By Tom Odom, Esq.
On September 12, 2013, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) posted its first batch of public comments to the electronic docket at www.regulations.gov. I previously shared my review of the first batch of ninety-six comments posted September 12. This report updates and supersedes my earlier posting on these same issues — the major false premises underlying ATF’s proposal. Part 2 mostly addresses issues related to ATF’s flawed cost/benefit analysis. Part 3 mostly address regulatory alternatives to the course ATF proposed. All three parts will be updated and re-posted as time permits. There are now 461 posted comments (of 583 received).
Please note that each comment is assigned a unique identification number (distinct from the “tracking number”) that begins with the prefix ATF-2013-0001-. I will use the four digits that follow that prefix in the following discussion to invite your attention to points raised in specific comments.
Of those reviewed so far, only four comments unequivocally supported ATF’s proposed rule to impose additional restrictions on the making and transfer of firearms regulated under the National Firearms Act (“NFA”) and they provided little, if any, any reasoning or demonstrated a complete ignorance of the existing safeguards and regulatory burdens. See 0100, 0227, 0229 One additional comment could be construed as supporting ATF but that comment was limited to the assumption that the NFA only applied to machine guns.  Perhaps the author meant that he opposed the proposed rule because the NFA, in fact, includes other types of firearms as well but, if that was the meaning, it was inartfully stated. Please remember to phrase your comments so that they may not be quoted out of context or otherwise presented as saying something you do not mean.
A. Preliminary Matters
The fact that one comment was filed in the name of “Concerned Citizen”  and another in the name of “Tony G”  raise a question. I do not know whether the authors asked ATF to withhold their names from publication and ATF assigned the pseudonyms or whether the authors submitted the comment in those names. Remember, the Notice of Proposed Rulemaking (“NPR”) states that comments must be signed. It outlines a procedure for you to follow if you do not want personal information posted. Please use the procedure specified in the NPR rather than assume a fictitious name.
With only a few exceptions, the comments were respectful and avoided personal attacks. Given how strongly many of you feel about these issues, almost all of you managed to show great restraint while expressing your opposition.
Other than the one comment referenced above, one or two additional comments could be misquoted as suggesting support for the ATF proposal. I think that when read in full it is clear that that author is in opposition and that somewhere along the line a typographical error resulted in the omission of “not” from a key phrase or sentence, like the assertion that Chief Law Enforcement Officers (“CLEOs”) would sign forms for anyone.  As a result, I urge you to carefully proofread your comment before submitting it. If, upon reviewing how your comment has been posted it is clear to you that a word has been dropped, you may care to advise ATF of the correction.
B. Issues Raised in the Comments
The comments posted to date raised a wide variety of issues. I apologize in advance as my effort to put so much information into a fixed number of categories necessarily requires some over-simplification. As you can see from my quotes from some of the posted comments, details and factual bases for the authors’ views add to the persuasiveness of comments. This summary addresses the major false premises underlying the proposed rule. Two other summaries focus on specific flaws in the cost/benefit analysis and the suggested alternatives to the proposed rule.
1. Registered NFA Firearms Are Not Used in Crimes
Many comments assert that there is no history of NFA firearms being used in commission of a crime. E.g., 0066, 0084, 0149. Presumably the authors meant that registered NFA firearms had not been so used. E.g., 0044, 0085, 0089, 0101, 0130. Others who were more restrained in their representation of the facts asserted that there was no recent history of such misuse, e.g., 0020, 0089, asked rhetorically when such misuse last happened, e.g., 0090, 0013, 0097, 0104, 0136, or pointed out that ATF’s NPR failed to identify a single such usage,.
In 25 years of practicing criminal law I have never had a case, or even heard of one, where the crime was committed with a properly licensed class lll firearm. [The] Press release from the administration doesn’t even cite one, only the successful intervention under the existing system. 
All of the examples I could find of NFA items being used in crimes were either made illegally by the criminal or acquired illegally. The proposed changes would do nothing to stop that. 
