ATF Releases New Procedures on Certain Retail and Private-to-Private Transactions

Gun Rights

Early this month, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) released two new procedure documents.

The first, ATF Procedure 2020-1, Recordkeeping procedure for non-over-the-counter firearm sales by licensees to unlicensed in-state residents that are NICS exempt (Sept. 3, 2020), provides directions to licensed importers, manufacturers, and dealers (FFLs) on the correct process for the parties to the transaction to take in completing ATF Form 4473, when the transaction involves a sale or transfer to an unlicensed person, resident in the same state as the FFL, who does not appear in person at the FFL’s business premises.

Federal law, 18 U.S.C. 922(t)(3), authorizes sales and transfers without a NICS background check to persons with a valid “NICS-exempt” permit or license (a firearm subject to the National Firearms Act that has been approved for transfer is also exempted). A separate federal law, 18 U.S.C. 922(c), allows an FFL to sell a firearm to an unlicensed person who does not appear in person in limited circumstances, generally involving a sworn statement in the prescribed form, notification to the chief law enforcement officer of the locality where the person resides, and a wait time of at least a week. The statement must contain blank spaces to attach a true copy of any permit or license.

Procedure 2020-1 allows an FFL to conduct and record a sale of a firearm to a resident of the same state who does not appear in person at the FFL’s business premises provided that the transfer is exempt from the NICS background check requirements and the procedures outlined in the document are followed by the seller-transferor, the buyer-transferee, and the FFL.

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The new Procedure 2020-1 supersedes ATF Procedure 2013-2.

The second new document, ATF Proc. 2020-2, Recordkeeping and Background Check Procedure for Facilitation of Private Party Firearms Transfers (Sept. 2, 2020), gives directions on the recordkeeping and NICS procedures for FFLs who facilitate or broker the transfer of firearms between private, unlicensed individuals. Some states’ laws mandate that all firearm transactions between non-FFLs be made through an FFL; otherwise, because unlicensed persons do not have access to the NICS to conduct a background check, some private sellers may choose to make a private sale using an FFL. ATF has previously issued guidance documents on the role of the FFL in these transactions, and this procedure supersedes the latest of those, ATF Procedure 2017-1.

ATF Process 2020-2 establishes the new procedures that apply when a private party transferor (seller) takes a firearm to an FFL with the prospective transferee/buyer to conduct a sale or transfer.

One of the questions that prior guidance documents left open was the responsibility of an FFL when the private party seller left the firearm in the exclusive possession of the FFL at the FFL’s business premises while the NICS background check on the buyer/transferee was pending. If the buyer/transferee failed the NICS check, the FFL was directed to conduct a NICS background

check on the private party seller before he or she could retake possession of the firearm. If the seller also failed the NICS check, the FFL was prohibited from returning the gun.

This version fails to clarify the FFL’s responsibility in such cases. It simply directs the FFL to conduct a “NICS background check on the private party seller, and receive either a ‘proceed’ response, or no response after three business days (or appropriate State waiting period), prior to returning the firearm.”

This procedure does not apply to pawn transactions, consignment sales, or repairs.

Earlier this year, the ATF released an industry letter on firearm sales and deliveries exterior to the brick-and-mortar structure at which a firearms business is licensed (drive-up or walk-up access), for the purposes of accommodating pandemic-related distancing and restricted contact directives. That document is available here.

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