ATF Chief Counsel Robert Leider Explains the Bureau's New Gun Rules

Hinzugefügt: 2026-05-18

[00:00:00]ATF Chief Counsel Robert Lighter [music] explains dozens of the bureau's new gun rules. That and more on this episode of the Weekly Reload Podcast.

[00:00:12][music] [music] >> All right, welcome ladies and gentlemen to another episode of the Weekly Reload Podcast. I'm your host Steven Gatowski.

[00:00:24]I'm also the founder of the reload.com where you can head over and sign up for our free weekly newsletter today if you want to keep up to date with what's going on with guns in America from a sober serious perspective that focuses on hard news and analysis. This week we are diving into the ATF's new gun rule package. And to do that we actually have somebody who can speak for the ATF.

[00:00:49]That's uh the chief counsel Robert Lighter here with us. Actually back on the show. He's been on once before uh before he was at the ATF, but uh welcome back, Rob. Thank you so much for joining us.

[00:01:02]>> Well, thank you very much for having me.

[00:01:04]I think I was on here the last time right before I joined the ATF.

[00:01:08]>> That's right. Yeah, I think it was December of 2024. So, uh to talk about what uh you thought should happen at the ATF. And I think now here we are uh about a year and a year year later, year and a half later uh talking about what is happening at the ATF and and what is I think the biggest at least by number uh of proposed rules we've seen come out of the ATF uh maybe ever. Certainly I know that you guys have described it as you know historic package. Uh there's what 34 rules 32 that apply directly to firearms in some way or another. Uh, I think there's there's a cigarette and explosive one in there as well. Um, but yeah, why don't you why don't we start off, you know, it's it's good to have you here to give the ATS perspective. I know you worked um not by yourself, but in in concert with other folks at the ATF on developing these rules, let's start off with how they're going to affect gun buying. Um, that's where a number of them are focused. You have things that uh where the goal seems to be streamlining and and sort of modernizing uh ATF practices around applying the Gun Control Act or the National Firearms Act or um any number of other firearms uh statutes. Can you just uh give people an overview of of of how gun buying is going to change for the average person at the end of this if these rules are uh you know implemented as written?

[00:02:40]So when I got here, there was a lot of anger over both the Biden administration's rules and some of their policies such as zero tolerance. And so I started looking into what we had actually done and how we can move forward. And a lot of the zero tolerance derived from errors in on paperwork forms and primarily the 4473.

[00:03:04]And so one of my first projects when I got here was how can we simplify the 4473 so that there are fewer errors and the percentage of dealers who had some kind of violation was really astounding. Uh most of those don't go to revocation.

[00:03:21]They only attempted to revoking Aeroset even under the Biden administration zero tolerance. But my question was can we do this better? And so one of the first things I looked at was the form itself. And the form itself is confusing. Uh there are a lot of questions on there like are you the actual transferey/ buyer with a bunch of instructions on when you can have a gift, when it's not a gift. Uh but it's hard because sometimes the buyer is not the ultimate transferee. The questions, I like to say, you also kind of drunk drive your way through the questions.

[00:03:58]Some are yes check boxes, some are no check boxes. And adverse action was taken against licences who had transferred guns when somebody checked yes. Uh for example, they were convicted of a felony even when the background check uh came back clean. And I think in a lot of those cases, uh the person probably had no criminal record. The sale was lawful. Somebody just made an error on the form. But when you're alternating between yeses and nos, uh people make mistakes. dealers who have high volumes in transactions don't necessarily see the different check boxes for each one. Some of them have templates uh that they overlay to try to make sure people check the right box. And my thought was if you're at that point uh the situation's ridiculous. The problem is with the form. And so we looked at what we really needed on the form. And I actually went back, somebody compiled for me all our historical forms. The 1968 form was one page and my first thought was can we get back to one page.

[00:05:00]Uh and the answer was no and it was no primarily because of the added requirements of the Brady Act. But one page was the aspiration and I said okay what do we need? What do we not need?

[00:05:12]And so a bunch of information I don't think we need anymore. So the form originally asked your address and then it asked what your city was and what your county was. Well, uh, there were several problems with this and it asked whether you were in city limits. Some people don't know whether they live in city limits. Some people wrote USA for county thinking it was country. And all of these things would generate violations. And in most cases, when you see somebody's address, you know where they are. Somebody says they live in Washington DC. Uh, it's the District of Columbia, city of Washington, and it's easy. Now there are some cases where people might have a post office in one place but uh a postal address in one place but at an actual address in a different township. But these are things that if it comes to that you can easily look up. There all kinds of sources that you plug in the address and it tells you now where people go. And so you know we started looking at what we could cut down. So we took out the city and county and put it on the optional page in case the dealer needed it. We took the yes and no boxes and we made it four places that you could initial and the dealer can see, you know, readily see whether somebody has initialed four times or not. It's different from having a dozen check boxes that alternate. We took out the redundancy. the 4473 at one point would ask you uh where your citizenship is and then it would ask you are you an alien who is illegally or unlawfully in the United States. Well, if you answer that you're a United States citizen, you're obviously not an alien with unlawful presence. And so we did we restructured the form so that once you check you're a citizen, those questions aren't asked. And we also overhauled where things were. So page one of the new form essentially acts as an application to purchase a firearm. Uh you fill that out and then the dealer fills out page two which acts as a kind of record of sale. The old form would alternate. The dealer goes, the purchaser goes, the dealer goes again, the purchaser may go again. Uh but people would miss things. People would come back and uh if you got a delay on the background check, they would have to resign the form. But the way it was alternating, the dealers didn't necessarily see the spot for reertification. So now every time the sale is consummated, the person will sign basically sign the gun out. Uh and so you're not going to have different procedures for different types of transactions in that sense. And then as you said, a lot of it's just modernization. Uh a lot of the background checks are done electronically. There's no need for somebody to manually record the transaction number. they can just print it off the electronic system. Uh people, you don't need to manually write down a driver's license number. You can if you want, but you can also just make a photocopy.

