by: JR Valdes
How many Exceptions Are There?
The pertinent ATF regulation, 27 CFR § 478.102(d) provides for 3 exceptions to the NICS check under certain circumstances.The ATF Form 4473 provides a method for recording such an exception. The revocation criteria ATF enforces makes no distinction with respect to the gravity or seriousness of any type of violation, failing to contact NICS prior to transferring a firearm to a non-licensee is a significant public safety issue, and will be viewed by ATF as such if discovered.
NICS Permit Exemption
The most common of these exemptions for most FFLs is the "permit" exemption. What is crucial for the FFL to understand is that not all state issued concealed carry permits are recognized by ATF as qualifying as an alternative to contacting NICS prior to transferring a firearm. FFLs ought to approach every retail transfer with the mindset that NICS or the POC must be contacted prior to transferring a firearm.
Make sure you verify
With that premise in mind, ensure that you have verified the exemption, and can document that an exemption exists prior to the transfer. If you are unsure, or are unable to document the exemption, you cannot transfer the firearm without contacting NICS. Again, this pertains to the "permit" exemption in most cases. The NFA and the "impracticable" cases don't pertain to most instances of applicable transfers.
FBI NICS Check Exemption
Are You In This Group?
Newly licensed firearms dealers sometimes have problems with this process. Newly licensed Pawn Brokers especially in many instances have not had extensive experience with firearms or filling out the ATF Form 4473; and certainly little experience with ensuring the form is accurately executed. This issue is commonly discussed during qualification inspections, usually because the applicant has "heard" that a concealed carry permit exempts the bearer from a NICS check.
Section B of the ATF form 4473, Item 23 (April 2012) prompts the licensee to check the box provided if the transferee is in possession of a "permit" which qualifies as an exception to the FBI/NICS check requirement. Typically this "permit" would be a permit issued by the respective state, allowing the transferee (buyer) to carry a concealed firearm. The ATF through it's website, has provided a chart that indicates the individual states and the type of permit ATF has determined to be acceptable as an alternative to the Brady requirements. However, there is no indication on the ATF Form 4473 that this chart exists and is available to the licensee.
Why Do Some FFLs Fail To Contact NICS?
Generally, the stated reason given by licensees who fail to comply with the proper application of the provisions of 27 CFR § 478.102(d), is related to their interpretation of the instruction language used in Section B Item 23. An initial reading of the instructions text in Section B Item 23 by an inexperienced licensee, may indicate to the FFL that a bona fide concealed carry "permit" is sufficiently recognized by ATF as an alternative to the NICS requirement.
How To Check If ATF Accepts a Permit.
A close reading of the instructions on page 6 of 6 (April 2012) further clarifies the instruction, but direct language such as "ATF does not recognize all state issued concealed carry permits as an alternative to a NICS check" is lacking in the instructions. Language such as "Transferors must ensure that ATF recognizes your state's permit prior to transferring a firearm without conducting a NICS check", may serve to further solidify the directive for the FFL. The FFL could then be directed to the ATF website to examine the Permanent Brady Chart, etc.
This situation is usually addressed by IOIs and corrected during the first inspection after initial licensing. However, violations are not always noticed during inspections, so instances of this violation can remain a recurring violation for the FFL possibly until the next time the FFL is inspected. Ignorance or misinterpretation of instructions is not necessarily an excuse, and failure to conduct a NICS background check is a serious matter.
Follow This Rule And For Your Own Protection.
It is always better for Federal Firearms Licensees to err on the side of caution when acquiring and especially when disposing of firearms to non-licensees. Always assume that the NICS background check is required until proven otherwise. The same applies to the small retailer/pawn broker and the large firearms manufacturer or importer. For your own protection, not only for regulatory purposes, but to also reduce the chances for potential civil liability, ensure that you're clear on this issue.
ATF has posted on its website a chart indicating what state permits are "recognized" by ATF as meeting the requirement for the holder to be exempt from a federal NICS system instant check. The state agency that issues concealed carry permits, or your state law enforcement agency can likely give you guidance in this area as well.
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