Tag Archives: “national firearms act of 1934”

News from the 16th Annual NSSF Import/Export Conference in Washington, D.C.

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Attorney Joshua Prince and I attended the Annual NSSF Import/Export Conference in Washington, D.C. this week. There were a variety of presentations that were given on a variety of topics including: Federal Search Warrants and Regulatory Site Visits, Chemical Facility Anti-Terrorism Standards, Foreign Military Sales, ATF Panel Discussion, and Round Table Discussions (the best part in my opinion) on Day 1. On Day 2’s agenda is Prohibited and Embargoed Countries, DDTC Presentation on Information Technology, and a presentation from DDTC on Licensing and Agreements.

As most of our readers are more concerned with up-to-date statistics and information from ATF, this blog article will only address those and information learned at the Round Table Discussions.

ATF Panel

Sitting on the ATF Panel giving updates were: Marvin Richardson (Assistant Director, Enforcement Programs and Services), Curtis Gilbert (Deputy Assistant Director Enforcement Program and Services), Andrew Graham (Deputy Assistant Director Industry Operations), Earl Griffith (Chief of the Firearms Ammunition Technology Division), Alphonso Hughes (Division Chief, National Firearms Act Division), Gary Taylor (Firearms and Explosives Services Division), Andrew Lange (Division Chief of the Office of Regulatory Affairs), and Krissy Carlson (Division Chief of the Firearms and Explosives Industry Enforcement Programs and Services).

Industry Operations

Andy Graham stated that there are currently 791 Industry Operations Investigators (IOIs) not including the administrative staff. In 2018 they hope to add 48 more. There are two classes, one in February and one in July.

There are currently ~1,100 firearm importers and ~230 destructive device importers. There are about 162 active inspections occurring with regard to those licensees.

Office of Regulatory Affairs

Andrew Lange announced regulations.atf.gov, a website that had the most up to date regulations pertaining to ATF. The website is actually the first government website that I’ve perused that was functional and useful! The information is pulled directly from the Federal Register, so if ATF implements a final rule, it will automatically update.

The website features the ability to see the history of a particular regulation (so you can see the changes over time) and defined terms are hot linked so they will populate on the right hand side, meaning you can read a provision and see the definition of terms which are defined at the same time (allowing a reader to have better context or understanding). Even cooler is that it links to ruling that were issued. I’m genuinely impressed with the system. If only the eForms system worked as well.

Phase 2 is expected to be rolled out in September of this year.

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Firearms Ammunition Technology Division

Earl Griffith introduced the Firearms Ammunition Technology Division or “FATD”. They hired six more firearms enforcement officers who have now completed a significant amount of training (if I recall it was about a year to a year and a half, I didn’t write down the length of time), bringing the total to twelve. They are responsible for the evaluation of samples sent to FATD.

Currently, FATD is running about 30-90 days on most evaluations. They have currently issued about 800 marking variances which are taking about 30 days to issue. So far this year there have been about 250 product evaluations.

NFA Division

As was published in the most recent ATF FFL Newsletter, the NFA Branch has been transformed into the National Firearms Act Division, which became effective April 3, 2017. The Division will be led by Division Chief Alphonso Hughes, the previous Chief of the Firearms and Explosives Services Division. The new division, consists of two branches – the Industry Processing Branch (IPB), dealing with industry and the Government Support Branch (GSB) dealing with government related matters.

Alphonso stated that the NFA Division was going to undergo a full evaluation of the internal business processes in the first quarter of 2018. It would involve outside eyes looking in.

The former 2-3 month time period for application data entry has now been reduced to ~72 hours. For those with access to eForms…use them. eForms result in faster turnaround on approvals. While they can’t auto approve at this point, they are automating as much as possible. Form 2-3s are hovering around 10 days or under (eForms from my understanding).

41F – Everyone’s favorite topic (sarcasm if you couldn’t tell). There were ~280,000 applications received from the announcement of the final rule until it went into effect. That was about a full years worth of applications. They are on the downward slope of pre 41F paperwork.

ATF is working overtime to process these forms. They are currently working 7 days a week to reduce the wait times and are literally working overtime hours to accomplish that goal (up to 20 hours per person in addition to their standard work week).

Pre 41F, they were receiving ~35,000 forms a week and processing about 8,000 forms a week. Post 41F they were receiving about 5-6,000 form a week and processing 8-9,000 forms a week. They are currently predicting a 6-7 month turn around if you submit a form today.

