Recently in ATF / BATFE Category

January 20, 2015

ATF Approval times reduced to less than 6 months

Today, the ATF stated that the time to process paper Form 1 and Form 4s - 6 months. Our feeling is that the backlog for paper forms is closer to 4 months when you consider that the eForms are only taking around 30 days and make up a substantial portion of the filings.

The ATF is continuing to hire more help, cross train more staff, and process more forms than they receive. In the last 11 months the ATF has reduced the backlog from 81,000 in Feb 2014 to 38,000 as of Jan 15, 2015.

There is still no update on eFiling of ATF Form 4, but hope to have it addressed by late 2015.
For those with Gun Trusts, there is a new update to the eForms 101 as of Jan 15, 2015.

The link to the update can be found here.
eFormsNews 1-15-15.pdf

January 16, 2015

OPEN LETTER ON THE REDESIGN OF "STABILIZING BRACES"

Here is the latest letter from the ATF that we received at 4:36 PM EST today regarding the SB-15 and Stabilizing braces. It seems to deal with "intent" but also introduces a new concept of "redesign" in an attempt to bolster the concept that use of a firearm can change the classification of it.

Our recommendation remains the same, for a $200 tax stamp why take the legal and financial risk.

The Firearms and Ammunition Technology Division (FATD), Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has received inquiries from the public concerning the proper use of devices recently marketed as "stabilizing braces." These devices are described as "a shooter's aid that is designed to improve the single-handed shooting performance of buffer tube equipped pistols." The device claims to enhance accuracy and reduce felt recoil when using an AR-style pistol.

These items are intended to improve accuracy by using the operator's forearm to provide stable support for the AR-type pistol. ATF has previously determined that attaching the brace to a firearm does not alter the classification of the firearm or subject the firearm to National Firearms Act (NFA) control. However, this classification is based upon the use of the device as designed. When the device is redesigned for use as a shoulder stock on a handgun with a rifled barrel under 16 inches in length, the firearm is properly classified as a firearm under the NFA.

The NFA, 26 USCS § 5845, defines "firearm," in relevant part, as "a shotgun having a barrel or barrels of less than 18 inches in length" and "a rifle having a barrel or barrels of less than 16 inches in length." That section defines both "rifle" and "shotgun" as "a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder...." (Emphasis added).

Pursuant to the plain language of the statute, ATF and its predecessor agency have long held that a pistol with a barrel less than 16 inches in length and an attached shoulder stock is a NFA "firearm." For example, inRevenue Ruling 61-45, Luger and Mauser pistols "having a barrel of less than 16 inches in length with an attachable shoulder stock affixed" were each classified as a "short barrel rifle...within the purview of the National Firearms Act."

Continue reading "OPEN LETTER ON THE REDESIGN OF "STABILIZING BRACES"" »

December 28, 2014

ATF Updates Policy on Sig Brace and Pistol Regarding SBR

Thumbnail image for sig_arm_brace_sb15.jpgWe are all familiar with the inconsistency of the ATF. The ATF has changed their position on the Sib Brace (SB-15) with a pistol. While the ATF, still states that it is legal to use the SB-15 as intended (strapped to your wrist), they have reversed their position on using the SB-15 when shouldered.

You may remember that earlier this year, ATF stated that since the SB-15 is not intended to be fired from the shoulder, the misuse of an individual would not change the classification of the firearm. See the March ATF SB-15 letter

We believe that this is the correct decision and interpretation. The problem is that someone else recently asked the same question and got a very different answer. ATF has now stated that the misuse of the SB-15 (being fired from the shoulder) does create an SBR and make the pistol subject to the NFA.

sig brace letter 01.jpg

Continue reading "ATF Updates Policy on Sig Brace and Pistol Regarding SBR" »

November 21, 2014

Florida becomes 33rd State to Legalize Hunting with Suppressors

Unlike most states which have changed the laws, In Florida you can hunt with Suppressors starting today.

This morning the following announcement was sent out by Marion Hammer the Executive Director of the SSF and past president of the NRA

DATE: November 21, 2014
TO: USF & NRA Member and Friends
FROM: Marion P. Hammer
USF Executive Director
NRA Past President

At their meeting in Key Largo, Florida, today, the Florida Fish and Wildlife Conservation Commission voted to remove the ban on using silencers/suppressors on pistols and rifles for hunting deer, gray squirrels, rabbits, wild turkeys, quail and crows.

Using silencers/suppressors on pistols, rifles and shotguns for all other legal hunting was already allowed.

Following the suppressor vote, the Commission also voted to authorize an Executive Order to lift the ban immediately and allow hunting with suppressors to being at once.

