Category Archives: Firearms Law

Good Guy With A Gun Saves Officer’s Life!

Breibarts is reporting that on February 5, 2016, an Upper Darby police officer’s life was saved by an individual with a Pennsylvania license to carry firearms.

Upper Darby Police Superintendent Michael Chitwood said “there is no doubt they would have attacked” the officer without the armed citizen’s intervention

The background, as reported by Philly.com, is that the officer was breaking up a fight between two Upper Darby High School students–after school had let out for the day–and one of the students jumped the officer. Superintendent Chitwood said, “As he breaks up the fight, he takes one kid and then the other jumps [on] him. Now he’s fighting two of them and he’s calling for an assist officer at the same time. There’s a crowd of 40 or 50 kids watching the fight, and they all move in towards the officer.” At that point, an area resident with a license to carry saw the officer struggling and the crowd closing in, so he grabbed his gun and ran to the officer’s defense, until responding officers arrived.

This is another example of how a good guy with a gun can save lives.

 

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Filed under Firearms Law, Pennsylvania Firearms Law

Important Update on Implementation of ATF-41F

Rather than use the rulemaking process set forth in the Administrative Procedure Act, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) seemingly continues to release information in a haphazard manner that sows confusion among the very people striving to comply with its requirements.  After taking more than two years to review comments and draft regulation ATF-41F that was published on January 15, 2016, ATF already has had meetings with a small, hand-selected audience to announce that the regulation does not actually mean what it says.  Given that the regulation does not become effective until July 13, 2016, one might expect ATF to withdraw the rule and revise its text so as not to mislead the public.  It would be a breath of fresh air to see ATF show such concern.

 

ATF now asserts that when ATF-41F becomes effective, all Forms 1 and Forms 4 submitted by legal entities must be accompanied by fingerprints and photographs regardless of the two-year look back provision stated in the regulation.

 

ATF also now takes the position that current law will be applied to all applications postmarked prior to July 13, 2016.

 

ATF’s Meeting

 

As Silencer Shop reported on its blog, ATF and representatives of ATF’s National Firearms Act Branch met with the American Suppressor Association (“ASA”) and some of its members, including Silencer Shop itself while at SHOT Show last month.  While the National Rifle Association’s Institute for Legislative Action (“NRA ILA”), the National Shooting Sports Foundation, and the Gun Owners of America, Inc. & Gun Owners Foundation (“GOA”) all filed comments on the proposed rule that culminated in ATF-41F, ATF did not include representatives of those organizations in its meeting.  ATF also failed to include any representatives of the media.  Despite the number of major comments submitted by attorneys who advise consumers who seek to lawfully possess firearms regulated under the National Firearms Act (including Firearms Industry Consulting Group®, David M. Goldman and the Gun Trust Lawyer® nationwide network, and many others), no such individuals were included in ATF’s meeting.

 

Even after the meeting ATF took no steps to publish the information it shared.  The rest of us, as usual, were left in the dark.

 

ATF Asserts Fingerprints and Photographs Will Be Required With All Applications After July 13, 2016

 

As reported by Silencer Shop, ATF asserted that the certification procedure outlined in ATF-41F does not, in fact, establish a two-year window during which trusts and other legal entities submitting a subsequent Form 1 or Form 4 could certify there had been no change and thereby avoid having to resubmit fingerprints and photographs for all “responsible persons” with each new application.  Instead, ATF apparently now takes the position that despite the clear language of a regulation less than a month old, it really means something else.

 

The new text of 27 Code of Federal Regulations section 479.63, as revised by ATF-41F, governs the identification of the applicant (on a Form 1 or a Form 4).  The text is available at volume 81 of the Federal Register on pages 2722 and 2723.  The section has three subsections.  Subsection (a) addresses the situation where the applicant “is an individual”.  Subsection (b) addresses the situation where the applicant is a trust or other legal entity.  And subsection (c) alleviates the burden that would be imposed on a legal entity submitting all the documentation required in subsection (b) upon a “certification that the information has not been changed since the prior approval”.  The point of ATF’s new interpretation is the breadth of the relief provided by subsection (c).  To answer that question, one may look at the plain text of the regulation.  Subsection (b) sets forth the filing requirements for a trust or other legal entity.