[00:08:01]And we started also just clearing out the regulations that unnecessarily burden dealers. So, uh there was either regulations or at the very least we were giving informal guidance that uh individuals had to fill out the entire form manually. Uh there's no reason that we can't have 21st century commerce that if uh you start to put in your address, it's keyed to Google Maps and will autopop populate as long as you have an opportunity to uh change it and make sure it's accurate. Uh but you know, these things are more efficient for both the dealer and the consumer. They produce fewer errors. And the goal in part uh was to not just stop zero tolerance by reversing the zero tolerance policy, but to rip it out root and branch. If there's no underlying regulatory violation, there is nothing in the future to be the subject of future discretionary enforcement actions.

[00:08:59]>> And I think it is to everyone's advantage to have rules that are clear, easy to follow, and don't produce unnecessary violations.

[00:09:08]>> Okay. That that's interesting. So you're saying effectively obviously there was a great deal of tension between the ATF and the gun industry uh during the zero tolerance uh era at at uh at the ATF under the Biden administration [clears throat] because the industry said you know these are violations that leaked that can lead to revocations of gun dealer licenses that we don't feel are serious violations. Whereas uh you know you had on the other side gun control advocates and and members of the Biden administration saying the industry is not regulated enough. there's a lot of violations that don't lead to um revocations. And you're when you came in, you you're you're arguing that a lot of these these violations and these really were mistakes that could be corrected simply by changing how uh a number of these procedures are done and allowing for things like autopopulation.

[00:09:59]And that'll cut down on on a lot of the the issues like a lot and and that in turn has led to these efforts that um are going to you gun buyers are going to see a benefit of uh easier time filling out ATF required forms like the background check. Uh but it but it sort of goes back to this um this issue with uh zero tolerance and the industry feeling it was unfair and uh essentially you think the that a lot of those issues could just be solved by having better processes.

[00:10:34]>> Yeah. So I mean let me give you a paradigmatic example. So one of the cardinal sins during the Biden administration that would result in a revocation of a federal firearms license was failure to do a background check on a purchase. And when you hear that, you think that that is something that could be serious, that you're just selling the gun and not verifying the person's eligibility, which was the core uh requirement of the Brady Act.

[00:10:58]>> But when we looked at the violations of from uh the citations, a majority of them were not dealers simply refusing to do the background check. They were more technical than that. Uh they were often dealers transferring the gun on day 31 or 32 or 33 after the background check.

[00:11:15]So, they had done a background check, they just forgot to do a second background check because the current rule says you have 30 days or they were individuals that had permits and sometimes uh permits that exempt you from the background check, but there were technical violations. So, the Brady Act says that a permit exempts you from the background check if the permits issued by the same state uh where the transactions taking place, where the federal firearms license is located. But you might have somebody that has an Iowa permit that is uh otherwise a background check exempt and trying to use it in Texas. And so it is true that the Texas dealer shouldn't accept it. It is a technical violation of the Brady Act, but it's not the same kind of violation as handing the gun to somebody who's had no background check whatsoever.

[00:12:03]>> Right?

[00:12:03]>> And so, you know, part of the form the form has a checklist now. It says if you take a permit in le of the background check, here are the things that you need to check. uh so that those types of violations don't happen. And we increase the period of validity of the background checks from 30 days to two calendar months. You don't have to add up days in your head. You know, is this a month with 28 days, 30 days, 31 days? You can just say, okay, I sold the gun on March 4th. We'll transfer it up to and including May 4th. So, it's simple, >> right?

[00:12:33]>> And so, we're trying to get rid of all those things. And then we're also just trying to make it more efficient. Uh when I go buy pseudafeteran products at the pharmacy, they scan my driver's license and that's how they get my name and address. There's no reason a gun store can't do that. And in fact, in some ways, it may make the transaction more secure because the dealer goes to scan the license and the license won't scan. That might be a sign that there's a problem with the license. Uh so it, you know, it's a kind of a win-win that it's faster, more accurate, and it might also help with the security of the sale.

[00:13:07]So we're trying to drive in a direction that is uh more efficient and in line with 21st century technology.

