BATFE Planning to Finalize Rule on NFA Trusts in December

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Back in 2013, Nick reported that the BATFE was toying with the idea of requiring all responsible parties in an NFA trust to get a Chief Law Enforcement Officer (CLEO) sign-off, just as individuals are required to do. The wheels of bureaucracy being slow as ever, we hadn’t heard much on that lately. An eagle-eyed TTAG reader, however, noted that something may be about to break on that front later this year . . .

The Department of Justice is planning to finalize a proposed rule to amend the regulations of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) regarding the making or transferring of a firearm under the National Firearms Act. As proposed, the rule would; (1) add a definition for the term “responsible person”; (2) require each responsible person of a corporation, trust or legal entity to complete a specified form, and to submit photographs and fingerprints; and (3) modify the requirements regarding the certificate of the chief law enforcement officer (CLEO).

The legal ability of NFA Trusts to avoid the CLEO sign-off is one of those quirks of the law that, once it goes away, it’s gone, brother, at least until all or part of the NFA itself is repealed. I can’t imagine the political perfect storm that would have to come about to convince legislators or even a public generally sympathetic to the right to keep and bear arms to go to the mat on this.

Stay tuned for more on this as it becomes available. The ‘final action’ date on reginfo.gov is prospectively listed as being in December, 2015.    [h/t: Enzo]

 

DISCLAIMER: The above is an opinion piece; it is not legal advice, nor does it create an attorney-client relationship in any sense. If you need legal advice in any matter, you are strongly urged to hire and consult your own counsel. This post is entirely my own, and does not represent the positions, opinions, or strategies of my firm or clients.

comments

  1. avatar BS says:

    Fuck the so called laws. I’ll own whatever firearm I damn well please, whenever I please.

    Don’t like that, come get them.

    1. avatar iHAL says:

      If you’re committing felonies like your post is alluding to they just might.

  2. avatar Tom in Oregon says:

    This is what happens when a bureaucracy gets to make laws. They get out of control.

    1. avatar LarryinTx says:

      Yeah, how about telling us where in the world DOJ thinks they get the authority to simply change the laws that fundamentally without reference to Congress? Who will be responsible for refunding my damn money if they suddenly make my purchase of a suppressed SBR illegal? For a more sensible change to level the playing field, just drop the CLEO requirement altogether. And the individual “applications”. You’re supposed to be collecting a TAX!

  3. avatar uncommon_sense says:

    (2) require each responsible person of a corporation, trust or legal entity to complete a specified form, and to submit photographs and fingerprints

    Does anything else — anything — require a photo and fingerprints BEFORE partaking in an activity or ownership?

    This is nucking futs! (Yes, I purposely transposed those letters.)

    1. avatar Skeptical_Realist says:

      Security Clearance.

      1. avatar Jeff says:

        So do you own a security clearance like you own a gun?

        1. avatar LarryinTx says:

          For some jobs, you sure do, big bucks job and no can do without a clearance.

    2. avatar FedUp says:

      Owning, training or jockeying racehorses comes to mind. You can buy a racehorse without the whole fingerprint and mugshot thing if you just want to keep it for a pet, but don’t try to take it to the track.

    3. avatar int19h says:

      Crossing the border, for example, if you’re not a citizen.

  4. avatar stateisevil says:

    Good thing “shall sign” legislation is storming state legislatures. ATF: FOAD!

  5. avatar Joe R. says:

    We should do suppressors like Europe
    We should do full-auto weapons transfers like H&K
    We should do AOW like ISIS/IRAN
    We should do SBRs like any LBR can-do with a hacksaw or a bench vise and some nice stuff from Midway USA
    OR:

    We could just do wet flip-flop duels to the death at high noon.

  6. avatar Powers says:

    Payback from the administration..How dare America convince its representatives to fight gun control in 2013 and our rights then and now… Just how f’ing dare we?
    I am sure way more will come down the payback road. I will just keep fighting and spreading the word.

  7. avatar Ed M says:

    Has this rule gone through the Congressional Review Act yet? If not, that’s a great place to stop it.

    1. avatar Geoff PR says:

      Does the ATF know it’s beholden to the Congressional Review Act?

      Does this impact current NFA trusts?

      If I have a current NFA trust and relocate to an NFA friendly state does my trust follow me?

      1. avatar Hasdrubal says:

        My understanding is that if you are planning to move, you need to notify the ATF. There is a form for this, which also covers taking NFA items out of the state of record on a temporary basis. Have not had to do one of these myself, so don’t recall what the form number is.

      2. avatar LarryinTx says:

        Not a lawyer, it is my understanding trust law in general is different in different states, yours may not be legal elsewhere, you should at least check, and given the cost of the online trust forms these days, you might just want to fill out a new one rather than have a lawyer examine the one you have.

  8. avatar BDub says:

    Well NRA, here is your chance to impress me.

    There is nothing left to justify the continued inclusion of SBRs, SBSs, and Suppressors under the prevue of this rogue agency.

    I’ve given up the dream of owning a machine-gun, but to continually add hoops to owning a suppressor is unacceptable – we should be going to other way on these.