 

Subsection (b) is further divided into two subsections.  Section 479.63(b)(1) simply specifies how the address of a legal entity is determined.   Section 479.63(b)(2) sets forth the additional documentation that must accompany the application when submitted by a trust or other legal entity and it contains four separately-numbered requirements:  (i) documentation of “the existence and validity of the entity”, such as a copy of the trust, (ii) an ATF Form 5320.23 for each “responsible person”, (iii) photographs, and (iv) fingerprint cards.  If the regulation was designed so that the certification available under section 479.63(c) were limited to only the documentation of the existence and validity of the entity rather than all four requirements, one would expect to find that the cross-reference to the exception for the certification procedure would be part of the text of section 479.63(b)(2)(i).  But that is not where ATF referenced the exception.  Instead, ATF placed the reference to the exception under section 479.63(c) in the general language of section 479.63(b)(2) preceding the four numbered requirements thereby indicating that the exception applied to all four forms of documentation.

 

ATF not only contradicts the text of its recently-drafted rule, the resulting procedure would seem to be upside-down in terms of ATF’s stated purpose in adopting any new rule at all.  Consider the situation of a trust that sought to acquire a different suppressor each month for a year.  Under ATF’s interpretation, every month each and every “responsible person” would be required to submit a new set of fingerprints (which obviously had not changed) and a new photograph (which, in the course of a month, is unlikely to change significantly), but the one item which could have changed significantly — the trust which may have added additional responsible persons — would not be required to be submitted.  In any rational system, the last item from the list of four types of required documentation that ATF should be willing to accept based on certification would be the paperwork that demonstrates who constitutes a responsible person.  The whole mistaken premise of ATF-41F was ATF’s belief that people who lawfully acquire NFA-regulated firearms might misuse a trust or other legal entity as a means to permit use of the firearm by some improperly-authorized “responsible person” of the legal entity.  If there were any such problem it is far from clear how requiring someone to submit a fresh set of fingerprints every month addresses it in any way.  Once ATF has the fingerprints to confirm the identity of a responsible person, the only thing that should matter is whether some new responsible person has been identified but evidence on that issue that is the very information ATF assigns the lowest priority.

 

ATF acknowledged receiving comments addressing the issue of whether fingerprints and photographs should be required each time an application was filed.  ATF’s response in the preamble to ATF-41F was that such an approach “does not meet the NFA’s requirement that each NFA transaction must be accompanied by an individual application and registration.”  81 Fed. Reg. 2684.  Notably, the only supporting citation ATF offered for that view was to ATF’s own regulations, not to the NFA itself.   Obviously, the NFA itself does not require that every NFA transaction be accompanied by fingerprints and photographs as for eighty years neither fingerprints nor photographs were required with regard to applications filed by legal entities.  As a result, while ATF’s response may have been adequate with regard to the suggestion that individual applicants not be required to submit fingerprints and photographs with each separate application, it provided no reason for imposing such a requirement on legal entities and, indeed, section 479.63(b)(2) and section 479.63(c), when read together, imposed a requirement for fingerprints and photographs to accompany applications only if either more than two years had elapsed or there had been some change with regard to the legal entity since the last application.  By announcing its new interpretation ATF essentially acknowledges that it failed to provide a reasoned explanation for the requirement that fingerprints and photographs accompany applications from legal entities more frequently than suggested in the comments.

 

The suggestion that fingerprints and photographs must accompany every Form 1 or Form 4 submitted by a trust or other legal entity has far-reaching consequences.  All the tax dollars spent on establishing a system to permit the electronic filing of a Form 1 and Form 4 will have been wasted as e-Forms were limited to situations where there were no accompanying fingerprints and photographs, and now zero applicants would qualify for use of the system.  Further tax dollars spent to develop the second version of e-Forms will also have been wasted.  Without reconsideration of its interpretation, e-Forms will be completely unavailable for applications involving consumers.

