ATF Proposed New Rules for NFA Trusts

[Bubbles]

In a word: BAD. Prints/photos for everyone on the trust/corp, CLEO signoff expanding to trusts and corps. I'm still reading through and digesting, see pg 12-16 and 20-22 at https://www.atf.gov/sites/default/files/assets/inside-atf/2013/082913-wash-machine-guns-destructive-devices-and-certain-other-firearms.pdf

Yes I know I put this info in a thread in the NFA forum, but not everyone goes to NFA.

My take: if you're using a trust to avoid the CLEO signoff, submit your F1's and F4's for anything you want ASAP. ATF is taking public comments for the next 90 days, after that I don't know how long until the rules go into effect.

 

[Cosmoline]

I think we need more info on this. The proposed rules here appear to be from a NFATCA petition from some years back.

 

[Telekinesis]

I just saw this on another (NFA specific) forum as well. Unfortunately I think it's gonna push me out of the NFA realm for a while until I figure out if I want to get my entire family fingerprinted or if I want to take some of them off my trust.

Any idea how the 9 month backlog is going to be dealt with? I don't imagine they'd bounce back 9 months of forms because they were in an ATF file cabinet when the rule officially changed, but then again little the ATF does makes sense.
I've got one can just about through the form 3 wait to get to my dealer, so hopefully I'll be able to slide in my form 4 just before the rule change takes effect.

 

[AlexanderA]

My understanding is that each "responsible person" in an NFA trust or corporation will have to submit a new, separate form containing a CLEO signature, photo, and fingerprints for that person. If there are changes to the list of "responsible persons," the new person(s) will have submit this form to the ATF within 30 days of the change.

I'm not sure how the grandfathering would work, but it would be logical to assume that existing trusts would have to submit these forms for their "responsible persons" within 30 days after this Rule becomes final. If your CLEO refuses to sign, you may have a serious problem.

These things need to be pointed out during the 90-day comment period that is now open.

 

[Bubbles]

I'm not sure how the grandfathering would work, but it would be logical to assume that existing trusts would have to submit these forms for their "responsible persons" within 30 days after this Rule becomes final. If your CLEO refuses to sign, you may have a serious problem.

What page/paragraph is that on?

 

[Bartholomew Roberts]

Page 27 has the proposal that ATF will create a rule requiring notification of new responsible persons within 30 days. There is nothing about existing trusts; but it stands to reason that if they can make that rule, they can also apply it retroactively.

 

[waterhouse]

Is this an executive order or a proposed law or what? In other words, does this get voted on or just passed?

 

[Bubbles]

It's proposed changes to the Code of Federal Regulations.

I've got customers with trusts who are really unhappy right now.

 

[Sambo82]

I was really hoping all the "calm down and put your tin foil hats back on because there's nothing Obama can affect with EO's" people were right. Alas, that's not the case. Maybe the worrying about EO's were warranted after all.

 

[Bartholomew Roberts]

Right now it is in a 90-day comment period. After that, ATF may implement the regulation, propose a modified regulation or drop the subject entirely for the time being (as they did with their definition of "sporting purposes" for shotguns a few years back). No Congressional action is necessary to make it happen as Congress already delegated the authority decades ago.

Congress would have to rescind that authority to stop it; which is highly unlikely to pass the Senate or be signed by the President.

 

[Bubbles]

I was really hoping all the "calm down and put your tin foil hats back on because there's nothing Obama can affect with EO's" people were right. Alas, that's not the case. Maybe the worrying about EO's were warranted after all.

Huh? The CFR's and EO's are totally different.

 

[Frank Ettin]

I was really hoping all the "calm down and put your tin foil hats back on because there's nothing Obama can affect with EO's" people were right. Alas, that's not the case. Maybe the worrying about EO's were warranted after all.

1. This has nothing to do with Executive Orders. This is involves the formal adoption of regulations (which are codified in the Code of Federal Regulations).
   
   
2. As Bart alluded to in post 10, the adoption of regulations by a regulatory agency must follow a formal process which includes publishing the proposed regulations and allowing a period of time for public comment before any regulations can become effective.
   
   
3. The agency must also be authorized by statute (a law enacted by Congress and signed by the President) to adopt regulations with regard to a particular subject or process. Any regulations adopted must be within the scope of the statutory authorization.
   
   
4. As pointed out by Bart in post 10, Congress has long ago authorized ATF to adopt regulations on these matters.

 

[Elkins45]

"ATF proposes extending the CLEO certification to responsible persons of a legal entity".

