National Instant Criminal Background Check System (NICS)
No.
[18 U.S.C. 922(t); 27 CFR 478.102]
No. However, licensed manufacturers, importers and dealers who transfer a curio or relic firearm must conduct a NICS background check prior to transfer to a nonlicensee.
[18 U.S.C. 922(t); 27 CFR 478.102]
If the firearm is loaned or rented for use on the licensee’s premises, a background check is not required. However, if the firearm is loaned or rented for use off the premises, the licensee must conduct a background check prior to the transfer of the firearm.
[18 U.S.C. 922(t); 27 CFR 478.102 and 478.124]
Yes. A licensee conducting business temporarily at a gun show must comply with the background check provisions in the same manner as if the sale were taking place at the licensed premises.
[18 U.S.C. 922(t) and 923(j); 27 CFR 478.100 and 478.102]
Federal law prohibits the transfer of a firearm to a person who has been denied by NICS.
Although federal firearms licensees (FFLs) are not required to contact ATF in this situation, we strongly encourage you to contact your local ATF office if this occurs rather than take any further action such as transferring the firearm to a third party. Because the person redeeming the firearm was denied by NICS at the time of redemption, he or she may be a felon or other “prohibited person” and would be possessing the firearm in violation of 18 U.S.C. § 922(g) at the time the firearm was pawned. Depending on the reason(s) for the firearms prohibition, ATF may want to seize the firearm and/or take legal action.
If you contact your local ATF office, someone will get back to you as soon as possible to let you know what steps ATF will pursue. If ATF informs you that it is not going to take any further action, federal law does not prohibit you from transferring the pawned firearm to a third party if the third party completes a Form 4473 and NICS does not issue a denial within three business days.
Of course, a transaction involving third parties would violate federal law if the latter were “straw purchasers” not actually obtaining or redeeming the firearm for themselves but acting as a conduit to return the firearm to the owner or another person Accordingly, we encourage you to ask the third party whether he or she intends to maintain possession of and control over the firearm.
If you have reason to believe the third party is a straw purchaser who actually is obtaining the firearm for the prohibited person, you may not transfer the firearm to that person. However, if you have no reason to believe the third party is a straw purchaser (and the person is not otherwise prohibited from possessing and receiving firearms), you may transfer it under federal law.
ATF Form 4473, Firearms Transaction Record, contains a general instruction stating that FFLs can include any information on the form that is relevant to the transaction. Accordingly, you may add a statement to the Form 4473 indicating that you warned the third party who received the firearm about straw purchasing; you may also have the third party sign the statement. However, licensees are not required to include such a statement, and the statement will not necessarily protect you from prosecution.
Finally, you always should make sure transferring the firearm to a third party does not violate state or local law.
[18 U.S.C. 922(d) and (t)]
Yes. The fact that the transferee has redeemed the firearm before does not excuse the pawnbroker from conducting a background check for each separate transaction.
[18 U.S.C. 922(t); 27 CFR 478.102]
Yes. In such transactions, the law enforcement official is treated no differently from any other unlicensed transferee, and a NICS background check must be conducted.
[18 U.S.C. 922(t) and 925(a)(1)]
Firearm transfers are exempt from the requirement for a NICS background check in three situations:
- Transfers to transferees who have a state permit that has been recognized by ATF as an alternative to a NICS check;
- Transfers of National Firearms Act weapons to persons approved by ATF; and
- Transfers certified by ATF as exempt because compliance with the NICS background check requirement is impracticable.
[18 U.S.C. 922(t); 27 CFR 478.102(d)]
On occasion, the FBI may provide a licensee with a “cancelled” response. Transactions will be cancelled if the FBI discovers that the NICS check was not initiated in accordance with ATF or FBI regulations. For example, a NICS check will be cancelled if it is initiated for a non-authorized purpose or by a non-authorized individual.
A licensee cannot transfer a firearm when a “cancelled” response is provided by NICS.
For the purposes of the NICS background check requirements, a business day is defined as a day on which state offices are open in the state in which the proposed firearm transaction is to take place.
[18 U.S.C. 922(t)(1)(B)(ii); 28 CFR 25.2]
The firearm may be transferred on the following Wednesday, as the 3 business days do not include the day the NICS check is initiated.
Assuming state offices are open on Friday, Monday and Tuesday, and closed on Saturday and Sunday, the 3 business days will have elapsed at the end of Tuesday. Therefore, the licensee may transfer the firearm at the start of business on Wednesday.
If the licensee receives a “denied” response at any time prior to the transfer of the firearm, the licensee may not transfer the firearm.
If the FBI provides a “denied” response after the third business day, and the firearm has already been transferred, the licensee should notify the NICS Section by phone at 1-877-FBI-NICS (324-6427) or by email at nics_upeg@fbi.gov.
[18 U.S.C. 922(d); 27 CFR 478.99(c)]
The licensee should inform the transferee that the NICS check indicates that the transfer of the firearm should not be made; however, the system does not provide a reason for the denial.
The licensee should also provide the transferee with:
- Name and address of the denying agency
- NICS or state transaction number
- Brochure or information from the FBI or state POC outlining the transferee’s appeal rights and responsibilities
The FBI appeal brochure is available through the FBI NICS section, and more information is available on their NICS Appeals and VAF webpage.
[28 CFR 25.10]
Yes. Although the licensee will not know the reason for the denial, the transferee may contact the FBI NICS section or the state point of contact in writing to request the reason for denial.