 

ATF Advises Postmark of Applications Will Determine Grandfathering

 

As reported by Silencer Shop, ATF will apply existing law to all applications postmarked prior to July 13, 2016.

 

When ATF first released the proposed rule that was to become ATF-41F selected individuals were advised about its retroactivity provisions while the public at large was left to wonder how the matter would be handled.  The issue was one raised in comments filed with ATF on its proposal, specifically requesting that ATF comply with its obligation to inform the regulated community (not just a few who received a reply) as to how the rule would be implemented with regard to applications approved during the period between publication of a final rule and the effective date of the rule.  ATF was also requested to address how applications would be handled that had been sent to ATF but which were not completed when the new rule became effective.

 

Apparently in a rush to publish ATF-41F, this issue is another one where ATF seems to have determined how to handle the issue only after publishing the rule.  In the preamble to ATF-41F, ATF explained only that “the final rule will not apply to applications that are in ‘pending ‘ status, or to previously approved applications”.  81 Fed. Reg. 2710.  The all-important question of when an application would be considered “pending” was completely ignored.  At various times ATF officials suggested that perhaps the key date would be when the payment for the transfer tax was processed, or maybe when the application made its way to the appropriate branch of ATF, and so forth.  The decision to abide by the postmark date is perfectly reasonable.  One must question, however, why ATF could not simply state that matter in the text of ATF-41F itself so that everyone would know the answer.  It would seem either that ATF prefers not to tie itself down by publishing such answers, which denies the public fair notice, or ATF had not decided the matter until after publishing ATF-41F which raises the question why ATF-41F was not delayed a few weeks so as to incorporate such information.

 

Public Confusion

 

Members of the public have already been posting questions regarding the confusion caused by ATF’s statements reported by Silencer Shop.  Certainly, clients seeking to understand ATF-41F have been asking questions about these matters since we first reported on January 4, 2016 that a draft of the rule had been posted to ATF’s Website.  Unfortunately, it seems now that the best answer is that ATF is still resolving these matters for itself and may change its mind as it works through the process of implementing the new rule.  Those are steps the agency is supposed to take before publishing a new rule.  Given that the rule does not become effective until July 13, 2016, one hopes ATF does the responsible thing and incorporates this important information into a corrected rule so that the text actually reflects the manner of implementation.

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NFA Firearms, Form 1s, Engraving and Cartoon Chickens

FORM53201-APPROVED (1).pdf

Late last week an article was posted on a popular website, dedicated to firearms news, about the engraving of firearms that had approved Form 1s. The author describes how easy it is for one to submit a Form 1, with the advent of eForms, to register your firearm as a Short Barrel Rifle (“SBR”) but laments the marking requirement. He accurately describes ATF’s response to any number of questions you could ask them by stating “Ask three people whether you need to engrave your information on your newly registered NFA device and you’ll get three different answers.”

The author then prefaces the remainder of the article with “In an effort to sort out the confusion I asked the ATF directly…”. Oddly enough, the author seems to forget his previous statement, a mere sentence prior, that if you ask three people at ATF whether you need to engrave your information that you would receive three different answers.

The article states that if you do not plan on selling your SBR, there is no requirement to engrave the firearm. The author also claims that if you remove the firearm from the registry in order to sell it, at that point you’ll need to engrave your information on the firearm.

Perhaps the most concerning part of the post is that nowhere does the author state who he spoke to, cite to any statutes or regulations, or produce a letter from ATF confirming his statements.

leghorn

Confused yet? Let’s attempt to remove the dog from the hen house.

In an effort to make things simple to follow, a few terms need to be defined. We will examine both the National Firearms Act and its regulations.

