ATF RULE 41F FAQS

(Previously known as ATF Proposed Rule 41p)
Please Note:
This FAQ is for information purposes only and is NOT legal advice.
Please consult with an attorney if you have any legal questions.

What is ATF Rule 41f?
ATF Rule 41f is the final regulatory rule signed by the Obama administration on January 4, 2016 regarding the transfer and manufacture of weapons regulated by the National Firearms Act. The initial proposed rule (Rule 41p) proposed adding a new definition of a "responsible person" (RP) to the regulations and would have required all RPs in any entity used to purchase or manufacture NFA weapons to obtain the signature of their Chief Law Enforcement Officer (CLEO signature) on the application, as well as submit fingerprints and photographs for review by ATF examiners. Entities, such as trusts, LLCs and corporations, have become popular for acquiring NFA weapons because individuals experienced great difficulty in obtaining the CLEO signature in many areas of the country, if it was not outright impossible, and the use of an entity to acquire such weapons did not previously require the applicant to obtain the CLEO signature.

Over 9,500 comments were submitted to the ATF voicing opposition to this proposed rule, highlighting the fact that the rule, as proposed, would create a defacto ban on NFA weapons such as silencers in jurisdictions where CLEO signatures were impossible to secure, in addition to other related concerns.

ATF Rule 41f is the Obama administration's final version of the proposed rule and will have a substantial impact on the use of trusts and other entities in the acquisition and sharing of NFA weapons.

When does Rule 41f take effect?
The effective date of the rule will be 180 days from the date that it is published in the Federal Register, which was January 15, 2016. That makes it effective July 13, 2016. All paperwork that was submitted to the NFA Branch for processing prior to July 13, 2016 will be processed under the former rules.

What is a Responsible Person?
While the comments of the preamble to the rule give varying interpretations of an RP, the actual language of the rule basically says that an RP is any individual who possesses 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. The definition goes one step further in defining an RP for a trust, saying that this definition includes any person with the capability to exercise such power and possesses the power or authority to possess, ship, transport, deliver, transfer, or otherwise dispose of a firearm for, or on behalf of, the trust.

Boiled down, this refers to grantors and trustees of a trust. The ATF even clarifies that beneficiaries of the trust are not considered to be RPs if they do not have the capability to exercise the powers or authorities specified.

The language addressing RPs in a trust appears to raise the possibility that a class of trustees could be created who have no authority to "direct the management and policies of the trust" but may still have possession of trust assets, which would appear to be similar in rights and powers to lower level employees of a business entity.

If confirmed, this may provide a mechanism to permit possession of NFA weapons by others without having to go through the new application requirements created by the new rule.

How will this affect my existing gun trust?
The construction of the final rule does not apply directly to existing trusts or entities in possession of NFA weapons, but to future applications made by both individuals and entities. After July 13, 2016, you will be required to submit or do the following with any Form 1 or Form 4 application:

  • a complete copy of your trust and any schedule or exhibit referenced by it;
  • for each RP -
    • Two FD-258 fingerprint cards
    • A 2X2-inch photograph taken within the last year
    • A completed NFA Responsible Person Questionnaire (ATF Form 5320.23). This form will require the input of a RP's full name, position, Social Security number (optional), home address, date and place of birth and nationality
  • Provide CLEO "notification"
    • Prior to submission, the applicant must forward a completed copy of the application form (Form 1 or Form 4) and all other RPs must forward a completed copy of their Form 5320.23 to the CLEO of the locality in which the applicant or RP is located. The new rule also defines who may be considered the CLEO as "the local chief of police, county sheriff, head of the State police, or State or local district attorney or prosecutor."

If I have had an application approved within the preceding 24 months, will I have to resubmit all of the documents required above?
No. If a trust application has been approved within the preceding 24 months of your current application, and there has been no change to the documentation previously provided (no new PRs), a certification can be submitted instead, stating that the information has not been changed since the prior approval and identifying the prior application by form number, serial number and the date on which it was approved.

