Tag Archives: National Firearms Act

ATF releases 2018 Report on Firearm Commerce in the United States (Numbers, Bar Graphs, and Pie Charts!)

ATF has released its annual Firearms Commerce in the United States Statistical Update for 2018. As my one friend put it, “Let the nerdery begin.” To be fair, you have to be pretty nerdy to enjoy this stuff, hence me writing about it.

The Annual Firearms Manufacturing and Exportation Report (AFMER) is only current through 2016. This is because AFMER data is not published until one year after the close of a calendar reporting year because the information provided by those whole filed a report is protected from immediate disclosure by the Trade Secrets Act. Which is why you see a two year lag (2016 data reporting in the beginning of 2017 and a year delay between its reporting and publication).

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In 2016, there were a total of 11,497,441 firearms manufactured. This was up from 2015’s number of 9,358,661 by about 20%. The number of exports was up from the previous year by about 9%, from 343,456 in 2015 to 376,818 in 2016.

The total number of imports fell from 5,137,771 in 2016 to 4,492,256 in 2017 (imports are not included not the AFMER report which is why the numbers are more current). Once again, the number of handguns imported accounts for over half the total number of firearms imported.

For those of you NFA junkies, in 2017, there was $6,371,000 in occupational taxes paid (SOTs). This is up again from the year prior and slightly under double that of 2012. Taxes paid were $22,972,00 for 2017, about a third of what was paid in 2016 ($62,596,000). Interestingly, there were 6,749 record checks, which means that ATF searched the National Firearms Registration and Transfer Record (NFRTR) that many times to determine if a firearm was possessed lawfully or if the transfer was performed lawfully. That number is up 202 times from 2016.

In 2017, there were 40,444 Form 1s and 184,312 Form 4s filed. These numbers were different from the year prior, but not by a significant margin for the Form 1s (Form 1s were down by about 9,000 but Form 4s were up about 51,000). The total number of forms processed by the NFA Branch was down about a million from the year prior. 2017 number look similar to that of 2014 and 2015.

As far as NFA firearms registered by state, Texas still leads with 637,612. Florida follows with 377,2017. California (thanks Hollywood), Virginia and Pennsylvania round out the top 5. Florida leads the charge with registered machine guns, sitting at 44,484. Texas has an astonishing 265,597 registered silencers. Florida is the next closest with 98,972 registered silencers.

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There are currently 55,588 licensed collectors of curios or relics, making it the most popular license type. It is followed closely by dealer in firearms, of which there are 56,638 active licenses. ATF reports 136,081 total active licenses (across the spectrum). Texas holds 10,920 of those licenses, making it the state with the most.

In 2017, 17 license applications were denied. This number is up exactly one from the year prior. As for compliance inspections, ATF performed 11,009 last year. This equates to 8.09% of all licensees in 2017 being inspected.

As always, the annual report helps give some insight as to ongoings within the firearms industry.

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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.

nfrtr

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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News from the Round Table Discussions at the NSSF Import/Export Conference

It’s that time of year again, the NSSF Import/Export Conference which is held in Washington, D.C. While the conference is designed to help educate companies about the import/export regulations and laws they might encounter while in the business, the conference does provide for round table discussions with ATF, DDTC and other Firearm Industry officials. Some of the officials from ATF that I had the opportunity to sit around the table with were Ted Clutter (Section Chief of the NFA Branch), Earl Griffith (Head of the Firearms and Ammunition Technology Division [FATD]), Max Kingery (Second in Command at FATD) and Edward Courtney (Head of the Firearms Industry Programs Branch).

ATF

General ATF

Marvin Richardson, the Deputy Assistant Director of Enforcement Programs and Services, announced during the ATF Panel Discussion that there would be a new NFA Division (discussed further below).

Andy Graham Deputy Assist Director for Industry Operations reviewed some statistics from this past year.

Inspection statistics:

177 new importer applications

493 inspections occurred, 177 were related to importer applications, the rest were compliance inspections.

There was 1 application denial, 103 applications which were withdrawn for various reasons, 110 compliance inspections resulted in no further action, 36 compliance inspections that resulted in license surrenders,  and 15 special requests for inspections from licensing center.

There were 3 inspections that resulted in warning conferences and 14 inspections that resulted in a warning letter with a recall. There were also 8 inspections that resulted in a warning letter without a recall.

