P1390356

The ATF has issued its long awaited final ruling expanding the requirement for fingerprints, photo IDs, and background checks for “responsible persons” listed on a trust used to purchase items restricted under the National Firearms Act (such as silencers). The single most concerning possibility of this whole proposal was the idea that by expanding the requirement for a Chief Law Enforcement Officer to sign off on every single NFA application then that would effectively enable local police chiefs to eliminate the ability for law abiding citizens to purchase legal items simply by refusing to sign such documents and without needing to change any laws. That was the primary driving factor behind trusts in the first place (skipping the CLEO sign off), but now it looks like the ATF has eliminated that requirement in its entirety . . .

First things first, the main thrust of the ruling says that everyone listed as a “responsible party” on a trust must submit (1) a set of fingerprints, (2) all relevant personal information, and (3) a set of photographs for the ATF and FBI to conduct a background check. The ATF further defines “responsible parties” as anyone who can posses the items under the terms of the trust. “Responsible persons” does not include beneficiaries, so if you’ve listed your children (or, in my case, my anti-gun little sister) as your beneficiary in the event of your death, they don’t need to be involved with purchasing new items while you’re alive. This can be a pain in the butt if you’ve got a trust with a large number of people on it sharing items though, as now every single person will need to submit these items for every single new application and transfer.

In short, this makes the process of buying an NFA regulated firearm far more annoying and paperwork-intensive for those using a trust and slightly less annoying for those filing as an individual. All this is happening without any rationale as to the crackdown — “gun violence” doesn’t happen with legally registered NFA items, so it feels much more like President Obama is just squeezing the low hanging fruit of law abiding gun owners as much as possible for giggles.

The ATF even admits as much:

Additionally, the Department notes that some individuals who own NFA firearms do in fact commit crimes. A review of trace data and criminal records from 2006 to 2014 disclosed twelve incidents in which owners of NF A firearms were convicted of crimes;however, there is no evidence that these crimes were committed with NFA firearms.

[…]

The Department also emphasizes that NFA weapons are dangerous weapons that can empower a single individual to take many lives in a single incident. Therefore, a low incidence of the use of NFA firearms in crimes does not reflect the threat to public safety that they pose. A low usage of NFA firearms in crime may also bespeak the success of the NFA in preventing such weapons from reaching the hands of prohibited persons in the past. The large increase in transfers in which no background check takes place, however, increases the risk that NFA firearms will reach prohibited persons. The Department does not believe it is reasonable to wait for an NFA firearm to be used in a significant criminal incident before crafting procedures reasonably calculated to carry out its regulatory mandate to prevent prohibited persons from obtaining NFA firearms.

They pretty much say it themselves, they don’t care that this will do nothing to stop criminals and only impacts law abiding citizens. They also don’t care that the existing system has so far been 100% effective in preventing the use of these items in crimes. They still want to put the screws to gun owners, so the relatively little used NFA owners get the shaft.

The news isn’t all doom and gloom, though. The ATF has officially removed the requirement for your local CLEO to sign off on your paperwork, no matter if you’re an individual or a trust. From the final rule:

(c) Notification of chief law enforcement officer. Prior to the submission of the application to the Director, all applicants and responsible persons shall forward a completed copy of Form [1 or 4] or a completed copy of Form 5320.23, respectively, to the chief law enforcement officer of the locality in which the applicant or responsible person is located. The chief law enforcement officer is the local chief of police, county sheriff, head of the State police, or State or local district attorney or prosecutor. If the applicant is not a licensed manufacturer, importer, or dealer qualified under this part and is a partnership, company, association, or corporation, for purposes of this section, it is considered located at its principal office or principal place of business; if a trust, for purposes of this section, it is considered located at the primary location at which the firearm will be maintained.

In short, no longer will anyone need permission from their local Chief Law Enforcement Officer to obtain an item regulated under the National Firearms Act. I gotta admit, even though this comes at a bit of a high price in terms of annoyance, that’s a pretty huge win for a lot of people who otherwise had been blocked from buying silencers by their CLEO’s intransigence. The rule goes into effect in 180 days, just long enough that paperwork filed today should clear before it goes into effect.

I should note that the document is extremely long specifically because they’re required to respond to all 200,000+ comments that the ATF received. Out of all those comments, only about 12 were in support of the idea. That’s an interesting result when you get such a small percentage of people who support your ideas.

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131 Responses to BREAKING: ATF Issues Final Ruling on NFA Trusts, Eliminates CLEO Sign-Off for ALL NFA Paperwork

  1. Seems to contradict this from pages 19 & 22:

    “In accordance with the instructions provided on Form 5320.23, a certification for each responsible person completed by the local chief of police, sheriff of the county, head of the State police, State or local district attorney or prosecutor, or such other person whose certification may in a particular case be acceptable to the Director. The certification for each responsible person must be completed by the CLEO who has jurisdiction over the area in which the responsible person resides. The certification must state that the official is satisfied that the fingerprints and photograph accompanying the application are those of the responsible person and that the certifying official has no information indicating that receipt or possession of the firearm by the responsible person would be in violation of State or local law.”

    • You’re looking at the proposed rulemaking notice (Section III). The original proposal included the CLEO sign off requirement but it appears that the public outcry worked and they removed it. The finalized rule (Section V) is after all of the comments and responses, down at the bottom of the document.

    • That is just them quoting the original version of the rule. They state about 100 times in the document that CLEO CERTIFICATION is GONE, now only CLEO notifiation is required for all applicants (trust, corp, individual).

