Machine Gun, Suppressors, and Short Barrels... Gone

[Ranch Dog]

I received this as part of my Texas Law Shield membership; this service is a an attorney based network that offers legal services to Texas CHLs on a subscription bases. Opinions are rendered on issue affect your right to bear arms. In that this is their material, I am only posting it for info and not opening it up to discussion. More information about Texas Law Shield and their services are available through the link.

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Dear Members and Friends,

Recently the White House issued a press release regarding new executive actions by Barack Obama. One item of the press release spoke about NFA Trusts; it spoke of a so-called "loophole" that the President wishes to close. Major media outlets are reporting the topic in such a way as to imply that the executive orders are already effective, and that NFA Trusts now require you to jump over bureaucratic hurdles such as Chief Law Enforcement Officer sign-off, finger printing, and background checks. But is this really the case?

As you will see, currently the rule is only proposed; but it remains a very real threat on the horizon if we, the citizenry, do not do something about it. The public comment period is open, and this newsletter contains guidelines for drafting your comment, and instructions about how to get it into the ATF's hands.

In the meantime, for anyone who has been considering purchasing a suppressor, short barreled weapon, machine gun, or AOW, now may be the time to do it because there may not be a chance after December 8. Based on how the ATF has treated things in the past, it is possible that the ATF will process applications normally (though likely at a slower rate due to a sudden increase in demand). However, there is no definite answer as to what the ATF will choose to do regarding applications still being processed when the rule becomes effective. It is equally possible that they will be grandfathered in, or that they will be rejected on the grounds that they weren't submitted on a new form.

While we don't know how these in-between applicants will be treated, we do know what the ATF would require of new applicants should their rule become effective.

Proposed Rule
The ATF has proposed a new rule; it is not currently law, and it does not yet apply to everyone that has a trust. The new rule promotes a number of changes which would make the process of acquiring Class-III items (suppressors, short barreled weapons, machine guns, or AOW's) even more difficult.

Its first major change is the definition of what constitutes a "responsible person." It would include anyone in a trust, partnership, association, company (LLC), or corporation that possesses the power or authority to possess, ship, transport, deliver, transfer, or otherwise dispose of the item. Put another way, anyone who could possess the item would be considered a responsible person; trustees, members of a company, or people with similar authority. By itself this change may appear innocuous, but combined with the other modifications it becomes a significant burden.

The second modification proposed by the ATF is to require all responsible persons to submit fingerprint cards and photographs, along with a law enforcement certificate. The fingerprint cards and photographs will be used for the purposes of conducting background checks, and identifying everyone involved in the trust, corporation, or other entity. Currently, there is no requirement to submit a list of every person able to possess the NFA item to the ATF, much less subject them all to fingerprinting and photographs.

The law enforcement certificate mentioned above will be changed from its current incarnation. Currently, only individuals need to pursue the certificate; trusts and corporations do not need such a certificate to successfully purchase Class-III items. This certificate currently has the Chief Law Enforcement Officer's ("CLEO") approval that the individual attempting to purchase the item is who they claim to be, and that the CLEO has no information indicating that the transferee will use the firearm other than for lawful purposes. If the proposed regulation goes through, it will instead require the certification that the purchaser is who they claim to be, and that the CLEO has no information that possession of the Class-III item would be in violation of state or local law.

Considering how difficult it is to get a CLEO to even look at such forms, the change in what the CLEO has to certify is unhelpful at best. The fact that every responsible person has to have the CLEO sign off could be an administrative nightmare. For example, a family trust with multiple co-trustees living in different counties. Finally, considering that many CLEO's have been given orders not to sign such documents for political reasons, and there is no way to compel a CLEO to sign, it could effectively stop the purchase of Class-III weapons in their entirety in many cases.

Rule Making Process
Our chance to change things lies in the rulemaking process itself. Currently, the proposed rule has been published in the Federal Register. By publishing their Notice of Proposed Rulemaking ("NPR"), this gives advanced warning of the rule and starts the clock ticking on the 90 day comment period. This is your chance as an individual to make your voice heard.

