In 2021, the Biden Administration announced a new \u201cZero Tolerance\u201d policy for revoking the licenses of firearm sellers, known as Federal Firearms Licensees (\u201cFFLs\u201d).[i] As part of this new policy, the ATF recently updated its \u201cFederal Firearms Administrative Action Policy and Procedures<\/em><\/strong>\u201d (ATF Order 5370.1E.<\/a>)<\/p>\n Gun Owners of America obtained copies of this updated ATF order, revised under the Biden Administration in January of 2022,\u00a0<\/strong>along with the prior version\u00a0<\/strong>(ATF Order 5370.1D.<\/a>) that existed under the Trump Administration. GOA is releasing both versions alongside this report.<\/strong> Based on a review of changes in ATF\u2019s policy, it is clear that the Biden Administration is seeking to weaponize ATF\u2019s bureaucracy against the entire Second Amendment industry. According to data published by ATF as analyzed by the Trace:[ii]<\/p>\n <\/p>\n The Biden Administration\u2019s new Zero Tolerance policy is overly harsh\u2014seemingly intentionally so\u2014on honest gun stores. In fact, between January and September of 2022, ATF field offices in Charlotte, Columbus, Houston, Louisville, New Orleans, and St. Paul revoked licenses more frequently than they issued \u201cwarning conferences\u201d[iii]\u2014a much less severe penalty that ATF\u2019s own manual deems is necessary to \u201cassess the FFL\u2019s potential to achieve compliance and determine any potential risks to public safety and firearm traceability.\u201d[iv]<\/p>\n In other words, under the Biden Administration, ATF has changed its focus from regulating the gun industry to destroying it by whatever means possible\u2014eliminating access to firearms by putting as many gun dealers as possible out of business.<\/p>\n Default Revocation of Licenses Absent \u201cAppropriate Circumstances\u201d:<\/u><\/strong> There was at least a 200% increase in FFL revocations since enactment of ATF\u2019s Zero Tolerance policy. Of course, license revocations are a lengthy process, and this number almost certainly will continue to increase. Compare Biden\u2019s Zero Tolerance policy to ATF\u2019s prior policy: Retroactive License Revocations:<\/u><\/strong>\u00a0<\/strong>GOA has recently learned that ATF is\u00a0reopening old cases<\/em> dating back to\u00a0at least<\/em> July 1st, 2021,[viii] and\u00a0revoking<\/em> the licenses of gun stores to whom ATF previously issued a Warning Letter or held a Warning Conference and who subsequently returned to compliance with the law and rectified their mistakes.[ix]<\/p>\n In other words, even a single honest mistake in the past<\/em> can now cost an FFL its license. These abusive ATF actions to reopen<\/em> and repunish<\/em> old cases is in direct contravention of a DOJ Inspector General report that recommended that ATF not<\/em> engage in such retroactive sanctions.[x]<\/p>\n Compliance History Made Irrelevant:<\/u><\/strong> Previously, a history of an FFL\u2019s noncompliance could serve as proof that an FFL committed a willful violation of the law.[xi] Under Biden\u2019s Zero Tolerance, now even a history of<\/em> compliance,\u00a0<\/em>followed by a single unintentional mistake, may be used as proof of a so-called \u201cwillful\u201d violation.[<\/a>xii] So if you have a history of noncompliance, you are in trouble. On the other hand, if you have a history of compliance, you are still in trouble because you should have known better and your violations are now suspect of being willful.<\/p>\n Statutory \u201cWillfulness\u201d Standard Diminished Beyond Recognition:<\/u><\/strong>\u00a0<\/strong>Congress has made clear that, when revoking a license, ATF is required to prove that an FFL \u201cwillfully<\/strong>\u201d violated the law before the statutory punishments can be levied.[xiii]<\/p>\n This deliberate addition to the law by Congress presented a problem for ATF, as virtually all gun dealers are well-intentioned, law-abiding people who always attempt to comply with the law. Thus, in order to claim \u201cwillfulness\u201d to violate\u00a0<\/em>the law by people who almost uniformly try to follow <\/em>the law, ATF had to get creative. Now, ATF claims that a single manual, potentially given to an FFL decades ago, proves that the FFL knew the law and thus \u201cwillfully\u201d decided to violate it.<\/p>\n Here is just one example:\u00a0<\/strong>When ATF initially grants a person\u2019s Federal Firearms License application, an ATF inspector is instructed to provide the new FFL with a copy of<\/em> (or merely a link to) ATF\u2019s 300+ page Federal Firearms Regulations Reference Guide.[xiv] The FFL is then instructed to sign\u00a0<\/em>a form entitled \u201cAcknowledgement of Federal Firearms Regulations.\u201d[xv] This document is nothing more than ATF manufacturing evidence designed to later be used against the FFL to revoke his or her license.