In January, six additional examiners were hired. They are going to continue to push for resources in FY 2018-19.

Alphonso was also asked about the possibility of the reopening of the MG registry. He replied that it was not within the NFA division’s purview to address the issue (and he isn’t wrong. The original statutory language read “The Secretary of the Treasury, after publication in the Federal Register of his intention to do so, is authorized to establish such periods of amnesty, not to exceed ninety days in the case of any single period, and immunity from liability during any such period, as the Secretary determines will contribute to the purpose of this title.” 82 Stat. 1235, § 207(d). As ATF was transferred to DOJ, the power would now be held by the Attorney General. See 27 CFR 479.101(b)).

Firearms and Explosives Industry Enforcement Programs and Services

Last, but not least, was Krissy, who stressed eForms usage for industry. She was also asked about the possibility of the HPA passing. As you probably guessed, this is in the hands of Congress and not ATF. ATF holds no opinions on proposed legislation.

Round Tables

ATF Firearms and Explosives Industry Division 

I followed up on a question that arose last week at the NICS Retailer Event at FBI. While there, someone had asked about the new 4473 and question 12.d.2, specifically whether or not someone had to complete the question.

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The answer I received was “yes”, the form must be completed. This question has seemed to cause a lot of confusion on the new form.

There was also the question of “sex” on the 4473. Some states have now recognized a new gender. ATF has provided limited guidance, simply saying the individual has to complete the form. However, it is suggested, after discussion with ATF, if a licensee is unsure or uncomfortable with the person’s response, that they can document the transaction, etc. in the notes section of the 4473. A photocopy of the identification (a standard practice in a  lot of shops anyway) is suggested. ATF is still in the preliminary stages of looking into this issue and only provided guidance in relation to the question must be answered.

NFA Division

A common question I receive is whether or not you have to notify the NFA Branch of a change in configuration. I was informed that an individual can write a letter to ATF adding another configuration to a registered receiver. For instance, if the Form 1 or 4 is approved for a 10.5″ 5.56 gun and a person has a 8″ 300 Blackout upper, they can notify the NFA branch of the additional configuration. It was strongly encouraged that an individual do such, even if the change is temporary.

It was reported that the NFA Branch had little to no issues with the electronic fingerprint submissions. They advised that most prints they received were fine.

Lastly, for those curious about the process within the NFA Branch regarding trust applications, I was given this simplified process.

The application is received along with the payment. Payment is cashed and the data entry occurs. After the data is entered (it is kept in the order received) it is submitted to NICS for a check. Obviously the more Responsible Persons the more room for error, delays, etc. If a delay comes back on one person, the entire application is held up. This work is done by the legal assistants. By the time it hits the examiner, it is ready for approval or denial.

As I’m writing this, it I realized I forgot to ask about the disparity between approvals and postmark dates.

Firearms Ammunition Technology Division

Form 1 silencer builders have been in a constant state of argument as to what they can or can’t do. As of where we stand today, it is the opinion of FATD that a Form 1 maker CANNOT repair their silencer. They cannot replace a baffle if it is destroyed, repair a damaged endcap, or shorten the silencer. While not the answer the community wants to hear, that is the current position. Essentially, you’d have to file a new Form 1 and build a new silencer.

For those wondering about the new Autoglove, FATD has not seen a sample of that product.

If you’re thinking about building a clone of a firearm that has been approved as a non NFA firearm (ala Tac 14 or Shockwave, etc.) there is no requirement that you submit a determination request (which is true of any domestically built firearm). However, it was strongly encouraged to ensure your compliance.

 

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OIG Documents Reveal Issues with the ATF’s National Firearms Registration and Transfer Record

Leave it to the Government to require individuals to register National Firearms Act firearms and screw up the registry leaving a number of individuals with firearms that were possibly registered with no proof or obtaining criminal convictions against those who had firearms that were possibly registered in accordance with the law.

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Of Arms and the Law editor David Hardy has a pending Freedom of Information Act Request against the United States. Yesterday, his attorney Stephen Stambouleih won a partial motion for summary judgment which resulted in the Department of Justice’s Office of the Inspector General having to turn over documents (note the documents themselves are from 2007).