Will already pending applications be impacted by Rule 41f?
No. The final rule clearly states that it "is not retroactive" and will not apply to applications that are in pending status, which will include "all applications postmarked prior to the effective date of the rule".

Will I need to submit anything to the ATF simply because I change my trust?
Apparently not. The proposed rule considered a requirement that notification of the change would have to be submitted to the ATF within 30 days of the change in RPs. However, the final rule states "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 Form 1 or Form 4 is submitted, documentation reflecting changes existing at that time must be filed with the ATF as specified above.

This may also provide a mechanism to simplify applications. If you have added RPs and have subsequently removed them prior to making a future application, so that conditions reflect the status at the time of the prior application or as exist in your original trust document, no additional RP information may be necessary.

What happened to the CLEO signature requirement?
The CLEO signature requirement was replaced with a CLEO notification requirement and this change applies to all transferees and makers of NFA firearms. This significant change from the proposed rule is certainly a welcome sight, given that a requirement that all RPs would have to obtain CLEO signature would have created a prohibition by regulation in many areas of the country. However, the requirement is still problematic in that it requires you to disclose confidential tax information and there is no centralized place designated to send it. Remember, the definition of a CLEO includes your local chief of police, county sheriff, head of the State police, or State or local district attorney or prosecutor. That raises the question, how do I prove that I submitted it if my local police chief fails to retain it in his records? Multiple RPs in a single trust could submit their Form 5320.23 to multiple CLEOs, creating chaos if you are ever forced to prove your compliance with the new rule. This would suggest that the use of registered mail to deliver such forms would be advisable.

The new rule clarifies 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".

The phrase "during the term of probate" seems to assume the fact that all estates are going to be probated in the proper timeframe. In most states, there is only a limited period of time to commence a judicial probate process, oftentimes a period of 3 years. Many estates do not require a probate process to transfer the decedent's other assets, because of the existence of joint ownership, beneficiary designations and revocable living trust planning.

If the family forgets or never realizes that a probate must be opened to transfer a simple suppressor with a value of less than $1,000, they may be precluded from doing so after limitation period has expired. Does this new rule change then prohibit any transfer from occurring after that point when it may not be possible to appoint an executor anymore?

What will the new rule do to existing wait times for NFA applications?
This may be the most concerning element of the new rule. The ATF actually estimates that implementation of the new rule will INCREASE processing times to "six to eight months", but expects that this will again subside once they have adapted and adjusted to the new process. It further states that the agency "will work to increase its resources and staffing to process the applications", which unfortunately may be nothing more than a hollow statement. But here is possibly the most alarming statement of all: "Of course, continued increases in the number of applications submitted may correspondingly continue to place pressure on processing times." Given the frenzied buying of gun trusts and rush to get applications submitted that has been seen in just the single day since the new rule was signed, this statement looks quite prophetic, indeed.

Is it too late to set up a gun trust and make applications?
Absolutely not. You can create a gun trust right away and get applications submitted that may never be impacted by the new rule, assuming that you don't make future applications after its effective date.

Does the new rule render gun trusts meaningless?
No, not at all. The gun trust will still be extremely advantageous in owning NFA weapons. While you may be subject to some new requirements in making future applications (which may be minimized, as discussed above), a gun trust is without doubt the best way to legally share the use of NFA weapons with others. The possibility of an accidental felony transfer of NFA weapons by permitting others to use them can be eliminated by holding the weapons in trust and making others beneficiaries and co-trustees of the trust.

In addition, use of a gun trust eliminates the need for a judicial probate process to transfer the weapons upon your death. When you consider that an attorney's retainer to do the most basic of probates may be $2,500 or more, this is a no-brainer.

Finally, a properly constructed gun trust is a comprehensive management system to instruct successors on how these weapons need to be handled, so that they know what restrictions are involved and don't get into trouble with these weapons.

Prepared by: NFAFA Trust Attorney Member Jim Alder, Alder Law Group, Utah