IOW how dare you not submit to the will of any anti 2A CLEO's. Rather than protect from abritrary prohibitions this proposal expands the opportunity for them to happen.

Has this actually been filed yet? If so, has the clock started on the 90 day comment period?

 

[Deer_Freak]

When you sign the petition share it with your gun loving friends. The links to share the petition are right there after you sign it.

 

[Sambo82]

1. This has nothing to do with Executive Orders. This is involves the formal adoption of regulations (which are codified in the Code of Federal Regulations).
   
   
2. As Bart alluded to in post 10, the adoption of regulations by a regulatory agency must follow a formal process which includes publishing the proposed regulations and allowing a period of time for public comment before any regulations can become effective.
   
   
3. The agency must also be authorized by statute (a law enacted by Congress and signed by the President) to adopt regulations with regard to a particular subject or process. Any regulations adopted must be within the scope of the statutory authorization.
   
   
4. As pointed out by Bart in post 10, Congress has long ago authorized ATF to adopt regulations on these matters.

What? If this has nothing to do with Executive Orders, why did the White House release a press statement... saying this and the import ban was done by Executive Order?

"Today, the Obama administration announced two new common-sense executive actions to keep the most dangerous firearms out of the wrong hands and ban almost all re-imports of military surplus firearms to private entities. "

"However, felons, domestic abusers, and others prohibited from having guns can easily evade the required background check and gain access to machine guns or other particularly dangerous weapons by registering the weapon to a trust or corporation." "Today, ATF is issuing a new proposed regulation to close this loophole. "

It's all right here;

http://www.whitehouse.gov/the-press...eet-new-executive-actions-reduce-gun-violence

 

[Frank Ettin]

...What? If this has nothing to do with Executive Orders, why did the White House release a press statement... saying this and the import ban was done by Executive Order?...

1. This thread is not discussing the import ban. It is discussing new proposed ATF regulation regarding NFA trusts.
   
   
2. The press release says nothing about Executive Orders. The press release says:

   ...the Obama administration announced two new common-sense executive actions...

   
   
3. The term "executive action" has no special meaning. It is a general, descriptive term which could reasonably encompass any action taken by an executive department.
   
   
4. The ATF is an agency within the Department of Justice of the United States (DOJ). The DOJ is organizationally within the Executive Branch of the federal government. Therefore anything the ATF does could in general terms be described as "executive action."
   
   
   • Here as noted in the press release the particular "executive action" by the ATF involves:

     ...issuing a new proposed regulation .... The proposed rule requires individuals associated with trusts or corporations that acquire these types of weapons to undergo background checks,...

     
     
   • As has been discussed elsewhere in this thread, the issuing of regulations by a regulatory agency is a formal process. Regulations adopted through that process and within statutory authority have the force of law.
   
   
5. On the other hand, while an Executive Order could also be characterized as an "executive action", it is a very specific type of executive action. An Executive Order is instruction from the President, as manager of the Executive Branch, to the administrative units reporting to him regarding the implementation and enforcement of statutes and regulations. As such, it must be consistent with statute or regulation to which it relates. A Executive Order can not make new law or regulation.
   
   
   • In the case of the import ban, there is, I believe, an Executive Order directed to the ATF relating to the ATF's implementation of its authority, as conferred on it by statute enacted by Congress, to review applications for licenses for the importation of firearms and issue or decline to issue such licenses.
     
     
   • But the import ban is not the subject of this thread and is another matter entirely.

 

[Sambo82]

Wow Frank, that's some impressive bit of lawyering.

This thread is not discussing the import ban.

Which is why I said

Why did the White House release a press statement... saying this and the import ban was done by Executive Order?

The term "executive action" has no special meaning. It is a general, descriptive term which could reasonably encompass any action taken by an executive department.

Except, we're not simply talking about an action taken by an Executive Department. We're talking about actions taken by the President directing policy within those departments, which is ironically what you just described as an Executive Order;

Executive Order is instruction from the President, as manager of the Executive Branch, to the administrative units reporting to him regarding the implementation and enforcement of statutes and regulations.

Which is a correct definition, and which is why every news outlet I've so far read are describing these actions as "Executive Orders". Not that any of this matters other than the semantics. The fact is, is that the President has managed to significantly impact lawful gun owners unilaterally, through implementation of executive powers. I was mearly wanting to throw a to the folks who ostracised those of us who earlier this year suggested he might be able to do such a thing.

 

[Frank Ettin]

...Except, we're not simply talking about an action taken by an Executive Department. We're talking about actions taken by the President ...