Following that vote, Executive Order # EO 14-32 was signed. Using suppressor-equipped rifles, pistols and shotguns is now legal for all hunting in Florida.


I would expect a huge increase in Suppressor sales like we have seen in other states after permitting hunting wihit suppressors

November 19, 2014

ATF Update on Sig Brace? SBR or SBR and Gun Trusts

In the last few days a letter has surfaced on the Internet reportedly written to a small shotgun maker, which states that shouldering a Sig Sauer SB 15 pistol stabilizing brace could change a firearms classification to a short barrel shotgun.

The letter was written in response to Black Aces Tactical's request related to a short-barreled shotgun that was designed to incorporate the SB 15 Brace. Black Aces Tactical submitted a sample which they say had an overall length of 27 inches. The sample had a SigTac SB15 arm brace attached as well as a vertical foregrip. The brace is intended to allow a shooter to fire and an AR pistol with one hand using a Velcro strap to attach to the arm.

Continue reading "ATF Update on Sig Brace? SBR or SBR and Gun Trusts" »

November 7, 2014

How long does a Form 4 take with a Gun Trust and Update to 41P

Great news! The ASA is reporting that the time to process a Form 4 with a Gun Trust has continued to decrease and looks like the time will continue to decrease. Less than a year ago the average wait time was in excess of 12 months. A few months ago the time was reduced to 6-9 months. The current time is 4-6 months, and if you are processing a trust now, you could see an even shorter time as ATF clears their backlog. ATF is continuing to hire and train more people to process the increasing number of ATF Form 4s and Form 1s.

Even better news is that we may see a new electronic Form 4 announced in January at the Shot Show.

41P UPDATE
ATF has indicated that they are not expecting a final ruling on 41P until May 2015 at the earliest. Those of you in panic mode to submit your Form 4s, you may have some extra time. There are over 9000 comments that were filed during the comment period. To read some fo the comments follow this link http://www.regulations.gov/#!docketDetail;D=ATF-2013-0001

To read the GunTrustLawyer comment and the other Major comments to 41P see our 41P comment page

September 16, 2014

ATF revises Form 1 and Form 5

ATF is pleased to announce the availability of revised ATF Form 1, Application to Make and Register a Firearm, and ATF Form 5, Application for Tax Exempt Transfer and Registration of Firearm.

The ATF Form 1 has been revised to allow the payment of the making tax by use of a credit or debit card. This is a new option that was requested by the industry. Payment by check or money order will still be allowed when the application is submitted on paper.

The Form 1 and Form 5 have been revised to incorporate the questions relating to non-immigrant status that are contained in ATF Form 5330.20, Certification of Compliance with 18 U.S.C. 922(g)(5)(B). Form 5330.20 is to be submitted when the applicant maker is an individual, not a legal entity. With a submission of the revised Form 1, the submission of Form 5330.20 will not be required. This revision was also requested by the industry.

For eForm filings, the prior version of the Forms 1 and 5 will continue to be used until we are able to update the form versions in the eForms system. Since the eForm 1 may only be filed by legal entities or government agencies and the eForm 5 is for transfer by a qualified Federal firearms licensee when the transferee is a government agency, the answering of the questions is not required as they are for an individual applicant maker or transferee.

When these forms become available we will post links to them and provide instructions for completeing them.

September 12, 2014

What to do if the ATF rejects your Gun Trust Application to build a Machine Gun

You need to timely dispute the ATF denial. ATF is denying these applications under 922 (O) (1)

Except as provided in paragraph (2), it shall be unlawful for any person to transfer or possess a machinegun.

But if you read the section 922 (O) (2) (A), the exception, states that:
a transfer to or by, or possession by or under the authority of, the United States or any department or agency thereof or a State, or a department, agency, or political subdivision thereof; or

An approved Form 1 is under the authority of the United States or a department or agency thereof.

Is ATF claiming they are not an agency or department of the United States? Interesting, but they would have a hard time explaining this.

If you would like help filing your appeal, contact us ASAP before your right to appeal the wrongful denial cannot be appealed.

Note and Disclaimer: This is unsettled law, and there is no guarantee that you will be approved in an appeal of your denail

August 28, 2014

ATF form 5 and Form 9 returning in September 2014

ATF is pleased to announce the return of the following eForms to active service: ATF Form 5 on 8/27/2014, ATF Form 9 on 9/2/2014, and ATF Form 5300.11 (AFMER) on 9/5/2014.