    1. avatar JD says:

      There is nothing to justify restrictions on any firearm regularly carried or used by any police force in the USA. There I fixed it for you.

    2. avatar Jeff says:

      Good luck, NRA doesn’t care too much about NFA stuff.

      1. avatar PPGMD says:

        Actually they do. They just realize that repealing the NFA is a losing venture both politically, and from a PR stand point.

        We know it isn’t a big deal but the media will me “NRA moves to make silencers and sawed off shotguns legal,” followed by the Brady Bunch, and Illegal mayors talking about blood in the streets with a short quote by the NRA explaining that they are already legal at the very bottom that few people will read.

  9. avatar doesky2 says:

    modify the requirements regarding the certificate of the chief law enforcement officer

    My azzwipe CLEO doesn’t sign off on NFA items.
    Beat the rat bastards to the punch and got my first can yesterday via a trust.
    Looks like I better get another soon.
    If this comes to pass, looks like I’m going to have to get more active in un-electing a certain sheriff in NC.

    1. avatar Excedrine says:

      Almost none of the Sheriffs in the whole of NC will sign off on any NFA items. That’s their departmental policy, as a matter of fact. There’s supposed to be some sort of CLEO-shall-sign legislation on its way through, though.

      1. avatar JP2336 says:

        In Onslow Cty, NC its not a problem for CLEO signatures (not defending having to get one), and I had all my previous (pre-trust) signed while Ed Brwn was even still in. Miller seems to be a propnent. Now I HAVE heard from some in a couple nearby counties that the CLEO refuses. Concur with others, vote them out…

      2. avatar doesky2 says:

        Just got an alert email today from NRA-ILA talking about HB562 that says ….

        Require the chief law enforcement officer (CLEO) of a jurisdiction to certify the transfer or making of a firearm in a timely manner. This measure had been removed in a previous version, but has been added back to the bill.

        I assume that this does NOT apply to SBR/Suppressor correct?
        Sure would have been nice to tuck that in.

        1. avatar EDruass32 says:

          Actually, HB562 does apply to suppressors – need to look up the federal definition of a “firearm”. I confirmed this exact point with the bill’s author, Rep. Schaffer.

        2. avatar doesky2 says:

          Hot damn!
          That’s why I asked the question because I’ve heard the suppressor=firearm statement before but I was thinking that somehow that would not apply in reference to this state bill.

          So I assume with HB562 that SBR’s will be a “shall issue” also for CLEO’s?

  10. avatar JD says:

    I want the same rules to vote. When a person goes to register to vote they will have to provide a photo, fingerprints, a letter from the chief LE in their county saying they are who they claim to be, and pay $200 poll tax. What? That would be unconstitutional? No way!

    1. avatar Chadwick P. says:

      Nailed it!

    2. avatar Raven says:

      I want the same for political bribes… err, lobbying… err Contributions! Yeah, Contributions, those.

  11. avatar Vitsaus says:

    Never fear, the NRA will step in and spend all that extra money from dues on preserving our most fundamental gun rights. I’m not worried.

  12. avatar Hasdrubal says:

    Well, guess I will be rewarding the ATF for this nonsense by filing half a dozen form 1s tonight and sending them way too much money. Doesn’t quite seem like poetic justice to me.

    1. avatar doesky2 says:

      Do I correctly remember reading that you can just estimate the lengths of future SBR’s and then send a change in when the final length is known? Can you also change the caliber also?

      Also, is it correct that there is no time limit on when you have to build them?

      1. avatar Hasdrubal says:

        Haven’t done an SBR yet, and might not be able to for a while (since I live in WA). For silencers, it is not permitted to build in greater length than what is listed on the form, or you would need to submit a new form. It is permitted to go shorter, and then you are supposed to notify ATF of the final length. This is for Form 1 new home construction, mind you.

        As far as the SBR length change, I’m not sure. I’ve heard ATF doesn’t care if you swap one upper for another on your registered SBR lower. I’ve also heard that they don’t care if the second upper is the same or different caliber. However, they will not approve a Form 1 to construct a new SBR if you put ‘multi’ in the caliber box.

        Why? No idea. Also no idea what implications any of that has for SBR of a platform without a quick swap upper.

        1. avatar doesky2 says:

          I’ve also heard that they don’t care if the second upper is the same or different caliber. However, they will not approve a Form 1 to construct a new SBR if you put ‘multi’ in the caliber box.

          Those two sentences seem to contradict each other…. or are you saying that I can submit for a 300BO and after I get the stamp they don’t care at that point what I ultimately snap on. However it would seem the “they” could be the LEO is some podunk town and he may not take the same stance. Can I assume the stamp paperwork has the caliber on it? Or is it just the lower S/N?

        2. avatar Hasdrubal says:

          I think it doesn’t make sense because the law comes from a time before swappable uppers or barrels. I would say you should mark the caliber you intend to use as the primary upper, though. No telling if local police might try to make something of a caliber swap, but as long as you have the ATF papers on hand it would be real hard to make any kind of case stick. If they try, time for a lawsuit.