Other comments pointed to no more than a very small number of such incidents. See 0017 (one), 0081 (one), 0041 (almost nonexistent), 0023 (“very few, if any”), 0046 (no “appreciable or even measurable quantity”), 0040 (two), 0102 (“rarely”), 0049 (“very rarely”), 1010 (extremely low percentage), 0062 (not used in “street crime”), 0066 (not used in assault or murder), 0107 (not used in homicide), 0135 (negligible), 0150 (“no measurable impact”), 0151 (“almost never”).
Since the 1934 Gun Control Act creating the NFA registry there has been only ONE case of a legally transferred NFA item having been used to commit a felony. That felony was murder committed by Patrolman Roger Waller in Ohio in 1988 used his personally owned M11 to murder an informant. 
While NFA weapons as a whole are perceived by the American public as dangerous, their use in crime is exceedingly rare. Legally-owned (ie, NFA-registered) machine guns have been used in only two murders since 1934, one of which was committed by a police officer. A previous director of the ATF testified before Congress that fewer than ten registered machine guns have ever been used in any type of crime (including non-violent offenses such as failing to notify ATF of address changes, etc.). The criminal use of other legally-owned NFA weapons is similarly rare. 
“In the 79 years the NFA has been in place, only 2 crimes have been committed by legally owned weapons subject to regulation by the NFA.” 
Other comments observed that the existing, strict regulatory regime applicable to lawfully acquired NFA firearms meant that criminals seek firearms from other, illegal sources, rather than comply with registration and tax requirements.
A criminal is not going to spend tens of thousands of dollars for a NFA firearm, pay a $200.00 stamp fee to the BATF, HAVE IT REGISTERED, then wait six month for the transfer to be approved to take possession of the firearm. A criminal by its very definition will not obey this regulation and will obtain firearms through nefarious means. 
And: “Simply put, criminals don’t mail in NFA creation and transfer forms.”  And:
The Title II weapons used in prominent crimes, such the AK-47s used in the North Hollywood shootout of 1997, have universally been illegally-owned or illegally-converted weapons. 
See also 0011, 0013, 0014, 0022, 0105, 0108, 0118, 0120, 0124, 0125, 0126, 0127, 0136, 0145.
2. Legal Entities Serve Legitimate Purposes and Are Not Used by Criminals to Facilitate Access to NFA Firearms
Many comments pointed out the legitimate use of legal entities such as trusts, corporations, and LLCs. Such purposes include estate planning, e.g., 0059, 0061, 0081, 0082, 0105, 0111, 0126, 0129, 0132, 0149, 0163, permitting members of the same family to each use NFA firearms, e.g., 0051, 0057, 0059, 0105, 0120, 0122, 0129, 0149, 0169, 0175, avoiding liability due to the “constructive possession” doctrine, e.g., 0031, 0105, 0122, and, most commonly, overcoming CLEO refusal to sign forms, e.g., 0051, 0058, 0087, 0111, 0122, 0125, 0128, 0149, 0156, 0163, 0169, 0173. As such, they provide great convenience to law-abiding owners of firearms, e.g., 0109, including our deployed servicemen who can ensure that a spouse can access the gun safe in their absence, e.g., 0120, 0157, 0175. As these comments illustrate, it can be helpful to explain why you use a trust or other legal entity.
Some comments pointed out the absence of any record of a crime conducted by someone using a NFA firearm to which he had gained access as a “responsible person” of a legal entity. “While I cannot say for certainty that felons are not using trusts to illegally purchase weapons, one thing that is certain is that they are not committing crimes with them.” 
To make this change it should be required by the ATF to prove that the US public has a real risk to their safety. This should be done by a non-biased third party that shows past harms done by NFA items purchased through a living trust or corporation, as well as projected future risks based on NFA items used in crimes to create a projected trend. Laws should be made on pure scientific fact and not emotions or political pressures. After a scientific study is done then a new proposal should be written and put up for review.
This change should not go into effect because no proof is presented that there is a real need for it. 
Other comments made the same point by observing that ATF failed to identify any example of such misuse in its NPR.