    • In Michigan in order to get our CPL/CCW we already have to do all of this (photos, fingerprints) does that mean we are all set?

      • Unfortunately no, but depending on where you live. I am a resident of Michigan and have purchased/built NFA items. The fingerprints are locally only and in my county’s case were taken digitally. Fingerprints for NFA items are required to be on FBI “format” fingerprint cards.

    • I thought Illinois banned all silencers, regardless of NFR?

      So there is a hope for me to get a silencer after all?

        • People keep mentioning this 26″ restriction, but the only place I can find it is in the section that defines what an SBR is. I don’t see any such restriction applying to C&R licensees.

        • 720 ILCS 5/24-2 (b)(7)(b)

          “And the overall length of the weapon as modified is not less than 26 inches”.

        • THIS IS NOT THE CASE IF YOU HAVE A C&R LICENSE!!!!

          if: (A) the person has been issued a Curios and Relics license from the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives;

        • Sorry Kevin but your interpretation of Illinois law is incorrect (at least according to both the state and ATF).

          There’s this little semi-colon that’s a huge PITA that creates the 26″ requirement.

          I would suggest you try submitting an application for a SBR under 26″ and seeing how fast it gets rejected.

        • Steve is correct, it’s black letter law in the statute… Well… There goes my plan to SBR and MPX with a collapsible stock (almost impossible to get it to 26″ without adding a wonky giant stock). Guess, I’ll have to go with plan B which was to SBR a 7.62×39 Krink.

  2. Other key issues that are worth mentioning that have been noticed:
    1 – This doesn’t take affect until 180 days after publication (today or tomorrow), so July 2, or 3, maybe 4th?
    2 – ALL existing applications and trusts and “pending” forms are grandfathered.
    3 – Provided you certify each time afterwords that your trust hasn’t changed (not counting schedule A), you’ll only need to submit the whole fingerprint/photo ID once every 2 years.
    4 – Only people who are trustees/grantors/co-trustees have to get photo/finger, beneficiaries (unborn, minor, or otherwise) are not included as “responsible persons”. They’ll have to do the finger/photos only when you die and they inherit.

  3. From what I’ve read, Emperor Obama is going to issue an Executive Order tomorrow requiring CLEO sign off for all NFA applications… Now what?

    • That sounds like pre-echo from before 41p was finalized. The whitehouse.gov mentioned 41p a few hours before 41p was published, and people began speculating. People began to say that his EOs included 41p, which at the time was thought to include mandatory CLEO signoff. The EOs so far haven’t modified or specified CLEO signoff or 41p, they have just alluded to it being “in the process of finalization” from the ATF.

      41p was published a few hours later.

      Executive action can’t actually just make laws like that. It can’t alter 41p. It can issue direction to an agency, but the ATF, if they were to follow Obama saying “This EO says I want CLEO signoff on every NFA item”, would entail another rulemaking proposal to override 41p, and another comment period, and everything.

        • Link when you do.

          I’ve got two SBR Form 1s in, and two cans on order. I’ll be sharing there as well, as soon as it’s built. 🙂

  4. So how do I go about electronically filing for my SBR with my trust? Can I still do it before I have to get the other requirements?

    • You can do it now.

      https://www.atfonline.gov/EForms/

      It’s swamped, but not down – so try a few times.
      Make your account and then,

      There’s a pictorial step by step here.

      http://www.m4carbine.net/showthread.php?147975-Visual-guide-How-to-fill-out-a-Form-1-using-EFORMS

      41P doesn’t go into effect for 180 days and anything filed before then will use the old rules (I.e., you’re good with a trust.)

      So go for it, took me maybe 30 minutes to do. (When it’s up. Right now I just verified to try to get into my filings – people are hitting it like there’s no tomorrow. Thing is, it seems, right now, there is a tomorrow.)

      • I have a question (assuming you have done something like this with a trust before)

        Do I need to open a checking account for my trust and write a check from it? Or can I write a check from myself? (I am settlor and trustee)

        • You should never use personal funds or funds that can be argued as you a person paid for the NFA item. When using a trust to buy NFA items all records must trace back to the trust and not you as a person. You might be able to find a lawyer to draft up a document allowing you to use personal funds, but why take the risk.
          To answer your question, yes setup a “trust bank account” It must read some kind of legalize like “Your name TTEE” “Full legal Name of trust as submitted to BATFE”
          any thing less and some prosecutor can argue that the trust did not pay for/buy the NFA item, you did even you did as a trustee, the money didn’t come from the trust. FYI, don’t believe your bank; you can get a debit card attached to the trust account for use if you use efile as well as a check book if you want to go the paper route.

      • hey guy fyi the atf has had a breach of 1200 efile ,email addressess so if you see someone strange hanging around you may have been identified as a NFA owner , there has been a burglary in tx in the last day or so , noone is saying if the 2 are connected>!

  5. I don’t think Nick’s analysis is accurate. It appears to me (and to other lawyers reviewing this) that not every person would have to receive a background check, and possibly not even every trustee. The language from the executive summary of the rule states:

    “DOJ has also clarified that the term “responsible person” for a trust or legal entity includes those persons who have the power and authority to direct the management and policies ofthe trust or legal entity to receive, possess, ship, transport, deliver, transfer, or otherwise dispose ofa firearm for, or on behalfof, the trust or entity. In the case ofa trust, those with the power or authority to direct the management and policies ofthe trust include any person who has the capability to exercise such power and possesses, directly or indirectly, the power or authority under any trust instrument, or under State law, to receive, possess, ship, transport, deliver, transfer, or otherwise dispose of a firearm for or on behalf of the trust.”

