By Tom Odom, Esq.
I previously shared the results of my review of the first batch of public comments that the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) posted to the electronic docket at http://www.regulations.gov and a follow up article. The first batch consists of the ninety-six comments posted September 12. As of midnight September 16, a total of 435 comments (including the 96) had been received at http://www.regulations.gov/#!docketDetail;D=ATF-2013-0001
Please note that each comment is assigned a unique identification number (distinct from the “tracking number”) that begins with the prefix ATF-2013-0001-. As with my prior summary, I will use the four digits that follow that prefix in the following discussion to invite your attention to points raised in specific comments.
As I explained in yet another prior post, the Administrative Procedure Act (“APA”) requires ATF not simply to choose between the option outlined in its Notice of Proposed Rulemaking (“NPR”), on the one hand, and no change whatsoever on the other hand. ATF is responsible for considering all significant alternatives and explaining its choice among them. The first batch of comments presented quite a variety of alternatives.
A. Opposition to ATF’s Proposed Rule
Many, if not most, comments simply stated that the author preferred no additional regulations, opposed ATF’s proposed rule, or both. E.g.,0012, 0014, 0015, 0016, 0017, 0018, 0025, 0027, 0028, 0036, 0058, 0064, 0071, 0076, 0077, 0079, 0080, 0088, 0091, 0092.
“I am opposed to any changes in the existing procedure regarding the use of ‘NFA Trusts’ for Form 4 approval.”  ” It’s my understanding that less than 1% of all denied persons under the NICS system are prosecuted — so I certainly see no need to enact more laws when the ones on the books aren’t even enforced now.” 
Even an advocate of “sensible” gun control expressed opposition to the proposal. “I have no problem with gun control and regulation if they are practical and make sense. This one does not do either.” 
B. Revise Existing Regulations to Reduce Burdens
Other authors saw the rulemaking as an opportunity to press ATF to reduce the burden under existing regulations. E.g., 0031, 0075.
1. Eliminate CLEO Certification for Individual Applicants
To the extent individuals began to form legal entities to hold NFA firearms as a consequence of ATF’s existing regulations and procedures — notably the effective veto power wielded by CLEOs and the longer processing times associated with applications by individuals — some comments specifically suggested eliminating the CLEO certification for individuals. “I see no continued need for the CLEO signature in this day and age. The speed and accuracy of the modern electronic background check has easily replaced this requirement from 1934.” 
Until recently, ATF had indicated that eliminating that requirement was part of the proposal it would present. ATF repeatedly published an abstract in the Unified Regulatory Agenda stating:
The proposed regulations would (1) add a definition for the term “responsible person”; (2) require each responsible person of a corporation, trust or legal entity to complete a specified form, and to submit photographs and fingerprints; (3) require that a copy of all applications to make or transfer a firearm be forwarded to the chief law enforcement officer (CLEO) of the locality in which the maker or transferee is located; and (4) eliminate the requirement for a certification signed by the CLEO. (emphasis added)
As recently as October 2012, ATF published that description and indicated that it contemplated publishing a NPR in July 2013. As that abstract indicates, consistent with the NFATCA petition for rulemaking dated December 3, 2009, ATF contemplated that its proposed rule would “eliminate the requirement for a certification signed by the CLEO.” While ATF is permitted to change course before publishing a proposed rule, certainly where ATF considered an alternative, internally and in discussion with NFATCA, for several years, that alternative warrants consideration and ATF should have provided some reasoned explanation for the change in course.
Addressing the other problem that prompted increased use of legal entities, one comment made a suggestion sure to prove popular: “Hire additional examiners for the NFA branch to deal with the massive backlog of applications.” 
2. Reduce the Regulations on Certain Subclasses of NFA Firearms
Some of the comments suggesting that if ATF was going to adjust its application procedures, it should consider reducing the burdens imposed with respect to certain types of NFA-regulated firearms. Most often those comments suggested that ATF should significantly reduce the regulatory burden with respect to suppressors. E.g., 0017, 0031, 0064, 0075, 0081, 0085. In light of the growing number of States permitting use of suppressors while hunting (now up to 39 States) this may be an effective point.
