NSSF®, The Firearm Industry Trade Association, submitted a 28-page comprehensive public comment letter detailing the pitfalls of the Biden administration’s proposed “Engaged in the Business” rule that would create criminal law through executive fiat. The proposed Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) rule, published Sept. 8, would redefine individuals considered to be “engaged in the business” of selling firearms, requiring nearly any individual selling more than one firearm to obtain a federal firearms license (FFL) and move the United States toward universal background checks, which was rejected by Congress.
“Respectfully, ATF lacks the legal authority to do so,” wrote Lawrence G. Keane, NSSF’s Senior Vice President and General Counsel in the public comment letter.
“The Proposed Rule exceeds ATF’s limited authority to adopt regulations. In enacting the Gun Control Act of 1968, Congress rejected making a violation of a regulation a crime,” the letter reads. “In enacting the Firearm Owner’s Protection Act of 1986, Congress further reduced ATF’s regulatory power. The specificity of authorized regulations negates a broad power.”
Keane added, “ATF has no authority to ‘improve’ on what Congress enacted or to create new crimes not enacted by Congress. An agency may not re-write statutory terms or fill in what the agency considers to be ‘gaps’ or ‘loopholes’ in the statute. The GCA is a criminal statute, and ATF’s reading is not entitled to any deference. Given that the GCA is a criminal statute with the same meaning in a civil context, ATF may not create presumptions thereon for civil or administrative purposes.”
NSSF warns ATF in the public comment letter that the Proposed Rule would invite unintended consequences that would be detrimental to the ATF’s law enforcement and regulatory missions. The Proposed Rule would create an untold number of licensees, divert ATF resources away from providing necessary industry services, distract ATF from bona fide criminal investigations and harm both the legitimate firearm industry and ATF operations.
NSSF has been critical of Final Rules enacted by the Biden administration that have bypassed Congress to create criminal law through Executive overreach, including the ATF’s Final Rules on Frames and Receivers and Stabilizing Pistol Braces. Those rules are under legal scrutiny by U.S. Courts of Appeal.