<\/p>\n According to ATF, one signature by an FFL, acknowledging that he has received a copy<\/em> of the laws and extensive regulations, demonstrates that the FFL knows, understands, and remembers all of the multitude of obligations under the law. If an FFL later accidentally violates one of those rules, that\u2019s too bad. According to ATF, by signing the form the FFL \u201cindicated that he understood all of the information provided by signing and dating the Acknowledgement of the Federal Firearms Rules and Regulations.\u201d[xvi]<\/p>\n In other words, \u201cpublications and information provided to the FFL\u201d are designed from the beginning of the licensing process to be used as evidence of \u201cwillfulness\u201d sufficient to revoke licenses, on the theory that a person being handed an ATF rulebook\u2014possibly decades ago\u2014\u201cestablish[es] the knowledge element of willfulness\u201d in the commission of a paperwork crime.[xvii] The end result, then, is that every single violation<\/em> of any statute or ATF regulation is deemed to be<\/em> \u201cwillful<\/em>\u201d\u2014potentially leading to the loss of a license.<\/strong><\/p>\n According to the agency, \u201cATF does not have to establish a history of prior violations to demonstrate willfulness\u201d[xviii]\u00a0because there is Zero Tolerance for even a single violation. Moreover, ATF has added to the list of ways it \u201ccan establish the knowledge element of willfulness\u201d to now include both \u201c[c]ompli[ance] with the specific regulation on other occasions\u201d and a gun store\u2019s \u201csubstantial experience as an FFL\u201d to prove the law was willfully violated.[xix] In other words, the longer and more faithfully an FFL has followed the rules, the more severely he or she is punished for making a mistake later. Under this new Zero Tolerance regime, everything can and will be used against a FFL to yank a license if they make a mistake, even a history of good behavior!<\/p>\n Revocation First, Warning Later:<\/u><\/strong> According to ATF\u2019s internal guidance, a Warning Letter will be issued if an inspection reveals mistakes on \u201c5 percent or more [records] with a minimum of 10 instances.\u201d[xx] But, under Zero Tolerance, it is unlikely that ATF bureaucrats will ever issue such Warning Letter or Warning Conferences. Well before warnings can be issued after a tenth instance, the Zero Tolerance policy demands the revocation of a gun store\u2019s license at the first instance of inaccurate recordkeeping, as if one mistake constituted a \u201cwillful\u201d and \u201cfalse or fictitious written statement.”<\/p>\n No More Warnings:<\/u><\/strong> Because ATF revokes licenses for all so-called Zero Tolerance offenses,[xxi] many mistakes now skip the traditional \u201cWarning Letter\u201d[xxii] and \u201cWarning Conference\u201d[xxiii] phases of ATF\u2019s supposedly \u201cfair and consistent guidelines for administrative remedies for violations.\u201d[xxiv] Instead, ATF proceeds straight to revocation\u2014\u201cdo not pass \u2018Go\u2019, do not collect $200.\u201d<\/p>\n Punishing Repeat Mistakes:<\/u><\/strong> Consistent with ATF\u2019s new policy that every rule violation by a dealer is \u201cwillful,\u201d ATF\u2019s new Zero Tolerance policy also removes the following prior guidance:<\/p>\n \u00a0Not every repeat violation is per se a willful violation. A single, or even a few inadvertent errors in failing to complete forms may not amount to \u2018willful\u2019 failures, even when the FFL knew of the legal requirement to complete the forms.<\/em>[xxv]<\/em><\/strong><\/p>\n Apparently, this is no longer the case.\u00a0When the Gun Control Act was enacted, Congress no doubt intended to punish FFLs that make intentional errors or falsify their records. However, ATF\u2019s guidelines now encourage (and indeed require) the punishment of FFLs for honest and innocent mistakes, while using a gun store\u2019s prior experience, good behavior, and their reception of a pamphlet (perhaps years prior to the cited \u201coffense\u201d) as \u201cevidence\u201d to prove a violation was willfully committed. The Biden Administration\u2019s intent to destroy the Second Amendment by putting gun dealers out of business could not be more clear.<\/strong><\/p>\n Of course, there is another nefarious purpose behind the Biden Administration\u2019s Zero Tolerance agenda to eliminate gun stores. When an FFL goes out of business, it is required to send every Firearm Transaction Form (Form 4473) to the ATF, along with its \u201cbound book\u201d and other records. As of November 2021, ATF has turned 920,664,765 of these records into an illegal national gun registry.[xxvi] According to ATF, 865,787,086 records already are in an electronic format, which Gun Owners of America proved to be digital<\/em>, searchable<\/em>, and centralized<\/em>\u2014in violation of federal law.