[28 CFR 25.10]
Licensees must record any initial “proceed”, “delayed”, or “denied” response received, as well as any transaction number provided.
If the initial NICS response was “delayed,” a licensee must also record the date and response later provided, or that no resolution was provided within 3 business days if the licensee transfers the firearm after the 3 days.
In addition, if a licensee receives a response from NICS after the firearm has been transferred, the licensee must also record this information.
[18 U.S.C. 922(t); 27 CFR 478.124(c)(3)(iv)]
Licensees should contact NICS after the transferor/seller has completed Section A and the transferee/buyer has completed Section B of the Form 4473.
[27 CFR 478.124]
Licensees must keep each ATF Form 4473 for which a NICS check has been initiated, regardless of whether the firearm was transferred.
When a firearms transfer occurs, Licensees shall retain each Form 4473 until the business or licensed activity is discontinued, either on paper, or in an electronic alternate method approved by the Director, at the business premises readily accessible for inspection under this part.
If a firearms transfer is not made, the FFL must also retain each Form 4473 until business or licensed activity is discontinued. Forms 4473 for transfers that did not take place must be maintained separately from forms where a transfer occurred, either on paper, or in an electronic alternate method approved by the Director, at the business premises readily accessible for inspection under this part.
An ATF 4473 is subject to retention by the FFL at the time when the transferee personally places the transferee’s/buyer’s name on that form as the intended transferee/buyer of the firearms identified in Section A.
A NICS check is valid for 30 calendar days, for use in a single transaction. The 30-calendar day period is counted beginning on the day after NICS was initially contacted.
Where more than 30 calendar days have passed since the licensee first contacted NICS, the licensee must initiate a new NICS check prior to transferring the firearm. It is not necessary to complete a new ATF Form 4473, but the results of the new NICS background check must be recorded on the form.
Example 1
A NICS check is initiated on May 15. The licensee receives a “proceed” from NICS. The transferee does not return to pick up the firearm until June 22 of the same year.
The licensee must conduct another NICS check before transferring the firearm to the transferee.
Example 2
A NICS check is initiated on May 15. The licensee receives a “delayed” response from NICS; no further response is received. The transferee does not return to pick up the firearm until June 16 of the same year.
The licensee must conduct another NICS check before transferring the firearm to the transferee.
[27 CFR 478.102]
No. A licensee must initiate a new NICS background check for each completed firearms transaction. However, a person may purchase or acquire several firearms in one transaction.
Example 1
A transferee completes an ATF Form 4473 for a single firearm on February 15. The licensee receives a “proceed” from NICS that day. The licensee signs the form, and the firearm is transferred. On February 20, the transferee returns to the licensee’s premises and wishes to acquire a second firearm.
The acquisition of the second firearm is a separate transaction. Therefore, a new NICS check must be initiated by the licensee.
Example 2
A transferee completes ATF Form 4473 for a single firearm on February 15. The licensee receives a “proceed” from NICS that day. The transferee does not return to pick up the firearm until February 20. Before the licensee completes the transfer of the first firearm, the transferee decides to acquire an additional firearm. The second firearm may be recorded on the same Form 4473.
The acquisition of the two firearms is considered a single transaction. Therefore, the licensee is not required to conduct a new NICS check prior to transferring the second firearm.
A licensee may transfer a firearm to a transferee as soon as he or she receives a “proceed” from NICS (assuming that the transaction would be in compliance with state law).
However, if the licensee does not receive a final “proceed” or “denied” response from NICS, he or she must wait until 3 business days have elapsed prior to transferring the firearm.
[18 U.S.C. 922(t); 27 CFR 478.102(a)(2)]
The licensee must initiate another NICS check before the firearm may be transferred.
Yes, assuming the transaction complies with state law.
Example
ATF recognizes the permit to purchase a handgun and the concealed weapons permit as alternatives to a NICS check in a particular state.
Any purchaser who displays either permit in that state is not required to undergo a NICS check prior to purchasing a rifle, assuming the transaction complies with state law.
No. A permit qualifies as a NICS alternative only if it was issued by the state in which the transfer is to take place.
[18 U.S.C. 922(t); 27 CFR 478.102(d)]
Yes. Compliance with federal background check provisions does not excuse a licensee from compliance with state law, and vice versa. Licensees must follow state law waiting periods.
Example 1
State X is acting as a point of contact for NICS checks. State law requires the licensee to wait 10 days, rather than 3 days, for a response to the background check prior to transferring a firearm.
Because state law provides a 10 day period before a licensee may transfer a firearm, the licensee may not transfer the firearm until 10 days have elapsed since conducting the background check.
Example 2
State X is acting as a point of contact for NICS checks. State law allows a licensee to transfer a firearm 24 hours after conducting a NICS check and receiving a “delayed” response.
However, the licensee must comply with federal law which requires the licensee wait 3 business days prior to transferring a firearm, if the licensee has not received notice that the transfer would be prohibited.
Example 3
The law of State X provides for a 5 day waiting period before a handgun may be transferred by a licensee. An individual completes an ATF Form 4473 for the purchase of a handgun, a NICS check is conducted, and a “proceed” response is given by NICS.
Although the licensee received a “proceed” response, the licensee must comply with the state waiting period, and the licensee may not transfer the firearm until the state's 5 day waiting period has elapsed.
[18 U.S.C. 922(b)(2)]