While the revelation of the inaccuracies of the National Firearms Registration and Transfer Record (“NFRTR”) are nothing new, the documents reveal a very different perspective on the issue. OIG had taken a survey of ATF Industry Operations Inspectors (“IOIs”) on the NFRTR. Prior to IOIs conducting a compliance inspection of a FFL who has an SOT, they print off a list of the firearms the NFRTR says the dealer should have and compare it to the physical inventory.

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49.2% of the IOIs said that they requested an inventory report from the NFA branch one to two weeks prior to conducting an inspection. When asked how often there was a discrepancy between the report and the inventory 16.4% of the IOIs responded that it was all of the time, 30.1% said most of the time and 39.5% said some of the time.

When asked how often the discrepancy was due to the NFRTR, 10% of the IOIs responded that it was always the NFRTR, 34.4% said most of the time and 33.1% said some of the time.

While the multiple choice questions certainly draw into question the NFRTR’s validity, the open ended responses are even better.

Q12 – How do errors and discrepancies in NFRTR inventory reports affect your ability to carry out compliance inspections?

“This calls into question the accuracy of the information from the NFRTR, reflects poorly on ATF, and makes it difficult to hold FFLs accountable for correct records when the NFRTR is not held to the same standards. Often, follow-up work is required, but the records are not updated in the NFRTR.”

Interesting how the Government can maintain shoddy records and that is perfectly fine, but if a licensee makes a mistake in their record keeping, it is suddenly a “willful” violation of the Gun Control Act and puts their license at risk. Out of the 297 responses, 75 called into question the accuracy of the NFRTR.

Some other noteworthy quotes from the IOIs include:

“When I conduct an NFA inventory reconciliation, I start knowing that the NFA register will be incomplete or inaccurate.”

“Going into an inspection knowing that almost certainly there will be discrepancies, affects your confidence level initially.”

“It create a problem in that the FFL becomes frustrated that our records are incorrect, thus making ATF look bad from the onset. Yet ATF expects perfection from FFLs.”

“The FFL records appear to be more accurate than the information contained within ATF’s records.”

“In one instance, I received an NFRTR inventory report with more than 60 errors on behalf of the NFA branch.”

“I basically have to depend more on the FFL’s inventory records than on the NFA Branch.”

The NFRTR’s inaccuracies place a number of individuals at risk in varying capacities. For some it may result in the seizure of a firearm, loss of license or at worst, a felony conviction. Hopefully Mr. Hardy’s FOIA request will continue to shed light on the inaccuracies of the NFRTR.

 

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BREAKING: BATFE Has Not Changed Anything Relating to Fingerprints for NFA Firearms

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This morning TheFirearmBlog.com posted a story which stated that ATF had revised its ruling in relation to fingerprints for NFA firearms. The article claims that ATF now requires law enforcement agencies to take fingerprints rather than anyone qualified to. To support this position the article links to ATF’s Explosives website.

As always, the information is provided by an anonymous source. Had the source or TheFirearmBlog.com looked at where the information came from, they would have clearly been able to see that this is simply not true. I’m a bit disappointed in TheFirearmBlog.com because usually they are an excellent source for correct information.

The problem is that the link goes to the Explosives portion of the website, NOT the firearms part. This is the same link that SilencerCo had previously used to support its position that Silencer Shop’s Secure Identity Documentation (SID) system would not be acceptable for the purposes of NFA firearms when it had sent an email to a major distributor earlier this year.

The link the article points to states:

How do I get my fingerprints taken?

Fingerprints must be submitted on Fingerprint Identification Cards, FD–258 that have been issued by ATF. The fingerprint cards must contain the following ORI information: WVATF0900; ATF–NATL EXPL LIC, MARTINSBURG WV. These fingerprint cards may be obtained by contacting the Federal Explosives Licensing Center at 877-283-3352 or the ATF Distribution Center at 703-870-7526 or 703-870-7528. The fingerprint cards must be completed by your local law enforcement authority.

Last Reviewed September 23, 2016

Emphasis added. Further if we look at the website the link goes to, we can clearly denote it is in the explosives area by looking at the information found on the left and above the question.

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ATF’s own Q&A relating to ATF 41F states that a licensee may take fingerprints provided they are properly equipped.

Q. May a Federal firearms licensee fingerprint a customer? As an FFL dealer, can we fingerprint our customers?

A. Fingerprints may be taken by anyone who is properly equipped to take them (see instructions on ATF Form 1, Form 4, Form 5, and Form 5320.23). Therefore, applicants may utilize the service of any business or government agency that is properly equipped to take fingerprints.”