The White House press release attempts to justify this proposal by asserting that in 2012 alone, BATFE “received more than 39,000 requests for transfers of these restricted firearms to trusts or corporations.” Yet BATFE does not cite even one instance in which any of those registered firearms was used to commit a crime. Instead, BATFE’s proposal cites a case in which it denied a transfer of a silencer to an individual who it determined was ineligible to possess a regulated firearm and then denied a subsequent transfer to a trust created by the same person. 
And: “There is nothing in this proposal that indicates how these regulations would deter one, single criminal, nor has the ATF supplied even one single example of how or where a firearm transferred via a trust or corporation was used in violation of current US law.”  See also 0004, 0015, 0022, 0031, 0058, 0068, 0075, 0084. 0094, 0114, 0120, 0132, 0135, 0157, 0159, 0161, 0163, 0165, 0167, 0173, 0174.
I have been unable to locate any evidence of any prohibited person being prosecuted for being in possession of an NFA-listed item while being a member of a trust; the standards involving possession of a Firearm by a prohibited person would have been followed and the fact that the prohibited person was a member of a trust would have been noted in the trial.
If there is no evidence of such a person being found to both be in possession of a restricted item — the National Firearms Act is a restrictive act — calls into question why the changes to an NFA Trust would be required. 
Others pointed out the absurdity of the assumption criminals would use such an approach.
[T]he idea that criminals will use trusts to buy machine guns is absurd. First, they cost more than a car anymore. Second they have to pay the transfer tax of $200. Third, with the wait time for the form 3 approval and then the even longer wait for the approval of the form 4, the “criminal” will have to wait 8-9 months, and that is if there are no hiccups. 
See also 0035, 0105, 0117, 0139, 0143. “Legally established trusts are NOT the center of crime in this country.”  And: “The money and time spent in trying to prevent a statistically minute occurrence doesn’t appear worth it. Do you really think that someone that is planning on permitting a crime with an NFA weapon is going to use this route to obtain it?”  “What felons are paying $200 tax to skirt gun regulations that take 9 months to a year to approve? They’ll just create/buy the weapons and skip the paperwork and the tax entirely.”  “No gang banger is going to go thru the excruciating process of paperwork, tax stamps and waiting just to get something — they will buy it illegally.”  See also 0005, 0007, 0030. 0069, 0095, 0132, 0135, 0149, 0165, 0166, 0168, 0174.
[T]hese people who seem to be guilty of mass murders with weapons don’t spend much time planning and acqui[re] the weapons quickly so they can act on the short term plan. Any long term planners for large mass murders . . . will find black market weapons to use and not waste time requesting authority to purchase machine guns with BATFE permission. 
3. ATF’s Proposal is Pointless
Many of the comments pointed out that the ATF proposal would do nothing to accomplish any legitimate objective. These observations took several forms including those referenced above. In addition, comments noted that it is already a violation of law for a prohibited person to possess a NFA firearm, whether individually or through a trust or other legal entity. E.g., 0010, 0011, 0014, 0035, 0036, 0039, 0049, 0060, 0064, 0071, 0094, 0124, 0167, 0173, 0174. Other comments added that it is already a violation of federal criminal law for a trustee (or any other “responsible person” associated with a legal entity) to permit a prohibited person to possess a firearm if he has even “reasonable cause” to believe the person is prohibited, 18 U.S.C. § 922(d) E.g., 0020, 0049, 0120, 0124.
I see no credible evidence supporting the concern that disqualified individuals are using legal entities to gain access, illegally, to weapons from which they should properly be restricted. Assuming for the moment that such unlawful access has occurred in at least a few instances, I fail to see why existing laws cannot be used to prosecute such persons and how the proposed rules will actually prevent such possession or use. 
One of the reasons given for this change is the notion that a prohibited person could form a trust and transfer an NFA item to the trust. This notion is flawed since the person who forms the trust and applies to transfer an NFA item to the trust has to pass a background check at their dealer after the transfer is approved and they take possession.