At least one author made a similar argument with respect to short-barreled rifles. See 0075.
Given the different treatment of the class of “Any Other Weapons” under existing law, it may not be unreasonable to suggest ATF tailor its proposal to the very different types of “firearms” regulated under the NFA.
3. Start Over
Some comments suggested a much broader need for revision to existing ATF regulations. “[M]y recommendation is to take most of the existing regulations off the books and burn them in the parking lot.” 
Modernize and convert the NFA process “to electronic forms that only need be filled out once.” 
One author observed: “I do not see why an individual needs to submit fingerprints and a photo when making a title 1 firearm requires no such proof in the first place.”  He advocated “removing the requirement for local law enforcement being needed to sign off on Form 1 and Form 4s.” Some, unfamiliar with ATF’s prior determinations, may be unaware that ATF has determined that an individual may make his/her own firearm, without need for even serializing the manufactured firearm, if there is no intent to manufacture the firearm for profit (AKA it must be for personal use).
C. Alternative Methods for Background Checks
Some comments pointed out alternative means to address ATF’s concerns. The means to do so mentioned most often was the National Instant Check System (“NICS”). E.g., 0052, 0053, 0067, 0086. “Why can’t a NICS check by a nearby FFL take the place of the fingerprint and photo requirements?”  Rather than ATF’s proposal, “[a] more reasonable way to achieve background checks would be to require that a NICS check be performed on each person listed on a trust or as an officer in a corporation either when the entity is formed, or each time it requests a transfer.” 
Other comments suggested that CLEO certification should be replaced by CLEO notification. “It would be much better to have CLEO notification, rather than sign-off. Keep trusts and corps free of the extensive burdens.”  “[R]emoving the CLEO sign off requirement, and replacing it with CLEO notification is one change that is needed in the proposed rule.”  “I would propose that a notice go to the CLEO. This would mirror the notice that goes to the CLEO when receiving/or renewal of a C&R or FFL. If the CLEO had knowledge that this individual was an issue, he could raise that concern at that time.” 
D. Alternative Methods of Restricting “Responsible Persons”
Other comments pointed out that appropriate language in the documents governing legal entities could serve the purpose.
My trust explicitly states that any trustee that is or becomes an ineligible person as defined by federal law or state law must be deemed as to have immediately resigned and must immediately surrender all NFA items held on behalf of the trust. This language in my NFA trust clearly prevents the possibility of a prohibited person from owning or taking possession of NFA items. This language puts to rest the BAFTE’s fears of prohibited persons using a trust as some kind of legal loop-hole. I would recommend that instead of requiring finger prints, passport photos, and a CLEO signature for all responsible persons the BATFE require that either:
(1) Language similar to that used in my trust is required for NFA trusts. Prohibiting an ineligible person from being a responsible person.
(2) If the trust does not have such language then acting Trustees, not successor trustees or any other member, be required to send in fingerprints, passport photos, and receive a CLEO signature. 
ATF could revise its proposed definition of a “responsible person” to take into account such limitations.
As another author observed, due to such provisions in trusts and other documents governing various legal entities those documents “can be an enormously educational tool in preventing such occurrences” as the proposed rule seeks to prevent. 
E. Limited Support for Portions of the ATF Proposal
Some comments reflected that the authors were willing to accept certain aspects of ATF’s proposal if ATF eliminated other provisions. For example, some comments were willing to accept the imposition of a requirement that responsible persons provide fingerprints and photographs as long as CLEO certification was eliminated. E.g., 0046, 0065.
“If the goal is to keep restricted persons from owning NFA items then name and finger prints seem to be the only requirement.” 
“I am not opposed to fingerprints, photographs, and NICS background checks. The CLEO signoff however, should be eliminated.”