26 U.S.C. 5845 is where one can find the definitions for the National Firearms Act.

(i) Make

The term “make”, and the various derivatives of such word, shall include manufacturing (other than by one qualified to engage in such business under this chapter), putting together, altering, any combination of these, or otherwise producing a firearm.

(m) Manufacturer

The term “manufacturer” means any person who is engaged in the business of manufacturing firearms.

It is important to differentiate between the preceding two terms. The term “manufacturer” applies to those who are engaged in the business of manufacturing firearms, while the other is in reference to individuals or entities not engaged in the business of manufacturing firearms.

26 U.S.C. 5842 regulates the identification of firearms.

(a) Identification of firearms other than destructive devices

Each manufacturer and importer and anyone making a firearm shall identify each firearm, other than a destructive device, manufactured, imported, or made by a serial number which may not be readily removed, obliterated, or altered, the name of the manufacturer, importer, or maker, and such other identification as the Secretary may by regulations prescribe.

27 C.F.R. 479 et seq. is where one can find regulations pertaining to the National Firearms Act.

Make. This term and the various derivatives thereof shall include manufacturing (other than by one qualified to engage in such business under this part), putting together, altering, any combination of these, or otherwise producing a firearm.

Manufacturer. Any person who is engaged in the business of manufacturing firearms.

Again, the distinction between maker and manufacturer is seen.

27 C.F.R. 479.102 regulates how firearms must be identified. In the pertinent part:

(a) You, as a manufacturer, importer, or maker of a firearm, must legibly identify the firearm as follows:
….
(2) By engraving, casting, stamping (impressing), or otherwise conspicuously placing or causing to be engraved, cast, stamped (impressed), or placed on the frame, receiver, or barrel thereof certain additional information. This information must be placed in a manner not susceptible of being readily obliterated, altered or removed. For firearms manufactured, imported, or made on and after January 30, 2002, the engraving, casting, or stamping (impressing) of this information must be to a minimum depth of .003 inch. The additional information includes:
(i) The model, if such designation has been made;
(ii) The caliber or gauge;
(iii) Your name (or recognized abbreviation) and also, when applicable, the name of the foreign manufacturer or maker;
(iv) In the case of a domestically made firearm, the city and State (or recognized abbreviation thereof) where you as the manufacturer maintain your place of business, or where you, as the maker, made the firearm; and

The regulations pertaining to identifying NFA firearms unequivocally state that the maker of the firearm must engrave, cast, stamp, or otherwise conspicuously place their name and the city and state where the maker made the firearm.

Now, I will admit, the regulation does not speak to the “remanufacture” of a firearm. But the term “remanufacture” is not defined in the National Firearms Act of 1934, the Gun Control Act of 1968, 27 C.F.R. 478.11, or 27 C.F.R. 749.11.

foghorn

 

But we need not explore this non sequitur any further because the statue and regulation clearly state that if you are putting together, altering, or any combination thereof, you are manufacturing a firearm. And if you are manufacturing the firearm, you are required to identify it with certain information.

With regard to the serial number, caliber/gauge and model, ATF has published ruling 2013-3 which states that licensed manufacturers and licensed importers of firearms, and makers, may adopt the serial number, caliber/gauge and model on the firearm without a marking variance provided a number of conditions are met. You can view that ruling here.

thatsallfolks

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Montgomery County Sheriff Sean Kilkenny Does Away With Unlawful Local Police Checks for LTCF Applicants!

Newly-elected Montgomery County Sheriff Sean Kilkenny has rescinded the unlawful practice of requiring the Local Police Check Card for License to Carry Firearms (LTCF) applications that was imposed by previous sheriffs. I was alerted to the change in police from a Facebook posting by the Lower Pottsgrove Township Police Department.

Screen Shot 2016-01-27 at 10.24.27 AM

Earlier this month I had sent the new Sheriff a letter asking that he review the policies and practices of the outgoing Sheriff Bono. I specifically requested Sheriff Kilkenny look into the unlawful practice of requiring references on the application as well as the Local Police Check Card.