As if there were any doubt, let us head to the regulations to review them.

In relation to the transfer of an NFA firearm, 27 C.F.R. § 479.85 Identification of Transferee states:

(a) If the transferee is an individual, such person shall:

….

(2) Attach to the application two properly completed FBI Forms FD-258 (Fingerprint Card). The fingerprints must be clear for accurate classification and should be taken by someone properly equipped to take them.

In relation to the making of an NFA firearm, 27 C.F.R. § 479.63 Identification of Applicant states:

(a) If the applicant is an individual, the applicant shall:

….

(2) Attach to the application two properly completed FBI Forms FD-258 (Fingerprint Card). The fingerprints must be clear for accurate classification and should be taken by someone properly equipped to take them.

(b) If the transferee is not a licensed manufacturer, importer, or dealer qualified under this part and is a partnership, company, association, trust, or corporation, such person shall:

(2) Except as provided in paragraph (c) of this section, attach to the application –

(iv) Two properly completed FBI Forms FD-258 (Fingerprint Card) for each responsible person. The fingerprints must be clear for accurate classification and should be taken by someone properly equipped to take them.

(b) If the applicant is not a licensed manufacturer, importer, or dealer qualified under this part and is a partnership, company (including a Limited Liability Company (LLC)), association, trust, or corporation, the applicant shall:

(2) Except as provided in paragraph (c) of this section, attach to the application –

(iv) Two properly completed FBI Forms FD-258 (Fingerprint Card) for each responsible person. The fingerprints must be clear for accurate classification and should be taken by someone properly equipped to take them.

Once again, we see there is no support for the proposition ATF changed anything. If you are applying to make or transfer an NFA firearm you can roll your own fingerprints, utilize Silencer Shop’s SID kiosk, have your FFL roll your fingerprints or head over to your local law enforcement to have them taken.

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ATF Releases Open Letter to CLEOs Regarding ATF 41F

On May 25, 2016 ATF released an Open Letter to Chief Law Enforcement Officers regarding ATF 41F. The letter can be found here.

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The letter briefly describes some of the changes that will occur after the rule is implemented.

Of note is the notification requirements for the CLEO. In short, all legal entities will be required to forward a copy of all Applications to Make (Form 1s) or Applications to Transfer (Form 4s) and the Responsible Person Questionnaire to the CLEO of the localities where the Responsible Person is located.

The letter does note that no action on the part of the CLEO is required, does not specify in what manner a CLEO should store the documentation, if they choose to do so, and asks that if the CLEO has any information that may disqualify any maker or transferee, including a responsible person of a legal entity, from making or possessing a firearm to provide that information to the NFA Branch.

Of concern is that the letter does not specify the copies of the Form 1s and Form 4s that the CLEOs are receiving contain confidential tax information and should be treated as such. If CLEOs choose to destroy the forms, rather than keep them, are they disposing them in a manner that would not allow an individual to view the information contained on the form? Further, the letter does not advise CLEOs (those who may reside in states that don’t allow some or all NFA items) that an individual may be a trustee of a trust located in another state. This may cause some issues with CLEOs reporting to ATF that those items are not allowed in that state.

Interestingly enough, it would seem that ATF is continuing to have the CLEO involved by asking for notification as to whether they have information about that individual which would disqualify the entity from obtaining the item. Perhaps ATF believes that the CLEO is still the best person to know the affairs of an individual even though they are now required to submit fingerprints and photos as a responsible person.

The letter does confirm that as long as applications are postmarked by July 13, 2016, they will be grandfathered in under the current regulations.

 

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NFA Firearms, Form 1s, Engraving and Cartoon Chickens

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Late last week an article was posted on a popular website, dedicated to firearms news, about the engraving of firearms that had approved Form 1s. The author describes how easy it is for one to submit a Form 1, with the advent of eForms, to register your firearm as a Short Barrel Rifle (“SBR”) but laments the marking requirement. He accurately describes ATF’s response to any number of questions you could ask them by stating “Ask three people whether you need to engrave your information on your newly registered NFA device and you’ll get three different answers.”

The author then prefaces the remainder of the article with “In an effort to sort out the confusion I asked the ATF directly…”. Oddly enough, the author seems to forget his previous statement, a mere sentence prior, that if you ask three people at ATF whether you need to engrave your information that you would receive three different answers.