[00:13:15]>> Okay. And uh so I know there's also been uh an effort here to um I I don't know that I guess reading the rule, it's not necessarily something that you're changing uh in terms of what was already legal. uh but maybe creating a process that would provide a greater level of comfort to licensed gun dealers around uh non-overctheounter sales. And this one seems like a pretty substantial potential change for the industry and for gun buyers. um you know, can you explain what what the law is and and what you're trying to do with with this particular rule when it comes to sales that uh you know, you don't have to go into a gun store uh to make. I know there's there's already been some precedent for this in uh with suppressors or silencers where you can uh purchase those and have them shipped to your house um without having to go into a a brickandmortar store. Uh, but that's not something we've seen commonly done throughout the gun industry with, you know, regular sales of of handguns or or rifles. So, uh, can you explain what the law says and and what this rule actually does?

[00:14:31]>> Yeah, happy to. I think there's been a lot of misinformation on both sides uh, on this one. So in 1968 when Congress passed the gun control act, the gun control act was largely a ban on mail order sales, particularly interstate mail order sales. Uh but the gun control act has a provision uh which is codified in sub in section 922 subsection C that says uh a dealer may sell a firearm by mail uh to or by to someone who doesn't appear on his premises.

[00:15:05]uh if the sale is otherwise allowed by law and there's a procedure for it which is that you have to contact the principal local law enforcement officer of the person's jurisdiction uh get notice that that notice has been received and then wait 7 days and at that point you can ship the firearm. Uh so this has been around since 1968. Uh the big change came with the Brady Act in 1994. So the Brady Act said that as part of a normal retail sale, the dealer has to verify the purchaser's identification. And at that point, ATF with no analysis just assumed, I guess, that uh to verify the purchaser's identification, you had to be on the uh federal firearms licences place of business, that there was no way to do it remotely. And maybe that was true in 1994.

[00:16:00]So mail order sales continued after 1994.

[00:16:05]Uh but they had to be ones that were exempt from the Brady Act. And so the two principal categories of sales that are exempt from the Brady Act are first National Firearms Act transactions. And you referenced that the suppressor companies were doing this. And the second is jurisdictions that have permits and if those permits meet certain federal minimum standards that they will deny the permit to anyone whose possession of a firearm would violate the law and an authorized government official uh is required by law to do a back an adequate background check. Uh then those permits exempt the individual from the Brady Act. And so if a person had a Bradyex exempt permit, uh, the dealer, if allowed by state and local law, could also transfer the firearm in a non-over-counter sale. And the 4473 used to have a part one and part two, where part one was for over-the-counter sales, and part two was for non-over-thecounter sales. And eventually, I guess not enough people were using the part two form. So, we let that lapse and we wrote uh ATF wrote in 2013 under the Obama administration procedures for how to use the 4473 for nonover-thecounter sales. And it is lawful for any Bradyexempt transaction.

[00:17:21]So again, any transaction in which a person has a permit that qualifies and any transaction involving firearms that are approved under the National Firearms Act. And so the Obama administration put out the procedures for that in 2013.

[00:17:36]Those procedures were put out again in 2020 when the COVID pandemic had shuttered a lot of firearm stores. Now the big change in this rule is rejecting the assumption that you can verify an identification document only at the lency's place of business. And so what this rule adds to the non-over-thecounter transactions is the ability to do sales that are subject to the Brady Act. And so the rule adds elaborate procedures for how licenses are supposed to verify a person's identity. Uh and they have to verify both the identity and the identification document. And it involves using the kind of software that people see when they do IDM me through other government services. And it also involves some video conferencing which didn't exist in any real way in 1994.

[00:18:28]And so if you are able to verify the idea uh and comply with the terms of the Brady Act, we're saying you can also comply at that point with both the Brady Act and the non-over-thecounter rules.

[00:18:41]So it is an expansion of non-over-thecounter sales into transactions that are not Brady exempt.

[00:18:48]Uh so it is an expansion from where it was in 1994.

[00:18:52]Uh but it's also continuing a type of sale that has existed since 1968.

[00:18:58]Uh again, the suppressor ma the suppressor dealers have noticed this and have relied on it. Others haven't. I don't know whether this rule will change people's conduct in the marketplace or not. Uh there are procedures that are more laborious than going face to face with the gun store. There's a long waning period, so it may or may not catch on. But uh the regulations are just codifying what I think the law is, which is that there's no tension between complying with the Brady Act and doing non-over-thecounter sales. And the these sales are subject to all the rules of verifying IDs and running background checks. So there's not going to be any difference over the counter or non-overcounter except whether the person's physically present or not.

[00:19:41]>> Right. So uh from your from your point of view, this is this was never something that was disallowed by the law. It's just something the ATF um was doing through regulation effect effectively by not providing a path for uh remote verification of identity in the background check process.

[00:20:00]>> Correct. And again for Brady exempt transactions it has been allowed since 1994. So, uh, in the approximately 25 states or so where permits are ex where there's an exempt permit, uh, stores in that state can sell non-overthecounter if it's allowed by state and local law.