I had the opportunity to speak with the Sheriff’s Solicitor earlier this morning. He did state that the Sheriff was reviewing the policies and procedures of the office and will be making changes. I was informed they were reviewing the practice of requiring references on the applications.

While new to the position of Sheriff, it appears that Sheriff Kilkenny is wasting no time in reviewing the policies and procedures of the office and making the appropriate changes. Join me in thanking Sheriff Kilkenny in reversing a longstanding unlawful practice that placed an additional burden on individuals in Montgomery County seeking LTCFs.

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Publication of the ATF-41P Final Rule

In the Federal Register for today, January 15, 2016, ATF published its Final Rule in ATF-41P, at volume 81, pages 2658 through 2723.   As previously reported here, ATF posted the Final Rule to its Website on January 4, 2016.  In the event of any discrepancies, the version published in the Federal Register represents the official text.  You may find a brief description of the rule here.  (Please note that ATF designated the Final Rule as “ATF-41F” despite the fact that the Proposed Rule and the rulemaking docket were designated ATF-41P.)

 

The language of the actual regulations  span only Federal Register pages 2721 to 2723, with pages 2658 to 2721 constituting the “preamble” or the “concise general statement of their basis and purpose” as required by section 553(c) of the Administrative Procedure Act.  For purposes of interpreting the meaning of the three pages of regulations, the sixty-two page preamble constitutes a very influential source.  And, for purposes of determining whether the regulations were validly adopted, the preamble is the key document.  On its face, the preamble reflects ATF’s failure to abide by the procedure mandated by Congress in several key respects.  Throughout the document ATF substitutes conclusory statements for a reasoned explanation.

 

A preliminary analysis of the Final Rule permits a few observations, the most important of which is that no change takes effect until July 13, 2016, see 81 Fed. Reg. 1658, 180 days after publication in the Federal Register.  The delayed effective date means that there is an opportunity for trusts and other legal entities to file one or more Form 1s and Form 4s to be processed under current law and effectively grandfathered prior to the new rule taking effect.  Moreover, ATF has indicated that forms that are in the course of being processed on the effective date will be handled under current law.  See 81 Fed. Reg. 2710.

 

The delayed effective date also means that there is an opportunity for persons who continue to oppose the rule, the attorneys representing them, and the various organizations that filed comments on the proposed rule to communicate and cooperate.  While no one can force such cooperation, wasted time can be minimized and an optimal legal strategy can be developed by working together.  The good work done in filing comments on ATF’s proposed rule laid a solid foundation for judicial review of the Final Rule, provided that there exists an adequate interest in taking that course.  In that vein, we obtained www.FightATF41p.com, which provides further information about ATF-41p, issues with the rulemaking and the ability to submit donations for a legal challenge to invalidated, at least portions, of ATF-41p.

 

Just as we outlined numerous problems in ATF’s proposed rule, we will be posting here some of ATF’s errors with regard to the Final Rule.  Please check back for updates.

UPDATE:   Several comments to this post raised the prospect of congressional action to prevent the implementation of the Final Rule.  After almost two years spent educating Congress about the issue, Amendment 302  was adopted by the House of Representatives before the House passed the appropriations bill to fund ATF for the fiscal year starting October 1, 2015.  Amendment 302 would have prohibited the expenditure of funds to issue a rule that changed the CLEO certification requirement “in a manner that has the same substance of the proposed rule” that culminated in the Final Rule addressed here.  (By its own terms, Amendment 302 would not have limited ATF’s ability to adopt a Final Rule that imposed substantial burdens as long as the CLEO certification requirement were not extended to legal entities.)  Amendment 302 along with the rest of the appropriations bill failed to pass the Senate.  Instead, Congress enacted and the President signed the Consolidated Appropriations Act of 2016 which lacked any such restriction while funding ATF through September 20, 2016.   The provisions regarding ATF are located at page 2029-60 and 2029-61 of that Act.  Subsequently, Rep. John Culberson, the Chairman of the Commerce, Justice, and Science Appropriations Subcommittee proposed “to defund and stop the President’s proposed executive actions.”  Rep. Culberson stated that he has and will use his power as Chairman to restrict ATF’s ability to manage the appropriated funds on a “week to week” basis through oversight, without the need for any new legislation .  The fact that ATF published the Final Rule despite that warning would seem to suggest either that the oversight does not place sufficient pressure on ATF or that the oversight authorities do not believe the Final Rule is improper.  You can make yourself heard on the issue by calling the Congressman’s office at 202-225-2571.

