This rifle is a Tikka T3 Stainless equipped with a Silencerco Harvest suppressor. [Photo courtesy of friend Bart Frey.]
Earlier this month, President Obama released several executive orders and announced the finalization of several regulations in an attempt to curb gun violence in America. Regardless of your political or policy beliefs on the matter, these efforts could have wide-ranging effects on the gun enthusiasts and Second Amendment advocates in the United States.
Within the executive orders was notice that the ATF had finalized the 41P regulatory change with regards to items governed by the National Firearms Act. Let’s dig in to what items the NFA covers and what the change means for those who are looking to add NFA-regulated items to their gun collection.
USING A GUN TRUST
While guns in the United States generally are not registered at the federal level, there is a small subset of firearms and accessories that are required to be registered and taxed to possess. The NFA governs these items, which include machine guns, short-barreled rifles, short-barreled shotguns, and other items.
In the last several years, some people have used trust law to legally possess an NFA item through a trust. Put simply, the items in the trust were registered to the trust – not the individuals utilizing the trust – and the comprehensive registration system normally used for those items didn’t apply.
While all other federal firearm laws still applied to the use and possession of these items, the registration was quickly becoming nearly worthless. In this reality, the ATF developed regulation 41P. Under 41P, all “responsible individuals” in a trust are required to provide fingerprint cards and photographs (similar to passport photos) for the registration system, similar to the requirement for individuals who apply to possess items that are regulated under the NFA.
REQUIREMENTS FOR RESPONSIBLE INDIVIDUALS
The definition for “responsible individual” includes “those who under the trust have the power and authority to direct the management and policies of the entity (trust) insofar as they pertain to firearms.”
For all practical purposes, those requirements mean that if you are a trustee and want to be able to have control over the NFA items held in the trust, then you are a “responsible individual,” and you must complete the fingerprint card and submit a photo each time an NFA item is transferred into the trust or the trust is granted permission to create its own NFA regulated firearm or accessory.
BETTER THAN WE EXPECTED
At first glance, 41P seems to cause substantial hindrances for trusts to be able to comply with the law, especially considering that the fingerprint card previously required a sign-off by the chief law enforcement officer (CLEO) in your jurisdiction. This requirement often posed a problem if, because of the CLEO’s political persuasion or fear of liability, he or she might refuse to sign off, effectively preventing individuals from obtaining NFA items.
Fortunately, under 41P, this CLEO sign-off requirement has been eliminated for all NFA applications. This makes it possible for people nationally to own NFA items (if legal in their states) without the concerns of the individual CLEO in their jurisdiction.
There are still potential problems for getting the fingerprinting done due to law enforcement agencies either charging exorbitant processing fees or adding more steps to the fingerprinting process. However, these concerns can and will be litigated as the needs develop.
A MIDDLE-GROUND APPROACH
While 41P didn’t loosen the NFA application requirements like many Second Amendment advocates want, it seems to be a middle-ground approach. The current administration and the ATF can proclaim a win in ensuring that those with access to NFA items are registered, while gun enthusiasts can herald the elimination of the CLEO sign-off requirement, which makes the regulation more palatable for those affected.
Anyone wanting to avoid this rule still has time to avoid it, however, by applying for NFA items utilizing trusts before the effective date of the regulation, which is 180 days after it is published in the Federal Register. While Attorney General Loretta Lynch has signed the rule, it has yet to be published in the Federal Register.
Click here for a full PDF of 41P.
Harvest Legal serves clients with diverse legal needs, including business, agricultural and estate-planning matters. To learn more – including how to set up a gun trust – visit www.harvestemporia.com or call 620-263-0391.
Within the executive orders was notice that the ATF had finalized the 41P regulatory change with regards to items governed by the National Firearms Act. Let’s dig in to what items the NFA covers and what the change means for those who are looking to add NFA-regulated items to their gun collection.
USING A GUN TRUST
While guns in the United States generally are not registered at the federal level, there is a small subset of firearms and accessories that are required to be registered and taxed to possess. The NFA governs these items, which include machine guns, short-barreled rifles, short-barreled shotguns, and other items.
In the last several years, some people have used trust law to legally possess an NFA item through a trust. Put simply, the items in the trust were registered to the trust – not the individuals utilizing the trust – and the comprehensive registration system normally used for those items didn’t apply.
While all other federal firearm laws still applied to the use and possession of these items, the registration was quickly becoming nearly worthless. In this reality, the ATF developed regulation 41P. Under 41P, all “responsible individuals” in a trust are required to provide fingerprint cards and photographs (similar to passport photos) for the registration system, similar to the requirement for individuals who apply to possess items that are regulated under the NFA.
REQUIREMENTS FOR RESPONSIBLE INDIVIDUALS
The definition for “responsible individual” includes “those who under the trust have the power and authority to direct the management and policies of the entity (trust) insofar as they pertain to firearms.”
For all practical purposes, those requirements mean that if you are a trustee and want to be able to have control over the NFA items held in the trust, then you are a “responsible individual,” and you must complete the fingerprint card and submit a photo each time an NFA item is transferred into the trust or the trust is granted permission to create its own NFA regulated firearm or accessory.
BETTER THAN WE EXPECTED
At first glance, 41P seems to cause substantial hindrances for trusts to be able to comply with the law, especially considering that the fingerprint card previously required a sign-off by the chief law enforcement officer (CLEO) in your jurisdiction. This requirement often posed a problem if, because of the CLEO’s political persuasion or fear of liability, he or she might refuse to sign off, effectively preventing individuals from obtaining NFA items.
Fortunately, under 41P, this CLEO sign-off requirement has been eliminated for all NFA applications. This makes it possible for people nationally to own NFA items (if legal in their states) without the concerns of the individual CLEO in their jurisdiction.
There are still potential problems for getting the fingerprinting done due to law enforcement agencies either charging exorbitant processing fees or adding more steps to the fingerprinting process. However, these concerns can and will be litigated as the needs develop.
A MIDDLE-GROUND APPROACH
While 41P didn’t loosen the NFA application requirements like many Second Amendment advocates want, it seems to be a middle-ground approach. The current administration and the ATF can proclaim a win in ensuring that those with access to NFA items are registered, while gun enthusiasts can herald the elimination of the CLEO sign-off requirement, which makes the regulation more palatable for those affected.
Anyone wanting to avoid this rule still has time to avoid it, however, by applying for NFA items utilizing trusts before the effective date of the regulation, which is 180 days after it is published in the Federal Register. While Attorney General Loretta Lynch has signed the rule, it has yet to be published in the Federal Register.
Click here for a full PDF of 41P.
Harvest Legal serves clients with diverse legal needs, including business, agricultural and estate-planning matters. To learn more – including how to set up a gun trust – visit www.harvestemporia.com or call 620-263-0391.
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