Proposed Changes to NFA Rules

September 8th, 2013

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One of the "executive actions" the President proposed last month has been submitted to the Federal Register as a rules change proposal. It involves changing the way NFA items are registered to trusts.

When paying the tax and registering an NFA weapon, one can register it to himself as an individual. However, if he wants to grant possession to someone else, it has to be transferred again, thus incurring another round of paperwork, delay, and remuneration to the ATF. He also has to secure approval from his local Chief Law Enforcement Officer (CLEO), usually a sheriff or police chief. Such approval is at the discretion of the officer, and many choose not to grant it.

The alternative is to register the weapon to a trust. In that case, local law enforcement need not be involved, and other parties may be granted access to the weapon by simply adding them as trustees. Recently, we've been expected to believe that this is an easy and surefire method for felons to gain access to such weapons.

This makes little sense. By the administration's logic, felons are inclined and motivated to,

  • seek out an attorney and pay hundreds of dollars to establish a trust,
  • pay significant premiums for heavily regulated weapons,
  • submit the proper paperwork for approval,
  • pay a $200 tax, and
  • wait 6-8 months for processing.

If this ever happens, I submit that those who propose making things harder prove it. I don't expect a response.

On to the specifics. The actual petition is here. I'll warn that it's not an easy read.

The proposal is to define the idea of a "responsible person" and insert it into the regulations. Anyone named in any capacity in the trust will be a "responsible person," and thus subject to onerous new requirements.

The Department proposes amending § 479.11 to add a definition for the term “responsible person.” (…) Depending on the context, the term includes any individual, including any grantor, trustee, beneficiary, partner, member, officer, director, board member, owner, shareholder, or manager, who possesses, directly or indirectly, the power or authority under any trust instrument, contract, agreement, article, certificate, bylaw, or instrument, or under state law, to receive, possess, ship, transport, deliver, transfer, or otherwise dispose of a firearm for, or on behalf of, the entity.

Originally, there were rumblings of removing the CLEO approval step for all transfers. That would have been a huge help to many people. The original concept goes back to the 1934 enactment of the NFA, and the idea was that local law enforcement could vouch better for the character of an applicant than the federal government. This was before the age of national databases, but it created a system subject to whim and caprice. If the local sheriff feels I didn't contribute enough to his local election, he can refuse to approve my application. Even if that's not the case, some feel that the wording opens them up to potential liability.

As per 27 CFR 479.63, the CLEO must provide a certificate that states,

the certifying official is satisfied that the fingerprints and photograph accompanying the application are those of the applicant and that the certifying official has no information indicating that possession of the firearm by the maker would be in violation of State or local law or that the maker will use the firearm for other than lawful purposes.

And now this system is expected to apply to all transfers. There's a plan to change the wording of the signoffs, but there's still no guarantee of approval. All parties on a trust will be required to submit to the process and have a NICS check conducted.

Essentially, this kills one of the primary advantages of a trust, and it waters down another.

(It also looks as if the 5330.20 compliance form will be eliminated, and the language will be integrated into Forms 1, 4, and 5.)

You may notice the acronym NFATCA sprinkled about. That's the National Firearms Act Trade & Collectors Association. They took it upon themselves to interface with the ATF about this stuff over the last few years.

There are two sides to the narrative. The NFATCA claims that they negotiated with the ATF to remove the CLEO signoff step, and that the ATF railroaded the process. However, this proposal repeatedly states that the NFATCA themselves brought up the the trust "loophole" as a potential venue for criminal possession of NFA weapons. In fact, it says so with such frequency that it would constitute a gross misrepresentation to the point of slander if it wasn't true.

The NFATCA's response to this question has been less than encouraging.

ATF was going to hammer the Trusts, etc. anyway with elimination or 100% background checks, the fact is we were good on this until many prohibited folks were abusing it so that they could get access to NFA firearms in a trust and trumpeting it all over the place. They made their abuse of the system not just an insider thing for them, but told every LE and ATF person in the country what they were doing. It comes as no surprise that the government monitors the Internet. It came as no surprise that ATF wanted to shut it down.

I was willing to consider the idea that they hadn't thrown us under the bus, but now I'm not so sure. In any case, it's reasonable to expect a detailed and plausible explanation from them before supporting them in any way.

The proposal has a comment period of 90 days, which began today. If you wish to submit a comment, please do so the right way. Make your point in a civil, succinct fashion. Use facts, not emotions, to make your argument, and avoid broad politicking. We have a slight advantage in that this is a very obscure regulation, and as such, its supporters can't really manipulate a mass of uninformed people on the issue.

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