Actually, that's not accurate. The press release says:

Today, the Obama administration announced two...

These are actions by the administration, i. e., the Executive Branch. Of course Obama will take credit for those actions since he is the senior manager of the Executive Branch.

...Which is a correct definition, and which is why every news outlet I've so far read are describing these actions as "Executive Orders"...

None of them asked me to review their copy. But we shouldn't be surprised by the news media being sloppy in the use of technical terms.

...The fact is, is that the President has managed to significantly impact lawful gun owners unilaterally, through implementation of executive powers. I was mearly wanting to throw a to the folks who ostracised those of us who earlier this year suggested he might be able to do such a thing.....

No one ever said that he couldn't do things that through a lawful exercise of executive powers that would impact gun owners.

But back in the days of those discussion various folks were tossing around all sorts of extravagant claims about what Obama was going to be doing unilaterally. But thus far he's just been able to unilaterally take some very narrow actions. And of course as some of us had pointed out, the only reason he's been able to do even this much is that Congress years ago delegated the authority to the ATF.

Much of this came up in the context of Executive Orders. We talked about the legal issues associated with Executive Orders in this thread, this thread, this thread, and this thread.

And this article quoted law professor Adam Winkler stating (regarding Obama's options by Executive Order):

...His [Obama's] options are limited," Adam Winkler, constitutional scholar at the UCLA School of Law, said by phone Friday. "He can seek to better enforce existing federal law, but he can't act contrary to existing federal law....

 

[Sambo82]

These are actions by the administration, i. e., the Executive Branch. Of course Obama will take credit for those actions since he is the senior manager of the Executive Branch.

Man, you're bending over backwards to abstract the obvious; the Obama Administration has ordered the BATFE to enact these new rule changes, and these rule changes have significantly impacted many lawful gunowners. Both the import ban and the NFA trust rules change are nefarious in their own way.

To recap; the President has been able to unilaterally, through Executive power, to bring about regulations that significantly impact the RKBA liberties that many lawful gun owners enjoy. Those who said that he couldn't were simply wrong.

No one is arguing that this is "illegal" in the strictest sense. No one is arguing that these are "new laws". No doubt he President and future anti-gun Presidents and their administrations will be able to reevaluate the enforcement of laws that were passed decades ago to the detriment of gun owners. I do not doubt the enormous amount of imaginative interpretation and abstractation that lawyers are capable of when legal code is involved. All I'm arguing, is that this rule change that just happened is exactly what the Executive Order alarmists have been talking about.

 

[Frank Ettin]

...I'm arguing, is that this rule change that just happened is exactly what the Executive Order alarmists have been talking about...

And that is not accurate.

Anyone who is interested can go back and review the threads I linked to in post 18. Folks were worried about executive action to implement assault weapon bans, magazine capacity limitations, universal background checks (i. e., no private sales). That didn't happen, and it won't happen.

Instead we get a ban on importation of military surplus rifles and changes to the NFA trust rules.

 

[Sambo82]

Well I'm glad that we got it cleared up that this was an order, carried out at the behest of the President, which was the point of my original post. But I don't agree with your position that it isn't a validation of EO Alarmism (I should copyright that term) that other executive actions were carried out instead of those specifically listed by EO Alarmists.

 

[Elkins45]

Right now it is in a 90-day comment period.

Is it? I couldn't find it on http://www.regulations.gov

Maybe it hasn't been formally introduced yet?

 

[NickEllis]

I couldn't find it either.

 

[hso]

Sambo,

Fred's correct. This isn't an Executive Order even though it is at the behest of the President (or more likely one of his cohort since I doubt POTUS knows this level of detail about NFA and CLEO approval). It is a plain old fashioned proposed rulemaking.

That's an important distinction because the process for this is different from an ExecOrder and that means the battlefield is different impacting how we fight this. If we waste our efforts on the wrong process then we end up reducing out chances of winning.

This stuff isn't semantics even though it seems like playing games with words. Politics is a labyrinthian game with many a pitfall and blind alley to trap the inexperienced. It is important to know the rules to avoid loosing.

 

[Bartholomew Roberts]

Is it? I couldn't find it on http://www.regulations.gov

Maybe it hasn't been formally introduced yet?

You maybe right about that. I can't find it either and the draft shows no date in it for the comment period. This may just be a policy ATF is floating to see how it goes over and get ideas of the response.

Or maybe they are pulling the same deal they tried with S.649, where they introduce an absolutely horrible bill and then amended it to a deeply flawed bill in hopes that everyone is so scared by the first one that they are grateful for the second.