    In other words, to be a “responsible person” they must (1) have the capability to exercise power or authority to direct the management and policies of the trust, and (2) possess, directly or indirectly, the power or authority to receive, possess and so on. If they can only possess, but have no authority to direct management and policies of the trust, they should not be subject to the rule. Many of the cotrustees under the trusts that I draft don’t have the power or authority to do any of the things listed in (1); in fact usually only the grantor does.

    So long as a closer reading of the language of the rule bears this out, while there will be a small increase in the paperwork burden when using a trust to possess NFA weapons, it shouldn’t prove to be too problematic for trustees.

    • I’m reading that as an “OR” not an “AND.” As in, if you can direct the trust in buying and selling OR even if you can simply posses an item under the trust you are a responsible person. Both requirements do not need to be true.

      Then again, I am not a lawyer.

      • I believe Ben’s reading of the rule is correct. I think the ATF scrivener royally screwed up. Take a look at the construction of the rule:

        “DOJ has also clarified that the term “responsible person” for a trust or legal entity includes those persons who have the power and authority to direct the management and policies of the trust or legal entity to receive, possess, ship, transport, deliver, transfer, or otherwise dispose of a firearm for, or on behalf of, the trust or entity. In the case of a trust, those with the power or authority to direct the management and policies of the trust include any person who has the capability to exercise such power and possesses, directly or indirectly, the power or authority under any trust instrument, or under State law, to receive, possess, ship, transport, deliver, transfer, or otherwise dispose of a firearm for or on behalf of the trust.”

        Therefore, under this new rule, a “responsible person” is a person who has the power and authority to direct the management of the trust. People who have the power and authority to direct the management of the trust must be someone who (1) has the capability to exercise authority to direct the management and policies of the trust, and (2) receive, possess, ship, transport, deliver, transfer, or otherwise dispose of a firearm.

        I am a lawyer, but not a trust & estates one. However, it would seem to me that if you draft a trust where you are the only one who has the power and authority to direct the management of the trust (the only one able to modify it in any way, only one able to decide what items get added to it, etc.), then if anyone else is one the trust as being able to possess an NFA item, but unable to do anything about the management of the trust, then the would not be a “responsible person.” This is going to be very interesting

    • Increasing any manner of hassle in the process of buying any gun is a wonderful thing, worthy of adoration for all the commie pinkos out there, and right now there are a lot of them. “Oh, it’s just a minor increase in completely unnecessary, illogical, illegal and unconstitutional paperwork.” doesn’t make me happy. Sorry. Thanks for the analysis.

  6. I’m confused. This appears to be a win rather than a loss. Did the Obama administration really just make it easier to buy a sound suppressor (silencer), short barreled rifle, or other NFA item?

    • They have streamlined some parts of the process, but made other aspects of it more complex. For instance, they waived the requirement that a CLEO sign off on an NFA transfer for individuals, but now require background checks for trustees of gun trusts, something that wasn’t required previously.

      • So then what would be the point of having a trust? The main reason is to bypass the CLEO. So aside from having the ability to appoint co-trustees who can also possess the items why would any get a trust anymore? They should just go get their own silencer as an individual.

        • Trust still solves the issue of other people being temporarily “in possession” in a way that is legally absolutely foolproof (yes, I know, no-one has actually ever been prosecuted for this, but still…). It also simplifies estate & inheritance matters should the individual owner die.

        • The advantage is that in the event you die, someone else on the trust can still own/possess the NFA item without having to re-pay the $200 tax stamp to take possession. As an individual, the item must be forfeited back to the government and re-taxed by the new possessor (if there is one).

  7. This is all well and good, but California has had an outright ban on NFA items for longer than I’ve been a gun owner.

    God I hate my state.

  8. This doesn’t do anything for individuals in shall sign states EXCEPT apply a bunch more requirements and PITA requirements for people from multiple states

    • While that may be true, for some people in Illinois, where we aren’t allowed to use trusts for NFA and our CLEOs won’t sign off on it, now have the opportunity to own SBRs

    • It does plenty Carl, it avoids the CLEO hassle. I’m in a shall sign state, but that still didn’t prevent my sheriff from taking forever to sign my paperwork & “losing” the paperwork for one of my silencers. Not to mention the fact that I have to make the time to leave my job during the day & go down there any time I need to drop off or pick up paperwork. This is a big benefit for everyone who doesn’t have a trust.

  9. 200,000 comments received and about a dozen in favor. Wow, the ATF listens to the public! What responsible public servants!

    What would you call a ruler of 200,000 who rules in opposition to the wishes of 199,988 (99.994%) of his people?

    The “Comments Received” sections tragically recount many, many excellent arguments against the proposed rule before the ruling proceeds to ignore all of them because the ATF has no obligation or willingness to pay heed to the people, their excellent arguments, of the truth. The ATF had previously decided to do what what they want to do: infringe on gun ownership in any way possible and make life worse for America’s gun owners.

    I object to Leghorn’s comment, there is no silver lining to this ruling. Trusts were legal everywhere and did not require CLEO sign-off. Besides the ease and cost of avoiding the minor inconvenience of founding a trust, there remains little reason to register NFA items as an individual, as trusts have other advantages. This ruling not only does absolutely nothing to improve public safety, it actually decreases it by making it more difficult for Americans to have safety devices and some of the most useful firearms for self-defense (shorter barreled stocked rifles and shotguns). The ATF is outright lying to the public by saying otherwise, as they do here:

    Comments Received
    ‘Another commenter noted the items listed in the NFA constitute less than one percent of all firearm felonies, and questioned why ATF would go after the
    “smallest portion of a problem.” This commenter suggested that ATF go after the criminals and not law-abiding citizens.’

