This week, NRA submitted comments on several important ATF rulemakings.
On February 7, 2025, President Donald Trump signed “Executive Order 14206 – Protecting Second Amendment Rights,” which tasked the U.S. Attorney General to,
examine all orders, regulations, guidance, plans, international agreements, and other actions of executive departments and agencies (agencies) to assess any ongoing infringements of the Second Amendment rights of our citizens, and present a proposed plan of action to the President … to protect the Second Amendment rights of all Americans.
As part of that effort, in May, ATF issued numerous proposed changes to federal regulations. As NRA’s latest comments make clear, some of the proposed rulemakings would significantly benefit law-abiding gun owners. However, in other instances, the agency should go back to the drawing board.
NRA has previously commented on several of the proposals. Our newest input includes the following.
Firearms Transactions and Straw Purchases, RIN 1140-AA78
In this rulemaking, for the first time ever, ATF proposed a formal regulation to define a “straw purchase” to include the following behavior:
Straw purchases by making a material false statement. A straw purchase occurs when a person provides material false or fictitious information to a licensed importer, manufacturer, dealer, or collector that the person is the actual purchaser of the firearm when, in fact, the person is acquiring the firearm on behalf of another person.
NRA’s comment urges ATF to withdraw this rulemaking.
The comment makes clear that the Gun Control Act of 1968 (GCA) did not prohibit one eligible person from acquiring a firearm on behalf of another eligible person. Moreover, until 1994, this was the position held by ATF, when the agency reversed itself. This new interpretation (based on weaving various provisions of the GCA together) was upheld by the U.S. Supreme Court in Abramski v. U.S. (2014).
Subsequent Supreme Court jurisprudence on agency discretion in interpreting statutes (Loper Bright Enterprises v. Raimondo (2024), Garland v. Cargill (2024)) casts doubt on whether Abramski would come down the same way today.
Regardless, in 2022 Congress enacted the Bipartisan Safer Communities Act (BSCA). The BSCA created, for the first time, an explicit statutory prohibition on straw purchasing. In doing so, Congress prohibited a person from purchasing a firearm for another person who the purchaser knows or has reasonable cause to believe is prohibited from possessing firearms under federal law or who intends to use the firearm for a felony, terrorism, or drug trafficking offense.
Congress is presumed to act with knowledge of existing law, and its enactments are presumed to be intended to have legal effect. If Congress wanted all purchases of a firearm on behalf of another person to presumptively be a crime, as under the ATF paradigm, then its new straw purchasing statute would have been a nullity. No prosecutor in his or her right mind would choose to proceed under a higher evidentiary threshold than is necessary to establish the offense.
Thus, the BSCA’s narrower prohibition on straw purchasing controls, overruling both ATF’s broader administrative approach and Abramski’s reading of the GCA. As ATF’s proposed rule exceeds the enabling statute’s authority, the agency’s overly expansive definition of a straw purchase should be withdrawn.
Firearm Records Retention Periods, RIN 1140-AA95
In this rulemaking, ATF proposed to limit the time federal firearms licensees (FFLs or gun dealers) are required to maintain Forms 4473 that contain information about the retail purchaser of a firearm to 20 or 30 years. Further, the rule would limit the period such records are held at ATF’s National Tracing Center (NTC) to 20 or 30 years.
Under current regulation, FFLs are required to maintain Forms 4473 indefinitely and then ship them to the NTC upon discontinuation of their business. These records are then held at the NTC indefinitely. Prior to the Biden-Harris administration, FFLs were required to maintain these records for at least 20 years; records under 20-years-old were still required to be sent to the NTC for indefinite retention upon discontinuation of business.
NRA’s comment applauds ATF’s move to end indefinite retention of firearm transaction records, but encourages ATF to adopt a retention timeframe, for FFLs and the NTC, of 10 years total.