[00:20:18]>> I know one of the criticisms we've seen of of this is is sort of the idea that it could create, um, I think Smoking Gun, which is run by every town with a gun control group, um, opposed to a lot of the the rules that you've uh, put forward. They've likened this to an Amazon for guns. Um and uh I you know that it could create something along those lines that that a company could you know sell online. I mean I I suppose pe obviously online sales have existed for a long time. They've just tended to require people to go to a local dealer to pick up the gun. They couldn't get the gun shipped directly to their their door after the transaction. Um now this I think you mentioned there's a there's a waiting period. there's like a 7-day waiting period that's attached to this sort of non-overthec counter sale, right? Um, so not exactly like buying something from Amazon. Um, I mean, do you reject that comparison like Amazon guns? Is this open up the door to something like that in real life or uh do you see it as something entirely different?

[00:21:23]>> I reject the porative connotation of it.

[00:21:26]I mean this is I think paradigmatically what we are doing here right now. The nature of the marketplace has changed.

[00:21:32]You cannot expect the gun industry to operate in a 1960s style marketplace in the 2020s. Uh markets have moved online.

[00:21:41]Gun sales have moved online. And yes, people have to go to the store personally to pick it up in most cases.

[00:21:48]Uh but that's not where the center of gravity is in the sale. the center of gravity in the sale is some large interstate dealer uh that is taking the full value of the firearm and then shipping it to a transfer dealer. Uh but I also think this reflects ATF's rulem at its best. We didn't just uh roll back restrictions in an indiscriminate way on non-overctheer sales. We really button the rule up. Uh individuals have to go through an identity verification process. They still have to show their photo ID. they still have to establish their identity to the satisfaction of the dealer and to an external identity validation service. So in some ways actually it's more buttoned up than an over-the-counter sale where the person might just glance very briefly at the identification. So we didn't do this.

[00:22:39]elaborate a little bit more on that point because that that's one of the things I uh was wondering like do you see a possibility that having you know non-facetoface interactions would lead to you know more more sales more straw purchases for instance sales to somebody who isn't uh the person who's who's uh filling out the form uh you know the without the in-person interaction do you think there's a greater degree of uh you know risk that there'll be a unlawful sale made I mean it sounds like You're saying the opposite really is true.

[00:23:11]>> I think the opposite is true. First of all, under the current system, nothing stops a straw purchaser from buying a lot of guns in somebody else's name and just telling the straw purchaser, "Go to the store and pick these up. Uh the straw purchaser doesn't have to go to the store and individually select the guns." Uh so, you know, you could already navigate that. Secondly, uh, as we've mentioned, there's a lengthy waiting period. Not over-the-counter sales in some ways is not the most convenient way to buy a firearm. You have to notify notification goes to the principal local law enforcement officer and then there's a 7-day waiting period.

[00:23:48]And so, if you're straw purchasing, you're going to alert you're going to alert the local police. You have to sit there and the waiting period in reality may go from one to two weeks depending on whether it's electronic or mail because the seven days doesn't start until you get receipt confirmation back.

[00:24:04]So you're going to have a one to two week waiting period with local law enforcement being notified.

[00:24:10]It is not the way if somebody were doing a straw purchase. I think it's a good way to get caught.

[00:24:15]>> So it's not, you know, it's it's not some totally unregulated market that's suddenly opening up. And the other thing that's disanal uh disanalogous with the Amazon uh marketplace is you you don't get next day or two-day delivery.

[00:24:30]There's still the procedure that has to be followed from the identity verification and the notification all the way through the waiting period. So it's a little bit clunky. It may be convenient for people in rural areas or in Alaska where that might be very far from dealers. Uh it might also be a way to handle transactions that start over the counter but the person gets delayed and let's say you're at a gun a gun show and the uh it's not likely that the purchaser and the dealer will be face to face anytime soon. It might be another way to handle those sort of delays, but I don't think it's a great way to purchase a firearm as a straw purchaser.

[00:25:07]>> Okay. Uh, and then I know there's uh there's some rules here that deal with the import of of firearms. And I'm wondering for the average consumer, the average gun buyer, uh, if they'll see a difference in what's available to them, you know, putting aside, you know, state regulations, right? Uh, what what might become available on the market due to some of these import changes that that you're trying to uh implement here?

[00:25:33]>> Our hope is that it will increase consumer availability. uh and consumer choice. So, uh for example, with barrels, uh we used to try to trace the barrels of what the barrel came off of before it could be imported. Uh we stopped doing that. A barrel is a barrel. If it has a sporting use, it is a sporting barrel, even if it has another use. And in today's world, a lot of firearm parts have the have this kind of modularity that you can't just say this is uniformly one or the other. And so we're getting rid of uh a lot of the track, you know, a lot of the regulatory uh a lot of the tying up of importation on regulatory matters that don't matter.

[00:26:20]You have the same barrel. It doesn't matter what gun it came off of. It's the same barrel and it's either sporting or it's not. So, uh what I think the consumers will find is an increase in parts that are available. I think domestic manufacturers may be able to take imported parts and build firearms that they haven't previously been able to build. Uh the attorney general also asked ATF to do a study on what the uh importation rules should be and we are looking at that and depending on the results of that study it may affect uh which firearms are importable. So I think we are moving uh I mean overall I think we're moving in a direction to get rid of uh burdensome regulations that serve no purpose and limit consumer choice.

