National Instant Criminal Background Check System (NICS)
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)]
Yes. The exemption from completing an ATF Form 4473 and a NICS check applies only to the person/entity holding the license, not to individual officers or employees of the person/entity holding the license.
[18 U.S.C. 921(a)(1); 27 CFR 478.11]
Depending on how the organization arranges for the firearms to be transferred to the raffle winner, the licensee’s participation may vary.
Example 1
A licensee transfers a firearm to the organization sponsoring the raffle. The representative acting on behalf of the organization must complete the ATF Form 4473 and undergo a NICS background check.
When the buyer of a firearm is a corporation, association, or other organization, an officer or other representative authorized to act on behalf of the organization must complete the form with his or her personal information and attach a written statement, executed under penalties of perjury, stating that the firearm is being acquired for the use of the organization and the name and address of the organization.
Once the firearm had been transferred to the organization, the organization can subsequently transfer the firearm to the raffle winner without an ATF Form 4473 being completed or a NICS check being conducted. This is because the organization is not a licensee.
However, the organization cannot transfer the firearm to a person who is not a resident of the organization’s state of residence nor can the organization knowingly transfer the firearm to a prohibited person.
Example 2
The licensee or a representative of the licensee brings a firearm to the raffle so that the firearm can be displayed. After the raffle, the firearm is returned to the licensee’s premises. The licensee must complete an ATF Form 4473 and conduct a NICS background check prior to transferring the firearm to the winner of the raffle.
If the firearm is a handgun, the winner of the raffle must be a resident of the state where the transfer takes place, or the firearm must be transferred through another licensee in the winner’s state of residence.
If the firearm is a rifle or shotgun, the licensee can lawfully transfer the firearm to the winner of the raffle as long as the transaction is over-the-counter and complies with the laws applicable at the place of sale and the state where the transferee resides.
Example 3
If the raffle meets the definition of a qualifying event, the licensee may conduct business at that event.
Please note, if the organization’s practice of raffling firearms rises to the level of being engaged in the business of dealing in firearms, the organization must get its own federal firearms license.
[18 U.S.C. 922(a)(5), 922(b)(3), 922(t), and 923(j); 27 CFR 478.99, 478.100, 478.102, and 478.124]
NFA (non-licensees)
No. A firearm that was originally a rifle would be classified as a “weapon made from a rifle” if it has either a barrel less than 16 inches in length or an overall length of less than 26 inches. If an individual wishes to make an NFA firearm, they must first submit ATF Form 1 (Application to Make and Register a Firearm), pay a $200.00 making tax, and receive approval of the application from ATF before converting the firearm.
[18 U.S.C. § 921(a)(3); 26 U.S.C. § 5845(a)(3)-(4)]
The National Firearms Act (NFA) contains no minimum age in regard to the possession of NFA firearms. Regardless, federal firearms law prohibits a licensed importer, manufacturer, dealer or collector (i.e., licensees) from selling or delivering any firearm or ammunition to any individual that the federal licensee knows or has reasonable cause to believe is less than 18 years of age. Federal firearms law further provides that a licensee shall not sell or deliver any firearm or ammunition that is other than a shotgun or rifle or ammunition for a shotgun or rifle to any individual that the federal licensee knows or has reasonable cause to believe is less than 21 years of age.
[27 CFR § 478.99(b)]
A registered possessor of an NFA firearm, other than a federal firearms licensee/special occupational taxpayer (FFL/SOT), may not lawfully transport in interstate or foreign commerce any destructive device, machinegun, short-barreled shotgun or short-barreled rifle without prior written approval of ATF, specifically the NFA Branch.
Approval for the transportation may be obtained by either a written request, or an approved application filed with ATF on Form 5320.20, Application to Transport Interstate or to Temporarily Export Certain NFA Firearms. Please note that applications to transport NFA firearms will be approved only if consistent with all state and local laws.
[18 U.S.C. § 922(a)(4); 27 CFR § 478.28]
The NFA defines shotgun, in part, as a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder and designed or redesigned and made or remade to use the energy of the explosive in a fixed shotgun shell to fire through a smooth bore either a number of projectiles (ball shot) or a single projectile for each pull of the trigger.
A shotgun is a firearm subject to the NFA if the shotgun has a barrel or barrels of less than 18 inches in length. A weapon made from a shotgun is also a firearm subject to the NFA if the weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length.
[26 U.S.C. §§ 5845(a)(1)-(2), (d)]
A rifle is defined, in part, as a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder and designed or redesigned and made or remade to use the energy of the explosive in a fixed cartridge to fire only a single projectile through a rifled bore for each single pull of the trigger.
A rifle is subject to the NFA only if the rifle has a barrel or barrels of less than 16 inches in length. A weapon made from a rifle is also a firearm subject to the NFA if the weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 16 inches in length.
[26 U.S.C. §§ 5845(a)(3)-(4), (c)]
A person not otherwise prohibited by federal, state or local law from possessing firearms may submit an application to make an NFA firearm, other than a machine gun as prescribed by the Gun Control Act of 1968, as amended, at 18 U.S.C. § 922(o).
The application process requires the applicant to submit ATF Form 1, Application to Make and Register a Firearm, in duplicate, along with FBI FD-258, Fingerprint Card, in duplicate, and payment of the $200 making tax.
[27 C.F.R. §§ 479.62-65]
The firearm must be registered because such a firearm constitutes “any other weapon” (AOW) as defined in the National Firearms Act (NFA) at 26 U.S.C. § 5845(e).
To lawfully add a vertical fore grip to a handgun, a person must submit an ATF Form 1, Application to Make and Register a Firearm along with a fingerprint card bearing the applicant’s fingerprints, a photograph, and $200 making tax. An applicant’s ATF Form 1 will be approved if the applicant is not prohibited from possessing a firearm under federal, state, or local law, and the applicant’s possession of AOW is not prohibited in the applicant’s state of residence. An applicant may only add a vertical fore grip to the handgun designated on his/her Form 1 only after the applicant’s Form 1 is approved by ATF.
[26 U.S.C. § 5845(e)]
