INDUSTRY NEWS: ATF MAKES MAJOR REVISION TO FORM 4473

By Robert M. Hausman

The Bureau of Alcohol, Tobacco, Firearms & Explosives has revised ATF Form 4473 (Firearms Transaction Record Part I – Over-the-Counter). The new form includes numerous changes as follows:

GENERAL

• Color. Changed the color of the form from white to yellow. This change will ensure FFLs do not use obsolete versions of the form.
• Form. The form is composed in a booklet format.
• Blocked Format. Streamlined the recordkeeping process to help ensure all required entries are accurately completed.
• Warning Statement. Added law cites “18 U.S.C. Section(s) 921 et.seq.” Bolded and put into all capital letters “PLEASE PRINT” and added “handwritten in ink.”
• Page Numbering. Each page is now numbered, and if pages are separated must be stapled together. The page also guides the transferee (buyer) and transferor (seller) to continue to the next page where needed.

SECTION A

• Question 2. U.S. Postal abbreviations are acceptable. Made block for county wider.
• Question 3. Changed question to read “U.S. City and State or Foreign Country.”
• Question 5. Added “lbs.” to clarify weight is being asked in pounds.
• Question 9. Added instructions for the buyer “see instructions for question 9.”
• Question 10. Added instructions for the buyer “see instructions for question 10.”
• Question 11. Added instructions for buyer to clarify answering this section “Answer questions 11.a. (see exceptions) through 11.l. and 12 (if applicable)” by checking or marking “yes” or “no” in the boxes to the right of the questions.
• Question 11.a. Added instructions for the buyer “see instructions for question 11.a. Exception: If you are picking up a repaired firearm(s) for another person, you are not required to answer 11.a. and may proceed to question 11.b.” Added a block for “yes” to be checked or marked and a block for “no” to be checked or marked.
• Question 11.b. Added instructions for the buyer “see instructions for 11.b.” Added a block for “yes” to be checked or marked and a block for “no” to be checked or marked.
• Question 11.c. Added instructions for the buyer “see instructions for 11.c.” Added a block for “yes” to be checked or marked and a block for “no” to be checked or marked.
• Question 11.d. Added a block for “yes” to be checked or marked and a block for “no” to be checked or marked.
• Question 11.e. Added a block for “yes” to be checked or marked and a block for “no” to be checked or marked.
• Question 11.f. Added instructions for the buyer “see instructions for 11.f.” Added a block for “yes” to be checked or marked and a block for “no” to be checked or marked.
• Question 11.g. Added a block for “yes” to be checked or marked and a block for “no” to be checked or marked.
• Question 11.h. Added instructions for buyer “see instructions for question 11.h.” Added a block for “yes” to be checked or marked and a block for “no” to be checked or marked.
• Question 11.i. Added instructions for buyer “see instructions for question 11.i.” Added a block for “yes” to be checked or marked and a block for “no” to be checked or marked.
• Question 11.j. Added a block for “yes” to be checked or marked and a block for “no” to be checked or marked.
• Question 11.k. Added a block for “yes” to be checked or marked and a block for “no” to be checked or marked.
• Question 11.l. Added “see instructions for question 11.l.” Added a block for “yes” to be checked or marked and a block for “no” to be checked or marked.
• Question 12. Added information “If “yes,” the licensee must complete question 20.d. See instructions for question 12. If question 11.l. is answered with a “no” response, then do NOT respond to question 12 and proceed to question 13.” Added a block for “yes” to be checked or marked and a block for “no” to be checked or marked.
• Question 13. Changed question to read “What is your State of residence (if any)? (See instructions for Question 13.)” Blocked questions 13-15 to make the form easier to follow.
• Question 14. Added “If you are a citizen of the United States, proceed to question 16.” Blocked questions 13-15 to make the form easier to follow.
• Question 15. Blocked questions 13-15 to make the form easier to follow.