    Department Response
    ‘The Department’s ultimate objective in the promulgation of this final rule is to enhance public safety by ensuring prohibited persons do not possess and use NFA weapons- the primary statutory goal of the NFA.’

    So for the lie that this will improve public safety, supported by zero evidence and opposed by a mountain of evidence that proves this ruling will have no measurable effect on public safety, ownership of NFA items will become even more inconvenient, burdensome, and unconstitutional. That is of course their objective, to make firearms ownership as unattractive as possible. The President openly talks about his goal of reducing the frequency of gun ownership, the prelude to more extreme gun control. Having photographs taken and being fingerprinted is a hassle, but that’s nothing to me in comparison to the outrage I feel over what handing these sensitive personal identification details over means and implies. That is a level of registration that is elsewhere reserved for criminals. Even for my concealed carry permit I wasn’t fingerprinted: I chose the State of Maine for a non-resident permit over another state like Utah, which has lower renewal fees and is valid in a couple more states, simply because I’d never been fingerprinted before and I strongly object to the requirement in order to be permitted to prepare to exercise my basic human right to self-defense. In order to shorten my rifle barrel a few inches or put on a safety device so that I can protect the hearing of my loved ones and myself I will need to register my photographic likeness, my fingerprints, and all kinds of personal information including race. Just hand it over to Big Brother so that I can do what I have a fundamental right to do anyway. And if I don’t and peacefully do not comply, I’ll face some of the most egregious minimum sentences in the American justice system. Why am I regarded as such a risk to deserve this treatment? Because I want my kids to shoot with a silencer so that they’ll grow up without hearing loss? Or to protect an unborn child when shooting with a pregnant woman? This is completely outrageous. What’s next, a blood sample? Urine and stool sample? Perhaps they’d like to put an ankle monitor on my foot. Or film me 24 hours a day. Maybe they they should just force me to live in a prison cell. Why don’t they just have one or more of their agents sexually violate me while they’re at it. How much debasement must we put up with in order to exercise our rights that the government treats as privileges? I am not a prison inmate or criminal! Although they are coercing me to provide them with every advantage so that they may force me to become a prisoner at some point. In my opinion, people with these kinds of firearms, what the White House calls “some of the most dangerous weapons”, are the last people that should undergo such thorough registration, invasion of privacy, and collection of information for the specific purpose of making it easier to imprison them. Because people with these weapons are our last line of defense against tyranny. Unfortunately, our government is doing everything possible to ensure that when tyranny arises, these folks will be at every disadvantage to protect themselves from it.

    I’m politically something of a centrist, but I tend to lean a little to the left. I voted for Ralph Nader. Learning about firearms has been an eye-opening, life-changing experience. Seeing how we’re treated and the embrace of ignorance, lies, propaganda, and hatred by gun-control advocates has been a shock and made me question what else they’re lying about. Learning about firearms has definitely made me more libertarian. Rand Paul is my favorite candidate among the Democrats and Republicans, but I still am attracted to some figures on the left (not mainstream Democrats, I assure you). I don’t want to be backed into a corner and become a single-issue voter, but unique among our civil rights in the USA our lifestyle is hanging by a thread and could be outlawed in short notice at any time. Issues like the economy and war will always be important to me, but if anything could ever make me hold my nose and vote for an obnoxious neoconservative it’s a choice between that and losing our ability to defend ourselves. For the first time in my life, I am rooting for the Democrats to lose the upcoming Presidential election. Well, I mean, I’ve always wanted the Greens or Libertarians to win, but I never favored the Republicans over the Democrats until I learned about how the Democrats want to leave me and the rest of the American people defenseless against violence. I know too much history to not fight tooth and nail for the means to prevent myself, my family, and my friends from being murdered.

    • I’ll have to say, as long winded as this post was, I agree with every damn thing you’ve said. How far do they want us to go? I was just having a discussion with a co-worker along these same lines. It seems like all the things these gubmint agencies do in the name of “making it safer, for the children” are in fact just making it easier for them to continue to herd us like the cattle they think we are. As you’ve stated, all they are doing is making it easier for them to identify possible threats to their elitist takeover so they may easier wipe them out if and when the time comes to rise up against their tyranny. As many have stated before on this forum, death by a thousand paper cuts. They will continue to use these measures to slowly whittle away at our rights until we are nothing more than subjects to their rule.

      • Yep. There’s negligible public safety benefit to these measures, but they do a great deal to restrict our ability to resist. It’s not uncommon to hear gun-control proponents praise the Japanese gun control system, where by law no one has a right to have a gun and people who do are exceptions who have gone through rigorous registration and screening including medical evaluation (“do you want allow people to own guns if they are physically or mentally unfit to own them?”) and providing the floor plan of their residence and allowing the police to inspect their home regularly. It’s already reality in that country. I can imagine that in place here. Having to placate the suspicions of a medical professional (probably an employee of the state) in order to get them to sign off on me. Providing the police with all information possible to ensure an armed raid on my house is successful. Anything to make it easier to seize legal weapons from the few willing to trade their privacy in order to own a firearm within the limits of the law. If we give the government such power, we will forever live with the risk and ultimately the probability that they will use the powers we have given them. Against our liberty. Against us.

