The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and the Federal Bureau of Investigation (FBI) have released a long-awaited updated and formalized appeals process for specific National Firearms Act (NFA) applicants to appeal a denial or delayed status on their application.
The agreement was signed by the ATF and FBI last October. The new process went into effect this month. For years, many have asked for a formal process to challenge a denial of an NFA application. The ATF and FBI have been unwilling to update the appeals process until this year.
Problems with the FBI and ATF process have been highlighted since the new brace rule spotlighted the problem with the National Instant Criminal Background Check System (NICS) portion of the NFA workflow.
When someone submits the ATF paperwork to get an NFA tax stamp, the ATF will submit the applicant information to the FBI to run through NICS. NICS is the FBI’s system for checking the background of a prospective gun buyer. The system verifies that the subject is not prohibited from owning a firearm. Although the system is supposed to be instant, in reality, it is not. The system will return an approved, denied, or delayed/open status.
If the applicant is approved, the FBI will notify the ATF that the NFA application process can continue. If the subject is denied, the FBI will inform the ATF of the denial. The ATF will then reject the NFA application, meaning that the applicant would have to figure out why they were denied and go through a bureaucratic maze to fix whatever issue caused the denial. The new system changes that.
If the applicant’s NICS check is delayed, it will go to an FBI department for further investigation. With a regular firearm purchase after a set number of days, depending on the state, the federal firearms licensees (FFL) can transfer the firearm without NICS approval. However, the ATF cannot approve an NICS application without a NICS approval. Suppose the NICS process is open for more than 88 days. In that case, the FBI will close the check without issuing an approval or denial, meaning that the NFA application will be denied without a reason, leaving the applicant in limbo.
One person AmmoLand News spoke to in the past had to submit an NFA application three times before getting approved. The first two times, the applicant was delayed past the 88-day mark, meaning his application was rejected. His only remedy, according to the ATF, was to try again. Eventually, his application was approved, but he never found out why the NICS check was delayed. He has a sizable gun collection and has never had an issue with non-NFA firearms.
The delay/open issue was highlighted when the new pistol brace rule was announced.
There was a deadline to register your braced pistol as a short-barreled rifle. Many were concerned if there was a delay with an NICS check, it would lead to an application being rejected, meaning that the gun owner would be in possession of an unregistered NFA item.
At SHOT Show 2023, when the ATF was asked by lawyer Stephen Stamboulieh of Gun Owners of America (GOA) about what would happen if an NFA application was rejected for an 88-day delay after the deadline passed. The ATF spokesperson told Stamboulieh that the Bureau would take “enforcement action.” The ATF would later walk that stance back and stated to AmmoLand News that they would allow the applicant to refile.
The new policy will allow the NFA applicant to use the FBI’s “Firearm Related Challenge” (FRC). An FRC is an administrative appeal process to challenge a denial from the NICS system. The ATF will mail the subject a letter with the NICS Transaction Number (NTN). The applicant can then use the number to start the appeals process. The letter will also include instructions on how to use the FRC.
For issues that arise due to delays, the applicants can now use the voluntary Appeal File (VAF). The VAF is another administrative appeal process for delays. The applicant will receive a letter with the NTN and instructions on using the VAF process to clear up any delay issues.
The new policy states:
- Denials – An NFA applicant may now use the FBI NICS administrative appeals process, known as the “Firearm Related Challenge,” when (1) the NFA Division has disapproved the applicant’s NFA application, and (2) FBI NICS responded to the NFA division with a “denied” recommendation to the NFA applicant’s NICS background check. If the applicant believes the “denied” response from FBI NICS was made in error, they may submit a Firearm Related Challenge, which will require them to provide their NTN. The processes implemented by the NICS when performing Firearm Related Challenges for disapproved NFA applicants will be the same as those performed when reviewing Firearm Related Challenges pertaining to prospective firearm transfers that were denied by the FBI or a Point-of-Contact jurisdiction. If the FBI NICS did not respond with a “denied” recommendation to the NFA applicant’s NICS background check, that individual cannot utilize the FBI NICS Firearm Related Challenge process.
- Delays – An NFA applicant may use the VAF process after ATF notifies the applicant that their FBI NICS background check remains in a “Delayed/Open” status.
- 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.
The new policy only deals with rejections to the FBI NICS system. Denials from the ATF itself are not covered under the new policy.
About John Crump
John is a NRA instructor and a constitutional activist. John has written about firearms, interviewed people of all walks of life, and on the Constitution. John lives in Northern Virginia with his wife and sons and can be followed on Twitter at @crumpyss, or at www.crumpy.com.