Last fiscal year, base of licensees dropped from ~141,000 to ~139,000.

Alphonso Hughes chief of the Firearms & Explosives Services Division reviewed changes to the structure of different divisions of ATF.

FFL Licensing Center has 20 examiners processing applications. FEL Licensing Center has 10 examiners working for it.

NFA Branch has 24 examiners staffing it. It’s down from 26. There are now 4 sections within the NFA Branch. That’s up from the previous 2. There are 7 vacant examiner positions that they are in the process of filling. Projections into 2017 for additional staff to help the NFA Branch.

Krissy Carlson, the chief of the Firearms and Explosives Industry Division, reviewed the new 4473 that is up for comment (again) on the Federal Register. For more on that see Chief Counsel Joshua Prince’s blog article. They are also introducing a newsletter that they’ve been working on since November! Krissy also mentioned new rulings based on petitions submitted to them.

Andrew Lange the Division Chief of the Officer of Regulatory Affairs spoke about the difference between regulations and rulings. There are a couple of rulemaking proceedings that are in the notice and comment phase. He specifically mentioned the ATF 29P notice and comment period closing today which I filed a comment in Opposition of the Advanced Notice of Proposed Rulemaking on behalf of Dead Air Silencers. You can find that comment here.

Lastly, Earl Griffith, the Chief of the Firearms and Ammunition Technology Division, spoke. There are some promotions within the division. They are on track to do over 1,000 marking variances this year. They are taking about 2-3 weeks to process.

 

nfa branch

NFA Branch

NFA Stats:

307,000 NFA Applications were processed. Last year there were 221,000. On track to receive about 400,000 forms for this year based on last years numbers. They are predicting 469,000 for this year because of ATF 41F (shout out to NFATCA).

Processing time is advertised as 6 months. In the last 5 weeks, they received 126,000 forms on top of the 90,000 they already have. 6 months now may be 8 or 9 months. Sorry guys. Just forget you ever submitted anything.

7,500 applications a week were received before 41F was announced. It doubled after the announcement of ATF 41F. It approached 35,000 in a single week closer to ATF 41F being implemented.

Alphonso said that the non-tax paid forms should be close to a 30 day processing time. He told his examiners to make that a priority.

They received several million dollar days in tax paid forms for the month of July. They cleared 11 million dollars in tax paid applications for the month of July.

They are looking to implement an electronic method for the submission of tax paid forms post 41F. Alphonso mentioned the possibility of electronic submission of the application and RP questionnaires with a matching barcode sheet to mail in the fingerprints.

NFA Branch is going to become a division with several branches within it to modernize the workflow. This is due to congressional oversight inquiries. They are looking for approval on paper in the first quarter of fiscal year 2017. Actual implementation in the 2nd or 3rd quarter. Alphonso will be the Chief of the NFA Division.

I also asked the NFA Branch a number of questions during the round table discussion. Before attending the conference I asked members of AR15.com, other industry related forums, and on Facebook questions they had that they wanted answered. I received a number of good questions which I decided I would ask.

Does ATF intend to bring back eForms for Form 1 and Form 4s?

Sounds like due to funding the eForms system will just be maintained where it is, until there is funding to replace it. In other words…

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Is the NFA Branch still accepting corrections to forms submitted that had “non fatal” errors?

Yes. They are.

Does the NFA Branch have any procedures in place for forms which were submitted with credit card information that was rejected for wrong numbers, when the right number was listed on the form, particularly in light ATF 41F going into effect?

Not currently. That is something I am going to follow up with ATF about. I was alerted that it would likely need to be run through the NFA Branch counsel before I received an answer.

Does ATF prioritize Form 3 transfers? Is there any plans to “auto approve” Form 3 transfers using the eForms system after verifying the information on the form?

As stated earlier, the NFA branch is again prioritizing Form 3s. They are trying to process them within 30 days (that’s the goal). There is no plan for “auto approval”.

What constitutes a “fatal error” on a form?

A few examples I was given were 1) wrong serial number, 2) no serial number, 3) wrong address.

Firearms and Ammunition Technology Division

If you have a sample you want a determination request on prior to SHOT Show 2017, you must submit it to FATD no later than the end of September.

Office of Regulatory Affairs

For those who had questions regarding why comments reflected in the docket for regulatory changes were not all displayed, I learned a few things. First, if the comment contains just vulgarity, it will not be displayed. ATF will retain it and it will likely be subject to a FOIA request, but it won’t be displayed on regulations.gov. They also may be available for viewing in the reading room.