      • This, alot of people in Illinois will be able to actually get an SBR now. While I understand the anger those of you who live in free states have, there definitely is a silver lining

        • You and me brother!

          I was just going to do the scorpion (already have an AR SBR), but now i’m thinking about maybe something else too.

      • I apologize if I’ve made a mistake. I was unaware of any local restrictions on NFA ownership by trusts and I admit there may be some I am ignorant of. I may be mistaken, but my limited non-resident understanding from a little bit of research is that in Illinois one must hold a C&R license (and FOID of course) to own an SBR. A trust can own an SBR, but only through owning a business entity which owns the SBR, as a business entity can obtain a C&R license but a trust cannot. This is certainly some extra paperwork and complexity but doing so still provides the benefits of a trust. See June 24, 2014 article “Can a Gun Trust own or Possess an SBR in IL?” by David M. Goldman at guntrustlawyer.com (click here for link).

    • 100% agreement and especially with this….

      I object to Leghorn’s comment, there is no silver lining to this ruling. Trusts were legal everywhere and did not require CLEO sign-off.

    • “What would you call a ruler of 200,000 who rules in opposition to the wishes of 199,988 (99.994%) of his people?”

      Barack Hussein Obama.

  10. Question: Under most state statutes, a trustee can temporarily delegate his or her trustee authority to someone else. What happens if I delegate my trustee authority to, for example, my wife?

  11. So is it easier now to just file as an idividial? Rather then use my trust? Since I will be the only one who has to submit paperwork,fingerprints and photos? Also what exactly is involved in notifying the clo? Just a simple letter? What info needs to be shared specifically?

    • If the notification process is the same as for C&R, all you do is mail a copy of the atf form to your CLEO and you are done

      • It’s worth spending the extra $ to make it a registered letter so that you have proof it was delivered. You can never be too careful.

        • Yeah, return receipt requested and all, let HIM feel the hassle! Also for the very clear “I do not trust you!” statement.

  12. Wow! I am so glad I put off filing any NFA paperwork. I am not submitting to fingerprinting and background checks every two years just to have the privilege.

    I really hope this finally moves repealing the NFA to the forefront of the conversation.

    • Wait… Are you saying I have to do the fingerprints, photos and background check every two years, regardless if I make any new purchases on my trust?

      • No, he is being stupid. You have to do the picture/prints with a new application if you have not done another on in the previous two years. That is how long the print/pic is good for. If you don’t make another submission you never have to do it again, but after 2 years your next submission will need it.

        • Ian, thanks for that clarification. I hope our resident lawyers go through this and make a Dummies Guide for us less-than-legal savvy readers.

  13. So, just to clarify (yes, I am confused), 3 months ago, I formed a trust with my wife, and submitted F4 applications for 3 suppressors – will I now, every 2 years, have to submit fingerprints and photos to somebody? One of the reasons I did the trust was to avoid the hassle and infringement of being fingerprinted, as I have done nothing wrong. Also, if I want to add members to my trust in the future, do they have to be fingerprinted and photoed?
    I thought once I got my stamps, I was done submitting things forever?

    • I believe that you only need to resubmit prints and photos every two year if you continue to purchase NFA items. If you only buy one, you’re done. If you continue to buy NFA items, you will only need to resubmit photos and prints after 2 years has elapsed. In the meantime, if you buy an NFA item, you just check the box saying nothing has changed within the past 2 years.

    • What I read is that this applies for further applications after 6 mos from now, the situation you describe (as I understand YOU, as well), you will *never* have to submit photos and prints, unless you decide to apply for another NFA item.

  14. Will take 180 days to go into effect. Does that mean I have 180 days to apply for a new suppressor under the current rules?

  15. I have a trust. The successor trustee is a friend of mine in Nevada (I live in Florida), and the beneficiary is my fiancé, though at the time the trust was notarized she was my girlfriend.

    In order to acquire an NFA item now via the trust, would I have to tell my friend in Nevada to get photographed and fingerprinted (and send the results to me) and also have my better half go through the same? And of course I’d have to do it too…

    I’m guessing now it’s probably easier if I forgo the trust and file as an individual?

    • As I understand it the 2 benefits to a trust are/were: 1) you can place everybody in yours household on the trust, as anybody who could be construed as having constructive access, and not named as an individual owner or member of a trust, can be in violation (“you only on stamp as individual, you gone to work, wife home, and wife knows where combination is to get into gun safe, wife now in violation of law). 2) you do not need to be fingerprinted (changes with new ruling) and you do not need local public employee (whom your taxes go to pay his/her retirement) to sign off that you are a good person.

      • That’ll be the kicker. My fiancé (of course) has access to the safe where the NFA item(s) are stored. If I go the individual route, to forgo the whole process of having her (and my friend in Nevada maybe?) getting fingerprinted, then I could be in violation?

        Or will NFA items be like normal Title I items, where even though I own them, it’s not a problem if others of majority age have access to them?

        Hopefully I can ditch the trust and file as an individual.

    • This final rule also requires that all those who apply to make or receive an NF A firearm,
      as well as all responsible persons for each trust or legal entity applicant or transferee, notify their
      local CLEO that an application has been filed with ATF before the applicant or transferee is
      permitted to make or receive an NF A firearm. Current regulations require individuals, but not
      trusts or legal entities, to obtain CLEO certification before making or receiving an NF A firearm

  16. I have an existing trust for a 22 can. I’ve never looked into an SBR but now I feel I should if I can be grandfathered. Is the fist step buying the lower? Then at that point you fill out the eform? Is that the least I can do now to get the process starting or is it more involved?

