[ED: This is the third post of a new series. If you have a question for an experienced federal firearms licensee, send it to thetruthaboutguns@gmail.com with ‘Ask the FFL’ in the subject field.]
We got a few interesting questions from the fine readers in recent weeks. I wanted to dig into them and get you the most comprehensive answers I could. Our first message is from a longtime reader, first time caller…
Mr. Richard F. of Fort Lee, New Jersey writes in with a couple of questions. The first has to do with our recent article on ATF Error letters regarding Form 4 submissions:
My silencer transfer has gone from pending (for 8 months) to out at FBI background check (for 2 months).
The nice lady who answers the ATF phone tells me the FBI has a huge backlog of background checks.
I believe there is no time limit and they can keep the form in background check as long as they want.Is this true? Is there no one to contact when the form hits the one year wait time? Is this some sort of government gun control conspiracy?
Even for the Federal government, a year to approve/disapprove a form seems excessive.
Unfortunately, the ATF is about as functional as the Broward County government. Right now, there is a mountain of paperwork as usual slogging its way through the NFA branch in West Virginia.
It’s taking a lot longer now to get forms back in a post-41F environment because ATF is background checking every party on the trust. Before 41F, the retailer background checked the person picking up who was on the trust using the same system that we use to process conventional firearm transactions.
This added volume of work is slowing things down for everyone. A ten-month wait at this stage is not uncommon, and unlike states with “shall issue” concealed carry licensing programs that have statutory provisions that say “the state shall act upon every application within X number of days” – the National Firearms Act of 1934, ATF internal rulemaking, executive orders, guidelines, etc. are all bereft of a definable timeframe of action.
There is no requirement for the ATF to act on your Form 1, your Form 4, our Form 3, etc within a set window. They get to it when they get to it.
I have had customers wait for 12 to 19 months on forms – that is typical of ATF at this time and I would call it business as usual. You can contact ATF and ask for a status, but the reality is that with delayed background checks, there is no easy solution.
Please keep in mind the FBI is not bound to a statutory requirement to complete that background check in a timeframe either. Processing volumes are high, staffing is low, and there is no incentive – legal or monetary – for ATF/FBI to generate a response within five months, 15 months or even longer.
Theoretically, if you wanted to contact someone – your elected representatives in the House of Representatives and the Senate would be a good start, but the reality is that most politicians don’t care about your Form 4. The failure of HPA taught us that harsh reality.
Waiting times on forms have varied very widely over the years and are not governed by legislation, but rather fear and the corresponding rise and fall in submissions, the state of the economy and the corresponding rise and fall of purchase volumes, and new owners such as Mr. F. himself making additional purchases.
It can be argued that this is a problem of our own creation. High transaction volumes are a direct function of our success as an industry getting people to buy our goods. The easiest way to get Form 4’s to stop taking so long is to simply stop buying things that clog up the system with more Form 4’s.
Mr. F. may think that a year is excessive, but if you look back to the 1980’s – it is traditionally right in the middle of that date range.
His second question reads as follows:
Could you buy a completed AR lower online, but when it arrives at your FFL and you do the 4473, could you just throw away the stock, put an SBA3 brace on it, and file it as a pistol?
This one is a little different, because of pronoun use but I’ll give it a shot. I imagine the word you being a potential gun buying customer, so lets re-frame the question into what I think he’s meaning.
I also don’t know what he means by file it, meaning file as a form 1 or file on 4473 or perhaps a state level registration/licensing proviso but I’ll answer the question how I think he’s attempting to ask.
Mr. F., please feel free to follow-up with an email if I got this wrong and I’ll amend the article for a correction.
Could a customer purchase a completed AR lower online, and after it arrives at their designated Federal Firearm Licensee for disposition complying with state level regulations and federally GCA – do a 4473, throw away the stock, install a brace and document the item being sold/transferred as a pistol?
The answer is complicated because it conflates two things. Buying a gun at retail (buying something online and having it shipped to your local firearm professional has the same legal procedure as if you walk up to the counter and point at something and say “I’ll take that one”) has a set of laws on the federal level to comply with, determination of eligibility under the Gun Control Act of 1968, and compliance with the Brady Bill, just to name a few federal compliance measures we have to handle on the customer’s behalf.
Manufacturing a firearm has an entirely different set of compliance requirements. Most firearm businesses in the nation are dealers or pawnbrokers, not manufacturers. The act of changing the configuration of an item such as this prior to being sold could be argued as gunsmith activity which is a permitted action as a dealer. It could also be argued that it is a manufacturing activity as it is being done to in stock inventory and not to a firearm that was brought in by a customer for work to be performed.
Therefore, we called in TTAG’s technical firearm industry professionals to get a better handle on how to comprehensively address this question.
