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Zero Tolerance Protection: Don’t Forget a Background Check

Written by Orchid


August 23, 2022


White text atop black background next to grayscale photo of President Joe Biden

Once a firearm buyer or transferee has completed their ATF Form 4473, the dealer will review the paper or electronic document for both accuracy and completeness. So long as the individual is not a prohibited person and all provided information is valid and correct, the licensee will, when and where required, initiate a background check on the person to ensure they are not ineligible to purchase and possess a firearm.

Though not always required, failing to complete a background check prior to transferring a firearm is considered a “willful” violation by the ATF and grounds for license revocation under the Biden administration’s new zero tolerance policy. And before you think it couldn’t happen to you, consider that ATF cited FFLs with over 11,000 such failures during compliance inspections between 2016-2020, making it the 28th most-cited violation during the five-year period.

To avoid committing such violation, it’s important to know required documentation to initiate a background check, who to contact to process the check, and how to request a background check.

Required Documentation

Before initiating a background check, a firearms dealer should again review the Form 4473, specifically Questions 21.a-21.l. As we covered in a previous Zero Tolerance Protection article, these correspond to ATF’s definition of prohibited persons.

A background check should not be conducted under the following conditions:

  • Buyer/transferee answered “no” to question 21.a.
  • Buyer/transferee answered “yes” to any question in 21.b. – 21.k
  • Buyer/transferee answered “yes” to question 21.l.1. and answered “no” to question 21.l.2
  • Buyer/transferee cannot provide documentation required by questions 26.a, b, c, or d.

Once buyer/transferee answers have been confirmed correct, FFLs should assemble the following documents before requesting a background check:

  • Valid government-issued photo identification of buyer/transferee and/or secondary documentation to prove state residency.
  • Completed Sections A and B of ATF Form 4473, with buyer/transferee signature and certification date in boxes 22 and 23, respectively.
  • If Question 19 is answered with a country other than the U.S.A., a Legal Resident Card or Employment Authorization Card (AR# or USCIS#), or Arrival/Departure Record, Form I94, or Form 797A (I94#) must be provided and the number recorded in box 20.
  • If Questions 21.l.1 and 21.l.2 are both marked “yes,” documentation must be provided and noted in box 26.d to establish the buyer/transferee is exempted from the nonimmigrant alien prohibition.

With all documentation ready, a dealer may initiate a background check. However, depending on where your FFL is located and the type of firearm being sold/transferred, who to contact may vary.

NICS vs Point of Contact States

In 1993, provisions of the Brady Handgun Violence Prevention Act (Brady Act) established the National Instant Criminal Background Check System (NICS). Operated by the FBI and developed with ATF and law enforcement agencies, NICS is used by dealers and pawnbrokers to determine whether a person can legally buy or own a firearm. However, NICS is not used by all FFLs or for every firearm transaction.

As of this writing, NICS provides full service to 31 states, five U.S. territories, and the District of Columbia. The remaining 19 states use a Point of Contact (POC), or state-appointed agency acting on behalf of FBI NICS to conduct all or some firearm background checks for FFLs in their respective state by electronically accessing NICS. There are currently 13 full POC states and six partial POC states, in which the POC only conducts background checks for handguns, while FFLs contact NICS for long gun background checks.

Earlier this summer, Delaware Governor John Carney signed bill HB423 into law which will establish the Firearm Transaction Approval Program within the State Bureau of Identification of the Delaware State Police to serve as the point of contact (POC) between FFLs and FBI databases. Delaware is currently serviced by FBI NICS.

Requesting a Background Check

Dependent on your state and the firearm being transferred, FFLs should either submit buyer/transferee information for a background check online via NICS E-Check (nicsezcheckfbi.gov) or your state’s POC website. FFLs may also choose or need to call in a background check, either by contacting FBI NICS at 1-877-FBI-NICS (1-877-324-6427) or the state POC directly.

Regardless of whether you’re contacting FBI NICS or a state POC, or submitting a background check online or over the phone, you’ll generally be asked to provide the same information of the buyer/transferee and firearm transaction. All this information will come from the completed Form 4473.

Using aforementioned documentation, some or all of the following information will need to be provided when requesting a background check:

  • FFL identification number and/or code
  • Buyer/transferee full name
  • Buyer/transferee date of birth
  • Buyer/transferee address
  • Buyer/transferee sex
  • Buyer/transferee ethnicity and/or race
  • Buyer/transferee driver’s license number
  • Buyer/transferee country of citizenship
  • Firearm type of transaction

The NICS examiner or POC representative will then initiate the background check and provide a response.

Orchid Zero Tolerance Protection

At Orchid, our team of operations, technology and legal professionals understand the risks of today’s firearm businesses. For over a decade, we’ve worked with FFLs big and small to implement leading compliance best practices and software solutions to eliminate violations and protect licenses from revocation.

As we continue our Zero Tolerance Protection series, we’ll share our expertise and experience in proactive compliance as we look closer at Biden’s policy and its impact on the firearms industry, review how to avoid and correct violations, and suggest ways to protect your FFL from the risk of revocation. Next, we’ll review the excemptions to conducting a background check.

In the meantime, contact us today to schedule your in-person or remote mock ATF inspection, get started with leading compliance software, and enroll in an attorney-backed FFL Protection Plan. One phone call or email could protect your FFL from a zero tolerance revocation.

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