ATF Comments on 88-Day Automatic Denial of Pistol Brace Tax Stamps

WASHINGTON, D.C. -(Ammoland.com)- Gun Owners of America’s (GOA) attorney Stephen Stamboulieh claimed that if a NICS check is not completed within 88 days, then the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) will automatically reject a Form 1 application. Mr. Stamboulieh claimed that an ATF employee at SHOT Show told him if that happened, the ATF would take enforcement action. This claim received pushback from other gun influencers who believed the 88-day period was fear-mongering or didn’t really exist. AmmoLand News spoke to one well-known influencer who witnessed the conversation and backed up Stamboulieh’s claim. AmmoLand News wanted to follow up on these claims, report on both sides of the issue, and let the readers decide.

One big misconception is an eForm 1 will be rejected if the form is not approved within 88 days. Stamboulieh was talking about the NICS background check portion of the tax stamp process. The ATF will contact the Federal Bureau of Investigation (FBI) to run a background check during the process. If a check is not completed within 88 days after the ATF contacts the FBI, the check will be purged from the system and returned as “open.”

This check is the same Brady Law-mandated background check run by the FBI when a person purchases a firearm from a federal firearms licensee (FFL) and fills out an ATF Form 4473. Under the Gun Control Act (GCA), the FFL can complete the transfer after three days if there is no response from the FBI, so if the background check never is returned, the gun owner will never know since the transfer has happened.

Under the National Firearms Act (NFA), the tax stamp process cannot be completed without the NICS check returning “approved.” After 88 days, the check will be purged, and the ATF will deny the tax stamp.

AmmoLand News spoke to Public Affairs Division Deputy Chief Erik Longnecker, who confirmed that an ATF Form 1 would automatically be disapproved if the NICS check is not returned in 88 days. He puts the onus on the applicant to contact the FBI to find out what caused the delay and fix it. Longnecker went on to explain that the applicant can resubmit their form outside the 120-day window.

“The 120-day period is for when applications must be submitted to ATF, not the time period for when they must be processed. The processing time will vary based on the volume of applications submitted to ATF.; however, the background check is one of the final steps in ATF’s processing of an application. If an application is disapproved due to the FBI not being able to provide a proceed for the background check (after 88-days), the applicant can resolve issues with the FBI and resubmit their application to ATF (See items 21-23 in the questions and answers at https://www.atf.gov/rules-and-regulations/docs/undefined/eformone-externalguidancewithqapdf/download), even if that resubmission is after the initial 120-day period,” Longnecker said.

AmmoLand News read through the document provided to us by the ATF to contact the FBI about the ‘open’ background check. We tried to follow the procedure, but the link in the document where we could reach the FBI returned a “page not found.” After examining the document, we were able to determine there is a white space in the link. A white space refers to a blank space and is invalid in URLs. We were able to figure out the correct link and complete the process.

According to the latest statistics, 2.2% of NICS checks will never be completed and purged by the FBI. AmmoLand News has obtained documents of an NFA transaction rejected because the 88-day window to complete a background check expired and was purged.

There is a deep distrust within the gun community. GOA is not willing to take the ATF at its word. The organization points to a history of regulatory abuse and a near schizophrenic approach to rule-making. One example would be the ATF stating in court that the frames and receivers rule allows companies to sell pistol frame blanks without background checks or serial numbers as long as it doesn’t come with a jig and tools. Then two days after Christmas, the ATF issued an open letter stating that the rule requires pistol frame blanks to be serialized and are firearms regulated by the GCA.

“The ATF considered the 88-day problem prior to issuing the final rule and then explicitly failed to address it, except in an ambiguous, non-binding Q&A document and in an email to Ammoland News. That isn’t good enough,” Aidan Johnston, GOA Director of Federal Affairs, told AmmoLand News. “This rogue agency has a history of flippantly changing rules that would make felons of everyday Americans.”

“This was seen as recently as this week when the ATF made significant changes to the NFA FAQs that made a commonplace occurrence a criminal violation,” Johnston continued. “The agency then deleted the change within 24 hours without any official comment. “

“If the ATF wants to clarify that it will use appropriate discretion and not prosecute gun owners who have received a denied amnesty application because of an ‘open background check’ but continue to possess the ‘illegal firearm,’ it should have been mentioned in the final rule, and further binding clarification should be issued.”

“The ATF is not a legislative body, and they are playing with people’s lives and livelihoods with their thoughtless and draconian ‘rules,’ and that’s why GOA will be attacking this rule from every angle—legally, legislatively, and administratively,” Johnston said.

One critic of people sounding the alarm over the 88-day “open” NICS checks that will lead to an NFA denial is Second Amendment attorney Matthew Larosiere, who runs the YouTube channel Fudd Busters. He believes the issue of the 88-day purge is being overblown.

“While what ATF is doing is incredibly wrong, what I see here is intense disingenuity,” Larosiere said. “NICS checks being purged after 88 days is no new feat; it’s been the state of the law for decades. It does not operate as a denial; it is merely an inconclusive background check.”

“The problem is, people are acting as though if the form isn’t approved in 88 days, they’d instantly be a felon, and that’s not the case,” Larosiere continued, “while people who fall in this category may find themselves in an awkward position if their form is disapproved following the 120-day window, federal law has specifically prevented any information submitted on these registration forms from being used criminally against an applicant since 1968.”

When it comes to individuals living in states which independently ban or regulate SBRs, Larosiere opined that “the individual ought to very carefully read their state law, and in most instances will, unfortunately, feel forced to dispose of their brace rather than attempting to apply for a stamp.”
“People are suggesting this is a trap, and I agree, but not in the way it’s being pushed,” said Larosiere, “the trap here, if you ask me, is getting people accustomed to the idea of registering common firearms. Not some massive honeypot.”

One concern is that on a normal Form 1, the gun owner does not build the rifle until the tax stamp is issued. In this case, in the eyes of the ATF, the short-barreled rifle with a pistol stabilizing device already exists. Even if the ATF does not take enforcement action, the Chief Law Enforcement Officer has been notified of the existence of an unregistered SBR and could act if the tax stamp is disapproved. Those charges might not stick for the reasons Larosiere cited, but it could be costly for the gun owner.

The biggest issue might be that the rule is so convoluted that even highly intelligent people have fundamental disagreements about what the rule states and what actions the ATF will take against individual gun owners. Not only do intelligent people have disputes over the final rule, but apparently, so do ATF employees.

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.