Those that would still object to this might say, “Ah, but they will get their friend who can legally possess an NFA item to form the trust and transfer it. Then they will list the prohibited person as a responsible person in the trust so they can then use the NFA item. Therefore all responsible persons must pass a background check.” I fail to see how this change would remedy that problem. First there are already laws to prohibit purchasing a firearm for someone who is not legally allowed to own one. Second, it is already illegal for a prohibited person to possess such a weapon whether or not the weapon is legally owned by a trust and whether or not they are included as a responsible in the trust. There are already laws on the books to punish such behavior. If these changes are incorporated what is to stop the prohibited person from using it anyway? As in your example if the person who formed the trust was planning on letting a prohibited person us it what would it matter if they were listed on the trust or not? This change will not address the perceived problem. 
Quite simply: “There is already legislation in place to keep NFA items out of the hands of criminals.” 
4. Legitimate Uses of NFA Firearms
Some comments addressed legitimate uses for firearms subject to NFA regulation, most notably the use of suppressors. E.g., 0031, 0062, 0064, 0081, 0122, 0169. Comments pointed out the benefit of suppressors to avoid hearing loss, particularly in the context of hunting and self-defense. “The suppressor does not make the firearm silent as shown in Hollywood movies. They will reduce the noise from about 140db to 100db, no way near “silent”. . . . I am surprised that the EPA and OSHA do not require them to reduce noise pollution.”  See also 0064, 0081, 0122, 0156.
Many, though not all, NFA covered items are especially well suited for use in the home. For example, “silencers”, short barrel rifles (SBR) and short barrel shotguns (SBS) all lend themselves exceptionally well, and indeed perhaps obtain their greatest value, used defensively within the confines of a person’s home. Clear evidence is available supporting this proposition if ATF simply surveys the types of weapons and equipment used by “SWAT” type officers when entering office buildings and homes expecting conflict. 
Other comments pointed out that certain NFA firearms were mostly collectables. E.g., 0029, 0047, 0082, 0149.
If there are reasons why a NFA firearm is particularly suited to your situation, please explain it. If you are of slight or petite statute and find a SBR or SBS to be more manageable, share your story. If you have a NFA family heirloom, share your story.
5. ATF’s Cost/Benefit Analysis is Flawed
Some comments addressed the cost/benefit analysis reflected in the NPR. These comments pointed out the costs, even as estimated by ATF, could not be justified. E.g., 0055. Other comments observed that ATF failed to account for additional significant costs such as the lost taxes from fewer NFA transfers, fewer SoT payments due to driving small FFLs out of business, and on the income lost on the sale of NFA firearms. E.g., 0002, 0030, 0034, 0058, 0169. If you are a small business FFL, would your sales decline? If so, by how much? Would you have to reduce the number of employees? Would you generate less tax revenue for the government? If so, by how much? Details are helpful.
Other comments observed that ATF could better use its resources to investigate and prosecute persons who sought to obtain firearms and were denied. E.g., 0045, 0071. “76,000 failed background checks in 2011 and 3 people went to jail. This alone says the ATF isn’t interested in combating crime.” 
Are you a CLEO or elected official concerned about the added cost of having more forms presented to you for signature and the diversion of resources away from core law enforcement activities? Do you find the estimate of 30 minutes time to be unreasonably low? Do you wonder why ATF puts you in this position given that they have NICS and other databases? Do you think you (or your colleagues) would be any more or less inclined to sign forms given ATF’s proposed change in the certification language? ATF needs to hear from you.
As noted above, the cost/benefit analysis is addressed in depth in Part II.
6. ATF Relies on a False Premise Regarding CLEO Refusals and the Consequent Increased Use of Legal Entities to Hold NFA Firearms
Although ATF acknowledges that CLEOs have refused to sign forms, ATF asserts that the reasons CLEOs do so is because of concern for civil liability. Although many comments addressed the issue of CLEO refusals, not one supported ATF’s asserted reason. Instead, comments pointed out that, at most, CLEOs were concerned about political liability and many CLEOs simply disagreed with the legislative judgment that NFA firearms were appropriate for private citizens. E.g., 0040, 0042, 0048, 0052, 0061, 0064, 0074, 0075, 0083, 0085, 0086, 0087, 0104, 0115, 0122, 0125, 0127, 0132, 0137, 0138, 0156, 0162, 0165, 0171. “CLEOs refuse to sign due to politics, not for fear of liability; enough said.” 
