December 28, 2015 - ATF 41P

I am writing this in response to the multitude of questions I have received regarding what just happened to the NFA world with President Obama’s most recent Executive Orders. Trustees want to know how the new rules affect their trust and if their trust is still a viable entity and why they should still use one.

ATF 41P is here after all these years… It is finally here; all glorious 248 pages of it. For your reading experience, here is a link to download it.

ATF 41P download
Here's my take.

A trust is a still very viable to own, make, and possesses NFA items. Multiple persons are still able to share NFA items and posses them without the others present; which is a huge benefit over individual ownership.

The new requirements, as I see them, are a tad cumbersome, but nowhere near what they could have been. Were they necessary? No. Are they a deterrent for individuals using or establishing a trust? Yes. But, the benefits of a trust far outweigh the individual route, even though the individual route has been made easier than before and now, easier than a trust…except…if the trust has had an approved form under the new rules, its basically back to the same as it was before.

Here is my take on it…

Basically, this whole thing started back in 2013 and is designed to address the “problem” with trusts as the ATF and the president see it; the so called “trust loophole” where they believe criminals, or improper individuals are getting these “most deadly” weapons through shells and without background checks.

The “short” version of the effects:

• It goes into effect July 2016. Anything pending or approved prior to the effective date is not affected.
• No applicant needs CLEO approval anymore.
• All applicants must submit all the prior items as before, but now must notify CLEO.
• All responsible parties in a trust must submit along with the application and a copy of the trust document, a 5320.23 card for each responsible party with two fingerprint cards and one photograph of each responsible party.

When one has their first application approved under the new regulations, if another is filed within 24 months and the trust structure and parties has not changed, the trust entity may simply provide a certification the information has not changed must identify the application for which the documentation had been submitted by form number, serial number, and date approved.

After more than 9500 responses to their request for comments, here is their answer.
CLEO certification:

The new change brings about a very big change in applications. The CLEO certification is now gone.

It has been changed out with CLEO notification. This means “Prior to the submission of the application to the Director, all applicants and responsible persons shall forward a completed copy of Form 1 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 form 5320.23 is to include two FD-258 print cards and a 2x2 photograph.

The new rule defines the term responsible party as an “individual in the organization that has the power and authority to direct the management and policies of the entity insofar as they pertain to firearms.” These are the persons in a trust or corp., which will have to provide fingerprints and photographs with their application.

Notification is specified as ”Prior to the submission of the application to the Director, all transferees and responsible persons shall forward a completed copy of Form 4 or a completed copy of Form 5320.23, respectively, to the chief law enforcement officer of the locality in which the transferee or responsible person is located.”

We still don’t know what the exact formalities are for the notification. We don’t know if CLEO will be required to sign for their receipt…thereby, still allowing some jurisdictions to simply refuse to sign and causing the application to die before it started. I foresee it being where one prepares a copy of the application and a completed 5320.23 for each individual and those are to send to the CLEO certified mail for proof, which a copy of the return is then supplied with the application to the ATF. We really don’t know, but this seems logical.

Fingerprinting:

The old way was individuals had to get fingerprinted and photographed for their application. Trusts and Corps did not.

Now, individuals need to be fingerprinted, as well as all responsible parties in a trust or corp. According to the new rule, it does not specify a certain agency or entity must perform the fingerprinting. It simply states, “someone properly equipped to take them.” This presupposes an individual could print himself, if he in competent and the prints are legible. An applicant still needs to use a FD-258 card and supply two copies per person (individual or each responsible person).

So, keep on keeping on and play the NFA game. Just endure a little more up front burden and then do a new application within 24 months (easy since we all have the sickness) and it’s like nothing changed. Heck, you don’t even have to go to the jail to printed anymore…

BTW, you may be able to play a part in making this rule change go away by affecting their funding…contact the following representative and then follow up with your own representative and senator.

Congressman John Culbertson
Appropriations Committee

Houston, Texas office
Phone: (713) 682-8828
Fax: (713) 680-8070

Washington, DC office
Phone: (202) 225-2571
Fax: (202) 225-4381
Find Your Representative at:
Find your Rep

The next step is to contact your Senators.
Find their contact information here:
Find your Senator

If you are from Texas, here is the contact information for your Two Senators.

Ted Cruz
Republican
Phone: 202-224-5922

John Cornyn
Republican
Phone: 202-224-2934

Support Todd Rathner with the NFA Freedom Alliance, a nonprofit with designs on changing all NFA laws. He is doing wonderful work and has been very effective so far with changes to state laws throughout the country. Reach him in my Member Of page or at this link NFA Freedom Alliance.

Also, Joshua Prince from the Prince Law Firm and the Firearms Industry Consulting Group is looking into a legal challenge to this rule change. You can donate to help his organization here: Firearms Industry Consulting Group