In an ideal world, firearm transactions would be completed in the minimum number of days legally permitted. However, that’s not always the case. After all, life happens. Sometimes customers start a transaction but can’t pick up their firearm for days or weeks due to an illness, vacation, work travel, or other unforeseen events. Other times, buyers get denied and appeal the contested record.
Luckily, NICS responses are valid for 30 calendar days, providing most people ample time to complete their transaction. However, firearm transfers more than 30 days after a background check is initiated are considered a willful violation by the ATF and grounds for your FFL to lose its license under the Biden administration’s zero tolerance policy.
Though relatively easy to prevent, you must know how to properly complete a Form 4473 completed on a different day and within 30 days to stay compliant and protect your FFL.
In our last Zero Tolerance Protection series article, we reviewed each NICS response to a background check. We’ll ignore final “denied” and “cancelled” responses as we only care about responses that permit the transfer of a firearm. Such responses include “proceed,” “delayed” with no follow-up response after three business days (where permitted), no responses within three business days, and overturned denials. If any of these are received within 30 days of the background check, a firearm transfer may proceed.
If the buyer/transferee is available to take immediately possession of the firearm, the FFL finishes the ATF Form 4473, updates the bound book accordingly, and transfers the firearm. But if the transfer takes place on a different day from the date that the transferee/buyer signed in Section B, the licensee must again check the photo identification of the buyer/transferee at the time of transfer and have them recertify in Section D of the form.
This is where violations can occur.
Section D of the Form 4473 asks the buyer/transferee to certify that their responses in Section B – including name, address, citizenship, and answers to prohibitions – are still true, correct, and complete. If so, the individual should sign in box 30 and provide the recertification date in box 31. However, recertification is only permitted if the background check, as dated by the licensee in box 27.a, is no more than 30 calendar days (beginning on the day after NICS was initially contacted) from the date of attempted recertification.
As an example, if a NICS background check was initiated on September 1, 2022, but the buyer/transferee could not pick up the firearm until October 2 (31 days elapsed), the firearm transaction could not occur as the NICS response is no longer valid.
If more than 30 calendar days have passed since the licensee first contacted NICS, the FFL must initiate a new NICS check prior to transferring the firearm, assuming it’s still available. It’s not necessary to complete a new Form 4473, but the results of the new NICS background check must be recorded on the original form.
When a prospective buyer/transferee is denied, they have an opportunity to appeal. If the appeal of a denial is successful and 30 days or fewer have elapsed since the initial check, and there are no other disqualifying records upon which the denial was based, NICS will communicate a “proceed” response to the FFL and the firearm transaction may proceed.
If the appeal is successful and more than 30 days have elapsed since the initial background check, the FFL must initiate a new NICS check before allowing the sale/transfer to continue.
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 review how falsifying records on ATF Forms 4473 and in your bound book could lose you your license.
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.