  17. Hell, there will probably be 5 years worth of requests submitted in the next 6 months.

    How would you like to be a silencer manufacturer and your new potential customers are told that the wait time is 2-3+ years?

  18. Hold it, back up the truck here.

    Is the CLEO certification included in NFA?

    If yes, then where do they get the authority to throw it away?

    If no, then where did they get the authority to demand it in the first place? That would go way beyond their regulatory mandate to implement the 1934 NFA. And when did the CLEO certification come to be, anyway? We’ve had it my whole life, did we have it in the 1930s?

  19. It’s not as bad as it COULD have been – I believe it could have been much, much worse – but it’s one more pain-in-the-ass hoop to jump through that will do nothing for public safety.

  20. Nick, random question since I’ve never gone through the process of getting NFA goodies. Did the CLEO sign off come at the beginning when you file the paperwork or at the end of the process when the ATF approved the stamp? It’s a moot point now I suppose, more just me being curious.

  21. My sheriff issued a blanket statement several years ago stating that he will not sign off on anything (unless you’re a cop), so this works out in my favor, as I didn’t want to establish a trust.

  22. So the petition to the Justice Dept for these changes were initiated by the NFATCA (National Firearms Act Trading and Collectors Association? Who the hell are they and why do they care so much?

  23. i think overall this is good and will drive more sales and creation of NFA items. sucks for ppl like me with LLC, even tho my CLEO signs off, i didn’t want to take 1/2 the day off to see him every time i wanted something. so depending on fingerprinting requirements (from private company or must be from gov’t agent) might be a plus overall.

    LLC
    as i understood it, i could add someone (that can own it) and they will have access to all my items, or if i transferred my shares say if i died.

    so items under new rules will require fingerprinting for each item if i transfered my shares ??

  24. Gentlemen, I am not sure if this was intended, but as Benjamin Jarrell pointed out above, I believe the ATF screwed the pooch on this one (if their intent was for anyone with the ability to possess a can or SBR to go through the fingerprints/photos process). The language makes it clear that a responsible person is someone who can (1) direct the management of the trust, AND (2) possess or transfer the NFA items. It would appear on my first read that if your trust only enables YOU to be the manager of the trust (you’re the only one who can amend it, you’re the only one who can add items to the trust, etc.), then the other folks on will not have to go through the prints/photos process. All in all, this appears to be a major fumble on the part of the ATF, because although we (the trust managers) now have to get fingerprints and photos taken every 2 years, EVERYONE around the country is rid of the pesky anti CLEOs who prevented their NFA purchases, and you can still add folks to the trust without requiring them to get fingerprinted and photographed. I am fairly upbeat about this turn of events.

    • Let’s remember that just a few years back, the bill writers screwed the pooch and got a bill passed which was exactly opposite to what they intended, and the government went right ahead and enforced what it was supposed to be, instead of what was actually passed and signed.

  25. Nick, looks like your initial analysis is wrong. This is from AR15.com:

    “NFA Lawyers’ Initial Review of Final Ruling ATF 41P

    The BATFE and Attorney General finalized proposed regulation 41P on January 4, 2016. A link to same can be found at https://www.atf.gov/file/100896/download. As many of you are aware, this regulation impacts gun trusts. This initial review provides an overview of what those key changes are.

    This ruling is 248 pages long. At the top of the ruling is the following language:

    “This final rule was signed by the Attorney General on January 4, 2016. It is effective 180 days after date of publication in the Federal Register.”

    If the rule was published in the Register on January 4, 2016. This means there is still no CLEO signoff, fingerprints, or picture requirement for trusts until July 1, 2016.

    Let us get to the “meat and potatoes” of 41P. Of the 248 pages comprising 41P, pages 238-239 are of key importance. Below is the language impacting gun trusts:

    § 479.11 Meaning of terms.

    Person. A partnership, company, association, trust, corporation, including each responsible person associated with such an entity; an estate; or an individual.

    Responsible person. In the case of an unlicensed entity, including any trust, partnership, association, company (including any Limited Liability Company (LLC)), or corporation, any individual who possesses, directly or indirectly, the power or authority to direct the management and policies of the trust or entity to receive, possess, ship, transport, deliver, transfer, or otherwise dispose of a firearm for, or on behalf of, the trust or legal entity. In the case of a trust, those persons with the power or authority to direct the management and policies of the trust include any person who has the capability to exercise such power and possesses, directly or indirectly, the power or authority under any trust instrument, or under State law, to receive, possess, ship, transport, deliver, transfer, or otherwise dispose of a firearm for, or on behalf of, the trust. Examples of who may be considered a responsible person include settlors/grantors, trustees, partners, members, officers, directors, board members, or owners. An example of who may be excluded from this definition of responsible person is the beneficiary of a trust, if the beneficiary does not have the capability to exercise the powers or authorities enumerated in this section.

    What all of this means is any responsible person in a trust must undergo the following requirements:

    Fingerprints
    Picture
    No CLEO sign-off. You simply notify your CLEO.

    Well, who are responsible persons in a gun trust? I will break down the two critical elements.
    Responsible persons are:

    1)Persons with the power or authority to direct the management and policies of the trust;

    AND,

    2)Have the power or authority to receive, possess, ship, transport, deliver, transfer, or otherwise dispose of a firearm for the trust.