As indicated in the above scenario, the customer cannot/should not do anything and here’s why. When a firearm arrives for a transfer, regardless of source – ABC Supply sells them a complete lower, it is disposed as a complete lower by ABC supply, it is acquired as a complete lower by AAA Guns of Fort Lee New Jersey, Inc. The designation of this type of firearm would be frame/receiver whether it had an attached stock, parts kit, pistol grip, arm brace, whatever configuration it is in, it’s an incomplete firearm and treated as a frame/receiver.
This is where it gets strange.
If A DEALER does the activity of removing the stock, installing an arm brace and indicating the sale as a pistol – and the Form 4473 indicated it was a pistol at time of transaction, the activity would look on their bound book as follows:
Manufacturer: COLT
Model: AR15A2
Type: FRAME
Serial Number: SAMCOLT1THEWEST
Acquired From: ABC Supply 15 November 2018
Disposition: CONVERTED TO PISTOL 15 November 2018
Manufacturer: COLT
Model: AR15A2
Type: FRAME
Serial Number: SAMCOLT1THEWEST
Acquired From: AAA GUNS OF FORT LEE NEW JERSEY, INC
Disposition: SOLD TO RICHARD F 123 MAIN ST FORT LEE NJ 07024
This is documentation that they’re engaging in manufacturing, which is not allowed under their license. They would literally be documenting their own non-compliance for the ATF to review and write them up for a violation of federal law. The issues at hand are unlicensed activity and because the firearm at hand was not converted to a pistol, the licensee knowingly falsified their bound book and a 4473 into reflecting it was.
That would be, by my count, three violations of federal law. I am not the US Attorney for this district nor do I ever want to meet him or any of his underlings in a professional capacity.
We don’t want three violations of federal law, so lets see what happens when a manufacturer is involved.
If a manufacturer does the activity of removing the stock, installing an arm brace and indicating the sale as a pistol – and the Form 4473 indicated such, the activity would look on their bound book as follows:
Commercial Inventory
Manufacturer: COLT
Model: AR15A2
Type: FRAME
Serial Number: SAMCOLT1THEWEST
Acquired From: ABC Supply 15 November 2018
Disposition: TRANSFERRED TO MANUFACTURING INVENTORY
Manufacturers are required to record any firearm they manufacture, and the records are kept forever. They are bifurcated from commercial sales records as a result.
Theretofore the manufacturing records would indicate:
Manufactured Inventory
Manufacturer: COLT
Model: AR15A2
Type: FRAME
Serial Number: SAMCOLT1THEWEST
Acquired From: AAA GUNS OF FORT LEE NEW JERSEY, INC – COMMERCIAL INVENTORY
Disposition: CONVERTED TO PISTOL 15 November 2018
Manufactured Inventory
Manufacturer: COLT
Model: AR15A2
Type: PISTOL
Serial Number: SAMCOLT1THEWEST
Acquired From: AAA GUNS OF FORT LEE NEW JERSEY, INC – MANUFACTURED INVENTORY
Disposition: AAA GUNS OF FORT LEE NEW JERSEY, INC – COMMERCIAL INVENTORY
Commercial Inventory
Manufacturer: COLT
Model: AR15A2
Type: PISTOL
Serial Number: SAMCOLT1THEWEST
Acquired From: AAA GUNS OF FORT LEE NEW JERSEY, INC – MANUFACTURED INVENTORY
Disposition: SOLD TO RICHARD F 123 MAIN ST FORT LEE NJ 07024
All good, right?
Well we haven’t forgotten the fact that firearm at hand wasn’t ever converted to a pistol because a lower with an arm brace is still a lower with an arm brace, not a pistol. Our manufacturing licensee knowingly falsified the commercial bound book, their manufacturing records, and a 4473. That would be by my count, still three violations of federal law.
Could the customer do the activity of removing their stock from their property and replacing it with arm brace at the counter while the transaction is occurring? Absolutely!
Does it change the lower to the federal definition of a pistol, before, after or during the transaction?
The answer is no. It’s still a frame/receiver and transacted as such.
The customer should not/would not document any part of the transaction – after they sign that their answers are complete on the 4473, that determines their eligibility of the transaction – the licensee documents the subject item being transacted. If the licensee did knowingly indicate pistol, they would be on hook with ATF for not doing their paperwork right – a records violation. Nobody wants those.
The only proper legal way for that to transact on a 4473 as a pistol is if it were to be made into a pistol prior to that transaction and sold as a pistol in that transaction.
Could our customer bring a dealer an arm brace and a complete upper for coupling to their complete lower and get them to make it into a pistol? I would say that’s not really gunsmith activity. The ATF might argue in the customer’s favor, but until the customer gets an opinion letter – let’s go with no.
Could our customer bring a licensed manufacturer an arm brace and a complete upper for coupling to their complete lower and get them to make it into a pistol?
Absolutely. The manufacturer would make the build, document their making of a little bundle of joy, and transact a pistol on 4473. All state and federal laws would apply.
Hank is a federal firearms licensee with almost thirteen years of experience in the business. He’s a former first responder and is dedicated to bucking the trend of poor customer service in the business and making the gun world a better place.