The ATF must consider and address all significant issues raised by public comments and provide its reasoning regarding them. Well-articulated, non-emotional comments will have more sway than simple statements that the rule is bad without explaining why, or infuriated comments about gun control in general.

After the comment phase is over, the ATF will publish a final rule in the Federal Register. At least thirty days later, the regulation may become effective, subject to a limited few exceptions. At this point, it is handed off to the courts to determine whether the ATF adequately responded to the issues raised during the public comment phase, whether it provided a reasonable explanation of its decisions, followed procedures, and whether the final rule is arbitrary or capricious. If it was found lacking in any of these areas, the rule would be sent back to the ATF for revisions or further procedures.

The NPR was published September 9, 2013, and therefore the end of the comment period is December 8, 2013. It is very likely that at the end of the comment period, if all goes as planned, the rule will become effective. We encourage you to participate as much as possible between now and December 8.

Public Comment Guidelines
First and foremost, keep in mind that submissions will be posted with any personal information you provided; so be careful regarding what email address, phone number, or personal anecdotes you submit. Beyond that, to have as many fires cooking at once as possible, contact your local FFL dealers and manufacturers, and urge them to send in comments if they haven't already done so. Discuss your views with federal and state legislators and urge them to submit comments on how this impacts the individuals, FFL dealers, and manufacturers they represent. Local dealers should send in comments regarding how this will impact their small business.

Keep in mind that a well thought out, well-reasoned comment will gain more traction with the ATF than a single line comment or a hostile or emotion fueled remark. Try to focus not only on what the agency should or shouldn't do, but why. Supporting your views with properly formulated arguments or facts will make you an effective participant.

Use facts from real life; if you've been turned down by your CLEO as an individual trying to purchase a Class-III item, mention that in your comment. For those of you who hold a trust, contact your CLEO and ask if they would sign your NFA certificate. Ask them if they would sign a separate certificate for each of your co-trustees and how long that would take. If you have some other kind of unusual situation that the ATF may not have considered, use that too. For FFLs, small business, and local law enforcement include relevant data with your comment to the ATF. The ATF did not seek much input before creating their rule, so it could be that the less than favorable provisions were created out of simple ignorance, rather than malice.

Point out to the ATF that, should a CLEO simply decide to ignore your application, there is no functional way to compel his action. Additionally, should the CLEO decide to not sign your form on the belief that you are not who your fingerprints and photo claim you are, or that you would be in violation of state or local law by possessing the item, there is no appeal process regarding his decision. These are just a few of the articulable arguments that exist

Above all else, stay civil. While we all feel very strongly about our Second Amendment rights, name-calling, inappropriate language, and personal attacks will all do more harm than help.

How to Submit Comments
There are a number of rules that must be followed when submitting a comment. It must first identify the docket number as ATF 41P. You must also include the agency name, which is Bureau of Alcohol, Tobacco, Firearms and Explosives.

There are three ways to submit your comments; mail, facsimile, or electronically. To submit your comment through the mail, it must be postmarked on or before December 8, 2013. It must be 12 point font size (or, if hand written, legible), and include your mailing address. It must also be signed. The comment should be addressed to:

Brenda Raffath Friend
Mailstop 6N-602
Office of Regulatory Affairs, Enforcement Programs and Services
Bureau of Alcohol, Tobacco, Firearms and Explosives U.S. Department of Justice
99 New York Ave. NE
Washington, D.C. 20002
ATTN: ATF 41P

For facsimile, comments can be faxed to (202) 648-9741. These letters must be in 12 point font (or, if hand written, legible), on 8.5 x 11 paper size, contain a legible written signature, and be no more than 5 pages long.

For electronic comments, click the following link (http://www.regulations.gov) and follow their instructions for submitting comments.

You may also request a hearing for public oral commenting. You must submit your written request within the 90 day comment period; keep in mind, though, that the Director has the right to determine whether a public hearing is necessary.

We hope this provides you with relevant information and insight.

Sincerely,

Texas Law Shield, L.L.P.