ATF website offers incorrect guidance on NFA compliance

ATF website offers incorrect guidance on NFA compliance
AP Photo/Andrew Harnik

Reports that the ATF had changed the rules for possession of NFA items broke yesterday on Twitter and other social media platforms.  The controversy was stoked by a new entry in the FAQ section of the ATF’s eForms site.  The question reads:

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Q. If I am the registered owner of a NFA item, can someone else shoot my item in my presence?

A: No. Only Responsible Person(s) listed on the approved registration may have physical or constructive possession of the NFA item.

This FAQ appeared to signal a change in ATF policy that was not accompanied by an update to ATF regulations nor changes in Federal law. Bearing Arms reached out to the ATF for clarification and we alerted the NSSF about this new FAQ.  Here’s what we learned.

Alerted to this change, Larry Keane, Senior Vice President of Government and Legal Affairs at the NSSF, reached out to ATF for a response.  The ATF response, as reported by NSSF to Bearing Arms, is as follows:

“The Q&A currently listed on the eforms account is incorrect.  In this scenario, the registered owner of the NFA weapon is co-located with the firearm and thus no transfer has occurred.  However, if the person firing the NFA weapon is prohibited from possessing the firearm there could be a GCA violation. We are working to correct the site as quickly as possible.”

 

Bearing Arms has reached out to the ATF’s Public Affairs team and are awaiting confirmation of the ATF’s communication with the NSSF .  When we receive a confirmation from ATF, we will update this story.

In an email to Bearing Arms, Mr. Keane also provided important context.

“That is incorrect statement of the law and inconsistent w/ past ATF guidance.  ATF cannot regulate or enact rules/regs by FAQs

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From ATF FFL Newsletter June 2017  at p. 7

https://www.atf.gov/firearms/docs/newsletter/federal-firearms-licensees-newsletter-july-2017pdf/download

Rental of Firearms On-Premises
ATF has previously held that the rental of firearms for use on a Federal firearms licensee’s (FFL’s) business premises is not considered to be a sale, disposition, or delivery of the firearms. For this reason, an ATF Form 4473 is not required to be completed and no NICS background check is required. The FFL also does not need to log the firearm out of the acquisition and disposition (A&D) record. A licensee may rent a handgun to a person under 21 years of age, or a long gun to a person under 18 years of age for use at an on-premises shooting range. The on-premises rental of National Firearms Act (NFA) firearms is also permitted. However, licensees and non-licensees are prohibited from renting or lending firearms or ammunition to a person knowing or having reasonable cause to believe the person is prohibited from receiving or possessing that firearm. Refer to 18 U.S.C.
§ 922(d) and 27 CFR § 478.99(c).
An alien admitted to the U.S. under a nonimmigrant visa is prohibited from possessing firearms or
ammunition unless he or she falls within one of the following exemptions:
1. is admitted to the United States for lawful hunting or sporting purposes;
2. possesses a hunting license or permit lawfully issued by the Federal Government, a State, or
local government, or an Indian tribe federally recognized by the Bureau of Indian Affairs,
which is valid and unexpired. The hunting license does not have to be from the State in which the
business premises is located;
3. is an official representative of a foreign government who is accredited to the United States Government or the Government’s mission to an international organization having its
headquarters in the United States;
4. is an official representative of a foreign government who is travelling to or from another
country to which that alien is accredited;
5. is an official of a foreign government, or a distinguished foreign visitor who has been so
designated by the Department of State;
6. is a foreign law enforcement officer of a friendly foreign government entering the United States on
official law enforcement business; or
7. has received a waiver from the Attorney General of the United States.
Permanent resident aliens, and aliens lawfully admitted to the U.S. without a visa (e.g., Visa Waiver
Program) do not fall within the prohibition, and therefore do not need to meet one of the above
exemptions to rent a firearm.

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The ATF indicated the FAQ will be corrected immediately.  When they do we will alert Bearing Arms readers.

 

 

 

 

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