[00:27:08]>> Okay. Um now uh to another rule here that uh you know a lot of these rules I I see and I they appear to streamline the process of gun buying or modernize it in a lot of ways. one that I could uh that's gotten some criticism already for potentially going the opposite direction, making it a little bit more confusing uh for the average person to buy a gun. It deals with uh gender identity on ATF forms and this will apply as well I believe to the the background check form which currently has three options right male, female and uh non-binary. Now, this rule is going to remove that non-binary option and it's going to instruct uh the instructions in it are that uh people have to put down their gender at birth.

[00:27:51]Um and so I wanted to go through the practical side of this. This this is now the the rule that has the most comments on it um among this package at the moment. Uh I know that some gun rights groups in uh the gay community have already spoken out uh with concerns on this, Pink Pistols being one of them.

[00:28:10]Um, the concern I believe stems from the idea that this could be some sort of backdoor trans gun ban. Uh, and one, let's just start with that. Do is this a backdoor trans gun ban? I'll just ask you directly.

[00:28:26]>> No. Uh, not at all. And I I don't even see how that could possibly be the case.

[00:28:33]>> Okay. Um, >> I mean, it's not at all. It's just a matter of coordinating which sex somebody selects on the form.

[00:28:40][clears throat] >> Uh then so I guess that gets into the next question which is a more of a practical question about how this is going to to work when this form is changed and people have to go and actually fill it out. Uh it's particularly people from the 13 states that allow you to have non-binary as your gender identity on your state license. you know, if somebody is going to a store in one of those states and they go to fill out the form and it doesn't have that option. I mean, I believe that's how this option came about in the first place is the industry asked what should be done in these circumstances and the ATF added an option so people could put non-binary.

[00:29:16]Um, what's going to happen now? You know, what if the ID doesn't match what they put down on the form? What are dealers supposed to do? What is going to happen in that background check process?

[00:29:28]It shouldn't change anything. If the ID doesn't match what they put down, they should still process the transaction. Uh for the FBI, having it on biological sex is important because that is how they organize the underlying databases that support the National Instant Criminal Background check system. So, you know, it's not helpful to the FBI if you have states going in different directions and you have different answers when their databases are keyed uh to biology. Uh to answer, you know, to give an answer that's not keyed to biology doesn't help them. Now, the FBI's background check system is very robust regardless of which sex people put down. Uh the name check will run both ways, but the information does help them a little bit at the margins, discern who is who. Uh but again, they're checking based on biological sex. Uh so it's helpful to them to have that. It implements the president's executive order on defending women and it also helps answer the dealer. I mean, with the current change in regulations, people may have multiple forms of ID. They may use a passport and another form of ID to prove residency.

[00:30:44]Uh, and under the current system, you could have somebody with a passport that says male, a secondary ID that says female, and you'll still have the same coordination question of what should go on the form, and the regulation answers what you go on the form. And there's no basis for denying a purchase uh either by the dealer or by Nick simply because there's a mismatch between the identification and the form. I know this has gotten batted around online, but it's simply not true. Uh the dealer should just go forward with the transaction.

[00:31:14]>> Okay. And is the ATF going to offer specific guidance or training on that point to dealers so they know what to do in that circumstance?

[00:31:21]>> Yes. And we we are currently working through some of the uh hard cases ourselves. I mean, you might have a case where somebody does check the box in terms of uh gender identity is of a different sex and then the question is going to be what does the dealer report to the FBI because again the FBI is classifying people based on biological sex. So we have to work through exactly what the mechanics are uh when those situations arise. But uh we will be giving guidance as the time comes and keep in mind too in terms of these all the rules just about are proposed rules.

[00:31:56]They are not final rules. So, we're not in a position to give guidance yet because we still have to take the comments in uh finalize the rules in light of those comments and then roll it out to the industry. So, we're not in a position yet uh where we've made binding decisions on exactly how to operate in the new environment.

[00:32:17]>> Okay. Uh and to that to that point, there's these are 90-day comment periods for most of these, right? uh like how long should people expect before um this package most of this package is actually you know finalized and put into to effect >> after 90 days we have to examine the comments respond to the comments and then finalize the rule uh that process will take a considerable amount of time I hesitate to estimate exactly because a rule that has few comments and is a simple rule and doesn't require much change or further justification can probably be implemented quite quickly.

[00:32:56]Uh a rule that has many comments and needs some amendment and some further justification. Uh it may take months to go through the process. So I I hesitate to give an estimate even though you know I mean it's May of it was April of 2026 before we got the rule package out and it's been something that we've been working on for a long time. It's not a lot goes into drafting these rules.

[00:33:25]There's a lot of process uh behind the scenes. I think there was concern from second amendment groups that ATF wasn't doing anything uh for the first year of the President Trump's administration.

[00:33:37]That simply wasn't true. There was tremendous effort happening behind the scenes. Uh and that effort will have to get duplicated when we go to finalize the rules. So, I urge everybody to be patient. Uh there will probably be a trickling of rules that you know start out several weeks but go many months and possibly a year or longer. Uh but we will finalize as quickly as we can.