The article states that if you do not plan on selling your SBR, there is no requirement to engrave the firearm. The author also claims that if you remove the firearm from the registry in order to sell it, at that point you’ll need to engrave your information on the firearm.

Perhaps the most concerning part of the post is that nowhere does the author state who he spoke to, cite to any statutes or regulations, or produce a letter from ATF confirming his statements.

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Confused yet? Let’s attempt to remove the dog from the hen house.

In an effort to make things simple to follow, a few terms need to be defined. We will examine both the National Firearms Act and its regulations.

26 U.S.C. 5845 is where one can find the definitions for the National Firearms Act.

(i) Make

The term “make”, and the various derivatives of such word, shall include manufacturing (other than by one qualified to engage in such business under this chapter), putting together, altering, any combination of these, or otherwise producing a firearm.

(m) Manufacturer

The term “manufacturer” means any person who is engaged in the business of manufacturing firearms.

It is important to differentiate between the preceding two terms. The term “manufacturer” applies to those who are engaged in the business of manufacturing firearms, while the other is in reference to individuals or entities not engaged in the business of manufacturing firearms.

26 U.S.C. 5842 regulates the identification of firearms.

(a) Identification of firearms other than destructive devices

Each manufacturer and importer and anyone making a firearm shall identify each firearm, other than a destructive device, manufactured, imported, or made by a serial number which may not be readily removed, obliterated, or altered, the name of the manufacturer, importer, or maker, and such other identification as the Secretary may by regulations prescribe.

27 C.F.R. 479 et seq. is where one can find regulations pertaining to the National Firearms Act.

Make. This term and the various derivatives thereof shall include manufacturing (other than by one qualified to engage in such business under this part), putting together, altering, any combination of these, or otherwise producing a firearm.

Manufacturer. Any person who is engaged in the business of manufacturing firearms.

Again, the distinction between maker and manufacturer is seen.

27 C.F.R. 479.102 regulates how firearms must be identified. In the pertinent part:

(a) You, as a manufacturer, importer, or maker of a firearm, must legibly identify the firearm as follows:
….
(2) By engraving, casting, stamping (impressing), or otherwise conspicuously placing or causing to be engraved, cast, stamped (impressed), or placed on the frame, receiver, or barrel thereof certain additional information. This information must be placed in a manner not susceptible of being readily obliterated, altered or removed. For firearms manufactured, imported, or made on and after January 30, 2002, the engraving, casting, or stamping (impressing) of this information must be to a minimum depth of .003 inch. The additional information includes:
(i) The model, if such designation has been made;
(ii) The caliber or gauge;
(iii) Your name (or recognized abbreviation) and also, when applicable, the name of the foreign manufacturer or maker;
(iv) In the case of a domestically made firearm, the city and State (or recognized abbreviation thereof) where you as the manufacturer maintain your place of business, or where you, as the maker, made the firearm; and

The regulations pertaining to identifying NFA firearms unequivocally state that the maker of the firearm must engrave, cast, stamp, or otherwise conspicuously place their name and the city and state where the maker made the firearm.

Now, I will admit, the regulation does not speak to the “remanufacture” of a firearm. But the term “remanufacture” is not defined in the National Firearms Act of 1934, the Gun Control Act of 1968, 27 C.F.R. 478.11, or 27 C.F.R. 749.11.

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But we need not explore this non sequitur any further because the statue and regulation clearly state that if you are putting together, altering, or any combination thereof, you are manufacturing a firearm. And if you are manufacturing the firearm, you are required to identify it with certain information.

With regard to the serial number, caliber/gauge and model, ATF has published ruling 2013-3 which states that licensed manufacturers and licensed importers of firearms, and makers, may adopt the serial number, caliber/gauge and model on the firearm without a marking variance provided a number of conditions are met. You can view that ruling here.

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Has ATF Directed FFLs to Abuse the NICS System?

It’s no secret that ATF told at least one FFL they need to run a NICS check on trustees picking up NFA firearms on behalf of a trust. In a letter addressed to Dakota Silencer, ATF explained:

The term “person” is defined by the GCA at 18 U.S.C. § 921(a)(1), to include “any individual, corporation, company, association, firm, partnership, society, or joint stock company.”

ATF has interpreted the GCA exception in sections 922(t)(3)(B) and 478.102(d)(2) to mean that firearms transfers are exempt from a NICS check when they have been approved under the NFA to the person receiving the firearm. Unlike individuals, corporations, partnerships, and associations; unincorporated trusts do not fall within the definition of “person” in the GCA.

