The SBA is actively examining whether ATF improperly certified compliance with the Regulatory Flexibility Act. If you are the CLEO of a small jurisdiction or a small business FFL, SBA needs to hear from you NOW.
When ATF first announced that it planned to publish the proposed rule that triggered the current rulemaking ATF 41P, Firearms Industry Consulting Group, a division of Prince Law Offices, P.C., urged readers of this blog to contact the U.S. Small Business Administration. It is not too late to do so.
The first draft of the notice of proposed rulemaking (“NPR”) made clear that ATF failed to comply with several requirements in formulating its proposal that would impose additional burdens on the making or transfer of firearms regulated under the National Firearms Act (“NFA”) to trusts, corporations, and other legal entities. One of the provisions with which ATF had asserted its compliance was the Regulatory Flexibility Act. The Small Business Administration (“SBA”) Office of Advocacy is charged with representing the interests of small businesses and small governmental entities to ensure that other agencies, like ATF, comply with the provisions of the Regulatory Flexibility Act.
In essence, the purpose of the Regulatory Flexibility Act is to require that agencies not mindlessly adopt one-size-fits-all regulations. Congress recognized that regulations designed to regulate large entities may impose disproportionate and unreasonable burdens on small businesses and small legal entities. As a result, ATF was obligated to examine the impact its proposed rule would have on small entities. ATF “certified” that it had complied with the Regulatory Flexibility Act. But there is nothing in ATF’s proposed rule that makes any distinction between a major manufacturer of NFA firearms, on the one hand, and a small, sole proprietor Federal Firearms Licensee (“FFL”) dealer (or small to medium sized manufacturer), on the other hand. ATF also did not distinguish between those Chief Law Enforcement Officers (“CLEOs”) who represent large jurisdictions, like a State Attorney General, and CLEOs who represent small jurisdictions, like the police chief of a small town.
ATF did not even count the number of small businesses and small governmental entities as distinguished from the broad class of businesses and governmental entities generally. ATF did not undertake to examine whether there are added costs to small entities. And ATF did not consider whether there are suitable alternatives to imposing the same regulatory requirements on entities of all sizes.
If you did not contact SBA when we first recommended that you do so, it is not too late. Send correspondence to:
Dr. Winslow Sargeant
Chief Counsel for Advocacy
U.S. Small Business Administration
409 3rd St, SW
Washington DC 20416
Or, you can reach the Office at 202-205-6533 or firstname.lastname@example.org
If you would like additional examples of issues to raise with SBA, please see the link above to our original post on the issue.