[00:34:04]>> Yeah. Yeah. And I think that's important for people to understand too is the rule making process. It tends to take a while. It's not an overnight thing.

[00:34:10]Certainly even even though the comment period might only be 90 days, it can still be quite a while before a rule actually goes into effect. Uh because the comment period is not the end. Uh >> no, we we don't it's not like we just say, "Oh, comment period's over. Let's finalize." We read the comments, we take them seriously, and we make adjustments as appropriate based on the comments.

[00:34:32]>> Yeah. Uh so another rule that I wanted to to discuss real quick and get uh the ATF's perspective on, you know, why why you went this direction uh deals with uh the record retention rules, right? These have just been changed for for dealers.

[00:34:48]Things like keeping the background checks um or or for out of business records that the ATF itself maintains.

[00:34:56]Uh you know there ATF had I think under the B administration, correct me if I'm wrong here, but had extended the length of time that you need to retain these background check forms to be essentially infinite. Um and uh your new rule proposes capping that back to 20 to 30 years uh record retention. Um now we've seen criticisms I think from both ends on this to be fair like uh Gunners America for instance wants you guys to just completely get rid of your out of business record uh database or or collection of records. Uh whereas, you know, Every Town and and some of the other gun control groups think that going back to the uh lower um deadline or the length of time is going to hinder law enforcement efforts for instance around gun tracing. uh can you explain your point of view, the ATF's point of view on this, why you picked 20 to 30 years, why that's the right time frame, how this recordkeeping uh even works and what the purpose of it is from from your point of view and what the you know the statutes involved are.

[00:36:05]>> Yeah. So, we haven't selected 20 to 30 yet as any final term. We're soliciting comments on it and this is our opening proposal. Uh basically we use the records to trace guns that are used in crime. Uh we use them from active licences and then we have the out of business record center which holds the records from people who have surrendered their federal firearms license. And so there is tension between having records that allow us to do this tracing and the privacy interests of gun owners as well as uh practical considerations for dealers having to store these records.

[00:36:46]And so we are trying to thread the needle on these different things. Now there is still a fair amount of tracing that happens past five and 10 years. And I've seen Goa say, for example, they either want nothing or if they have to have something, maybe it should be five or seven or 10 because the average time to crime is around seven years.

[00:37:08]>> Uh but the reality is there's still a lot of tracing that happens at 10 years and at 15 years. And so we are trying to figure out uh what the best balance is between legitimate law enforcement needs and gun owner privacy and again the fact that the dealers have to store it. So what we were looking at with 20 to 30 years is this is an area where the number of traces drop off and the value of the trace starts to drop off because even if you came back with a with a record, the record is going to be of a purchase a long time ago.

[00:37:44]Uh we also looked at the fact that ATF had justified in its previous rule in the Biden administration why 20 years wasn't enough. And then when you go back and try to reverse a previous policy, you have to explain what prompted the change and why the previous analysis should not hold. So it's not it's not easy to flip rules back and forth. It requires some additional justification.

[00:38:10]Now, also keep in mind that if this gets litigated, it will likely get litigated in the DC circuit, which has appointees who will probably not be uh favorable from the Second Amendment perspective. It has a majority of judges that likely believe in a narrower interpretation of the Second Amendment.

[00:38:35]And so if you're in a position where you're reversing, not only reversing uh previous guidance, but going so far back, let's say five or 10 years, where you destroy the ability to do a majority of your traces, I think there's a good chance that rule would get invalidated as arbitrary and capriccious.

[00:38:56]The invalidation of the rule would mean that the Biden era rule of indefinitely will hold forever or not forever but at least until the rulemaking process could be started again from scratch. And I think a much better approach is to say okay what's the strongest justification that we can have to limit the number of years that will hold up in court.

[00:39:18]There's nothing that stops a future attempt to lessen the number of years either. So I mean let's say we do settle on 20 years and a future administration wants to go to 10 or 15 years they can try and if it holds up fine it doesn't hold up at least they will be back at 20 years or 25 years they will not fall back to an indefinite term. Uh so you know we have to in selecting the precise number of years we have to balance these competing considerations. The last thing I will mention that I think is getting lost in the debate is the previous rule was 20 years if the dealer stayed in business for the full 20 years. If the dealer went out of business, it would go to the out of business record center and be held forever at that point. The proposal is not just limiting the records that are held by the Lency. It's also proposing to limit for the first time ever the length of time by which the outof business records center will hold those outof business records. And so if we start destroying records 20 or 25 years after we receive them, the idea that that is some kind of backdoor registry will be totally nullified because once the records are destroyed, there's no ability to recreate them. And I know GOA and some other groups have been concerned what would happen if you applied AI to the outof business records, right?

[00:40:39]>> And the answer to that will be nothing if those old records don't exist anymore.

[00:40:44]>> And so I think that has gotten lost a little bit in the noise about the specific number of years that we are talking about for the first time ever reducing the time period by which the outof business record center holds these records.

[00:40:58]>> Okay. And so from from your perspective, uh, you're you're trying to balance the usefulness of these records for firearms tracing and law enforcement purposes against concerns around creating a database of gun owners effective because that's that's what the central concern of groups like GOA and and other uh, gun rights activists is that, you know, you have this this out of record or out of business record cash that is I believe they they say it's up to a billion records. Is that first off is that accurate as far as how many records are in that that cache?

