ATF Releases Open Letter to CLEOs Regarding ATF 41F

Posted on by Adam Kraut, Esq.

On May 25, 2016 ATF released an Open Letter to Chief Law Enforcement Officers regarding ATF 41F. The letter can be found here.

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The letter briefly describes some of the changes that will occur after the rule is implemented.

Of note is the notification requirements for the CLEO. In short, all legal entities will be required to forward a copy of all Applications to Make (Form 1s) or Applications to Transfer (Form 4s) and the Responsible Person Questionnaire to the CLEO of the localities where the Responsible Person is located.

The letter does note that no action on the part of the CLEO is required, does not specify in what manner a CLEO should store the documentation, if they choose to do so, and asks that if the CLEO has any information that may disqualify any maker or transferee, including a responsible person of a legal entity, from making or possessing a firearm to provide that information to the NFA Branch.

Of concern is that the letter does not specify the copies of the Form 1s and Form 4s that the CLEOs are receiving contain confidential tax information and should be treated as such. If CLEOs choose to destroy the forms, rather than keep them, are they disposing them in a manner that would not allow an individual to view the information contained on the form? Further, the letter does not advise CLEOs (those who may reside in states that don’t allow some or all NFA items) that an individual may be a trustee of a trust located in another state. This may cause some issues with CLEOs reporting to ATF that those items are not allowed in that state.

Interestingly enough, it would seem that ATF is continuing to have the CLEO involved by asking for notification as to whether they have information about that individual which would disqualify the entity from obtaining the item. Perhaps ATF believes that the CLEO is still the best person to know the affairs of an individual even though they are now required to submit fingerprints and photos as a responsible person.

The letter does confirm that as long as applications are postmarked by July 13, 2016, they will be grandfathered in under the current regulations.

 

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Published by Adam Kraut, Esq.

Adam Kraut was born and raised in Chester County, PA. Active in scouting since kindergarten, Adam achieved the rank of Eagle Scout in 2004. After graduating high school, Adam attended SUNY Binghamton where he graduated in 2009 with a major in Political Science concentrating in politics and law. After taking a year away from academics, Adam attended Widener Law School at night while maintaining a day job and graduated in 2014. Adam is an avid firearms enthusiast, whose love for firearms began in Boy Scouts at Camp Horseshoe. Adam’s experience in the firearms industry as the general manager of a Federal Firearms Licensee, who is a Class 3 dealer, gives him a working knowledge of the challenges the industry, licensees and individuals face on a daily basis. Having worked with industry leaders, individual licensees and individuals both from behind the counter and in a legal context, Adam is in a unique position to give advice with insight others may not have. In addition to being active in the courtroom, Adam is politically active to ensure that the Second Amendment rights of future generations continue to be protected. He is the host of The Gun Collective‘s show, The Legal Brief, where he dispels the various legal myths and misinformation in the gun world. In his free time, Adam volunteers with his old Boy Scout troop, cranks out ammunition behind the reloading press, can be found at the range training, enjoys hiking through the woods and cares for his small pack of dogs.

17 thoughts on “ATF Releases Open Letter to CLEOs Regarding ATF 41F”

  1. In the early Jan. publication of the rule, the agency asserted that the records were not confidential tax records because at the point of mail notice to the CLEO they are incomplete (since they would not yet have the certification re: submission to an appropriate local official on some date certain) and have not yet been submitted to taxing authority. That’s my recollection, anyway.

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      1. I came to say this also, I would think until it gets the “stamp” it’s not privileged, but I am not a lawyer and it’s been years since I stayed at a Holiday Inn Express.

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    2. Scott, I am a lawyer, but it’s been a while since I stayed at a Holiday Inn Express. I honestly, don’t know off the top of my head at what point the document would become privileged tax information. I’d have to look into it to see when that occurs, if it is not the moment the form is filled out and submitted.

      I don’t think we can dispute that either way, there is at least sensitive information on the forms individuals wouldn’t want getting out there.

