Legally Armed: News Flash

By Teresa G. Ficaretta, Esq. and Johanna Reeves, Esq.

ATF Publishes Final Rule Requiring Background Checks for Responsible Persons

On January 4, 2016, the Attorney General signed a final rule amending the regulations issued under the National Firearms Act (“NFA”) relating to background checks for people who obtain firearms through a trust, corporation, or other legal entity. The final rule, available on ATF’s website at www.atf.gov/file/100896/download, will be effective 180 days after publication in the Federal Register, which we anticipate will be sometime in early January 2016, making the effective date early July 2016.

The most significant provisions of the final rule are the following:

Elimination of the CLEO Certification. The final rule amends ATF regulations to eliminate the requirement that the Form 1 Application to Make and Register a Firearm and the Form 4 Application for Tax Paid Transfer and Registration of Firearm include a certification from the Chief Law Enforcement Officer (CLEO) where the maker or transferee resides. The final rule requires only a CLEO notification, eliminating what is frequently an obstacle for firearms owners to obtain registered NFA firearms. The CLEO notification is provided by the applicant forwarding a completed copy of the Form 1, Form 4, or the new National Firearms Act Responsible Person Questionnaire (ATF F 5320.23) to the CLEO prior to submitting the application to the National Firearms Act Branch.

Responsible Persons Must Submit Photos and Fingerprints. The final rule requires each “responsible person” complete the new Form 5320.23 with personal identifying information and attach photographs and fingerprints when a trust or legal entity files a Form 1 or Form 4 or is listed as a transferee on a transfer application. In the case of trusts, this means settlors/grantors, and trustees must submit the form, photographs, and fingerprints. Beneficiaries are “responsible persons” only if they have the authority to receive, possess, ship, transport, deliver, transfer, or otherwise dispose of a firearm for or on behalf of the trust. Once the final rule takes effect, all settlors/grantors, trustees, and beneficiaries authorized to possess registered firearms will be required to submit photographs and fingerprints so a background check can be completed.

The new Form 5320.23 is not yet available. However, the final regulations indicate the form must include the person’s full name, position, home address, date of birth, and country of citizenship if other than the United States. The final regulations do not require a law enforcement certification on the form.

Definition of “Responsible Person.” The final rule clarifies the definition is limited to unlicensed entities, including trusts, partnerships, associations, companies (including LLC), or corporations. We note the definition will not apply outside the area of NFA transfers.

The information contained in this article is for general informational and educational purposes only and is not intended to be construed or used as legal advice or as legal opinion. You should not rely or act on any information contained in this article without first seeking the advice of an attorney. Receipt of this article does not establish an attorney-client relationship.