[00:41:33]>> Yes. I mean it's not the exact number but yes it's uh it's a high number >> and it's uh now my understanding is that's not all like transactions. It's not all background check records necessarily. Um like can you just give whatever insight you you have off I understand maybe off the top of your head um but uh what exactly is held in the these records? I know it includes background check forms, but uh there's other records in there as well is my understanding.

[00:42:02]>> Yeah, it's mostly the 4473s, which uh today are the background check records.

[00:42:08]They weren't always that way. They were often just the record of sale pre Brady Act. Uh they're also uh dealers are required to have what are called acquisition disposition books where the firearm comes in, they record where they got it from, and then uh to whom uh they sold or transferred the weapon. And so those books are there as well. Uh and again, it's not searchable by name. It's not organized by name and address. Uh they sent these records get scanned in.

[00:42:35]They're only searchable by serial number. So if you lost your gun, we'd have no way to tell you what gun you had. Uh we can only search by serial number if a crime gun comes in. But that's basically the concern is having a digital uh database of all those records could be it could be made to be searchable in the future I guess is is one of the main concerns and that's why they don't >> they don't want the the records there at all. Um, but you're saying one of the things this rule would do is remove the oldest of those records >> um alto together from from the ATF side of things. Uh, which you know the goal is to balance those two competing interests, right?

[00:43:16]>> Yeah. And it's not it's not just those two. It's also a burden on dealers.

[00:43:20]Dealers have to rent warehouses or external storage site to store them. A lot of dealers still operate on paper.

[00:43:27]Uh paper is heavy and takes up a lot of space. And 20 years of paper takes up a lot of space. 40, 50, 80 years of paper, if you have a corporation that goes on indefinitely, it takes up that much more space. Uh and it's heavy. One point we were reinforcing the floors in the out of business record center to hold all this paper. Uh and dealers go through the same thing. So there there are real costs to holding these records forever that are not just the privacy interest.

[00:43:58]And so we're trying to balance all of that, >> right? And and you mentioned here sort of the taking into consideration with with this rule making uh the sort of legal challenges that may come. Uh, and I I think that transfers well into the the next rule I wanted to discuss, which is um, you know, obviously we we saw the Biden administration didn't uh, issue nearly as many rules from the ATF during uh, the his the four years in office, but they did take some very big swings at uh, you know, extending the ATF's authority into new areas or uh, you know, things like the pistol brace rule for instance, which is one of the things I want to want to ask about here. Now, that this was uh a pretty big regulatory swing in in that the effect of it was to essentially reclassify any pistol bracraced gun, not necessarily literally, but by implication, I would say from the way the rule was was written as uh a short barrel rifle that's regulated under the National Firearms Act. um and you know say that anyone who who owned those type of firearms would have to register uh those guns or face you know federal uh prosecution potentially. Now they did do a a sort of a amnesty period where you could register for free but uh this rule that you have proposed now is is undoing that pistol brace rule from the Biden administration era and uh but at the same time it doesn't necessarily go in the opposite direction. Obviously you could have gone here and said well actually any firearm that has a pistol base on it isn't a a short barrel rifle.

[00:45:40]Um and you didn't do that here. Uh, and I wonder if that has to do with this philosophy you're talking about about, you know, taking into account what might happen in court if you do try to, uh, take, you know, these big swings and, you know, did that play into how you decided some of these rules like the the pistol brace roll back or were there other considerations that took a bigger uh, you know, part of your thinking?

[00:46:07]There >> are many considerations that go into the rule. Legal risk is one of the considerations. We write the rules to minimize the legal risk that they will be judged invalid. Uh but it's also the case that there is no exact standard for what a pistol brace is. Uh manufacturers can call anything a pistol brace. The statute says a firearm is a rifle or shotgun if it's designed and intended to be fired from the shoulder. That's what Congress wrote.

[00:46:36]>> That's what ATF has to live with as a statutory definition. And so every time we look at one of these products, we have to ask, is it the kind of product that is designed and intended to be fired from the shoulder? And if we wrote a rule that said anything that was labeled a brace is not designed and intended to be fired from the shoulder, no matter what the design specifications were, that would likely get struck out.

[00:47:00]I don't think uh courts would, you know, taken to the most extreme. I don't think courts would look at a product that where there was no question it was designed and intended to be fired from the shoulder and say, "Oh, well, as long as you label it a brace, it's okay." So, we have to operate here very carefully.

[00:47:16]Uh, right now in this area and in a number of other areas like engaged in the business, we are trying to get rid of ATF's attempt at making law. We are just going with what Congress passed. Uh I think there's it's not for many in the industry what Congress passed is not completely satisfactory because in this area what Congress passed is a standard.

[00:47:37]It's not a rule like a rifle barrel has to be 16 in or it has to be registered under the National Firearms Act.