I live in a county in Kansas where our CLEO is opposed to the possession of Class lll items by civilians. He simply will not approve them, for anyone. I am a lawyer, a CCH licensee, a CCH instructor, among other things. That my CLEO should be given the power to deny me the right to own a particular type of weapon because of his political persuasion is, simply, just not right. 
“This allows anti-gun sheriffs and police chiefs to block ownership of NFA weapons just because they don’t like them.”  See also 0115, 0120, 0128. “I can recall more than one encounter with local LEO’s whose opinion is that no civilians should not possess firearms, period.”  Some CLEOs “won’t sign off on the form 4’s because ‘they don’t think you should have it.’ That is the exact quote I got my local CLEO. He is an anti-gun police chief and doesn’t want anyone owning these items when it is perfectly legal to do so in my state.”  Do you have quotes from CLEOs explaining that refusal to sign has nothing to do with concern over legal liability?
The CLEOs I know who refuse to sign applications — not on the basis of an individualized determination with respect to the applicant but on a blanket or policy basis — do so primarily because they do not like the idea of any private citizens having firearms, regardless of what the U.S. Constitution, Federal statutes, and State law say on the matter. 
See also 0116. And:
The proposed rule states that many CLEOs have been hesitant to sign Form 1, 4, or 5 applications because of the language contained in the certification. I disagree. The simple truth is that many CLEOs are personally opposed to the possession of firearms by civilians. They mistakenly believe that such items, even in the hands of law abiding individuals, pose a public safety risk. For that reason, they refuse to execute these forms.
. . . . A vast majority of my clients are simply enthusiasts and collectors that have grown weary of being stonewalled by a CLEO with whom they have fundamental disagreements on public policy related to the possession of firearms (and items regulated by the NFA in particular). In short, although they are not legally disqualified from owning an item regulated by the NFA, they are effectively prohibited from obtaining one because local law enforcement is uncooperative.
To change the wording of the CLEO certification would accomplish nothing. The purpose of a Form 1, Form 4, or Form 5 is to permit an individual to create an item regulated by the NFA or to permit that person to lawfully acquire one. If possession of such items by a civilian is disfavored by a CLEO, they will persist refusing to execute these certifications. 
Other comments suggested that the CLEO certification requirement was misused by CLEOs for improper purposes such as “the ability of CLEOs to demand campaign donations or favors in exchange for signatures on ATF Forms.”  See also 0157, 0165. Law-abiding citizens will be subjected to “inevitable cronyism and abuse by local law enforcement officials” and be left ” at the mercy or whim of [CLEOs] in order to exercise their constitutional rights.” 
I really do not even see the point of requiring any type of CLEO sign off at all, to me these type of processes reek of Jim Crow era type legislation. Seems like the CLEO sign off is like many old time racist laws where the CLEO had to sign off that you were of “good moral character”, also known as being white, to be allowed to possess or do something. 
Some comments pointed out that the premise that a CLEO would have information not available to ATF itself is a relic of an earlier time. E.g., 0067, 0165.
As an example of the irrationality of the requirement, I live in a city of 2 million people. The idea that a law enforcement officer, judge, or other CLEO would have any knowledge of my existence whatsoever, and further have knowledge of anything specific that a national database would not have, is beyond all rationality. 
And: “The odds of someone like the Chief of the NYPD knowing every individual within their jurisdiction is infinitesimally small.”  “There is little, if any, chance that the CLEO of any jurisdiction will have knowledge of an individual’s status of a prohibited person that is not already known by the FBI or BATFE.”  “This may have been a reasonable request of my local Sheriff in 1934, but today, in a relatively small county of 323,000 people, my Sheriff does not know me from Adam.” 
