What to Do When ATF Publishes its Notice of Proposed Rulemaking

By Tom Odom, Esq.

As readers of this blog know, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) released a draft of a proposal with respect to National Firearms Act (“NFA”) firearms held by a legal entity.  With indications now that ATF may publish its Notice of Proposed Rulemaking (“NPR”) in a matter of mere hours or days, many readers of this blog are poised to spring into action but seek guidance on what to do.  Last week, I described in more detail than any of you really wanted the various steps in a rulemaking process.  While the publication in the Federal Register starts the clock running on the period within which to file public comments on the proposed rule, the Administrative Procedure Act requires a bare minimum thirty (30) day period for the submission of comments and the draft proposal indicated that ATF plans to permit a ninety (90) day period.  So, don’t panic.  Take a deep breath.  There is time to do this right.

There is little to be gained by rushing to file comments.  Take the time to fully read and digest the proposed rule.  Distinguish what is actually at issue from what some rumors may suggest is at issue.  Filing comments early increases the risk that you will think of additional points you care to raise after you have submitted your comments.  More important than filing comments in the first few weeks is raising awareness that the rulemaking is under way and the comment period is open.  It is an appropriate time to discuss your concerns with your federal and State lawmakers, urging them to make their views known.  It is a good time to discuss with your Federal Firearms Licensee (“FFL”) what impact the rulemaking may have on his business and to encourage him to submit comments to ATF.  If you are on friendly terms, speak with your chief law enforcement officer (“CLEO”) about how he and his office will implement the proposal and the cost in dollars and man-hours — and invite him to advise ATF of his situation

Do a little digging.  Administrative agencies respond to facts and are less concerned about opinions.  So, collect some facts to include in your comments.  If you use a gun trust or other legal entity, how many pages is it?  How many “responsible persons” are associated with the entity?  Are you aware of one or more CLEOs who refuse to sign forms regardless of the background of the individual who requests authorization and, if so, what explanation have those CLEOs provided?  Naming the CLEO and the jurisdiction together with quotes or other public statements could provide helpful.

Do you have information about any of the three situations ATF described in its draft with respect to a prohibited person serving as trustee that might shed additional light on those situations?:

•           The first identified situation involved the denial of an unidentified person’s application for transfer of a silencer and that individual’s subsequent effort to procure transfer of the same silencer to a trust as to which the individual was the settlor.  Apparently that situation was detailed in the petition for rulemaking filed by the National Firearms Act Trade and Collectors Association (“NFATCA”).

•           The second situation referenced by ATF purportedly situation in Texas in which ATF became aware that “a member of a LLC was an illegal alien, living in the United States under an assumed name, and had a felony warrant outstanding” at the time “the LLC had 19 firearms registered to it”.

•           The third situation ATF cited arose in Tennessee when “ATF became aware of applications submitted to transfer two NFA firearms to a trust in which one of the trustees was a convicted felon.”

Although ATF has been asked for the details of each of the three instances, they have failed to provide any additional information.  But you may have read a local press account or otherwise know more of the facts than the few ATF chose to disclose.  If you have solid, verifiable information, you may want to share that with others.  Speaking for myself, I know I would like to understand what really happened.

Check back to this site often.  As we prepare our own comments we will post additional suggestions of topics you may care to explore.

When the time does come to finalize your comments for submission, remember the tips on writing effective comments.

If you are considering establishing a gun trust or other legal entity to hold NFA firearms, changes to “responsible persons” or the terms of a legal entity, or seeking authority to make or acquire one or more additional NFA firearms, now may be the best time to do so.  All prior indications from ATF are that it will apply whatever new regulations if adopts only to newly filed applications.  If you are concerned that new regulations may make it more burdensome, do not delay any longer and act while the existing law governs your situation.