In the preamble to the ATF 41P proposal rule, BATFE stated it:
… now has direct access to a number of criminal history database… ATF conducts its own background checks of individuals applying to make and receive NFA firearms. In addition to transmitting fingerprints to the FBI for a criminal history check, ATF routinely queries the following databases and indexes:
• National Crime Information Center
• TECS (formerly named the Treasury Enforcement Communication System)
• National Law Enforcement Telecommunications System
• Interstate Identification Index
• National Instant Criminal Background Check System [NICS].
The Brady Handgun Violence Protection Act (Pub.L. 103–159) established National Instant Check System (NICS) as the nation’s central resource for determining if federal or state law prevents transfer of any firearm to a specific individual.
By using the databases listed above, BATFE instituted extralegal requirements for transfer of one category of firearms – those requiring an excise tax payment for transfer between two parties. The transfer of all other firearms (i.e., those you can buy in an over-the-counter transaction at a federal firearms licensee) are not subject to this additional scrutiny (apparently the systems listed in the 41P rulemaking are not NICS data sources). Even a corporation or trust can buy a firearm in an over-the-counter transaction at a federal firearms licensee and not be subject to examination via these other databases.
With respect to the additional databases BATFE examines, if used as the basis for denial of the transfer of an NFA-taxed firearm this information must be available to every federal firearms licensee via the NICS. If the information contained in those other sources is not available via NICS, a licensee may unknowingly transfer a non-taxed firearm (e.g., the pistol the person is going to use as the suppressor host) to a person who is barred from possessing or transferring all other firearms.
I also want to know how one submits an appeal if denied based on these non-NICS databases. The established process for denial of firearms purchases (i.e., the NICS appeal process) now only applies to NICS denials. Lastly, I also want to know if the list in the 41P preamble is an inclusive list or a non-inclusive list of databases. For example, does BATFE ever query the infamous and erroneous "terrorist watch list" maintained by the FBI or the "no fly list" maintained the Department of Homeland Security?
Likewise, BATFE’s requirement for submission of Form 5320.23, fingerprints and photographs are extralegal requirements applied only to one category of firearms – those requiring excise tax payments for transfer between two parties. As with non-NFA taxed firearms, a corporation or trust can buy a firearm in an over-the-counter transaction at a federal firearms licensee and not be subject to these requirements.
I also understand that BATFE is subjecting NFA transfers to trusts to an additional level of extra-legal scrutiny. The NFA examiner uses a “checklist” to review the trust documentation for compliance with state-level standards. If the examiner decides there is a problem, the application is rejected. Here too NFA transfers to trusts are being subjected to an additional level of scrutiny not applied to the transfer of non-NFA taxed firearms. Moreover, the “standard” in these checklists is not available to the public. Since the checklist is used to determine the approval or denial of NFA tax applications, thus are a type of instruction that should be divulged in the “Instructions” on the NFA tax applications. The “trust checklist” review does not apply to transfer of non-NFA taxed firearms to trusts.
I note that in the case of suppressors, the application of these requirements (i.e., submission of a Form 4, the extra database review, the “responsibility person” nonsense, submission of fingerprints and photographs) is especially ludicrous, given that you can buy the firearm the suppressor attaches to in a transaction completed in minute by a federal firearms licensee using NICS. Without the firearm the suppressor attaches to, a suppressor is an exceptionally high-priced length of pipe. Again, a corporation or trust can buy a firearm in an over-the-counter transaction at a federal firearms licensee and not be subject to the Form 4, ATF 41F rules, the “responsibility person” nonsense, photographs and fingerprints.
As an aside, I have an issue with the “responsible person” requirement. I listed a friend who has been approved as a responsible person for his trust on my most recent application related to my trust. If you list another person on a Form 1 or 4 application for a trust and that person was approved as a “responsible person” in an unrelated application, how does BATFE resolve this? Require each application be processed as a unique data set requiring submittal of the “responsible person” form, fingerprints and photographs? That is the very definition of a wasteful duplication of effort. The Form 1/4/5 instructions do not state this is the requirement, yet we know that once approved as a “responsible person” on a trust, subsequent submissions by that trust listing that person as a “do not require submission of Form 5320.23, photographs, or fingerprints. Are they maintaining a heretofore unknown database of all persons who have been approved as a responsible person? How is this not a form of firearms registration that states that a person possesses a firearm that they do not actually possess?
Back to the NFA process…
The entire reason for the Form 5320.23, photogaphs, and fingerprints stem from that pre-NICS world. Prior to 1998, photographs and fingerprints were useful in evaluating an individual's ability to own ANY firearm, not just NFA_taxed firearms. With the advent of NICS, this nonsense is no longer needed, and in any event does not apply equally to ALL firearms.
If BATFE ended their reliance on these antiquated extra-legal requirements, the entire process could be effectively transferred to the federal firearms licensees who possess the requisite Special Occupational Tax (SOT) certificates, reducing transactional costs, increasing actual revenue, and speeding the process from its current 12-month or more duration.
But God forbid doing anything to jeopardize such an important rice bowl what with control of the millions of tax dollars required to administer it and the associated control it gives unelected, faceless, nameless bureaucrats over us all.