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.

This interpretation is what spawned the blog post “Did ATF’s Determination on NICS Checks Open the Door for Manufacture of New Machineguns for Trusts”  by Chief Counsel Joshua Prince. And as we all know, the NFA Examiners issued a number of approved Form 1s before they had to recall them due to an “error”.

Since this letter was published, a number of FFLs either on their own accord or through advice of counsel have begun to perform background checks when transferring NFA Firearms to trustees. But is this actually required?

A person under the National Firearms Act is defined in 26 U.S.C.A. § 7701:

The term “person” shall be construed to mean and include an individual, a trust, estate, partnership, association, company or corporation.

As defined in the National Firearms Act of 1934, the term firearm means:

 (1) a shotgun having a barrel or barrels of less than 18 inches in length; (2) a weapon made from a shotgun if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length; (3) a rifle having a barrel or barrels of less than 16 inches in length; (4) a weapon made from a rifle if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 16 inches in length; (5) any other weapon, as defined in subsection (e); (6) a machinegun; (7) any silencer (as defined in section 921 of Title 18, United States Code); and (8) a destructive device. 26 U.S.C.S § 5845(a)

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As defined in the Gun Control Act of 1968, the term firearm means:

(A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device. Such term does not include an antique firearm. 18 U.S.C. § 921(a)(3)

So what’s the big deal you ask? There are a few different issues that need to be addressed.

First, does the GCA of 1968 even APPLY to trusts? As Section 921(a)(1) does not define the term “person” to include an unincorporated trust, there is nothing in the GCA to indicate a trust falls under its purview! As Chief Counsel Joshua Prince pointed out to me in our discussions on this topic, ATF has said that a trust cannot hold an FFL because trusts, by definition, are not a person under the GCA and thus do not fall into the purview of 18 U.S.C. § 923. Yet, in the same breath, ATF is stating that trustees need to have a background check performed when they pick up a NFA item! How is it that ATF can refuse an FFL to a trust, because it is not a person under the GCA and refuse to pierce through the trust to an actual person, while requiring an FFL to, in essence, pierce through the trust to perform a background check for an NFA item?

It would seem that ATF is directing at least one FFL to perform a background check that I can find no legal requirement to perform. To my knowledge there has not been an industry wide newsletter or open letter directing that FFLs perform such a check. And even if there were, there is nothing I can find in the law to suggest that it is actually required.

ATF in a 2011 newsletter to FFLs, addressed the licensing of trusts under federal firearms law. ATF stated that only a person under the GCA could obtain a FFL. ATF went on to say that under Section 921:

“The term ‘person’ does not include trusts.”

In a 2008 newsletter to FFLs, ATF addressed the transfer of a National Firearms Act firearm to a corporation or other legal entity.

Procedure after approval
Approved NFA transfers are exempt from the NICS background check. So, when the FFL arranges for the disposition of the NFA firearm to a representative of the corporation or other entity, only the ATF
Form 4473, Firearms Transaction Record, must be completed by the representative of the corporation or other entity.

Furthermore, the NICS system isn’t even run by ATF. FBI is responsible for NICS and for what purposes it can be used. 28 C.F.R. § 25.6 provides:

(a) FFLs may initiate a NICS background check only in connection with a proposed firearm transfer as required by the Brady Act. FFLs are strictly prohibited from initiating a NICS background check for any other purpose.

The Brady Act amended § 922 along with a few other sections of Chapter 44.

Looking at 18 U.S.C. § 922(t)(1), it provides:

Beginning on the date that is 30 days after the Attorney General notifies licensees under section 103(d) of the Brady Handgun Violence Prevention Act that the national instant criminal background check system is established, a … licensed dealer shall not transfer a firearm to any other person who is not licensed under this chapter, unless—
(A) before the completion of the transfer, the licensee contacts the national instant criminal background check system established under section 103 of that Act;

Section 922(t)(3) provides:

Paragraph (1) shall not apply to a firearm transfer between a licensee and another person if–…

(B) the Attorney General has approved the transfer under section 5812 of the Internal Revenue Code of 1986;…

If the Attorney General approved the transfer under Section 5812 of the Internal Revenue Code then no NICS check is required. But the devil is in the details. We are talking about a transfer from a licensee to a person and a trust is not a person as defined in 18 U.S.C. § 921. Since the licensed dealer isn’t transferring the firearm to a person, how could the GCA apply at all? Furthermore, why does it matter that the trustee or person acting on behalf of the trust is not the approved transferee under 26 U.S.C. § 5812? What makes them so special that they need a NICS check performed? A person who comes in to pick up a NFA firearm on behalf of a corporation or a LLC isn’t the approved transferee. Yet, ATF doesn’t seem to have any qualms about that individual picking up a NFA firearm without a NICS check under the 18 U.S.C. § 922(t)(3)(B) exemption.

