Most of my clients are familiar with the process of applying to the ATF to transfer or make a firearm controlled by the National Firearms Act. Since July of 2016, every application to transfer or make a firearm has required a copy of the appropriate Forms to be submitted to the chief law enforcement officer (CLEO).
The Requirements
In South Carolina the CLEO includes the Attorney General, Sheriffs, Chiefs of Police, and local prosecutors. When filing a Form 4, Form 1, or Form 5, copies of the forms had to be submitted to an appropriate CLEO. If the application was for an entity, then each responsible person also had to submit a copy of the Form 23 Responsible Person Questionnaire.
Ostensibly, this was done to allow “CLEOs who had objections to making or transferring a firearm to forward their objections to the ATF for Review.” NPPRM 1140-AA65.
The Reality
This system has been in use now for about ten years, and “it has not worked as intended. During this time period, ATF is not aware of CLEOs performing independent background checks or filing objections to making or transferring a firearm.” Id.
However, the requirement has cost applicants roughly $5.8MM annually. Id. And this number is only projected to increase as the popularity of these firearms continues to expand.
Reducing the Regulatory Burden
Having tried a CLEO notification system, and having gained no advantage from it, the ATF now proposes to entirely eliminate the requirement of sending copies of Form 1s, 4s, 5s, and 23s, to CLEOs. The ATF opines that this change will not affect the background check process because “all applicants to make or transfer NFA firearms are subject to a thorough background check through the National Instant Criminal Background Check System.”
Thinking it Through
This is a good change for those wishing to acquire more NFA firearms. While it does not eliminate the burden of completing forms, it at least reduces the number of copies made and eliminates one mailing obligation. That is at least a small savings for the buyers of these firearms.
The ATF is also using the National Instant Criminal Background Check System to vet would be purchasers of NFA firearms. This is the same system and database used by gun stores to conduct background checks at point of sales. This raises a great question:
If the best background check available is the standard FFL NICS check, then why require fingerprints, photographs, and a lengthy form process to accomplish what most gun shops can handle in thirty minutes or less?
Perhaps there is further room for improvement in a future rule making process or the legislative process.