Those of you who followed ATF 41F from the time it was ATF 41P know about the two year window. Generally, this is a provision that allows the applicant to certify there has been no change in the entity since a prior approval in lieu of submitting required documents. But what does this really mean?
The Required Documents
First, consider what are the required documents. Rule Section 479.85(b)(2) requires each application to transfer (i.e. Form 4 or 5) to include:
i) documentation evidencing existence of the entity
ii) a completed form 23 for each ‘responsible person’
iii) a 2×2-inch photograph of each responsible person, and
iv) duplicate fingerprint cards.
By itself, this rule section would require every application, regardless of prior applications, to have this information. To many, this was both duplicative and burdensome. The ATF recognized this concern and provided for relief in Section 479.85(c).
Rule Section 479.85(c) provides:
“If the applicant entity has had an application approved as a maker or transferee within the preceding 24 months, and there has been no change to the documentation previously provided, then entity may provide a certification that the information has not been changed since the prior approval and shall identify the application for which the documentation had been submitted by form number, serial number, and date approved.”
On first impressions, the firearms law community interpreted the phrase “documentation previously provided” to include all documentation required by the immediate prior section, 479.85(b)(2). This is supported by the clear text of 479.85(b)(2) which opens “except as provided in paragraph (c) of this section, attach to the application-“.
It is logical to read the exception created in subsection (c) to apply to all documentation required in subsection (b)(2) after the text “except as provided in paragraph (c).”
Logic however is not inherent in the rule making process. In a conversation with the ATF reported by Silencer Shop, the exception in subsection (c) is interpreted as only applying to the documentation required by subsection (b)(2)(i) – documentation evidencing the existence of the trust. The new Form 23, and the fingerprints and photographs required to accompany it, are allegedly required with every application.
This new interpretation is contrary to the plain text of the rule and negates the most beneficial aspects of the two-year window. It also goes against the understanding commonly held by the firearms law community during the review of the proposed rule.
CLEO Notification Required Eitherway
Regardless of the interpretation above, section 479.85(c) does not relieve an applicant from providing information to the Chief Law Enforcement Officer (CLEO). The requirement to notify a CLEO for a transfer is found in section 479.84(c). Subsection (c) requires an applicant to notify the CLEO prior to the submission of the application by submitting copies of the Form 4 and Form 23 to the correct CLEOs.
This requirement is not waived or excepted by any language in the regulations, and a fair reading of section 479.85 cannot be said to relieve the applicant from this duty. For this reason, it is clear that an applicant will have to complete the forms for each application. While completing the form itself is a burden, submitting extra copies to the ATF with the application will only be a minor additional burden.
Would be NFA purchasers have been a victim of bait and switch. What initially looked like a one-time, or once every two years, requirement has become mandatory with every application. While the interpretation of section 479.85(c) could include the Form 23 and accompanying documents, this would not relieve applicants from the obligation to complete these forms and submit them to the CLEO. Perhaps ATF could relieve applicants from this burden via the instructions on the Form 23, but the proper means would have been by including the exception within the rule itself.