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

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

While many people will be waiting to the last-minute to file their comments to 41P, we felt that it was important to file something sooner to provide our clients and readers some guidance on preparing comments. We have created a webpage which contains our comments, exhibits, as well as a copy of 41P as published in the registry. As the comments and exhibits are over 140 pages we have included an index to the comments to help you find the information in which you have the most interst.

While we are very familiar with the NFA and ATF, administrative rule making is not something that we deal with. It is for this reason and to make sure we preserve the right to appeal any outcome that we have hired Tom Odom at the Firearms Industry Consulting Group. They are one of the fine lawyers that we work with around the country. If you are looking to have a professionally written response tailored to your involvement or objectives, I would highly recommend contacting us or them and we would be happy to help with the process.

With the exception of ATF’s proposal to add new section 479.90 with respect to decedents’ estates, David M. Goldman opposes the remainder of the proposed rule making for the reasons set forth below and in the Exhibits to these Comments incorporated herein by reference.

  • Part I, below, demonstrates that ATF failed to identify any problem for its proposed rule to correct. ATF neither quantified any benefits from its proposed rule (pages 2-5), likely because the proposal predominantly addresses conduct that is already criminalized, nor identified a single example that illustrates the problem that it speculates may exist (pages 5-13). Indeed, there is scant evidence of misuse of registered NFA firearms (pages 13-14).
  • Part II illustrates that trusts serve many legitimate purposes (pages 14-21), establish distinct roles with very different powers with respect to trust assets (pages 21-26), and arise in varied contexts, some of which should ameliorate concerns regarding potential misuse (pages 26-29), but that ATF has not considered these distinctions in formulating its proposed rule. Some trusts specifically designed to hold NFA firearms have numerous safeguards against improper transfer of trust assets that may be more effective than anything ATF proposes yet ATF failed to acknowledge such provisions or explain why some combination of them would be inadequate (pages 29-32).
  • Part III explains how the CLEO certification requirement renders the proposed rule unworkable and demonstrates the need to abandon the certification for individuals as well as legal entities (pages 33-41).
  • Part IV documents ATF’s underestimate of the cost of its proposed rule due to understated costs (pages 42-45) as well as omitting altogether lost tax revenue (pages 45-46) and the cost of hearing loss attributable to the greater unavailability of silencers (pages 46-48).
  • Part V details the many less-intrusive alternatives that ATF failed to consider in formulating its proposed rule (pages 48-54), including a more-limited concept of responsible persons and use of modern methods of conducting background checks.

In addition, there are 90 pages of exhibits. If you are looking to review the materials or provide them to others to review, I would ask that you link to this article or the 41P page which is located at http://www.guntrustlawyer.com/41p.html on our website so that the latest version will be available to those who look. As ATF is not doing anything with comments because of the shutdown, we may hold off on filing our response, but wanted to let others review, comment and use it to help in their responses.

Hawaii NFA Class 3 firearms
There are several type of Title II firearms which are sold by Class 3 SOT FFLs that are restricted by the National Firearms Act.

Each state can impose additional restrictions on the sale, purchase, and transfer of these Title II firearms in addition to the compliance that is required with the National Firearms Act.

In Hawaii you can own the following items that are regulated the the National Firearms Act

Individuals cannot own any NFA firearms which are kept within HI.
State and county law enforcement officers who are not convicted of an offense involving abuse of a family or household member under 709-906 can own and possess Silencers and Machine Guns and Short Barreled Shotguns (SBS) and Short Barreled Rifles (SBR).

In Hawaii you cannot own the following NFA restricted items.

Machine Guns Silencers*
Machine Guns*
Short Barreled Shotguns (SBS)*
Short Barreled Rifles (SBR)*
Any Other Weapon (AOW)
Destructive Devices (DD)

Follow this link to find out more about Hawaii and NFA restrictions on Class 3 Firearms
Updated 10/18/13

We are often asked are silencers legal in my state? While you can look at which NFA firearms are legal in each state by selecting it in the pull down menu on the right, we have put together this list to make it easy for you to know if they are legal in your state.

Silencers are legal in

AL, AK, AZ, AR, CO, CT, FL, GA, ID, IN, KS, KY, LA, ME, MD, MI, MS, MO, MT, NE, NV, NH, NM, NC, ND, OH, OK, OR, PA, SC, SD, TN, TX, UT, VA, WA, WV, WI, AND WY

Silencers are not legal in the following 10 States.

California, Hawaii, Illinois, Iowa, Massachusetts, Minnesota, New Jersey, New York, Rhode Island, Vermont.