PAGE 2 of FORM 4473

• Certification Statement for buyer. Added “complete,” moved “and” to make statement read “I certify that my answers to Section A are true, correct, and complete.” Reworded second sentence to read “I have read and understand the Notices, Instructions, and Definitions on ATF Form 4473.” Added “and may also violate State and/or local law” in the third sentence and the second-to-last sentence. Also added “(See Instructions for Question 16).”
• Question 18. Changed “Both” to “Other Firearm (Frame, Receiver, etc. See instructions for Question 18.)” and added “(check or mark all that apply):”
• Question 19. Added “Name of Event” and a line for writing. Moved “City, State” to the front of line.
• Question 20.a. Added “(e.g. Virginia driver’s license (VA DL)” and “(See Instructions for Question 20.a.)”; also added “Issuing Authority and” before type of identification.
• Question 20.c. Added “All Aliens,” removed “only,” and added “(See Instructions for Question 20.c.).”
• Question 20.d. Added “Must Provide,” bolded the word “exception,” and added “(See Instructions for Question 20.d.).”
• Question 21.a. Date was put into a blocked format and added “Month, Day, Year.”
• Question 22. Added “(See Instructions for Question 22).”
• Section C. Added “Must be Completed Personally by Transferee (Buyer).”
• Below Section C and before signature. Added “(See Instructions for Question 24 and 25).”
• Above Section C signature line. Added “and complete” to wording.
• End of Page 2. Added page numbering 2 of 6. Each page is now numbered and a statement “DO NOT SEPARATE PAGES” has been added. The page also guides the transferee (buyer) and transferor (seller) to continue to the next page where needed.
• Question 26. Added “(If the manufacturer and importer are different, the FFL should include both.).”
• Question 29. Added “receiver, frame” and “(See instructions for question 29).”
• Question 30.a. Added block “Total Number of Firearms (Please handwrite by printing e.g., one, two, three, etc. Do not use numerals).”
• Question 30.b. Added block “Is any part of this transaction a Pawn Redemption?” with a “Yes” or “No” block for marking.
• Question 30.c. Added block “For Use by FFL (See Instructions for Question 30.c.).”
• Question 32. Added “(Must contain at least first three and last five digits of FFL Number X-XX-XXXXX).”
• Certification Statement for seller. Added “I certify that my answers in Sections B and D are true, correct, and complete.” Reworded second sentence to read “I have read and understand the Notices, Instructions, and Definitions on ATF Form 4473.”
• Question 33. Bolded “please print.”
• Question 36. Changed question to read “Date Transferred.”
• Notices, Instructions, and Definitions. Combined “Important Notices” “Instructions to Transferee/Buyer,” “Instructions to Transferor/Seller,” and “Definitions” to apply to each question.
• Purpose of the Form. (Previously number 2 under “Important Notices”) Added “lawfully,” changed “keep” to “maintain,” and added after long gun “(rifle or shotgun).”

Licensees may order a supply of Form 4473s on-line at: http://www.atf.gov/dcof/index.htm or by contacting the ATF Distribution Center at (703) 455-7801.

Notes on ATF Compliance Inspections

With certain exceptions, the GCA allows ATF to conduct one warrantless, annual compliance inspection of a federal firearms licensee (FFL). The purpose of the inspection program is to educate the licensee about regulatory responsibilities and to evaluate the level of compliance.

During inspections, ATF industry operations investigators (IOI) review records, inventory, and the licensee’s conduct of business. Compliance failures, which constitute violations of law and regulation, commonly disclosed during the inspection process include failure to verify purchaser eligibility; inability to account for firearms received and disposed; failure to ensure firearms traceability due to improper recordation of firearms receipt and disposition; failure to properly document firearms transfers; and failure to report multiple sales of handguns.

During compliance inspections conducted in 2007, ATF investigators identified nearly 130,000 firearms that FFLs could not locate in inventory or account for by sale or other disposition. By working with industry members, IOIs reduced this number to approximately 31,000 firearms that FFLs could not account for. As such, ATF investigators improved the success rate of potential firearms traces of previously unaccounted firearms by 76 percent. Although this is a significant improvement, over 30,000 firearms remained missing.

