Reader Clay writes:
I enjoy your posts and you have me convinced I need a silencer more than my kid needs diapers. The problem is I know I am going to be moving in 8 months or so – to a different state. I want to pick up a .22 sparrow silencer. Do I need to wait until I change my residence and get a new ID to begin the process (assuming it would take right at 8 months for the silencer to come in to the dealer and the NFA to process the paperwork).
I need to throw the standard disclaimer in here: I am not a lawyer and this is not legal advice. But thankfully for you, I just went through this exact same situation with my recent Form 4, and I think I can help . . .
When I submitted the paperwork for my silencer I was a resident of the Commonwealth of Virginia and had no intention of moving. But when I was most of the way through my wait I moved to Texas to start a new job. Fortunately, I was able to talk to some of the ATF agents at the SHOT show who gave me a few options.
Quick note here about movement with NFA devices from state to state: with a silencer, there are fewer restrictions (see here). But if you have something like a machine gun or an SBR, you need to fill out a form 5320.20 every time you want to bring your toy across that magic line to a new location. So if you’re planning to skip town the moment you have your paperwork, just remember that the movement needs to be approved ahead of time.
Also, the ATF agents at the NFA branch are some of the nicest people I’ve ever dealt with. Other departments within the ATF aren’t quite as nice, but the NFA branch are cool guys and girls and will go out of their way to help you. Just be civil, ask nicely and there’s a good chance they’ll be able to help. They know the process sucks, and they’ve always been happy to help me move the process along.
So here are your options:
Option 1: Wait
I know, its not what you wanted to hear. But the best option really is to wait and do the paperwork once you’re settled into your new location. If you know that you’re going to move and you’re doing it in 9 months or less, I’d say wait.
Wait times are currently around 4 — 6 months, which is the best they’ve been in some time and there’s every indication that they’re falling. But most of the silencer companies are backlogged, and production is not meeting demand. Heck, I’m on the VIP list at AAC and I’m still waiting for them to manufacture my newest can.
But if your dealer has your can in stock and you feel like taking a gamble, then go ahead with the paperwork. Just understand that you may need to fall back to options 2 or 3…
Option 2: Maintain Residency in your Old State
This is the option that I went with. Since I was going to be moving so close to the estimated approval date of my stamp (and my apartment required a couple months notice of moving out anyway that they were charging me for) I figured it would be easier to maintain a legal residence in the state of Virginia and keep the paperwork processing as normal.
The ATF agent I talked to at the SHOT show encouraged me to send a form 5320.20 as soon as I knew my new address, and it instantly raised a red flag for the investigator. They gave me a call, I explained the situation and the fact that I was still maintaining a legal residence in Virginia, and they proceeded to approve the transfer AND the change of address and mailed them together to my FFL.
When the NFA paperwork is approved, you then need to travel to the FFL that is holding your device and pick it up in person. Unless you have a trust, in which case one of the trustees can pick it up for you. To pick mine up I had to waste a weekend flying to Fairfax, VA, renting a car, picking it up, staying the night in a crappy hotel, and doing a direct abort back to Texas the next morning. Protip: skip the hassle and do the trust.
Interesting side note: there is no NICS check when you pick up your NFA item. The FFL isn’t required to run any background checks or do any verification above and beyond checking that you are who you say you are and signing off on the form 4473. The Form 4 technically counts as the NICS check, so once it is approved there’s nothing left between you and your can. Also note that perjury is a crime. Moving on…
Option 3: Submit a New Form 1/4
If you JUST started your wait and have moved, and maintaining your residency in the old state is out of the question, then you will need to submit an amended copy of your NFA paperwork.
If you’re doing a Form 1 (making the NFA item yourself), then this isn’t a big issue. Fill out a new Form 1, put the new information, get the new CLEO to sign off (if applicable), and then send the forms in to the ATF at the same address you sent the original copy.
If you’re doing a Form 4 (like getting a silencer from AAC), then this gets complicated. From the ATF FAQ:
Q: May a licensed dealer sell a firearm to a non-licensee who is a resident of another State?
Generally, a firearm may not lawfully be sold by a licensed dealer to a non-licensee who resides in a State other than the State in which the seller’s licensed premises is located. [...]
In fact, I’m pretty sure its a felony to accept a firearm shipped across state lines unless you’re a licensee. And with NFA stuff it gets even worse. So don’t try.
What you need to do is this, in order:
- Call the ATF NFA branch and let them know to pull your old paperwork from the pile. You’re going to need to start the whole process over again, and there’s no point in wasting the ATF’s time trying to process paperwork that is no longer valid.
- Find an FFL (or, even better, FFL/SOT) in your new state that can do the transfer.
- Have your old FFL transfer the device to your new FFL. If you were doing an individual to individual transfer before, you can have your seller transfer the device to the FFL in your state directly.
- Start the process all over again. Brand new Form 4, new info, new FFL, new $200.
For both of these options you may or may not need to submit a new $200 check. The ATF has told me that the fee is non-refundable, but I’ve been able to apply the licensing fee from a botched FFL application to a new correct one without a problem and I see no issue keeping that from happening here as well.