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Zero Tolerance Protection: Exemptions to NICS Background Checks

Written by Orchid


August 25, 2022


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

Last month, more than 2.4 million NICS background checks were conducted by FFLs across the U.S. However, when adjusted for permit checks and rechecks, July’s total was closer to 1.23 million – according to the NSSF. Still, what these totals don’t tell us are the number of firearm transactions not involving background checks.

In our last Zero Tolerance Protection article, we stated that while failing to conduct a background check before transferring a firearm is considered a willful violation worthy of revocation under Biden’s zero tolerance policy, not every transfer requires a background check at the time of transfer.

Federal law requires background checks for firearm purchases/transfers from FFLs in all states, but there are two common exemptions to NICS/POC background checks.

Qualifying Permits

In numerous states, qualifying permits serve as alternatives to background check requirements, provided the permit is valid under state law and the transaction occurs no more than 5 years from the date of the permit’s issuance. Because background checks are performed during the permitting process, FFLs are generally not required to conduct separate checks at the time of transfer.

Of course, such permits come with a few caveats. First, the issuance, use and requirements of such permits varies state to state. Second, some permits may no longer be required by law but are still issued optionally. Third, some states may require permits to purchase or possess firearms but are not recognized by the ATF as alternatives to background checks. And, lastly, some states may still require a background check despite a qualifying permit depending on the type of transaction (i.e., private transfer).

Qualifying permits can be broken down into three categories: handgun permits, firearms licenses, and concealed carry permits.

Handgun Permit: Generally required to purchase a pistol or revolver

States include: Iowa, Michigan, Nebraska, North Carolina

Firearms License: Generally required to purchase any firearm

States include: Hawaii

Concealed Carry Permit: Generally required to conceal carry a firearm in public

States include: Alaska, Arizona, Arkansas, Georgia, Hawaii, Idaho, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Nevada, North Carolina, North Dakota, Ohio, South Carolina, South Dakota, Texas, Utah, West Virginia, Wyoming

It should also be noted, California has a unique qualifying permit exemption called an Entertainment Firearms Permit, required to rent firearms for use in motion picture, television, and other entertainment productions.

Law Enforcement Certification Letters

The second most common NICS background check exemption you’ll likely encounter are law enforcement certification letters.

Federal law states law enforcement officers who provide FFLs with a certification on agency letterhead, signed by a person in authority within the agency (other than the officer purchasing the firearm), stating that the officer will use the firearm in official duties and that a records check reveals the purchasing officer has no convictions for misdemeanor crimes of domestic violence are not required to complete a Form 4473 or conduct a background check.

Like qualifying permits, because a background check has already been conducted, one isn’t needed at the time of firearm transfer.

However, law enforcement certification letters must be certified by individuals considered to have sufficient authority to certify that the officer purchasing the firearm will use the firearm in the performance of official duties. Such persons include:

  • Director of public safety or chief or commissioner of police of city or county police department
  • Sheriff of a sheriff’s office
  • Superintendent or supervisor in charge of the state police or highway patrol office to which the state officer or employee is assigned
  • Supervisor in charge of the federal law enforcement office to which the federal officer or employee is assigned
  • Individual signing on behalf of the person in authority, provided there is a proper delegation of authority

Though not required by law, having background check-exempt law enforcement officers complete a Form 4473 and attaching the letter to the back is still a recommended practice.

Additional Exemptions

There are two additional types of NICS background check exemptions, though neither are very common. The first relates to transfers of National Firearms Act (NFA) firearms to individuals who have undergone a background check during the NFA approval process – question 28 on Form 4473. The second is for transfers certified by ATF as exempt because compliance with NICS check requirements is impracticable.

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 continue the theme of background checks and focus on NICS responses.

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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