As for the timeline for comments submitted being displayed on regulations.gov, I was told that depending how much workload they had, it could be very quick or take a while.

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DDTC

Unfortunately, the question that most people wanted answered “Do I have to register under ITAR?” is not one that was able to be asked to someone at DDTC who handles registration. However, the guidance that DDTC issued on July 22nd, available here, tells you whether you have to register under ITAR or not. Additionally, the guidance also tells an individual how to inquire with DDTC as to whether the need to register.

 

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Attempt to Prevent ATF-41p and to Fund Federal Firearms Relief Through Omnibus Appropriation Bill Failed

As many of our viewers are aware, we were closely following H.R. 2578, as it contained two pro-Second Amendment provision, namely Amendment 302 and Amendment 320.

Amendment 302 provided “that such funds appropriated for BATF shall be available to investigate or act upon applications for relief from Federal firearms disabilities under United States Code”

Amendment 320 provided ATF was prohibited from “the use of funds to propose or to issue a rule that would change the Chief Law Enforcement Officer certificate requirement with respect to purchase of suppressors and other firearms regulated by the National Firearms Act.”

Unfortunately, these Amendments were stripped from the final bill – HR 2029 – Consolidated Appropriations Act, 2016. As a result, you will not find any text related to Amendment 320 and the text in relation to federal firearms relief remains the same as it has since 1992 –

Provided, That none of the funds appropriated herein shall be available to investigate or act upon applications for relief from Federal firearms disabilities under section 925(c) of title 18, United States Code

As the Obama Administration has pledged to work through the Holiday Season on new regulations to limit our Second Amendment rights, including in relation to ATF-41p, we now need to be prepared to bring the FIGHT to ATF, when they implement a final rule regarding 41p.

We put a LOT of blood, sweat and tears into our initial Comment, as well as, our Supplemental Comment. We have over 400 hrs into them that we did pro-bono. Unfortunately, with the magnitude of this type of litigation, we need funding.

While we understand that it is tough this time of year to donate to a cause, anything you can offer would be greatly appreciated. We are attempting to reach our goal in advance of any final rule being promulgated in relation to 41p, so that we can immediately take action, including filing for a preliminary injunction in an attempt to prevent any final rule from being implemented during the litigation.

For more info and to donate see www.FightATF41p.com and our Press Release.

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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.

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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!

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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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Black Aces Tactical, the SigTac SB15 arm brace and ATF’s misguided determination letter

On November 14th Black Aces Tactical received a determination letter from the Firearms Technology Industry Services Branch (FTISB) regarding their recent submission of what at first glance appears to be a SBS or AOW. Black Aces Tactical was hoping to have the item classified as a “firearm” thus removing it from the purview of NFA entirely.

ftb1  The SigTac SB15 arm brace has caused quite the controversy since its introduction and much to the delight of those in states where SBRs are illegal and those who don’t wish to go through the process of obtaining a NFA firearm. Some contend that the arm brace is a “loophole” or a way to “cheat” the system but the law supports ATF’s determination that the arm brace was never designed or redesigned with the intent for it to be shoulder fired. The determination letter that accompanies each arm brace states that “We find that the device is not designed or intended to fire a weapon from the shoulder.”

atfsig  In March of 2014, Sergeant Joe Bradley of the Greenwood Police Department received a reply from the Firearms Technology Branch (FTB) in response to his question which asked, if an AR-15 type pistol was fired from the shoulder, would it cause the pistol to be reclassified as a Short Barreled Rifle. FTB responded that it would not and that it had previously determined that firing a weapon from a particular position (like placing the buffer tube to one’s shoulder) does not change the classification of the weapon. It further asserts that ATF did not classify the SigTac SB15 arm brace as a stock so its improper usage would not change the weapons classification.

So what’s all the buzz about this new letter from the FTISB to Black Aces Tactical? 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 to the left side. On page 3 of ATF’s response, the FTISB explains what would make a pistol an AOW but since the OAL was greater than 26 inches and NOT concealed on a person, the sample was excluded from being classified as an AOW.

sigbraceusage  FTISB classified the sample as a “firearm” as defined by the Gun Control Act of 1968 and not a “firearm” under NFA, which is what Black Aces Tactical was after. However, FTISB states that should the weapon be concealed its classification may be changed. What’s more troubling is what comes next.