The comment points out that that in adopting the GCA, Congress explicitly rejected firearms registration. Rather, as Sen. James McClure (R-Idaho) pointed out in 1989,
The central compromise of the Gun Control Act of 1968-the sine qua non for the entry of the Federal Government into any form of firearms regulation was this: Records concerning gun ownership would be maintained by dealers, not by the Federal Government and not by State and local governments. These records would be maintained by dealers-and by dealers only, except in extraordinary circumstances, such as when a dealer goes out of business.
Moreover, in the intervening decades since the GCA was enacted, Congress has repeatedly placed restrictions on the retention of firearms transaction data that make clear their opposition to firearm registration.
Current ATF practice is not in keeping with Congress’ intent. By ATF’s own admission, the NTC now contains “approximately 1.3 billion images of records.” These records can and have been used to track down law-abiding gun owners and subject them retroactively to newly-enacted gun control.
The justification for ATF’s recordkeeping scheme is that a firearm recovered from a crime could be traced to an initial purchaser using retained records. However, this contention is optimistic given that surveys of prison inmates show that criminals overwhelmingly acquire firearms through informal and illegal means that do not involve recordkeeping. Further, “time-to-crime” trace data shows retained records are most useful immediately after the sale. Usefulness falls precipitously within a few years and then fades to near irrelevance.
To protect the privacy of law-abiding gun owners while preserving law enforcement’s ability to trace firearms using the most relevant firearm transaction records, NRA’s comment urges a 10-year total firearm record retention period.
Under NRA’s suggestion, an FFL would be required to retain Forms 4473 for 10 years. Should the FFL discontinue business, they would be required to send Forms 4473 involving dispositions within the previous 10 years to the NTC. ATF would then retain these records for the balance of the 10-year period, until 10 years have elapsed from the FFL’s disposition of the firearm, at which point the record is destroyed.
Revising Regulations Defining “Engaged in the Business” as a Dealer in Firearms, RIN 1140-AB01
In this rulemaking, ATF proposed to alter regulatory changes made during the Biden-Harris administration that sought to intimidate law-abiding gun owners from engaging in private firearm transfers that are not prohibited by federal law.
Under federal law, those “engaged in the business” of dealing in firearms are required to become FFLs, keep mandatory records, and run background checks on unlicensed firearm purchasers or transferees. Those not “engaged in the business” can sell firearms without these formalities, subject to the laws of their state.
NRA’s comment details the history of the “engaged in the business” issue from the term’s enactment in the GCA, to subsequent ATF overreach, to Congress’ efforts to protect law abiding gun owners by addressing the matter in the Firearm Owners’ Protection Act of 1986. The comment further details a small change made in the BSCA that a cynical Biden-Harris administration attempted to exploit to restrict private firearm transfers by regulatory fiat. Multiple lawsuits have invalidated the Biden-Harris-era rule, and its enforcement is enjoined nationwide.
Despite ATF’s efforts to undo some of the Biden-Harris administration’s misinterpretation of federal law, NRA’s comment makes clear that the proposed rule still touches upon conduct in a manner federal statute does not support.
Therefore, NRA’s comment urges ATF to withdraw this rulemaking.
Revising Firearms Transaction Record, “Form 4473”, RIN 1140-AA82
In this rulemaking, ATF proposed measures to clarify and simplify the Form 4473, which FFLs and retail firearm purchasers are required to complete pursuant to a transfer.
The proposed rule makes important changes in clarifying the types of identification that a firearm purchaser may use along with the documentation they must provide for purposes of determining residency. The improved residency clarification is of particular importance in circumstances involving members of the U.S. military.
At present, a Form 4473 is only valid for 30 days from when a firearm transaction is initiated. In the event the transaction is not finished within 30 days, a new Form 4473 must be initiated. The rule would extend the 30-day period to two calendar months, allowing for more time to complete a transaction without resorting to further paperwork.
NRA’s comments broadly support this rulemaking.
As of press time, NRA’s comments were still being processed by www.regulations.gov. They should be viewable within a few days.
Moreover, we urge gun rights supporters to visit the links to the proposed rules provided above to examine the rules for themselves and submit their polite and constructive comments. Comments on the above rules must be submitted by Aug. 4 (Aug. 6. in the case of RIN 1140-AA82).
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