While individuals may not possess suppressors in NY and HI Police officers may have them in certain circumstances

You cannot buy a silencer or bring a silencer to a state where they are illegal, but Silencers can be purchased by residents of states where they are legal. Often authorized users of Gun Trusts are located in different states and while a resident of California cannot purchase a silencer, a Co-Trustee who is a resident of a state where they are legal like Arizona or Nevada can purchase a silencer that is kept in a state where silencers are legal.

If you would like more information on how a Gun Trust Lawyer® can help you protect your rights and own Title II firearms with the use of a Gun Trust Contact Us.

ATF is answering their phones and the electronic filing is back online at http://www.atfonline.gov.

ATF reported today that they the payments are back online as of 10/22 but previously reported that they are having problems with the payments. In an email they reported:

This is to advise that ATF eForms is experiencing issues with the pay.gov link that prevents the filing of taxpaid eForms 1 and 4. The pay.gov function had to move to a secondary site last week due to some of its own issues. ATF’s firewall security is preventing communications to this secondary site from within eForms. We are in the process of working with the Department of Justice to allow the ATF firewall to communicate with the pay.gov secondary site.

All other eForms may be submitted. eForms 1 and 4 may be created and saved, just not submitted until we have notified you that the issue has been resolved.

We would also like to advise that the taxpaid eForm 1 and eForm 4 were designed for the submission of one firearm per application (as the tax is paid per firearm and the PDF will generate with the transfer tax stamp affixed). A glitch allows the submission of multiple firearms on these forms, but we can only process a form with one firearm on it. Please keep this in mind when you file a taxpaid eForm 1 or 4.

If you have submitted a taxpaid eForm 1 or eForm 4 with multiple firearms on it, please contact Lee Alston-Williams at (202) 648-7166 or Gary Schaible at (202) 648-7165, as corrective action will need to be taken.

Remember the time is ticking before the comment period for 41P closes.

It appears that the ATF has entered politics.

While there is no cost to continue and not make any changes to a website, there is surly a cost to change a website and post a message stating that a service has been suspended.

Perhaps someone at the ATF volunteered their time to make the change, or perhaps it was a paid employee trying to make a point for the benefit of others.

If you visit the eForm at the atfonline.gov website it states
———-
eForms Outage
Due to the lapse in appropriation of federal funds, the e-Forms system is temporarily suspended until further notice.

We apologize for any inconvenience and thank you in advance for your cooperation and patience.

ASSISTANCE:
Please direct questions to the OST Customer Support Help Desk at 1-877-875-3723 or Helpdesk-OSTCS@atf.gov.
_____
Kind of like hiring police to inforce no fishing in a park in the ocean. Can’t the government find better things to waste money on?

Last week many people in the industry met in Washington DC to discuss issues and concerns with 41P. Besides discussing what happened leading up to 41P, the main topic of discussion was regarding that 41P this was a legal issue within rulemaking and that inappropriate or inaccurate responses could cause problems. The most important part of any response is accuracy and addressing the issues with facts in such a manner as to allow for an appeal if the ATF approves their current recommendations.

Within the next week, I expect to make my comments public. While many are waiting until the last moment to present as complete a set of comments as possible, I would like to provide proper guidance to many who our clients and others whom read our blog on a regular basis. Our comments will cover many topics and come with some details on how to use them to create your own comments but we would never suggest that you simply copy someone else’s comments even with very minor modifications. Remember comments are part of the rule making process and not a popularity contest. If you want to see our comments when they are published and be kept up to date on 41P and our efforts, I would suggest that you subscribe to our blog by clicking the subscribe button in the upper right of this page.

I was surprised to see that a major silencer company appears to be sending proposed letters to their dealers or others in the industry to provide others with a suggested letter for individuals to submit to ATF with respect to the current rule making. Remember this is rule making and not a popularity vote. There are serious problems with ATF’s proposal but, to read the suggested text the Silencer Company has provided to others which is being posted on the Internet you would think they merely opposed extending the requirement for a chief law enforcement officer (“CLEO”) to “gun trusts.” Let’s be clear about a few points.

First, this Silencer company suggests that you state: “Requiring background checks for trusts would ensure NFA items do not fall into the hands of criminals and makes law enforcement sign off unnecessary.” Let’s keep in mind that the proposed rule is not limited to trusts but also encompasses corporations, LLCs, and other legal entities. Shouldn’t the objection to ATF address the CLEO certification requirement for all legal entities?

Second, by raising the issue of CLEO certification requirements and even suggesting a change in the wording of the certification, ATF has opened the door to addressing the CLEO certification requirement with respect to individuals. If you are opposing an extension of CLEO certification to trusts would you not make the point that the existing certification requirement for individuals should be eliminated?