Please note that at this time no date has been determined for the return of the ATF Forms 3 and Form 4 to service on the current platform. In the interim, ATF has devoted additional resources to paper forms processing within the NFA Branch to augment the volume of receipts and current pending applications.

July 6, 2014

What to do if your ATF eForm is rejected.

One of the benefits in using a Gun Trust is that you are able to submit electronic applications with the new ATF website. This is possible because a Gun Trust does not require a CLEO signature nor fingerprints. Currently only Form1s can be submitted electronically, but Form 4s should be back online soon. It is important to fill out the application correctly as there is not a way to correct mistakes that are made like with the paper forms. A mistake in the past would have put your application in the back of the line, but not any more.

If you make a mistake on an ATF eform (http://www.atfonline.gov) there is a way to submit a correction without going to the end of the line.

Once you receive the notice that your eForm has been rejected, you will receive a refund of the application fee in around 10 days. You do not have to wait for the refund to be processed to resubmit a corrected application. You can pay the fee again while waiting for your refund or wait for the refund and them resubmit the application.

Once you submit your new application send an email to Ted.clutter@atf.gov and include the control number of the rejected application and the control number of the new corrected eForm and the application will be reprocessed. This should decrease the time for the approval process on the corrected eForm.

June 26, 2014

ATF eForms Approval for Gun Trust in only 1 Day

1daydates.jpgOne of our clients submitted an application to build a Form 1 on June 24, 2014 and was surprised when they checked their email the next morning and found that the ATF had approved the application to build the SBR.

When I first received the call, I thought it was a mistake, but then I walked the client through the Atfonline website and the process of printing the electronic Form 1. I have provided a copy for those who are as skeptical as I was about a 1 day approval process on a Form 1 from the ATF.

Not sure if this was a mistake or the ATF had just cleared out the backlog of Form 1's but if you considering creating a Gun Trust to build an SBR, you may want to do it sooner than later.

Here is a copy of the full Form 1 for those who would like to review it.1dayForm1.pdf

To check out the current time for approvals, I submitted a electronic Form 1 on June 26 and it was approved on August 2, 2014. While 35 days is not bad, it is not overnight.

June 24, 2014

ATF eForms adds Form 1 for Gun Trusts and time to process applications reduced.

Today I received an announcement and verified that you can now process Form 1s online again. For those with a Gun Trust, you can now process these electronically again. Still no word on when Form 4s will be available to process online.

There are currently 15 legal examiners in the background investigation phase of hiring. ATF has been authorized to use overtime funding to process NFA applications and they reduced their outstanding applications by 23%. They are currently processing around 6000 applications a week and have a backlog of 62,000. This means that we might be looking at as little as 10 weeks to process applications and even quicker for electronic applications. This is a substantial decrease from the 9 -15 months we have been seeing in the past few months.

In the last 4 weeks they received 17,800 applications and processed more than 22,400 applications.

June 23, 2014

Supreme Court Decision on "Straw Purchases" Does Not Make Firearms Gift Purchases Illegal

Last week, the U.S. Supreme Court ruled in a case involving a Virginia man who could legally purchase a firearm and did so for an uncle from Pennsylvania. Even though the Pennsylvania man who ultimately bought the gun was not legally prohibited from owning a firearm and passed a background check, the Court, in a 5-4 decision, said the transfer violated federal "straw purchase" law. The ruling has resulted in confusion among federal firearm licensees (FFLs), particularly relating to gift purchases of firearms. The Bureau of Alcohol, Tobacco, Firearms and Explosives has been asked to provide clarification on the Supreme Court's decision for its firearms retailer members. Meanwhile, it is our understanding that the Supreme Court ruling does not make it illegal for a consumer to purchase firearms as gifts.
As noted in the instructions on the Form 4473 for Section 11.a. Actual Transferee/Buyer: For purposes of this form, you are the actual transferee/buyer if you are purchasing the firearm for yourself or otherwise acquiring the firearm for yourself (e.g., redeeming the firearm from pawn/retrieving it from consignment, firearm raffle winner). You are also the actual transferee/buyer if you are legitimately purchasing the firearm as a gift for a third party.
In the case Abramski v. United States, the Court ruled that the Virginia man, a former police officer purchasing the firearm at a discounted price, was acting as agent for the true buyer, his uncle. By declaring he was the "actual buyer" on the Form 4473, the Virginia man violated straw purchase law, because in effect he was acting as an agent for his uncle who had provided the funds for the purchase. The difference seems to come down to the fact that it was not a gift because his uncle paid the buyer for the item. Remember, if you are using a gun trust to purchase NFA firearms, not to simply add someone to make a purchase you would not be able to make to avoid the potential problems associated with a Straw Purchase.
May 27, 2014

ATF Updates 41P Final Action Date: No Changes for Gun Trusts Before 2015

Late in 2013, the ATF published a notice that they intended to seek to revise the regulations regarding the documentation that is required for a Gun Trust and for a business. After the ATF received more than 9500 comments on the proposed changes, the ATF had originally announced that a decision was set to be published in June of this year. As the June date has approached, we have reported that it was unlikely that the ATF would actually be able to review and respond to the comments by the June date and that the ATF was not likely to be able to respond until 2015.

