More on ATF 41P

Josh Prince, who is an attorney familiar with this area of law, has a summary of the 41P rule released last night. He notes that it has not yet been published in the Federal Register, so the clock is not currently ticking toward implementation. He also notes that there’s vagueness issues when it comes to “responsible persons”:

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

Read the whole thing.

5 thoughts on “More on ATF 41P”

  1. 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.

    OMG, this guy doesn’t know when to quit. Although it’s not perfect, 41P turned out to be a huge win for gun owners. The issues he’s talking about become moot since entities won’t be needed anymore to get around CLEOs who won’t sign off. Seems to me, the only real losers here are lawyers peddling trusts.

    1. OMG, your an idiot who doesn’t use legal entities to hold/guard his possessions by separating them legally from other possessions and myriad other problems!?!?! Do you own a home and not have it in a trust? Trusts and other legal entities holding your NFA items serve useful purposes for NFA ownership other than simply sidestepping jack-booted CLEOs. Do you ever leave the house? Do you want your significant other, family members or children to be able to be able to even have legal access to your NFA items while you are away, let alone actually use them without you? Do you like the idea of leaving your possessions to someone gun friendly if you die who will do with them according to your wishes, instead of having the idiot next of kin get them and ruin them or sell them off or god forbid turn them over to a LE department for destruction because they don’t actually want them? These and so many more are great reasons to continue using trusts for ownership… in fact, this EO makes the case for validating using legal entities to enable possession of NFA items by multiple people even more solid. If you honestly think that the only benefit anyone used trusts for was to get around CLEOs (a problem which btw most of us in free states don’t have, maybe its time for you to move), then you are obviously narrow minded and quite the rube.

    2. Before 41P, I could use my NFA trust (that cost a hundred bucks for a local lawyer to draw up) to acquire items using E-File. I could add and remove trustees with no hassle if I needed to give someone access to an NFA item for some reason (remember — “access” merely means knowing the combo to the safe or having physical access to the safe keys, not necessarily taking stuff out to the range). I did not need to even notify my CLEO much less ask permission.

      Now, I will no longer be able to use E-File which means turn around time for NFA items will be in the 6-12 month range rather than 2-6 months. I will also need to schedule a trip to the police station (depending on how they interpret “properly qualified”) to get finger prints for every trustee, which costs $$$ and time during business hours, and get more passport photos done up (again, $$$ and time/hassle) for every transaction within my NFA trust. I can no longer easily add or remove trustees, and it will likely be impossible to add an institutional trustee for estate planning purposes.

      So yeah, the 41P rule got watered down somewhat but it is still a net loss. The ONLY folks who benefit are those who could not acquire NFA items on a trust AND who did not have a CLEO willing to sign (which I think is basically limited to a few jurisdictions in Illinois due to some wonky state laws that require a C&R license to have NFA stuff).

      So, worth suing over. The best case is that it gets thrown out and we go back to the status quo which is arguably better for us.

    3. Chris from AK you are perfectly right that we would be better off with the status quo. I’m angry they are getting rid of E-File, that sucks, it was nice having an express lane for smart people. Though the times for E-Filed have gone up, and the paper time has gone down, to the point where they are nearly equal at this time. If they were truly equal, within a few days of each other, personally I’d rather have a paper copy with a real stamp, I’ve had problems printing their PDF they send correctly. I’ve often wondered if there was a way to demand they send a paper copy with a real stamp even though you E-Filed, I imagine it would take much to force them to do so. If this spike causes paper forms to run up to a year again, while E-Forms would have been sub-6 months, I would be angry.

      If they were gonna do this to make sure every person got a background check. As opposed to just making NFA process more burdensome, then they could have changed the CLEO sign-off to a requirement to being a proof of background check requirement. They could have made an ATF imposed requirement for all PDs and other LE agencies to run NICS checks at the same time they do a fingerprint card and compel them to sign a line on the form stating you have successfully passed a NICS check at that time. They could provide compulsion to do so by pain of disapproval of any NFA transfers to the department if they do not sign for a successful NICS check. This would also simultaneously inform any PD or Sheriff’s D who cares to know who has what, without begging for their personal approval. In this way, the background check would already be done, so approval of the form submitted should be as simple as using a rubber stamp with the examiners name on it and peeling an sticking a stamp…. no waiting extra time for them to transmit and receive info for a background check. This also has the added benefit of punishing CLEOs and their departments who try to insert their personal bias by disapproving of people who are otherwise legally entitled to own the item applied for; play nice and let civilians have NFA, or YOU can’t have them either.

      I have to ask though, even if 41P makes it to the books in this “final” version, what is to prevent you or any other grantor from registering an item as is with regards to your trust, and then after you receive the approved form 1/4, changing your trustees to suit your needs however and as often as you see fit? I can’t say I’ve had time to read a 200+ page doc yet. Is there a reporting requirement for a change to the trust? To whom? The sheriff like when you first filed the form? Perhaps to the NFA branch? Would a report of a change to the trust require that all the trustees go through the same fingerprint, photo, CLEO notice and background check again? Perhaps only the additions would need to be reported and go through the same process? Would this requirement to update an already completed and approved registration with a fairly onerous process actually stand up to legal scrutiny? Is there even a legal method or instrument to assure compliance if it is? Further, would they even be able to accomplish implementing such a requirement, practically (for them that is, obviously our burden is irrelevant to them)? Really though, I would like to know if these problems are addressed in 41P, it is extremely relevant to just how much of a pain in the behind and inefficient they are gonna make using a trust.

  2. So they’ve had a proposed rulemaking stalled for quite some time now regarding trusts.

    Anyone know if they are ditching that in favor of this one? Or does the first continue with this new one modifying…?


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