Third, it is not clear to me why one would endorse “background checks for trusts” without explaining what that would entail. There are different ways to do background checks but the suggested language could be understood as endorsing the proposal that all “responsible persons” for legal entities submit photographs and fingerprints. Why support that approach? As many, many of the comments submitted to ATF have already observed, a NICS check should be more than sufficient. By requiring photographs and fingerprint cards, ATF is taking a step backward in the processing of applications. Practically all the effort put into the eForms initiative will have been wasted, as the eForms are not set up to handle applications that require photographs and fingerprints. In fact eForms are not available when those are required.

Fourth, as many comments already submitted to ATF make clear, the definition of a “responsible person” is absurdly broad and vague. Will a settlor of a revocable or irrevocable trust who does not serve as either a trustee or a beneficiary have to submit photographs and fingerprints? Will individuals designated as successor trustees who have not assumed the powers of an acting trustee have to do so? Will beneficiaries who are not entitled to receive any distribution from the trust until the death of the settlor, possibly decades in the future, have to do so? Does it matter that some of those beneficiaries may be infants? And what will happen if just one of that extended group of people who do not have the authority to possess trust assets happens to be a prohibited person? Will the entire application be denied because someone who at some future date may receive the cash value of the firearms has his name on the trust as a conditional beneficiary?

Fifth, as some comments submitted to ATF have already argued, there is no reasonable basis to regulate silencers to the same extent as some other NFA firearms. Silencers are legal in thirty-nine States and legal for use in at least some form of hunting in more than thirty States. In certain settings they are the only practical means of hearing protection. They provide protection from hearing loss that in just about any other context the government would mandate. The medical literature on hearing loss due to recreational shooting strongly advocates the use of silencers. While ATF lacks the authority to exempt silencers from the NFA, why in the world would a company that makes them not urge you to demand ATF impose minimal regulation upon them even if ATF were unwilling to treat other NFA items in the same manner?

Remember that now is not the time to be shortsighted. Remember we are dealing with items that are legal to acquire, possess, and in most State legislatures and that the US Congress has said we have the right to own possess and use these items for more than 75 years. Lets hope that we do not end up with unnecessary regulations because of the shortsightedness of a few.

We just posted a page http://www.guntrustlawyer.com/form5.html on completing an ATF Form 5 (5320.5). Remember a Form 5 is used for a tax-free transfer to a lawful heir. If you own NFA firearms individually, you can give your lawful heir the choice of taking the item individually, in trust, or as permitted by the ATF under the NFA and creating properly drafted documents can help make this process unnecessary or easier than using the default methods found in most wills and estate planning documents that are not drafted to consider firearms.

Additionally you can avoid this entire process with a multi generational asset protection gun trust. We have Gun Trusts that can be setup to last form generation to generation without future transfers or the tax stamp fees.

We also have pages on How to complete an ATF Form 1 (5320.1)
How to complete an ATF Form 4 (5320.4)
The Certification that should be included with each and How to complete an ATF Form 20 (5330.20)

To learn more about how to update your documents contact a Gun Trust Lawyer® by using the form at the top right of this page.

While close to 400 applications have been received by the ATF 95 of them have been posted on the regulations.gov website, where you can file a public comment. If you would like to file a comment, you can review other comments and post your own online at http://www.regulations.gov/#!docketDetail;D=ATF-2013-0001

It is important to proofread your comments before posting so that your message is clear and makes sense. A few of the comments actually appear to argue the opposite because of missing words or the way they are phrased.

Most comments seem to be centered around the following topics:

  1. Trusts and other Legal Entities have a legitimate purpose.
  2. ATF’s Cost and Benefit Analysis is Flawed
  3. Legitimate Uses of NFA Firearms
  4. ATF uses false assumptions for CLEO refusals. My CLEO will not sign new Forms
  5. Criminals do not use Registered NFA firearms and NFA Firearms are not used for Crimes.
  6. ATF’s Proposals will not prevent crime nor stop what they fear from being able to happen.

Recommendations
Check with your CLEO as well as the CLEOs in other areas around you to find out if they will sign the new proposed CLEO signature. If you have a responsible party in a state where the items are not legal, let ATF know that it would be impossible to obtain a modified CLEO signature because the items are illegal where the person lives, but the person would only use or have access to them where it is permitted. If you have more than 2 responsible parties, let the ATF know that their sample of trusts is inaccurate and that you as well as others you know of have more than 2 responsible parties. Let them know that Trusts help protect against constructive possession have other legitimate estate planning and management purposes.

If you are a FFL or manufacture, you may want to address the effects on your business and employees in addition to the above topics.

Contact Information