October 6, 2020
The Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) recently released two updated Procedure documents, Procedures 2020-1 and 2020-2, which supersede the ATF’s previous guidance regarding the sale and transfer of firearms by FFLs to purchasers off of the FFL’s business premises and an FFL’s facilitation of firearms transfers between private parties. These procedures were issued in response to revisions to the over-the-counter ATF Form 4473 which were implemented in May of this year. The ATF has stated that it “strongly encourages all FFLs to begin using this new form immediately,” but does not require its use until November 1, 2020.
ATF Procedure 2020-1 provides guidance for proper completion of Form 4473 when selling to a customer who is (1) exempt from the NICS or has a valid alternative permit, (2) resides in the same state as the FFL, and (3) does not appear in person at the FFL’s business premises. Pursuant to 18 U.S.C. 922(t)(3), an FFL may sell or transfer a firearm without a NICS background check if the buyer presents a valid “NICS-exempt” permit or license. ATF Procedure 2020-1 provides that an FFL may transfer a firearm to a customer who does not appear at the FFL’s place of business if certain procedures are met, including that (1) the transferee attaches to the Form 4473 a sworn statement that they are not prohibited from receiving the firearm, (2) the FFL indicates that this is a “18 U.S.C. 922(c) transaction” on the top of the first page of the Form 4473, (3) the FFL forwards a copy of the Form 4473, the sworn statement, and a valid alternative permit (if applicable) to the chief law enforcement officer of the transferee’s locality, and (4) the FFL delays shipment of the firearm by at least seven days. The ATF Procedure 2020-1 is available here.
ATF Procedure 2020-2 provides guidance to FFLs as to the recordkeeping and background check requirements while facilitating firearms transfers between private parties, as some states require that FFLs broker the transfer of firearms between private parties and conduct a NICS check on the transferee. ATF 2020-2 further provides instructions as to how an FFL must handle “denied,” “cancelled,” and “delayed” responses from NICS. Pursuant to the guidance, if an FFL receives a “denied” or “cancelled” response from NICS and the private party seller has not relinquished possession of the firearm to the FFL, the private party seller is permitted to leave the premises with the firearm and the FFL is not required to enter the firearm on its Acquisition and Disposition record (“A&D”). However, if the private party seller leaves the firearm in the exclusive possession of the FFL the FFL must record the firearm on its A&D record, complete an ATF Form 4473 to return the firearm to the seller, and conduct a NICS check on the seller before returning the firearm.
If the FFL receives a “delayed” response from NICS the private party seller may leave the premises with the firearm or allow the FFL to retain the firearm at its business premises pending a response from NICS. If the private party seller leaves the premises with the firearm they must return to the FFL’s premises prior to the firearm’s transfer. If the FFL retains the firearm the FFL must record the firearm on its A&D record, but if the FFL proceeds with the transfer the private party seller does not need to return to the FFL’s business premises. If the FFL receives a “delayed” response from NICS, the FFL retains the firearm pending NICS approval, and later receives a “denied” response, the FFL must complete a Form 4473 and conduct a NICS check on the private party seller before returning the firearm. The FFL must also record the return as a disposition on the FFL’s A&D record. The ATF Procedure 2020-2 is available here.
If you have any questions concerning the revised Form 4473, ATF Procedures 2020-1 or 2020-2, or requirements for the lawful sale and transfer of firearms in general, please contact John F. Renzulli or Christopher Renzulli.