Your help is urgently needed, as the official comment period on ATF’s rulemaking, “Definition of ‘Engaged in the Business’ as a Dealer in Firearms," began on Friday, September 8. Comments on the rule will be accepted for 90 days, until December 7, 2023. The more comments ATF receives exposing the flaws, false premises, and overreaching nature of the rule, the more ATF will have to answer for if the agency persists in this ill-conceived effort. While it might be true that no amount of well-reasoned opposition will cause the Biden Administration to discontinue its persecution of gun-owning America, thoughtful comments exposing the proposal’s true nature may embarrass ATF into rewriting some of its worst provisions. And if that doesn’t happen, judges will be on notice that ATF was warned of the proposal’s problems when the final rule is, inevitably, challenged in court.
The easiest and most effective way to comment on the proposal is through the online portal at regulations.gov. Comments can also be mailed to Helen Koppe, Mail Stop 6N–518, Office of Regulatory Affairs, Enforcement Programs and Services, Bureau of Alcohol, Tobacco, Firearms, and Explosives, 99 New York Ave. NE, Washington, DC 20226; ATTN: ATF 2022R–17. In either case, be sure to reference docket number ATF 2022R–17 to identify the rulemaking on which you are commenting.
The full text of the proposed rule, as well as a lengthy preamble explaining ATF’s rationalizations for it, is available at regulations.gov. Stay tuned as well to nraila.org for additional information and explanations of the rule’s many defects. America’s legion of law-abiding guns owners, however – especially those who make or have made occasional private sales for lawful purposes – are the best resource to educate ATF (and the judges who will later evaluate the final rule and its process of implementation) on why the rule is unworkable.
As we reported last week, the Biden ATF is proposing to radically re-write federal law (yet again) to broaden the requirement for persons who occasionally sell or transfer firearms to register as federal firearm licensees (FFLs), with all the bureaucracy, expense, and oversight that entails. Biden claims this requirement will move the nation closer to the gun controllers’ Holy Grail of “universal background checks,” as federal law requires FFLs to run background checks whenever they transfer a firearm to an unlicensed person.
In truth, however, ATF has neither the resources nor the intent of handling the massive increase in FFLs the proposed rule predicts would result if its terms were adopted. Instead, the proposal is a transparent attempt to strong-arm Internet service providers, gun shows, technology platforms, and other facilitators to abandon any involvement in private gun sales with vague threats of “administrative action” for non-compliance. Meanwhile, the cartels, gang members, firearm smugglers, and violent sociopaths Congress had in mind when passing the law that supposedly enables the proposal will be entirely unaffected.
The power of informed comment was demonstrated with how this proposal has already apparently morphed from its inception to the official published version. Originally, the New York Times reported:
The regulations will set a threshold number of transactions that would define a dealer; gun-control groups hope to see it at five sales a year or lower. The rules will be backed up by a renewed push to prosecute businesses that refuse to register, by accessing bank records, storage unit leases and other expenses associated with running an off-the-books gun business.
Your NRA highlighted problems with this concept in a subsequent article of its own, noting even the Obama/Biden Administration’s “army of anti-gun lawyers could not come up with a way around statutory language and judicial interpretations that pre-empted this approach.” That article also explained that none of the changes made by the so-called Bi-Partisan Safer Communities Act, the recently enacted law that ATF claims is the basis for the rule, altered the statutory “structure that has always required a case-by-case determination based on the facts of each situation.”
Sure enough, the published version of the proposed rule explicitly rejected the “threshold number of transactions” approach the New York Times claimed was coming and instead adopted a “case-by-case analytical framework.“
As we explained in our earlier article, however, ATF’s version of that framework involves a series of presumptions for both who is “engaged in the business” of dealing in firearms and who intends to “predominantly earn a profit” from selling guns. Yet none of these presumptions appear anywhere in federal statute and many of them concern common and entirely innocent conduct. Incredibly, ATF itself even admits that the presumptions would not apply in criminal cases, meaning the rulemaking is irrelevant to the most dangerous elements of society, while it still could be used to intimidate those who are inclined to follow the law.
Effective comments on ATF’S proposal will avoid inflammatory, hyperbolic, or vulgar language and calmly explain why the language of the proposed rule is unworkable, inconsistent with the underlying statute, or liable to reach innocent conduct that that does not implicate public safety. Other subjects for comment could include whether ATF correctly estimates the number of people the rule would require to register as dealers (24,540 to 328,296 people) and whether it would be feasible for ATF to administer this increase in workload. Comments could also address whether ATF’s estimates of the burdens and costs imposed by the rule are accurate or whether ATF is underestimating them. Commenters can also help explain how private firearm sales and transfers happen among law-abiding people in the real world and why they are not the unreasonable public safety risk that gun prohibition advocates claim.
The more specific the comments are in addressing the rule’s actual language or claims, the more helpful they will be.
Commenters may identify themselves publicly or require ATF to withhold publishing their personally identifying information.
Remember, the comment period is limited, so do not delay in making your voice heard. Federal law requires ATF to respond to substantive comments. It is time to hold their feet to the fire on this over-reaching, illogical, and illegal proposal.
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