Moreover, 28 C.F.R. § 25.6 prohibits FFLS from utilizing the NICS system for any other purpose than required by the Brady Act. Ostensibly, FFLs cannot comply with what ATF purportedly wants them to do; access NICS to perform a background check on a Trustee picking up a NFA firearm.

Utilizing the NICS system for purposes other than allowed by Subpart A of the National Instant Criminal Background Check System as defined by 28 C.F.R. §§ 25.1-25.11 shall result in a fine not to exceed $10,000 and the possible cancellation of NICS inquiry privileges. Which can more or less be read as the loss of ability to conduct business as a FFL, if it is canceled.

Even if the NICS query would not be illegal to perform, there is another issue under Pennsylvania law!

Pennsylvania defines firearm very differently. In 18 Pa.C.S. § 6102 a firearm is defined as:

Any pistol or revolver with a barrel length less than 15 inches, any shotgun with a barrel length less than 18 inches or any rifle with a barrel length less than 16 inches, or any pistol, revolver, rifle or shotgun with an overall length of less than 26 inches. The barrel length of a firearm shall be determined by measuring from the muzzle of the barrel to the face of the closed action, bolt or cylinder, whichever is applicable.

As you are probably aware, the Pennsylvania State Police act as a point of contact for the NICS system. However, Pennsylvania law only allows for limited uses of the PICS system. These uses are defined in 18 Pa.C.S. § 6111.

psp

Section 6111(b) requires that:

No … licensed dealer shall sell or deliver any firearm to another person … until the conditions of subsection (a) have been satisfied and until he has:

(1) For purposes of a firearm as defined insection 6102 (relating to definitions), obtained a completed application/record of sale from the potential buyer or transferee…

(2) Inspected photoidentification of the potential purchaser or transferee…

(3) Requested by means of a telephone call that the Pennsylvania State Police conduct a criminal history, juvenile delinquency history and a mental health record check.

(4) Received a unique approval number for that inquiry from the Pennsylvania State Police and recorded the date and the number on the application/record of sale form.

(5) Issued a receipt containing the information from paragraph (4), including the unique approval number of the purchaser….

Section 6111(f)(1) provides:

For the purposes of this section only … “firearm” shall mean any weapon which is designed to or may readily be converted to expel any projectile by the action of an explosive or the frame or receiver of any such weapon.

Even with the expanded definition of firearm for the purposes of this section, a silencer does not fit into the criteria spelled out by the General Assembly!

So what does all of this mean?

Section 6111(g)(3) states:

Any … licensed dealer … who knowingly and intentionally requests a criminal history, juvenile delinquency or mental health record check or other confidential information from the Pennsylvania State Police under this chapter for any purpose other than compliance with this chapter … commits a felony of the third degree.

Even if FFLs could contact NICS to perform a background check on a trustee when delivering a NFA Firearm without abusing the system, a Pennsylvania FFL will be committing a felony of the third degree under state law!

nics

FFLs who are conducting background checks on trustees due to their interpretation of the Dakota Silencer letter or legal advice they received may wish to inquire with their counsel as to whether or not they actually need to perform one. There does not appear to be any basis in the law for such a requirement. Section 921 does not include an unincorporated trust in the definition of a “person” and the Attorney General would have approved the transfer under 26 U.S.C.A. § 5812 to the trust!

 

UPDATE:

As there have been some emails and comments on this post, it is appropriate to update it so there is no confusion. In PA and from what I understand, several other states, the definition of a firearm does not include a silencer. However, in PA SBRs, SBSs, Machine Guns and AOWs would require a FFL to conduct a PICS check as the definition of firearm would include those items. I apologize if anyone was misled. This was strictly in the context of a silencer. As always, consult with your legal counsel before making any decisions.

 

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Filed under ATF, Firearms Law, Pennsylvania Firearms Law