By Brent I. Clark, James L. Curtis, Pamela Q. Devata, and Craig B. Simonsen
Seyfarth Synopsis: Going forward, ATF’s new rule on applications by a trust or legal entity to make or transfer NFA firearms, requires that they be submitted on new forms — including background checks.
The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) Final Rule 41F (41F Rule), Machineguns, Destructive Devices, and Certain Other Firearms: Background Checks for Responsible Persons of a Trust or Legal Entity With Respect To Making or Transferring a Firearm, becomes effective on July 13, 2016. 81 Fed. Reg. 2658 (January 15, 2016).
The 41F Rule requires that after July 12, 2016, all applications by a trust or legal entity to make or transfer National Firearms Act (NFA) firearms must be submitted on the new Form 1, Form 4, or Form 5, and a Form 5320.23 must be completed by each responsible person of a trust or legal entity.
Under the 41F Rule, the identification and background check requirements will apply equally to individuals, trusts, and legal entities. The rules clarify that the term ‘‘responsible person’’ for a trust or legal entity includes those persons who have the power and authority to direct the management and policies of the trust or legal entity to receive, possess, ship, transport, deliver, transfer, or otherwise dispose of a firearm for, or on behalf of, the trust or entity. In the case of a trust, those 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 a trust.
Examples of who may be considered a “responsible person” of a trust or legal entity include:
- Board members
- Beneficiaries – if they have the capability to exercise any of the powers or authorities as listed above.
The ATF has provided a corresponding General 41F Questions and Answers, along with a reference webpage that includes links to copies of required application forms and a Responsible Person Questionnaire.
The ATF indicates that all applications “must be mailed” to: NFA Branch, P.O. Box 530298, Atlanta, GA 30353-0298, (304) 616-4500.
For more information on this or any related topics please contact the authors, your favorite Seyfarth attorney, or any member of the Background Screening Compliance & Litigation Team or the OSHA Compliance, Enforcement & Litigation Team.