[00:47:45]>> Yeah. In the nature of Yeah. It seems like we went from an area a a gray area like you know in large part due to what the statute actually reads which is a bit ambiguous to with both uh the in the business rule and the pistol brace rule uh which you are walking back now to you know a more definitive uh regulation but one that went to perhaps the mo the strictest possible interpretation of those statutes. And now after to be fair those those rules ran into a lot of legal trouble uh which as you cite in in uh your description of why why you're going this direction in the rulem uh and now we're headed back to gray areas right so I guess especially for pistol brace I know a lot of people are going to want to know how how ATF intends to regulate that area of the market um given that the rule now heads have has us back to uh this ambiguous language from the statute that leads to bit of a a gray area. What What's your approach going to be? I mean, can you say at this point uh before you know, this rule is finalized or you know, will we get I know they started with like a point system and the previous rule and then they scrapped that. Um you what's your intention uh on that front?

[00:49:00]>> I mean, the point system illustrates the problem precisely. The law is a standard designed and intended to be fired from the shoulder. There's no easy way to mechanically translate a standard like that into hard and fast rules that when you get to a certain number of points, it is automatically in one category or another. And right now what we are doing is we are taking firearms in. We are examining them and we are examining them in reference to the legal standard that Congress passed. And there are easy cases on both sides. There are hard cases in the middle. We are doing the best uh that we can. There's always the possibility Congress will come in the future and add clarification. Uh that would certainly be nice if Congress did that. But in the interim, we are operating with the law that Congress passed. No more, no less.

[00:49:53]>> So is that going to be like guidance letters? I know one of common practice is for uh you know a gun company that's making a new product to send it into the ATF for for them to for you guys to look at and issue a guidance letter. That's how a lot of things were done uh in the pistol brace area before the the previous rule. Um obviously that led to kind of contradictory letters at times uh across the years uh that I think royal a lot of people in the the industry and among owners of these these types of firearms you know is that essentially how the the basic process works. I mean um it's going to undergo some change.

[00:50:31]>> Okay. So regulations are not the only area where ATF is changing. ATF is undergoing change in its internal processes and you're right that a lot of firearm regulation happened through private classification letters uh which sometimes were contradictory.

[00:50:50]That era is coming to an end. You will see a lot more ATF rulings where we start to describe significant new products and make public rulings that have what the conclusion is and why we reach that conclusion have that available to the public. We have posted a few of those online. Uh there will be more coming as we get novel types of cases. But we are trying to do this in a way that is p that is more transparent and justified and not done behind closed doors with private letters with the public not knowing where the lines are.

[00:51:31]>> Okay. Um and speaking of as we wrap up here uh because I appreciate you spending the time to uh you know go over some of these rules and answer some of the peaks. It's it's uh I appreciate you doing that. Um, but let's I wanted to talk a little bit about what might be coming down the the line. You know, when you wrote a piece for us, one of the suggestions that you made was there's a lot of area uh in the sporting purpose regulations that ATF could uh work within. And I know during the announcement of this package, uh the acting attorney general, Todd Blanch, specifically mentioned the idea of of doing more regulation around sporting purposes exceptions. Um, so should we expect sporting purposes uh rulemaking to to come in whether it's in regards to, you know, the imports of certain kinds of firearms uh or even, you know, I know there's the NFA has some sporting purposes uh language in it. You know, what what should we expect? And is that is sporting purposes the only thing that you're still working on? My understanding is you've got more rules coming beyond, you know, just this particular package.

[00:52:41]We are working on quite a bit. Squirting purposes is one. The attorney general ordered us to do that. I don't have any announcements for you right now other than we are studying it in accordance with his directive and once we reach conclusions, we will make them public.

[00:52:59]Uh but uh again, we are studying it. We are studying it consistent with the president's executive order on preserving the second amendment. So we will have you know we will hopefully have news as conclusions of those studies get reached. Uh we are not done the regulatory process. There's still a tremendous amount that's being worked on. Uh as much as we had to indulge the patience of uh uh of the public in getting these rules out. uh we were still racing to the finish line of getting those 34 rules done. Uh and there are still rules that didn't make it. So I mean we are uh as director Sakata noted in his testimony yesterday, we are still reviewing the full range of uh regulations that we have in accordance with the president's directives and we will make proposals for changes for regulations that unduly burden individuals second amendment rights.

[00:54:06]>> All right. Well, hey, I appreciate you doing this. I appreciate you coming on, being willing to answer uh questions for us and give us additional clarity on the ATF's point of view on this regulatory package and that it's not going to be the end of these regulation uh changes.

[00:54:23]So, uh thank you once again for for joining us. Um if people want to follow along bit closer what the ATF is up to uh and what what you're working on as chief counsel over there, how can they do that?

[00:54:37]Best place is to go to our website atf.gov.

[00:54:41]Uh we have uh we've been hiring in our public and government affairs department and so I think uh you will see a lot more outreach to the uh to the public as we make changes and a lot more updates to the website to make it user friendly and readable.

[00:55:00]>> All right. Well, appreciate you doing this and and we'll have to have you back on again in the future. uh perhaps around uh maybe when some of this rulem hit hits uh the final stages or when you have some new rule announcements. Uh but I appreciate you doing this and uh I think that's all the time we have this week. Um, we will see you guys again real soon. [music] [music]