than the average. Also it is important to remember that just because we hit an implementation date does not give us any better idea of what may be implemented.

.41p-final.jpg

This is good news for those of you wanting to purchase items or form a Gun Trust prior to the implementation of new rules or regulations. There is still no word on what ATF is expected to do in June.

If you do not have a Gun Trust yet, now is the time to get one by requesting more information on the contact form on this page.

December 10, 2013

Firearms Industry Consulting Group posts comprehensive comment to 41P

Joshua Prince and Tom Odom have put together over 400 pages of comments and exhibits. Below are the broad topics that their extensive comment covers. If you enjoy reading about the Second Amendment, you will enjoy the extensive research and history that is included in this document. Joshua said they were able to shave off 40 or 50 pages by incorporating my comments by reference. I have included their conclusion below for you to read.

  1. PROCEDURAL IRREGULARITIES HAVE DENIED INTERESTED PERSONS A MEANINGFUL OPPORTUNITY TO COMMENT ON THE PROPOSED RULEMAKING
  2. ATF'S PROPOSED RULE RAISES IMPORTANT CONSTITUTIONAL ISSUES
  3. ATF'S PROPOSAL EXCEEDS ITS STATUTORY AUTHORITY
  4. POLICY CONSIDERATIONS DO NOT SUPPORT ATF'S PROPOSED RULE
  5. LESS BURDENSOME ALTERNATIVES TO ATF'S PROPOSED RULE
  6. CONCLUSION

Below is a reprint of the conclusion to their Comment on 41p. Remember this comprehensive comment was submitted with over 400 pages of exhibits.

ATF has made a mockery of this proceeding, engaging in numerous tactics designed to deny meaningful public participation. As a result ATF cannot promulgate any final rule that hopes to survive judicial review without starting fresh. In doing so, ATF should consult with a broad cross-section of interests familiar with the laws governing trusts, estates, and business entities rather than a select few. Independent of such problems, moreover, there is ample reason to question whether ATF regulation of certain firearms under the NFA is consistent with the Second Amendment and federalism concerns. ATF's proposal stretches far beyond any statutory authority. If ATF were to overcome those problems, the fact remains that its proposal is built upon statistically invalid assumptions and false premises. ATF failed to quantify any benefit from the proposed rule and substantially under counted the cost it would impose, including a failure to consider at all some of the largest costs. The proposed rule is demonstrably unworkable and many less-burdensome alternatives exist to address any legitimate concerns.

Even the one portion of the proposal that heads in the right direction -- dealing with decedent's estates -- fails to define terms with sufficient specificity as to permit meaningful comment. If that section is intended to codify existing ATF practices, it fails in several key respects. Alternatively, if that section is intended to depart from ATF's established practices, there is no stated justification for doing so and the result is a proposal that is internally inconsistent in the manner in which it treats fiduciaries.

To download their full comment please visit our 41P Comment page at http://www.guntrustlawyer.com/41p.html.

December 10, 2013

NFATCA Posts comment to 41P

The NFATCA has posted a comment to 41p, requested a hearing and has some unusual arguments claiming must of the proposals and even some of the current procedure is not authorized by congress. IN addition they have an interesting Legal Memorandum prepared by Stephen Halbrook that worth taking a look at.
His memo covers

I. NO AUTHORITY EXISTS TO REQUIRE FINGERPRINTS AND PHOTOGRAPHS OF "RESPONSIBLE PERSONS" OF TRUSTS AND OTHER ARTIFICIAL PERSONS

II. NO AUTHORITY EXISTS TO REQUIRE A CLEO CERTIFICATE
FOR THE TRANSFER OR MAKING OF A FIREARM

  • A. ATF, Not State and Local CLEOs, Is Responsible for Administration of the National Firearms Act

  • B. The CLEO Requirement Unlawfully Forecloses Judicial Review Under the Administrative Procedure Act

  • C. ATF May Not Compel Disclosure of Tax Returns to CLEOs

  • D. The CLEO-Certificate Requirement Violates Principles of Federalism and the President's Responsibility to Execute the Laws

I have include it on my 41P comment page available at http://www.guntrustlawyer.com/41p.html

December 5, 2013

A Client's comments to 41P that were submitted

One of Clients has submitted a comment to 41P and given us permission to post a copy as it is not likely that it will appear on the published comments before the time to respond has closed. You may want to use parts of this comment to help you express your personal experiences or situation.

In summary this comment discusses

  • ATF has failed to show any real benefits from its proposed rule;

  • Costs and expenses involved with 41P are not accurate;

  • Inability to obtain modified CLEO for responsible parties who are overseas and in states where the items are illegal;

  • Costs of complying with proposals with 21 responsible persons;

  • Inability to comply for children who are responsible persons;

  • Responses from various law enforcement agencies around the country;

  • Medical marijuana issues;

  • Circumstances where CLEO signature may not be available within 30 days.

This is another example of a well written comment for 41P. To read our client's comments and view his exhibits visit my 41p page at http://www.guntrustlawyer.com/41p.html

December 5, 2013

Attorney Glenn Bellamy's 41P Comments

Below Summary of the issues covered in Attorney Glenn Bellamy's 41P comments and exhibits:


  1. The Requirement of a local CLEO certification is not statutory in origin and exceeds the ATF's statutory authority, making the proposed regulations vulnerable to attack.