        3. avatar LarryinTx says:

          I understand that, in the event you are asked for your paperwork by ATF, you must present the weapon as described in that paperwork. As in, if you have registered an SBR with a 9″ barrel in .300, then decide to take the lower out to play with your bud’s 6.8 12.5″ upper, you need to have the upper you registered along with you, so you can present the gun and paperwork which match. Otherwise, you have an unregistered SBR.

        4. avatar MeRp says:

          SBRs are legal in WA now… they have been for a while.

  13. avatar TangledThorns says:

    What does ‘final action date’ mean? Is that when the ATF fubars gun trusts this December or not?

    1. avatar silverwarloc says:

      If my memory serves me correctly, “final action” is the deadline that the rule becomes effective. However, because you are dealing with the government the date could be pushed back further. In my experience with public rule making, “final actions” are never really final. I have seen them go over five years beyond the “final action” date.

      1. NO! That is not what it means! This “deadline” is only an estimate of when they will be finished with reviewing the comments. Every six months they extend it by another six months. Don’t get sucked into the hype of the uninformed!

  14. avatar Rog Uinta says:

    Here I am waiting on 3 Form 1’s, now I have to get my Form 4’s into the pipeline as well. Great.

  15. avatar Indiana Tom says:

    I have always tried to figure out what legal authority the President and the Federal Bureaucracy has to pass legislation and rules. How can Congress delegate and transfer their legislative authority? Where is all of this granted by the Constitution?

    1. avatar Ragnar says:

      By definition, if you have the authority to pass laws or give orders, you also have the authority to delegate some or all of that power to other parties. Given that there is no language in the Constitution that says Congress can’t delegate, they will do it.

      1. avatar Rambeast says:

        Therein lies the problem. The constitution says what the feds CAN do, not the other way around. We started sliding down that slippery slope when it was being interpreted to the latter.

  16. avatar doesky2 says:

    I envision the Sig Brace market potential rising again.

  17. avatar Ralph says:

    “Close the Form 4 NFA Trust CLEO Signoff Loophole” just doesn’t roll trippingly off the tongue, does it?

    Hey, Shannon’s a marketeer, isn’t she? Maybe she’ll come up with something better.

  18. avatar Dustin says:

    Fuck, now I have to file 3 more Form 1s…

    Or maybe just get a Safe Deposit Box a few counties over…

  19. avatar Ragnar says:

    While we all get incensed about this – and rightly so – stop to consider the consequences of redefining terms in a trust. This will redefine several terms and conditions in ALL trusts, not just NFA trusts. It sets a terrible and tremendous precedent.

    1. avatar Hasdrubal says:

      Very curious what these consequences could be, I don’t deal with law much beyond WA criminal law.

  20. avatar Chris In Texas says:

    This just F’s me. My local CLEO is a dick. No way he’d sign any NFA papers unless it’s for another officer or family/friend.

  21. avatar MattCFII says:

    This like the 4th time 41p has been pushed back. Up until the M855 incident, this was the largest comment NPRM they have ever had.

  22. avatar Dan says:

    I will be utterly amazed if BATFEces allows the trust form to continue in it’s current fashion.
    After all it’s all about CONTROL. I fully expect them to make things as onerous as they can.

    The real issue of course is that virtually ALL of the loopholes, bulls**t, regulations and garbage
    people have to wade through originates not from a law but from the petty corrupt mind of some
    desk bound apparatchik with an appetite for power and abuse. Rare is the regulation or rule
    that actually was held up to a vote by an elected body.

  23. avatar Steve says:

    Everybody be hatin’ on Miss Cleo, mon! All she do is tell your fortune – no form 1 for you!

  24. “The ‘final action’ date on reginfo.gov is prospectively listed as being in December, 2015.” This is NOT a “deadline”! This a a constantly sliding estimate of when they will be finished reviewing (and writing a response to) the thousands of comments received. Every six months it gets pushed back another six months.

  25. avatar mike says:

    The December date will likely be pushed back yet again, just like the other final ruling dates since 2013… thanks to the 300k+ public comments that have to be addressed first. A final ruling is inevitable sooner or later, but at least we have plenty of time to get any NFA affairs in order first.

  26. avatar BlueBronco says:

    Tennessee started a trend and about 12 states have followed suit on “shall certify.” I would like to see Florida do this real quick. My county has had a pro-gun sheriff for a long time and has been very NFA friendly. I died recently and this could change quick with the 2016 election. 1/3 of Florida sheriffs will NOT sign of on NFA items and another 1/3 is on the fence. Its worse among Chiefs of Police. That is ironic considering Florida is 2nd in Suppressor registrations with NFA behind TX. Ga is third.

    1. avatar Obi Wan says:

      It really stinks to hear you died recently; I’m sorry for your loss. It is cool you were able to still post on here though…

      1. avatar BlueBronco says:

        I don’t know where the hell that line came from because I didn’t put that in there.

  27. avatar bill clinton says:

    I died recently and this could change quick with the 2016 election.

  28. avatar bill clinton says:

    anyone know how to lookup this bill on reg.gov?

    found this but it’s slightly different

    https://www.congress.gov/bill/114th-congress/house-bill/3799

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