 

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U.S. Supreme Court Asked to Hear Another Second Amendment Case

Today attorney Tom Odom of Prince Law Offices, P.C., will file with the U.S. Supreme Court a brief on behalf of Firearms Owners Against Crime (“FOAC”) and Firearms Industry Consulting Group (“FICG”), in support of the request of Tab Bonidy and the National Association for Gun Rights to review a decision of the U.S. Court of Appeals for the Tenth Circuit.

Bonidy is a responsible, law-abiding citizen with a permit to carry a firearm who lives in rural Colorado.  Like millions of other Americans, he obtained such a permit so that he might be prepared to defend himself outside of his home.  When the U.S. Postal Service advised Bonidy that he would be subject to prosecution simply for momentarily storing his firearm in the trunk of his vehicle in an unsecured parking lot made available for postal patrons, Bonidy sought a determination that applying the postal regulation to him under such circumstances would violate the Second Amendment.

The area where Bonidy lives is sufficiently rural that there is no home delivery of mail, the lobby of the post office is open to the public at all times so that individuals may retrieve mail from their post office boxes, and the post office does not maintain any regular security employees.  Nonetheless, the Tenth Circuit stated that both the lobby and the unsecured parking lot where Bonidy proposed to lock the firearm in the trunk of his vehicle constituted “secure places” beyond the scope of the Second Amendment right articulated by the U.S. Supreme Court in District of Columbia v. Heller, 554 U.S. 570 (2008).

In the belief that Bonidy’s case presents a superior opportunity for the U.S. Supreme Court to make clear that the Second Amendment is not exclusively limited to self-defense within one’s own home, FICG prepared the brief in support of Bonidy’s petition for certiorari on a pro bono basis.  FOAC joined in the effort and covered the cost of the printing of the briefs.

The decision below was reported as Bonidy v. United States Postal Service, 790 F.3d 1121 (10th Cir. 2015).  The U.S. Supreme Court docket number is 15-746.  Here is a link to the brief filed with the court.

UPDATE: On behalf of the U.S. Postal Service the Solicitor General (“SG”) requested and was granted additional time to file a brief in opposition to U.S. Supreme Court review. While the SG’s position is not surprising, the fact that the SG will file a brief at this stage indicates concern that the case could represent one of the 3% or so requests for review that the Court grants.

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411 on the Final Rule in relation to ATF-41P

Last night around 11 PM, we broke the story of ATF’s publication of a new final rule in relation to ATF-41p.  As many of our viewers know, Firearms Industry Consulting Group, a division of Prince Law Offices, P.C., spearheaded the opposition to ATF-41p but what does the preamble to the final rule and the final rule say?

Well, in spanning 248 pages, with 236 pages of preamble and the actual final rule only spanning 12 pages, it says a lot, as there were a plethora of issues raised by the public comments for which ATF was required to respond. Boiled down to its most simplistic terms, this is what the final rule in ATF-41p provides:

  1. Effective Date: It will not take effect for 180 days after publication in the Federal Register. I checked the Federal Register this morning and there was no notice regarding ATF-41p. Hence, the exact effective date is still unknown.
  2. CLEO Signatures: ATF has replaced the CLEO signature requirement with a CLEO notification, which will be required for all transferees and makers of NFA firearms and their Responsible Persons (explained below). While clearly a CLEO notification requirement is far better than a CLEO signature requirement, as the CLEO signature requirement could be utilized as a defacto ban on NFA firearms, it is extremely concerning as the Government is mandating the disclosure of confidential tax information. Not to worry, ATF responded to that on page 84. Since it is requiring that YOU disclose the confidential tax information, no law is being broken, because it is YOU that is disclosing YOUR confidential tax information (did I mention the Government is forcing you to do so?). See also page 96, where ATF states that it is legally prohibited from disclosing that same tax information….
  3. Responsible Persons (RPs): Throughout the final rule, ATF seemingly proposes several different interpretations of what constitutes a Responsible Person based on the entity type. This results in serious questions, such as  whether the language is overly vague. Are now all employees who can possess a firearm of an LLC/Corp RPs? And  also, whether ATF is treating different fictitious entities differently in violation of the law. Are trustees who can possess firearms of the trust RPs, but employees who possess firearms of LLC/Corps not? Moreover, what is the basis for treating non-licensees and licensees differently?  The exact language for an RP can be found on page 238-239, which declares

    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.

  4. Impact of RPs: One of the largest impacts ATF-41P will have on fictitious entities is the requirement that all RPs will have to submit photographs, fingerprints, a CLEO notification and an NFA Responsible Person Questionnaire (Form 5320.23). See pages 232, 239-247. Further, based on page 96, individuals will be unable to roll their own fingerprints, as has been custom for some over the past decade.  However, the final rule includes an exception on page 242-243, where the if the applicant entity has been approved as a maker or transferee within the prior 24 months, there has been no change to the “documentation previously provided” and the entity certifies this by specifying the previously approved form by form type, serial number of the firearm and date of approval, it does not need to submit the photographs, fingerprints and Responsible Person Questionnaire. The final rule, pages 100 and 239, also states that generally speaking, a beneficiary will not be an RP.
  5. Changes to RPs: Another issue that ATF was considering was whether there would be an obligation on part of the fictitious entity to submit notification, within 30 days, of the change in those who constitute RPs for the entity. See pages 206 – 209. The final rule, on page 209, declares, “The Department is not requiring, in this final rule, that new responsible persons submit a Form 5320.23 within 30 days of any change of responsible persons at a trust or legal entity.” However, if a new application (Form 1 or Form 4) is filed, clearly the updated documentation must be filed with ATF for all RPs.
  6. Retroactive Effect: As stated on page 198, “The final rule is not retroactive and therefore the final rule will not apply to applications that are in ‘pending’ status, or to previously approved applications for existing legal entities and trusts holding NF A items.” Unfortunately, ATF failed to define what constitutes “pending status.”
  7. Estates: In relation to estates, ATF has clarified, on page 247, that an “executor, administrator, personal representative, or other person authorized under State law to dispose of property in an estate (collectively “executor”) may possess a firearm registered to a decedent during the term of probate without such possession being treated as a transfer” and that, as has been ATF’s practice, a transfer to a specific beneficiary, whether through a will or trust, will transfer tax-free.

The above are merely the key-aspects to ATF-41p. There are some very interesting statements, or lack thereof, by ATF in the final rule, such as in relation to an issue we raised with ATF’s prior practice of institutional perjury (page 195). ATF’s response, page 196, is merely that they did nothing wrong in this rulemaking. Also of interest, ATF acknowledges that it did not make the underlying information available and that it did not provide a 90 day comment period as required by the law and denies that it placed irrelevant materials into the docket (even though there was evidence submitted reflecting such) or precluded interested parties from obtaining the information (pages 185 – 193). As a side note, we submitted a FOIA almost three years ago for the information, and ATF has failed to produce anything in relation to it, but it is completely transparent….

In the next week, we will be taking a comprehensive review of all 248 pages and providing further insight into the final rule, ATF’s responses and a potential legal challenge to the final rule. In the meantime, we’re working on an Amicus Curiae brief in support of the United States Supreme Court granting certiorari in Bonidy, et al., v. United States Postal Service, et al, docket no. 15-746, which is due later this week.

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