“Should an individual utilize the SigTac SB15 pistol stabilizing brace on the submitted sample as a shoulder stock to fire the weapon from the shoulder, this firearm would then be classified as a “short-barreled shotgun…because the subject brace has then been made or remade, designed or redesigned from its originally intended purpose.

This seems to be a complete contradiction of its earlier determination that when shouldering an AR-15 type pistol, with or without the brace, the classification of the firearm remains the same. So what changed? Nothing.

Unfortunately for ATF, it seems to have missed an important definition in the National Firearms Act. One of the definitions of a “firearm” is a shotgun with a barrel length of less than 18 inches or a weapon made from a shotgun if the weapon has an overall length of less than 26 inches or a barrel less than 18 inches. A shotgun is defined as “a weapon designed or redesigned…and intended to be fired from the shoulder…” Since the sample was never intended to be fired from the shoulder and is not a shotgun, then it surely cannot be a firearm under the National Firearms Act which would exclude it all together from becoming a short barreled shotgun.

Is it possible that ATF has now changed its position on the SigTac SB15 arm brace and is getting ready to issue a determination letter which would result in an individual shouldering an AR-15 type pistol with the brace converting the firearm into an illegal short barreled rifle?

If so, ATF has apparently chosen to ignore the definitions found in the National Firearms Act again. Attaching the brace to a buffer tube and shouldering it is not “making or remaking” nor is it “designed or redesigned ” from its originally intended purpose. ATF even stated in its determination letter that comes with every SigTac Brace that it “does not convert that weapon to be fired from the shoulder.” A rifle is defined as “a weapon designed or redesigned…and intended to be fired from the shoulder…” If ATF is planning to issue a determination letter similar in nature as applicable to AR-15 style pistols, ATF will have failed to reconcile that under NFA an AR-15 style pistol cannot be defined as a “firearm” as it doesn’t meet any of the criteria! An AR-15 style pistol was never a rifle and as such even with a SigTac brace attached falls outside of NFA’s regulation.

I’ve requested the first two pages of the letter along with more information about the sample which was provided to ATF for the determination. While the determination letter is specific to the sample provided, it is possible that Black Aces Tactical has opened Pandora’s box with regards to the SigTac SB15 arm brace and its future, but the law does not support the transformation that ATF suggests.

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Things of interest and note from the recent ATF eForms bulletin

The big story in the world of ATF eForms is both the rapid turnaround on eForms and unlawful NFA “eStamps” issued by the ATF’s NFA Branch, but it is not the only important eForm news to emerge in the last few days. Several items of importance were disclosed by the ATF in their most recent eForm Bulletin.

The eForm Bulletin is an attempt to address common issues that users of the eForms have been having and issues that the ATF has been having with eForms that have been submitted. Many of the issues are of a highly technical and/or limited nature, so we’re going to try and highlight some of the ones that our readers may find the useful when preparing their eForms.

1. No P.O. boxes may be used on a eForm:

“Please do not use a PO Box address as the address for the maker or transferee. The physical address of the legal entity (trust, LLC, etc.) must be used”

2. If you make a mistake…you’re going to need to try again (so try and get it right the first time):

“We cannot make changes to a submitted NFA eForm. If you make an error in the name or serial number, you will need to contact the NFA Branch at (304) 616-4500 and request the withdrawal of the form. You will then need to submit a new application. Please ensure that the information is correct upon submission.”

3. No, there isn’t “this one trick” to get more than one firearm registered via a Form 1. Due to a glitch in the system, it was possible to submit a Form 1 with more than firearm on it. Most people realized that you can’t do this, but for many new to NFA firearms and unaware of the rule, take heed, you are not going to be able to do a discount multiple item Form 1…believe me if you could have we would have already done it:

eForms was designed for only one firearm to be submitted on a taxpaid Form 1 as a tax stamp is affixed upon approval. We have found that there is a glitch that allows the filing of a Form 1 with more than one firearm. ATF cannot approve the Form 1 application filed with multiple firearms as the system cannot create multiple forms with multiple stamps. We will have to disapprove the application and refund the tax paid. The applicant will need to file again with only one firearm per submission. If you have submitted a Form 1 with more than one firearm, please contact Gary Schaible at (202) 648-7165, so that he can advise you of the procedure to rectify this problem. Our apologies for this and we will look to fix this glitch.