When violations of the law and regulations are disclosed during an inspection, a Report of Violations is issued to the licensee that outlines the discrepancy and the requirements for corrective action. ATF also works to gain cooperation and compliance from FFLs by issuing warning letters and holding warning conferences.

In Fiscal Year 2007, ATF conducted approximately 10,000 compliance inspections. More than 40 percent of the licensees inspected were determined to be in full compliance with the law and regulations and no violations were cited. Approximately 100 federal firearms licenses were revoked or were denied renewal due to willful violations of the GCA. This figure is approximately 1 percent of the number of licensees inspected.

License Revocation Process

When an ATF inspection results in a warning conference or potential revocation, the licensee is provided an opportunity to develop a written plan that details the steps taken to correct the problems identified and measures implemented to ensure future compliance. To assist licensees in achieving and maintaining compliance, ATF conducts recall inspections on all licensees who have committed violations that warranted a warning conference. In 2007, recall inspections resulted in an overall 85-percent reduction in the total instances of violations. Recall inspections also resulted in a 78-percent reduction in disclosed prohibited sales and a 90-percent decrease in inventory discrepancies.

Willfulness is not defined in the regulations but is defined by case law to mean the intentional disregard of a known legal duty or plain indifference to a licensee’s legal obligations. ATF does not revoke for all willful violations. Recommendations for revocation often result from FFLs repeating violations despite ATF efforts to educate and assist them with compliance. Violations commonly cited in revocation cases include failure to account for firearms, failure to verify and document purchaser eligibility, failure to maintain records requisite for successful firearms tracing, and failure to report multiple sales of handguns.

The revocation process begins when an IOI recommends revocation following an inspection. The recommendation is subject to a rigorous, thorough internal review process. The authority to revoke rests with ATF’s directors of industry operations (DIO). If the DIO concurs with revocation of the license, the report is reviewed by ATF field division counsel for legal sufficiency.

To ensure consistency throughout the country, a newly implemented procedure requires the DIO to notify Bureau Headquarters of his or her preliminary decision to pursue revocation. If the DIO, division counsel, and Headquarters review results in disagreement on pursuing revocation, the report is reviewed and a final determination is made by a panel consisting of two Headquarters deputy assistant directors and the deputy chief counsel.

If revocation is pursued, procedures are followed as specified under Title 27 Code of Federal Regulations Part 478. The licensee is provided with a Notice of Revocation that includes findings describing the reasons for pursuing revocation. The licensee has 15 days from receipt of the notice to request a hearing before a hearing officer. The licensee may be represented by an attorney at the hearing and may bring employees and documentation to address the violations cited in the notice. ATF is generally represented at hearings by ATF Counsel and the IOIs who conducted the inspection(s) resulting in the revocation recommendation. Unless special circumstances apply, the licensee can continue operations while a final decision is made by the DIO.

During a hearing, the licensee has the opportunity to challenge the violations, establish that the violations were not willful, and address intention for future compliance. Based on the evidence presented at the hearing by the licensee and ATF, the hearing officer submits a report of findings and a recommendation to the DIO. Based upon the hearing testimony, exhibits presented during the hearing, and the hearing officer’s recommendation, the DIO decides whether to continue with the revocation. If the DIO’s decision is to revoke following a hearing, or in cases where a hearing is not requested, then a Notice of Final Revocation is sent to the licensee with a summary of the findings that warrant revocation.

A licensee who receives a Notice of Final Revocation may, within 60 days of receipt of the final notice, file a petition for de novo review with the U.S. District Court. If the licensee makes a request to the DIO to allow continuance of business operations, the DIO may allow the licensee to operate during the appeal process. If the DIO prohibits continuance of operations during judicial review because of the risk to public safety, the FFL can appeal to the court to continue operations during the review process. Of those cases that were appealed to the U.S. District Court between April 2001 and April 2008, 49 of 52 final decisions in District Court have supported ATF’s decision to revoke.

The author publishes two of the small arms industry’s most widely read trade newsletters. The International Firearms Trade covers the world firearms scene, and The New Firearms Business covers the domestic market. Visit www.FirearmsGroup.com. He may be reached at: FirearmsB@aol.com.