In the latest publication of the Semi-Annual Regulatory Agenda, ATF updated the date of the projected date to show that ATF does not expect to publish a final rule until 2015.

DOJ/ATF RIN: 1140-AA43 Publication ID: Spring 2014

Title: Machine Guns, Destructive Devices and Certain Other Firearms; Background Checks for Responsible Persons of a Corporation, Trust, or Other Legal Entity With Respect to Making or Transferring a Firearm

Abstract: The Department of Justice is planning to finalize a proposed rule to amend the regulations of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) regarding the making or transferring of a firearm under the National Firearms Act. As proposed, the rule would; (1) add a definition for the term "responsible person"; (2) require each responsible person of a corporation, trust or legal entity to complete a specified form, and to submit photographs and fingerprints; and (3) modify the requirements regarding the certificate of the chief law enforcement officer (CLEO).

Final Action 01/00/2015

This is great news for those who are wanting to get a Gun Trust from a Gun Trust Lawyer® and have the opportunity to file electronically. As you may know, the ATF has removed the ability to file a Form 1 and Form 4 electronically, but expects to have it back up in the short term as they make changes to the system to handle the huge number of electronic submissions.

May 15, 2014

Did ATF Accidentally Open the Machine Gun Registry for Gun Trusts

Based on the ATF letter requiring NICS checks for Trusts, the ATF may have accidentally opened the registry for new Machine Guns when registered in the name of a trust which is not a person under the GCA.

The Prince Law Blog quotes the same letter I wrote about a few days ago where the ATF determined that "Unlike individuals, corporations, partnerships, and associations; unincorporated trusts do not fall within the definition of "person" in the GCA." And therefore, as a result,

Because unincorporated trusts are not "persons" under the GCA, a Federal firearms licensee (FFL) cannot transfer firearms to them without complying with the GCA. Thus, when an FFL transfers an NFA firearm to a trustee or other person acting on behalf of a trust, the transfer is made to this person as an individual (i.e., not as a trust). As the trustee or other person acting on behalf of the trust is not the approved transferee under the NFA, 18 U.S.C. 5812, the trustee or other person acting on behalf of a trust must undergo a NICS check. The individual must also be a resident of the same State as the FFL when receiving the firearm.

So, ATF, trying to be cute and find a way to require NICS checks without Congressional action, declared trusts not to fit the definition of a "person" under the GCA. No big deal, especially for us in Pennsylvania, as Pennsylvania Instant Check System (PICS) checks are already required for all NFA firearms, except silencers. But, not so quick...let's look at Section 922(o) of the Gun Control Act...

Section 922(o) provides:

(1) Except as provided in paragraph (2), it shall be unlawful for any person to transfer or possess a machinegun.
(2) This subsection does not apply with respect to-
(A) a transfer to or by, or possession by or under the authority of, the United States or any department or agency thereof or a State, or a department, agency, or political subdivision thereof; or
(B) any lawful transfer or lawful possession of a machinegun that was lawfully possessed before the date this subsection takes effect.

So, we have a prohibition on any "person" transferring or possessing a machinegun which was not lawfully registered before May 19, 1986. BUT, an unincorporated trust is not a "person" under the GCA, so this provision cannot apply to it.

In turning to the National Firearms Act, as amended, 26 U.S.C. 5801, et seq., we find that a "person" is defined as including a trust, pursuant to 26 U.S.C. 7701. Yet, there exists no 922(o)esque provision in Section 5801, et seq.

Therefore, pursuant to 26 U.S.C. 5812 and 5822, an unincorporated trust may lawfully transfer and make machineguns, as it is not a "person" for purposes of the GCA and Section 922 only applies to "persons" as defined by the GCA.


Before anyone rushes to complete a Form 1 to make a new machine gun, they should understand that the ATF will likely reject this and if they want to push the issue they should be expect to litigate the issue. Even if litigating there is no guarantee of prevailing.

That being said, I believe I will submit a Form 1 for permission to manufacture a new machine gun along with a memo regarding the issues so that the opportunity to litigate the issue would be available after an expected rejection.