Zero Tolerance Protection: How to Respond to NICS Responses

Written by Orchid

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August 31, 2022

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

If a firearm buyer or transferee is not a prohibited person under ATF regulations and does not have a qualifying NICS exemption, FFLs may proceed with a background check. Dealers may either call in or submit the background check online with the required information and wait for a response before transferring the firearm.

Depending on the agency conducting the background check, the submission method used, how many people are also waiting on background checks, any state-required waiting periods, and the time in which a check was initiated, a response could take anywhere from minutes to hours to days. But, when a response does inevitably come back, your FFL must know how to process each NICS response, how to update the ATF Form 4473, and whether the firearm can be transferred to the prospective buyer/transferee.

Because not recording required NICS information on a Form 4473 and, in some states, transferring a firearm before a background check response has been received are considered willful ATF violations under the Biden administration’s zero tolerance policy, it’s critical you understand each NICS response. Failing to do so could cost your firearms business its license.

Initial NICS Responses

NICS or state agencies provide four initial responses: proceed, denied, cancelled, and delayed. Some POC states may use different terms for these responses, but icensees must check the appropriate response on the Form 4473 that corresponds to the state’s response.

Proceed Response
If NICS provides an initial “proceed” response, the firearm transaction may proceed. No state or federal prohibitions were found in determining the buyer/transferee’s eligibility.

FFLs must record the date the buyer/transferee information was transmitted to NICS/POC (27.a), NICS and/or state transaction number(s) (NTN/STN) (27.b), and the initial “proceed” response (27.c) on the Form 4473.

Denied Response
If NICS provides an initial “denied” response, the firearm transaction must not proceed. The licensee is prohibited from transferring the firearm as the buyer/transferee may have a state or federal prohibition.

FFLs must record the date the buyer/transferee information was transmitted to NICS/POC (27.a), NICS and/or state transaction number(s) (NTN/STN) (27.b), and the initial “denied” response (27.c) on the Form 4473.

Cancelled Response
Though less common, if NICS provides an initial “cancelled” response, the firearm transaction must not proceed. The licensee is prohibited from transferring the firearm as the background check was not initiated in accordance with ATF/FBI regulations or the submitted buyer/transferee information was non-matching or invalid.

FFLs must record the date the buyer/transferee information was transmitted to NICS/POC (27.a) and the initial “cancelled” response (27.c) on the Form 4473. 

Delayed Response
If NICS provides an initial “delayed” response, the firearm transaction must not proceed, pending a follow-up response from NICS or three (3) business days have elapsed, whichever occurs first. The licensee is prohibited from immediately transferring the firearm as additional research to verify the buyer/transferee’s background or a waiting period is required.

If the FBI cannot make a determination within three business days of a background check, the FFL may transfer the firearm, unless prohibited by state law. Some states may not allow the transfer of a firearm without a NICS response regardless of how many days have elapsed or have required waiting periods longer than three days.

FFLs must record the date the buyer/transferee information was transmitted to NICS/POC (27.a) and the initial “delayed” response (27.c) on the Form 4473. Licensees may also record the date the firearm may be transferred, known as the Missing Disposition Information (MDI) date, in 27.c; however, some states may not provide this date.

Follow-Up NICS Responses

In some instances, a subsequent NICS/POC response will be received later as a follow-up to an initial response. These responses may be provided immediately or even days later. Depending on the follow-up response, the FFL may still transfer the firearm and complete the transaction.

Proceed Response
If NICS provides a later “proceed” response, the firearm transaction may proceed. It’s possible an incorrect initial response was provided, invalid information was submitted, additional background research was conducted, or an appeal was issued that determined the buyer/transferee does not have any state or federal prohibitions.

The FFL must mark “overturned” and record the later “proceed” response with the date the response was received (27.d) on the Form 4473. If provided, the overturn certificate issued by NICS/POC should be attached to the Form 4473.

Denied Response
If NICS provides a later “denied” response, and the firearm has not already been transferred, the firearm transaction must not proceed. It’s possible an incorrect initial response was provided or additional background research was conducted that determined the buyer/transferee has state or federal prohibitions.

If the initial response was “proceed” followed by “denied,” and the firearm has not been transferred, FFLs must mark “overturned” and record the later “denied” response with the date the response was received in 27.d. If the firearm has already been transferred, FFLs must record the later “denied” response with the date the response was received in 27.e and notify the NICS Section by phone at 1-877-FBI-NICS (324-6427) or email at nics_upeg@fbi.gov.

If the initial response was “delayed” followed by “denied,” and the firearm has not been transferred, FFLs must record the later “denied” response with the date the response was received in 27.d. If the firearm was transferred after three business days, FFLs must record the later “denied” response with the date the response was received in 27.e and notify the NICS Section by phone at 1-877-FBI-NICS (324-6427) or email at nics_upeg@fbi.gov.

Cancelled Response
Though uncommon, if NICS provides a later “cancelled” response, the firearm must not be transferred. It’s likely the background check was not initiated in accordance with ATF/FBI regulations or the submitted buyer/transferee information was non-matching or invalid.

FFLS must record the later “cancelled” response with the date the response was received in 27.d.

No Response Within 3 Days
For states that allow FFLs to transfer firearms without a NICS/POC response after three business days, if NICS does not provide a response within that period, the firearm transaction may proceed.

If the initial response was “delayed” or no response was provided at all, FFLs must record the later “no response was provided within 3 business days” response in 27.d.

Later responses provided after the firearm has been transferred must be recorded accordingly with the response provided and date the response was received in 27.e.

Calculating 3 Business Days

A “business day” is defined as any 24-hour day beginning at 12:01am the day after a background check was initiated. A business day does not include weekends (Saturday and Sunday), state holidays, or days in which state offices are closed.

As an example, if a NICS background check was initiated on a Sunday, the firearm may not legally be transferred without a NICS response until Thursday.

It’s important to remember the day the background check was initiated does not count toward the three-business day period.

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.

Continuing 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 discuss how long NICS responses are valid and how to transfer a firearm within 30 days of initiating a background check.

In the meantime, learn more about a Zero Tolerance Rapid Assessment of prior ATF Reports of Violations, your A&D Bound Book, and recent ATF Forms 4473. We also encourage you to schedule an in-person or remote mock ATF inspection and implement leading compliance software in your retail FFL. Contact Orchid today to protect your FFL from a zero tolerance revocation.

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