Over the last decade denials of NFA applications, mostly Form 4s and Form 1s, have increased significantly. The cause has been a combination of multiple factors including i) increased background checks after the implementation of procedural changes in 2016, ii) increased reporting of prohibiting factors by states and other government agencies, and iii) sheer volume increase in the number of applications processed by the ATF.
If you have ever waited nearly a year for a NFA tax stamp to come back, you can understand the frustration caused when you receive a denial. Immediately questions begin to arise about why, what can be done to change the situation, and how should I appeal?
Until this year, there was no appeal process. We could only find the problem, seek to cure it, and restart the NFA process completely with another year of wait time. . . Not ideal.
Announcing the Appeal
Earlier this month the ATF and FBI announced a new appeal process for the NFA. While it certainly is an appeal process, and it is welcomed, it is not exactly new. The agencies expanded the existing appeal process used to handle delays and denials with Title I firearms to cover Title II firearms, i.e. NFA guns.
While it is curious why it took this long to expand an established process, the good news is we have familiarity with this existing process and can help clients through the appeal.
Types of Appeal
There are technically two types of appeals. One for denials and another for delays; the same options that exists for standard Title I firearms. When a NFA application rejection is sent out, it will now include a letter advising the person that an appeals process exists.
Denials: The Firearm Related Challenge
For a denial, the appeal is sent to the FBI National Instant Criminal Background Check System (NICS). This system uses a NICS Transaction Number (NTN) to track denials and allow the applicant to appeal the same. Previously NTNs were not supplied to NFA applicants. With the introduction of the NTN to Title II firearms, applicants can easily draw the FBI’s attention to the alleged error.
An appeal will involve challenging the FBI and receiving their response of why the applicant should be denied. From there we can examine if a record is wrong or incomplete, and can then provide updated information to correct. Or, if the record is correct and there is a prohibiting factor on the record, we can examine alternative methods to cure the prohibitor.
What might cause a denial in the first place? Obvious prohibitors such as convictions, mental adjudications, and dishonorable discharges. But this could also include incorrectly recorded convictions, failures to include a pardon or expungement on a record, or a mistaken identity.
Regardless of the issue and what must be done to fix it, having an avenue to communicate with the FBI and learn their reasoning is a valuable tool.
Delays: The Voluntary Appeal File
Appeals of a delay will be handled directly with the ATF through their Voluntary Appeal File (VAF). This system allows the applicant to explain, and the ATF to document, a confusing situation. This might include an assault and battery where the victim is unknown, a felony charge pled to a misdemeanor, an arrest and charge that was later dismissed, a name confusion, or something of similar ilk.
Once the application is received, the ATF will respond with the open concern (i.e. question) causing the delay. From there we have the option to address why this is not a prohibitor and to document that with the ATF.
Once documentation (or argument) is satisfactory to the ATF, the agency will i) issue a unique personal identification number (UPIN) to the applicant, and ii) create a file in the VAF records for this applicant. In the case of all future applications, the ATF will use the UPIN to reference the file and address all the known issues. Thus the future applications will focus only on any new material discovered.
But What is the Result of An Appeal?
This remains to be seen. Unfortunately, the ATF announcement states “the VAF and the administrative appeals process (Firearm Related Challenge) are not appeals of an NFA application and shall not be construed to allow a person to challenge a disapproved NFA application.” So what is done if the appeal is corrected?
At least with the VAF a record is created that should streamline future background checks. We have been using this process already for several years, and it works well for both Title I & Title II firearm applications.
With the Firearm Related Challenge we could also create a VAF record. However, it is unclear how a reversal of the previous denial will be handled with the ATF. Can it be used on a new application? Can the old application be reinstated for further processing? In either circumstance, will the applicant go to the front of the line or have to wait another year?
These are all questions we hope to see answered over the coming year.
Concluding
Finally having a means to appeal a NFA denial with the ATF is a step in the right direction. The possession of arms is a fundamental right pre-existing this republic, and there should always be a manner to challenge any government denial of such a right.
While we appreciate finally having an official structure for an appeal, it should be noted that we were already using the VAF appeal process in conjunction with new NFA applications to address previous denials. What is needed is the additional step of reinstating a denied application where the denial was incorrect. This could be by a new application rushed to the front of the line, which is possible, or by bringing the old application back to life. Either works.
Currently we don’t know what result an appeal will have if granted. If it can be used to rush through an application, then the ATF has made good progress. If not, then hopefully that will be the next step in their development. This remains to be seen, and we will keep an eye on how it develops.