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  2. It seems they referred to an incorrect form number also? I believe the correct form is 5320.23. I also cannot find any reference to having to supply a copy of Form 1,4 or 5 to the CLEO…just the 5320.23 with pic and fingerprint card??

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    1. 27 C.F.R. § 479.84 states it is Form 5320.23. I’m guessing it is just a typo.

      The entire pertinent section reads:

      (c) Notification of chief law enforcement officer. 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. The chief law enforcement officer is the local chief of police, county sheriff, head of the State police, State or local district attorney or prosecutor. If the transferee 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 the transferee is not a licensed manufacturer, importer, or dealer qualified under this part and is a trust, for purposes of this section, it is considered located at the primary location at which the firearm will be maintained.

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  3. My worry is the CLEO will collect these notifications and make his or her own version of a local firearms registry. This could be counter to Florida law, which prohibits firearms registration at the state and local level regardless of whether it is a Title I or II arm.

    The CLEO could use the notifications as a harassment tool if he or she is anti-gun, or worse, the records are ill-secured and they fall into the wrong hands, providing a shopping list of high-value firearms to people of ill intent.

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  6. Pingback: ATF Publishes Open Letter Law Enforcement on 41F Policies | GunLink Blog

  7. Here’s my question the county I live in the sheriff and chief of police both do not want NFA items in the county thus me getting a trust but knowing how they feel about the items I am worried with the notification part that us NFA collectors will be targeted by them how are us collectors suppose to have privacy or just to know that CLEOs will respect or collections ?

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    1. Good question. Unfortunately you are required to notify them. I’m not sure what they can do to target you other than harass you, but if the item is legal in that jurisdiction, how they feel about it is inconsequential.

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  8. The fact that the letter says how to retain OR dispose seems to imply that the ATF will allow them to retain the documents. Again, for how long? How is that information protected? Is it retained like a 4473 if the ATF is offering federal advice on how to retain these records? What can the CLEO legally do with that info?

    Can they for example show up at your home unannounced to question why you are buying or owning such things?

    Should an outside source request the info or a LEO anti gun agenda allow these documents to be published just like the CCW permit publication situation?

    What is the extra cost to the county to pay for retaining these documents and the time of review? The ATF is also implying that the local police have responsibility to conduct a background check. The CLEO cant know about every local individual off the top of their head. Is the federal government going to pay for this, or will the local tax payers?

    Will the ATF do compliance checks with the CLEO to ensure they are retained properly on a year basis?

    The other part that is frustrating is it is creating another “gotcha” part for the ATF. How do you prove you sent these documents to the CLEO and the CLEO received them? I mean not a postal receipt, because that would not be enough. You need a very specific letter that mentions each responsible person, the legal entity, and the exact weapons, preferably by serial number, then signed by the CLEO that they received all the documents on X date.

    If the CLEO retains the copys of the ATF forms, then there is some use there as frustrating as it is, but that would only be good for some amount of time before they are destroyed. The CLEO need some kind of Receipt letter, and I would most certainly ask/demand for one. I may write my own form letter and request it be sent back with each document packet.

    With the CLEO signoff, at least it proved they saw it. So now, either way some other evidence has to exist incase it ever comes into question if you ever forwarded this info.

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  9. One more thought, if yet another point of creating a trust was to prevent constructive intent issues while retaining a family collection, such as a spouse having combos to safes with NFA weapons while NFA weapons were only registered to the trust and not an individual, under the ATF’s definition of a responsible person, “NOT including a beneficiary”, according to the above letter, should the spouse not personally use the NFA weapons, however have the safe combo, if they were changed to a beneficiary status only, would that still leave a possible instance of constructive intent?

    I see it as the major complaint of 41f is gathering all the documents for each person in the trust. But in my case, could I not just revamp the trust for my spouse and children to just be beneficiarys, should anything ever happen to me, and then only submit documents for myself in the regards to the purchase of NFA weapons? That is my most relevant to my situation at least.

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