4. Choosing a short name for your trust isn’t just useful for engraving purposes. It also factors into the eForm as well, it pays to not name your trust in a manner that Fiona Apple named one of her albums:

If the trust or corporate name for an eForm 1, 4 or 5 exceeds 50 characters, you will not be able to submit the application. The trust or corporate names are the entries made in the Licensee/Permittee Name on eForm 1 or as the transferee Business Name on eForms 4 or 5.

For example, a trust entitled ‘THE JOHN JAMES DOE AND MARY ANN DOE REVOCABLE LIVING TRUST’ will prevent the submission of the application due to the length of the name. Typically, the form will close when you submit and bring you back to the carousel. You may receive an error message or a message that the application has submitted but it remains in the draft folder.

To preclude this error, an acceptable way to decrease the number of characters is to replace ‘REVOCABLE LIVING’ with ‘RL’ as an acceptable abbreviation for the purposes of the application. Thus, the above cited trust would be shown as ‘THE JOHN JAMES DOE AND MARY ANN DOE RL TRUST’ as the applicant maker or transferee.

Please spell out as much of the trust or LLC name as possible within the 50 character limitation.

5.When entering the applicant’s name on an eForm 1, just put down your trust name:

When an eForm 1 is submitted by a legal entity on an eForm 4 or 5, only the trust or LLC name should be entered as the applicant (Licensee/Permittee Name field on eForm 1) or as the transferee (Business Name field on eForms 4 or 5).
Do not list the identification of the trustee (for example, John Doe, trustee) as part of the applicant or transferee name. The identification of the entity members will be available in the information attached, to document the entity.

6. The proper way to identify the manufacturer of a firearm.

For those who will simply be modifying an existing weapon:

If you are modifying an existing firearm, typically a standard configuration rifle into a short barreled rifle, the form requires the name of the original manufacturer of the firearm. When submitting an eForm 1, on the line item screen, a window for the entry of manufacturer is opened after clicking the Add Firearm button. At this point, the applicant would enter a short version of the manufacturer’s name to bring up a list of names for selection of the manufacturer from the list. Select the correct manufacturer and proceed to the description screen. You may note that the manufacturer code field also populates. We issue a code to a manufacturer. While the original manufacturer information is captured, the applicant is the maker and registrant for purposes of the NFA and must mark the firearm.

For those who will be make their own item.

If you are creating the firearm yourself, such as a silencer or a short barreled rifle (when finishing a receiver that is not yet a firearm), there is no original manufacturer. Because of the large number of makers (which includes filings by trusts), we do not issue a specific code to each maker. Instead, we use a generic code of FMI to denote a Form 1 registration. Thus, when submitting an eForm 1 where there is no original manufacturer, on the line item screen, a window for the entry of manufacturer is opened after clicking the Add Firearm button. At this point, the applicant should click the “By Manufacturer Code’ button and enter FMI as the manufacturer code and click Verify. The applicant will then select the United States as the country of manufacture and proceed to the description screen. Please note that ‘FORM 1 REGISTRATION’ will appear as the name of the maker on the PDF of the eForm 1. Again, the applicant is the maker and registrant for purposes of the NFA and must mark the firearm.

7. You may want to change your password. It appears that the complexity rules for choosing a password were not fully functional and allowed for weaker than allowed passwords to be registered.

An eForms industry member has brought to our attention that an important rule is missing from our password complexity rules, listed on the registration screen where you create your eForms password.

The requirements are currently displayed as follows:

Choose a password as per the following rules:

1. Must have at least twelve (12) characters in length.

2. Must contain at least one or more number(s) (0-9).

3. Must contain at least one or more special character(s) (!@#$%^&*(),).

4. Must contain at least one or more upper and lower case letter(s) (a-z, A-Z).

The rule that is missing is:

Must be no fewer than 5 alphabetic characters in your password.

Please adhere to this rule when you are creating or changing your eForms passwords.

Note: Thank you to the industry member who discovered and reported this problem.

While it may not make for the most exciting reason, the rules are the rules…well except when the ATF doesn’t feel like it…but you don’t get that luxury, so it’s best to make sure you are well acquainted with the rules for the NFA Process. If you are interested in acquiring NFA Items and need guidance, Prince Law Offices, P.C. will be happy to assist you in matters ranging from Gun Trusts to eForm questions.

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