[xxvii] Of course, because ATF cannot enter a dealer\u2019s records into its registry until the FFL goes out of business, the Biden Administration\u2019s mass license revocation strategy allows ATF to expand its national gun registry at an unprecedented rate.<\/p>\n Because a Federal Firearms License can now be revoked for first offenses, many well intentioned gun stores (and their employees) are now guaranteed to lose their livelihoods if ATF decides to construe an innocent mistake as a \u201cwillful\u201d violation. This hurts not only the FFL and its employees, but also the firearms community by reducing access to lawful self-defense tools and expanding ATF\u2019s illegal out-of-business gun registration records for the communities formerly served by the store.<\/p>\n The more FFLs the Biden Administration shuts down, the less access Americans will have to their Second Amendment rights and the more data the federal government will control about the identities of law-abiding gun owners in a given community. In addition to license revocations, ATF\u2019s Zero Tolerance policy further demonstrates a disinterest in helping FFLs become compliant, by removing notices and using what information ATF does provide as proof of intent to violate the agency\u2019s numerous, complex, and Kafkaesque rules.<\/p>\n [i]\u00a0Fact Sheet: Biden-\u2060Harris Administration Announces Comprehensive Strategy to Prevent and Respond to Gun Crime and Ensure Public\u00a0Safety<\/a>. White House.\u00a0<\/em>June 23rd, 2021.<\/p>\n [ii]\u00a0Barton. \u201cNew data shows ATF gun store revocations at highest rate in 16 years<\/a>\u201d. USA Today<\/em>. 2022.<\/p>\n [iii]\u00a0Firearms Compliance Inspection Results Monthly Data<\/a>. Bureau of Alcohol, Tobacco, Firearms, and Explosives.<\/p>\n [iv] ATF Order 5370.1E.<\/a> 7.d.<\/p>\n [v] ATF Order 5370.1E.<\/a> 7.e.(2). 2022. Emphasis added by GOA.<\/p>\n [vi] ATF Order 5370.1D.<\/a> 7.e.(2). 2019. Emphasis added by GOA.<\/p>\n [vii] ATF Order 5370.1E.<\/a> 7.h.(1).<\/p>\n [viii] Rep. Andy Biggs and 24 House Representatives Letter to Acting ATF Director Restaino. \u201cCongressman Biggs Demands Answers from ATF Regarding Unprecedented Increase in Federal Firearm License Revocations<\/a>\u201d. June 29th, 2022. 1.<\/p>\n [ix] Curtis Gilbert. Presentation, 2022 Firearms Industry Conference, April 25th-27th.<\/p>\n [x] Office of Inspector General, Evaluation and Inspections Division.\u00a0Review of ATF\u2019s Actions in Revoking the Federal Firearms License of Guns & Ammo<\/a>. Department of Justice. September 2013.<\/p>\n [xi] ATF Order 5370.1D.<\/a> 7.e.(3)(a). 2019.<\/p>\n [xii] ATF Order 5370.1E.<\/a> 7.e.(4)(e).<\/p>\n [xiii] ATF Order 5370.1E.<\/a> 7.e.(2) and (4)(d)-(f).<\/p>\n [xiv] ATF Publication 5300.4. 2022.<\/p>\n [xv] ATF Industry Operations Manual Chapter B. Firearms Application Inspections (FAI) 34.d.(8)(b). October 2019 Edition.<\/p>\n [xvi] Charlotte Field Division Area Supervisor.\u00a0Warning Letter to Damien Ristaino<\/a>. Bureau of Alcohol, Tobacco, Firearms, and Explosives. 142.; And Firearm Inspection Report for Damien Ristaino, LLC<\/a>. Bureau of Alcohol, Tobacco, Firearms, and Explosives. 3.<\/p>\n [xvii] Ibid.<\/em><\/p>\n [xviii] ATF Order 5370.1E.<\/a> 7.e.(2).<\/p>\n [xix] ATF Order 5370.1E.<\/a> 7.e.(4).<\/p>\n [xx] ATF Order 5370.1E.<\/a> 7.c.(1).<\/p>\n [xxi] ATF Order 5370.1E.<\/a> 7.a.(4).<\/p>\n [xxii] ATF Order 5370.1E.<\/a> 7.c..<\/p>\n [xxiii] ATF Order 5370.1E.<\/a> 7.d..<\/p>\n [xxiv] ATF Order 5370.1E.<\/a> 1..<\/p>\n [xxv] ATF Order 5370.1D.<\/a> 7.e.(1). 2019.<\/p>\n [xxvi] Johnston. \u201cATF\u2019s Illegal Gun Owner Registry<\/a>\u201d. Gun Owners of America<\/em>. 2022.<\/p>\n\n
ATF\u2019s Zero Tolerance Policy Explained<\/h2>\n
\nZero Tolerance: \u201cATF will<\/strong> revoke a federal firearms license, absent<\/strong> extraordinary circumstances<\/strong> on initial violations.\u201d<\/em>[v]
\nPrior Guidance: \u201cATF may<\/strong> revoke a federal firearms license under appropriate circumstances<\/strong> based on an initial set<\/strong> of violations.<\/em>[vi]
\nWhereas ATF previously revoked licenses in \u201cappropriate circumstances,\u201d ATF now will revoke a license on \u201cinitial violations\u201d unless there \u201cextraordinary circumstances\u201d showing that revocation is not appropriate. Under this new regime, the fact that there has been \u201c[o]ne instance of a violation \u2026 does not constitute extraordinary circumstances and will not be an acceptable reason for an alternate recommendation [to Zero Tolerance revocation].\u201d[vii]<\/p>\n![\"\"](\"https:\/\/www.gunowners.org\/wp-content\/uploads\/ZT-Graphic-300x83.png\")
<\/p>\nFFL Revocations Increase the Size of ATF\u2019s Illegal Gun Registry<\/h2>\n
Why this Matters<\/h2>\n
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