    It appears as though responsible persons are those who meet both elements. If an individual does not meet both of these elements, they are not responsible persons. Thus, the 41P requirements would not apply to that individual.

    In NFA Lawyers’ trusts, co-trustees do not have any power or authority to direct the management and/or policies of the trust. Co-trustees do not meet element number one. We draft trusts this way in order to prevent co-trustees from having any control over your NFA weapons or other firearms in the trust.

    Based on the face of 41P, our trusts are already 41P compliant. Co-trustees in our trust will never have to send in fingerprints, pictures, or notify their CLEO. Additionally, 41P clearly states that beneficiaries are not subject to these requirements.

    As with many new regulations, there will be much litigation over these topics. The ATF may make revisions or opine further on their position, which may change the impact of 41P.

    Regardless, NFA Lawyers will keep our clients apprised of any required changes to their trusts, if any. It has been our pleasure to do business with each and every one of our clients. We will do everything we can to prevent our government from infringing on our Right to Keep and Bear Arms.

    Sincerely,

    /s/ H. Dean Phillips”

  26. This seems like a bit of a nucansce with fingerprints especially if you have to do it with each stamp, but the getting rid of the CLEO singature seems to be huge for those who didn’t live in Shall Certify states. I’m still trying to figure out if wording does this require everyone in the trust to get fingerprints or only the manager of the trust. Looks like we need some lawyers to lay some eyes on this document to clear things up.

  27. The Sheriff’s in Ohio will be sad. A little under a year ago, a new law went into effect that required Sheriff’s sign NFA forms (in anticipation of the earlier version of this rule change that still required it), but allowed them to run their own background check and charge a fee before doing so. Looks like they won’t be making any money off of that after all.

  28. The last several comments have been interesting in their interpretation of a “responsible person.” Seeing as how a responsible person must meet both criteria of the definition, this would mean, in effect, that the ONLY person in a typical NFA trust requiring pictures and prints would be the Grantor – correct?

    That’s not so bad, but it’s still worse than it was.

    Next question, and I see it’s been asked several times, but I don’t see a clear answer. As long as any all F1’s and F4’s I want to file are in “Pending” status by the deadline, are all said applications grandfathered?

    If so, I may be taking some money out of savings.

    One other thing that continues to frustrate me is that the feds already have several sets of my fingerprints and pictures, including a set when I got my CCW permit (that might only be the state) but also when I received my permit to handle, transport, and use explosives (job function). We put a man on the moon in 1969 for god’s sake. Why can’t the gub’mint just use my existing information?!? It’s not like my fingerprints are going to change…

    [/rant]

    • Let me help you, there. I have bitched about that so often and so loud that someone (LEO) who professed to know the answer filled me in. According to him, the applicable laws all require the fingerprints (justified only for the background check) be destroyed immediately after the background check is complete. So, years later, they need to check to see if you have left your prints at any mass murders, or whatever, but they do not still have your old copy, so presto!, you need a new card. Now, I wish I believed that the fingerprint cards were actually destroyed, but be that as it may, the law requires it, and therefore requires you to reaccomplish.

  29. Other question – In regards to the requirement that the CLEO be *NOTIFIED* prior to submission of the F4 to the director – how will this be verified?

    Will the CLEO then have to submit paperwork to the ATF stating notification has been appropriately made?

    If that’s the case, the ATF may have taken away a CLEO’s ability to deny sign-off, but they may have just given them the power to slow up the process. I can imagine some self-righteous CLEO’s would abuse the heck out of that…

  30. It looks like the final rule becomes effective in approximately 180 days, and that some of the application forms will have to be revised. What’s been the usual turnaround time to receive approval of an application when using a trust? Is there enough time to obtain an NFA firearm before the rule goes into effect, or, is the system going to be overloaded and any applications pending at BATF on the effective date be rejected?

  31. In the comments above, many people are mentioning “…CLEO notification”…but that little statement hasn’t generated much discussion.

    Can someone please expand on this a little?

    My question is: Are trusts now required to NOTIFY the CLEO before/after new NFA items are added to the trust –OR– does the CLEO notification only apply to individuals in lieu of a sign-off?

    • No, at least not in TX. Without the trust, CLEO signoff was required, with the trust the CLEO is out of the picture completely.

  32. When you game the system you should expect to get shut down at some point. Trusts weren’t established so we could get around legal requirements for controlled items. They’re for families to legitimately pass weapons down by generation. Those of you who gamed this system have nobody to blame other than yourselves. Thanks for making it harder for me and the rest of the sensible gun owners in America.

    • What option did the government leave people in places where the CLEO refused to sign? The start of the whole problem was the government’s signature requirement. Besides, I bet most trusts included the language required to pass down the guns to beneficiaries. Good job turning on your fellow NFA enthusiasts with your misplaced blame. You are the one person that I’m glad is inconvenienced in this situation. Get off your high horse.

  33. Now is the time to contact your legislators and push for a bill to legalize suppressors. Make it a health issue and as a way to reduce health care costs, both current and future. Loss of hearing from a firearm retorts will affect a person’s quality of life forever. The costs of treating hearing damage, and the costs of restoring hearing via external or internal aids aids would be the argument for their use.

    The flip side of the coin is showing that silencers do not make guns and gun users more dangerous. I did find a major study done in 2007. I’ll be back with the results of the study.

    In the meantime, read this article written by a Democrat and run in the most Far-Left, Anti-Gun Progressive publishers in America, the Daily Kos:

    “A Democrat’s guide to why firearm sound suppressors (“silencers”) should be made easier to obtain.”
    http://www.dailykos.com/story/2007/11/5/405370/-

    It expands on all the reasons I gave above.