  2. The regulatory requirement of a local CLEO certification imposes a discretionary third party approval that exceeds the statutory authority.

  3. The proposal fails to address many easily anticipated circumstances

  4. The Proposal fails to consider regulatory alternatives that would be more cost effective, serve legitimate statutory objectives, and avoid legal vulnerabilities.

  5. The proposed rules do not address how Form 1,4, and 5 entity applications pending at the time such a rule amendment is implemented would be affected.

This is another example of a well written comment for 41P. To read his comments and view his exhibits visit my 41p page at http://www.guntrustlawyer.com/41p.html

Glenn Bellamy is a Partner with more than two and a half decades of intellectual property litigation, patent and trademark prosecution, and U.S. Customs enforcement experience, first in Seattle and now in Cincinnati. He counsels clients on strategic plans for international Intellectual Property protection of everything from firearms and hydraulic machinery to toys and games. Glenn has litigated Intellectual Property cases throughout the country in federal courts and before the International Trade Commission. Glenn, his wife Renée, and two children live in Symmes Township, Ohio.

October 27, 2013

Gun Trusts and 41P: How can you help?

Today we were on the Tom Gresham's radio show Gun Talk talking about the proposed changes to procedure used by the ATF for obtaining approvals for Form 1s and Form 4s. While talking with him we mentioned that we would post a sample letter that listeners could use to help oppose 41P.

While there are many CLEOs around the country who will not sign a Form 4 or Form 1 regardless of who it is for, the ATF is suggesting that many of those may be willing to sign the Modified CLEO that they are proposing. From those we have spoken to so far, we do not believe that there will be CLEOs available in areas in the future where they are not presently available.

We are asking our clients and others who want to help to send a letter to their CLEO asking if they will sign the modified CLEO signature.

Here is a proposed letter that you can send your local Sheriff. You can modify the letter to fit your situation and circumstances.

Sheriff __________ ADDRESS CITY, STATE ZIP CODE

Re: Completion of ATF Form 4

Dear Sheriff:

I am a resident of _______ County and was wanting to purchase a Suppressor. I understand that the ATF is proposing changing the CLEO certification and was wondering if you will are going to sign the CLEO certification as is being proposed by the ATF.

Do you sign Form 4s currently?

If, indeed, you do not sign any Form 4s for the purchase of a noise suppressor, I must ask whether you anticipate changing that practice in light of ATF's proposal to change the wording of the certification. Currently the Form 4 asks you (or another chief law enforcement officer) to certify that you have "no information indicating that the receipt or possession of the firearm would place the transferee in violation of state or local law or that the transferee will use the firearm for other than lawful purposes." ATF proposes to change the Form 4 so as to request that you (or another chief law enforcement officer) certify that you have "no information indicating that possession of the firearm by the transferee would be in violation of state or local law."

If you do anticipate that you will sign a Form 4 with the revised certification language, I may well wait to purchase a noise suppressor until ATF completes the revision.

Thank you in advance for your attention to this matter.

Sincerely,

(Your signature)

We are looking for responses prior to November 15th so that we can incorporate them into another comment to be filed in opposition of 41P. If you would like to read our current comment, please visit http://www.guntrustlawyer.com/41p.html

October 23, 2013

Sample request and response from local police

In response to 41P we have asked others to send and inquiry to their local police to determine if ATF's proposed changed to the CLEO signature would make a difference in the policy to provide or not to provide signatures on Form 1 or Form 4 applications. Below is the type of response we are looking for to provide in future comments to the ATF. If you have received a response from your local police department please print a copy of your inquiry, the response and draft a short verified statement telling your storey . Sign it under penalty of perjury and then send it to us to be submitted in additional comments that are being prepared.

Response from Orlando Police Orlando-police-letter.pdf


Tuesday, October 22, 2013 2:25 PM
Dear Mr. Myers:

Orlando Police Chief Rooney is out of town on agency business; he asked me to respond on his behalf to your inquiry about proposed changes to the ATF Form 4.

Your communique suggests that ATF believes the language change will make local chiefs and sheriffs more inclined to sign the Form 4.

The current language requires the chief law enforcement officer to certify that he or she has no information indicating that the person to whom the firearm will be transferred will use the firearm for anything other than a lawful purpose.

The proposed change would have the chief law enforcement officer instead certify that:

(1) the prints and photo provided with the form belong to the person responsible; and
(2) the chief law enforcement officer has no information to indicate that receipt or possession of the subject firearm violates state or local law.

Unfortunately, we do not believe the proposed language amendment will change our position with respect to whether the Orlando Police Chief should execute these forms for firearms transfers. It remains our position that the local law enforcement chief executive officer should not be involved in, or liable for, individual firearms transfers.

Sincerely,

--
Lee Ann Freeman
Police Legal Advisor
Orlando Police Department
P.O. Box 913
Orlando, Florida 32802-0913
407.246.2356
407.246.3889 Telefax