Other comments observed that ATF mistakenly operates on the assumption that its definition of CLEOs supersedes arrangements under State law that may serve to greatly restrict the officers available to sign forms. E.g., 0082.
Some comments pointed out that all the difficulties with obtaining CLEO certification are multiplied in the context of legal entities because responsible persons may live in multiple jurisdictions, any one of which may have a CLEO who refuses to sign thereby frustrating the efforts of the other responsible persons who successfully obtained a signature. E.g., 0128, 0130, 0133, 0145. Such problems could arise with respect to “a family trust with multiple co-trustees living in different counties.”  The problem may be even greater in situations where one of the responsible persons lives in a State that does not permit NFA firearms.
Many comments explain that the shift toward increased use of legal entities is a consequence of ATF’s failure to eliminate the CLEO certification requirement for individuals once NICS and other sources rendered that system essentially obsolete. E.g., 0031, 0054, 0058, 0062, 0067, 0074, 0075, 0087, 0134, 0138, 0165. Instead of changing the text of the certification in a manner that would accomplish nothing given the actual reasons CLEOs refuse to sign and expanding that requirement to apply to all responsible persons of legal entities, many comments advocated the complete elimination of the CLEO certification requirement. E.g., 0031, 0085, 0086, 0111, 0116, 0125, 0129, 0134, 0136, 0140, 0144, 0145, 0148, 0165, 0172. One commenter observed: “I believe if the requirement for a CLEO’s signature was removed, 98%, or more, of the transfers to legal entities would stop.”  Even law enforcement officers advocated the complete elimination of the CLEO certification requirement. E.g., 0140.
[N]o regulatory text denying the CLEO bears any liability for the certification is likely to change the practice of most CLEOs. They will continue to refuse to sign simply as a matter of personal objection to congressional policy. Expanding the applicability of the CLEO certification requirement to all responsible persons of legal entities will merely empower CLEOs who currently refuse to sign applications for individuals to more-thoroughly frustrate Federal and State law. 
“The CLEO sign off is redundant, unnecessary, discriminatory, and on its face intended to discourage application for legally obtainable NFA items.”  Moreover, “This last minute change by the ATF to require CLEO sign off IN ADDITION to fingerprints and NICS checks for responsible parties demonstrates bad faith on the part of the ATF in rule making.” 
Some comments suggested, as an alternative, a CLEO notification procedure.
A far better solution would be to follow the same procedure used when a business or individual applies for a Federal Firearms License were the applicant attests that they sent a copy of their application to the CLEO, providing the name and address where the FFL application was sent. This procedure, mirroring the FFL application process, would not place an undue administrative burden on local law enforcement or create the opportunity for a de facto ban to be created through failure to act by the CLEO within a jurisdiction without action by the legislative branch of the state government. 
See also 0086, 0087, 0099, 0130.
The increase in the use of trust[s] or other legal entities is not evidence of a need to revise the regulations in the manner proposed. The increase is at least as persuasive in indicating a need to revise the regulations in other less burdensome ways, such as, by way of example, eliminating the CLEO sign-off and replacing it with CLEO notification. Certainly the ATF agrees that to the extent CLEOs remain a valuable tool for ensuring compliance, CLEOs will not ignore a notification when they have information relevant to ATF’s considerations. To the extent ATF believes CLEOs will be tempted to remain silent even in the face of notification, then ATF must surely acknowledge that CLEO certification is of marginal value. 
If you are a CLEO, would you favor CLEO notification for forms by individuals as well as legal entities?
Other comments suggested that the CLEO should be required to sign unless he has a valid reason to refuse. E.g., 0047, 0058, 0065, 0083, 0101, 0120, 0129, 0130, 0131, 0138. And yet other comments complained that there was no procedure to appeal a CLEO’s arbitrary refusal to sign. E.g., 0119, 0121, 0129, 0130, 0131. One suggested that after a thirty day period inaction by the CLEO should be deemed approval. See 0121.