    When you’re done with that article, read this one written in February 2015 by CNN:

    “Buying a gun silencer just got a lot easier”
    http://money.cnn.com/2015/02/13/news/companies/gun-silencers/

    And finally,

    How gun ‘suppressors’ became legal in Minnesota — with barely any debate
    https://www.minnpost.com/politics-policy/2015/06/how-gun-suppressors-became-legal-minnesota-barely-any-debate

  34. Hey guys!
    What if I get my form 4 submitted now by a shop that sells silencers. If my Form 4 is not approved by June 4th,2016 then I will need to get fingerprints and background check before ATF will further proceed with my application? Or I am grandfathered in because I complied Form 4 requirements in January, 2016? Thanks!!

  35. When does this take effect? What if I already filed my application for a suppressor under a trust? Do I now need to get fingerprinted etc?

  36. This is an illegal power grab by the DOJ/ATF. Statute does not permit the ATF to require fingerprint cards for corporations. Expect lawsuits and multiple emergency injunctions.

    A corporation can’t submit fingerprints.

    • I don’t disagree with anything you said, I am on the same side as you. However, I’m sure the feds will attempt to sidestep this through their definition of a “responsible person”. Their logic (or lack thereof) is along the lines of “how can the trust/corp be trusted if we don’t know if we can trust the membership the comprises said trust/corp?”

      I again use this as a parallel example – our Company is issued a permit from BATFE for using explosives for valid purposes. The COMPANY is issued the permit. However, every single person within our company that will use, handle, or transport these explosives must go through the same photo/prints/BG check.

      To try to put it in the format you used, our COMPANY can’t submit fingerprints, but the members that comprise our company can.

      That is how I am anticipating the ATF is going to attempt to play this off.

      • NFA items under the National Firearms Act are regulated by very specific language in the statute. “Responsible person” isn’t even part of the statutory language for trusts/corporations. I’m sure the ATF will try to regulate it this way, but by statute, they aren’t allowed to.

        Responsible person is part of the language that addresses individuals only.

  37. NEW GUN TRUST RULES PUBLISHED
    Will Be Effective June 28, 2016

    The Department of Justice started the New Year with a January 4, 2016 long awaited final ruling amending the BATF’s rules for NFA Firearms Trusts. The new federal regulations will go into effect in 180 days, being approximately June 29, 2016, so ACT NOW TO TAKE ADVANTAGE OF THE CURRENT RULES!

    The new regulations will amend the BATF’s Form 1 (for making a NFA firearm such as a SBR) and Form 4 (for acquiring a NFA device such as a suppressor) to require an FBI fingerprint card and a 2″x2″ current photo for each “Responsible Persons” listed on a Trust, Partnership, Corporation, or other Entity applicant.

    “Responsible Persons” is very broadly defined to include “any grantor, trustee, beneficiary, partner, member, officer, director, board member, owner, shareholder or manager who possesses, directly or indirectly, the power or authority under any trust instrument, contract, agreement, article, certificate, bylaw, or instrument or under State law, to receive, possess, ship, transport, deliver, transfer or otherwise dispose of a firerm for, or on behalf of, the trust or entity.”

    Those saying the new regulation will not apply to trust “beneficiaries” are wrong, unless the language of the Trust Document specifically conforms to the language of the new regulation. NFA Firearms Trust’s trust document already conforms, but we will be carefully reviewing the new regulation and making all appropriate amendments prior to June 28, 2016.

    The only good news is that the current Chief Law Enforcement Officer (“CLEO”) approval requirement has been eliminated and downgraded into a notification provision, requiring each applicant to simply send a completed copy of the Form 1 or 4 to their CLEO.

    There are some additional minor requirements and the new set of regulations is almost 250 pages long, so we will have to carefully review it to provide additional information.

    The primary immediate “take away” is that NOW IS THE TIME TO ACT if you have been planning on creating a NFA Firearms Trust for making or acquiring a SBR or Suppressor.
    We will be carefully reviewing this new federal regulation and amending our NFA Firearms Trust to fully comply with this new regulation prior to June 28. We will also be making those amendments and the new trust document available to all of our current customers as an additional benefit.

    Jim & Matt
    NFA FirearmsTrust.com

  38. So about 99% of this discussion has revolved around trusts. My issue is that my LLC is the legal entity holding the license for my NFA items. Lets say five years down the road, if I hire another corporate officer, would he then have to submit to a background check, etc?

    Also, how does 41p affect minors named in trusts and corporations? Would a 12 year old son, who is named as a beneficiary, or officer, effectively prevent a trust or corporation from engaging in NFA weapons?

  39. Hey if all you want is as silencer/suppressor then help get the H.R.3799 – Hearing Protection Act of 2015 passed. Contact your congressmen let them know how you feel.
    This bill amends the Internal Revenue Code to: (1) eliminate the $200 transfer tax on firearm silencers, and (2) treat any person who acquires or possesses a firearm silencer as meeting any registration or licensing requirements of the National Firearms Act with respect to such silencer. Any person who pays a tax on a silencer after October 22, 2015 may receive a refund of such tax.
    There are already over 45 congressmen cosponsoring this bill, look at it is makes sense…
    https://www.congress.gov/bill/114th-congress/house-bill/3799

  40. What is considered “notifying the CLEO”? Does it have to be a certified letter type of thing or a phone call type of thing?

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