In 2020, the ATF conducted more than 5,800 firearm compliance inspections of federal firearms licensees (FFL) with 43% recording violations. While down from 2019, fewer than two times as may FFLs were inspected in a year limited by pandemic shutdowns and social distancing. Now, the Biden-Harris administration is making up for lost time with new strategies to prevent gun crime, establishing a zero-tolerance policy for “rogue gun dealers” and supporting regulatory agencies with resources to maximize their effectiveness.
Under new proposed policies, absent extraordinary circumstances, FFLs could have their license revoked the first time they willfully violate federal law, with explicit violation examples including transferring a firearm to a prohibited person and failing to run a required National Instant Criminal Background Check (NICS) – the latter of which being one of the most frequently cited areas of violation.
Facing increased pressure, it has never been more important for FFLs to limit violations. With over a decade of experience serving FFLs, we’ve seen countless instances of NICS violations to know where common errors are made and how to avoid them so you can pass your next ATF inspection violation-free.
For purposes of this article, the use of “NICS” generically also includes applicable state-conducted background checks by appointed Points of Contact (POC).
Common NICS Violations
1. Failure to Meet Legal Requirements
Perhaps obvious, preventing a NICS violation begins with ensuring the potential transferee/buyer meets state and federal requirements to purchase and own a firearm. Such requirements include age (based on firearm type), citizenship status and state residency, as well as city/county residency for states who may have local regulations against specific firearm types and features.
These requirements are in addition to the transferee/buyer’s responses to questions 21.a–21.l.2 on ATF Form 4473, which must be completed prior to initiating a NICS check. Falsification of answers on a 4473 is a felony under the Gun Control Act (GCA).
If a potential transferee/buyer does not meet all requirements for purchasing or owning a firearm, a NICS check should not be initiated and no transfer/sale should be made.
2. Failure to Provide Accurate Information
Upon completion of a 4473, FFLs should ensure all transferee/buyer-provided information in Section B is true and correct before proceeding to initiate a background check. Of most importance is the transferee/buyer’s full name, current address, sex, date of birth, country of citizenship and U.S.-issued Alien Number/Admission Number (if applicable). This information must match their government-issued primary or secondary identification documents.
In addition to a transferee/buyer’s personal information, FFLs must also confirm the firearm type of the firearm transfer/purchase is correct and legal to be purchased or owned by the intended person. The firearm type should match field 4 on the 4473.
Used to initiate a NICS check, the accuracy of this personal and firearm information is critical to preventing a prohibited person from wrongfully obtaining a firearm.
3. Failure to Mark/Update Response
After initiating a NICS check, NICS will provide a transaction response to be marked in field 27.c of the 4473. Possible responses and next steps include:
- Proceed: The firearm transfer/transaction may continue immediately.
- Denied/Cancelled: The FFL is prohibited from transferring the firearm to the transferee/buyer.
- Delayed: The FFL is prohibited from transferring the firearm unless 3 business days have elapsed.
If a subsequent response from NICS/POC is received prior to the transfer of the firearm, the response must be marked in field 27.d on the 4473 with the date received, while responses received after the firearm has been transferred (if permitted by state law) must be recorded in field 27.e.
If more than 30 days have elapsed from the date marked in field 27.a, a new NICS check is required and a new date of contact, transaction number and NICS/POC response should be noted in fields 27.a–27.c.
4. Failure to Record Transaction Number
Accompanying a NICS response is a NICS/state transaction number (NTN/STN). The NTN/STN must be recorded in field 27.b on the 4473 regardless of whether the transaction is approved/denied and the firearm is actually transferred.
In some states, such as Colorado, two transaction numbers (CBI and NICS) are required to be recorded. Not all states provide STNs for denials.
5. Failure to Conduct Background Check
Except in 25 states where valid ATF-qualified alternate permits (i.e., handgun permits or concealed weapon permits) may substitute a NICS check, transfers of NFA firearms, and other exemptions noted in 27 CFR 478.102(d), all firearm transactions by licensed FFLs require a NICS check. As noted earlier, transferring a GCA firearm without a NICS check could lead to loss of license.
How Orchid Can Help
Navigating NICS and firearm regulations can be complicated, but ATF violations are preventable with proper compliance technology and training. At Orchid, our compliance solutions are designed to not only make your job as a retail FFL easier and more efficient, but to also protect your license.
Avoid transferring firearms to prohibited persons with Orchid eState™, the only FFL software developed for state firearm laws. Manually look up regulations by location, firearm type and features before proceeding with a transaction, or automatically integrate our API to your existing POS or eCommerce store.
With Orchid eBound™, featuring integrated e4473 and customer kiosk mode, ensure you never miss a disqualifying 4473 answer from a transferee/buyer and all provided information is correct before initiating a NICS check. eBound™ is also the only FFL compliance software created and backed by legal and regulatory professionals.
Orchid also offers employee training through on-demand FFL University™ courses, including ‘Mastering Gun Sales with ATF 4473 and NICS,’ and expert compliance services available on a monthly and as-needed basis, including on-site/remote mock ATF inspections and FFL Protection Plans™ fit for every size firearm retailer.
Don’t wait for the ATF to come knocking before limiting NICS violations. Contact us today to get started today.