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The National Shooting Sports Foundation (NSSF), the firearms trade association, submitted a 28-page public comment letter against the Biden administration’s proposed “Engaged in the Business” rule.
This rule aims to redefine individuals considered to be “engaged in the business” of selling firearms. It requires nearly any individual selling more than one firearm to obtain a federal firearms license (FFL).
The rule also pushes the U.S. toward universal background checks, which Congress rejected.
Lawrence G. Keane, NSSF’s Senior Vice President and General Counsel, stated, “Respectfully, ATF lacks legal authority to do so.”
“The Proposed Rule exceeds ATF’s limited regulatory authority,” the letter says. Congress, in the Gun Control Act of 1968, didn’t make violating a regulation a crime. The Firearm Owner’s Protection Act of 1986 further reduced ATF’s power. Congress’s specific regulations negate any 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,” he continued.
NSSF warns ATF in their letter that the Proposed Rule could have detrimental unintended consequences. It would increase licensees significantly, divert ATF resources, and distract from criminal investigations.
It could also harm both the legitimate firearm industry and ATF operations.
NSSF criticizes the Biden administration for enacting Final Rules that bypass Congress, creating criminal law through Executive overreach.
The public comment period concluded on December 7, 2023. Should the ‘Engaged in the Business’ rule be adopted by ATF, lawsuits are likely to ensue as we saw with the pistol brace and frames & recievers rules.