By Joshua Prince, Esq.

As readers of this blog are aware (thanks to the tireless effort of Attorney Tom Odom of our firm), the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has published an intent to enter into rulemaking in relation to “(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. ” Unfortunately, we just obtained a copy of the 62 page proposal and the above statement is a false depiction of the actual proposal, as everyone was made to believe that the CLEO signature requirement would be eliminated in exchange for additional regulations on fictitious entities. As is explained below and will be further explained in future blog articles, the ATF will NOT be eliminating the CLEO requirement and instead IMPOSING it on ALL entities.

You can obtain a copy of the proposal here.

As the proposal states (starting on page 9 of the proposal), on December 3, 2009, the ATF received a petition for rulemaking from the National Firearms Act Trade and Collectors Association (NFATCA). “The NFATCA expressed concern that persons who are prohibited by law from possessing or receiving firearms may acquire NFA firearms through the establishment of legal entities such as a corporation, trust, or partnership.” It goes on to state “The Petitioner [NFATCA] expressed concern that an NFA firearm could be obtained by a prohibited person and used in a violent crime.” (emphasis added). And it gets worse. “Therefore, for applications for a corporation, trust, partnership, or other legal entity to make or receive an NFA firearms, petitioner has requested amendments to §§ 479.63 and 479.85 to require photographs and fingerprint cards for persons who are responsible for directing the management and policies of the entity, so that a background check of the individual may be conducted.” (emphasis added).

The ATF responds to this concern by stating that it agrees with the NFATCA’s concern and that further regulation is necessary. The ATF then goes on to state of a single alleged instance where an individual applied for a silencer, was denied, and then, again allegedly, applied again in the name of a trust, wherein the individual was settlor of the trust, which the ATF recognized and denied. (It must be noted that the 7th Circuit Court of Appeals in US v. Miller, 588 F.3d 418, specifically held that a trust was a PROPER legal entity for holding a firearm, where the settlor was prohibited, provided proper safeguards were included in the trust to ensure that the prohibited individual did NOT possess the firearm).

The NFATCA’s petition also sought the incorporation of the Certification of Citizenship into the existing NFA Application Forms, instead of as a separate form. (See page 11-12). The ATF agrees with this and is seeking to incorporate the ATF Form 5330.20 into the existing forms.

And it gets worse. “The NFATCA requests that the instructions on applications to make or transfer a firearm be revised so that they are consistent with those on a Form 7 (5310.12), Application for Federal Firearms License.” This means that the NFATCA requested the implementation of responsible persons for purposes of applications in the name of fictitious entities. And much to everyone’s surprise (sarcasm), the ATF agrees!

In relation to the Chief Law Enforcement Officer signature requirement, “the petitioner requests that the law enforcement certification requirement be eliminated and that ATF ‘adopt a CLEO [chief law enforcement officer] process include a full NICS [National Instant Check System] check for principal officers of a trust or corporation receiving such firearms for the trust or corporation.'” (See page 12-17) ATF’s response? “ATF does not propose to eliminate the CLEO certificate requirement at this time.” (See page 14). It continues to get worse – “Rather, ATF proposes extending the CLEO certificate requirement to responsible persons of a legal entity.” Guess what, under this proposal, EVERYONE will require a CLEO signature!

I will be posting more as I have time to thoroughly review the proposal. This is extremely damaging to the ENTIRE NFA community. We need to take IMMEDIATE action.