Recently the ATF published Procedure 2017-1 (not ATF Ruling 2017-1).

ATF Procedure 2017-1 “set[s] forth the recordkeeping and National Instant Criminal Background Check System (NICS) procedures for a Federal firearms licensee (FFL) who facilitates the transfer of firearms between private unlicensed individuals.”

In this article, we’re going to cover:

  • Basic Background and Requirements for Private Party Sales
  • The new Procedure Outlined in ATF Procedure 2017-1
  • The Difference Between a Ruling and a Procedure
  • The Full-Text of the Procedure

Basic Background and Requirements for Private Party Sales

In order for an FFL to lawfully transfer a firearm to a customer (non-FFL), the FFL must:

  1. Take the firearm into their inventory,
  2. Record the firearm into the FFL’s Acquisition and Disposition (A&D) Record,
  3. Have the customer (non-FFL) complete a Form 4473, and
  4. Conduct a NICS background check prior to transfer (if no exemptions apply).

The FFL must complete a NICS check (unless an exemption applies) per 18 U.S.C. 922(t)(1) and follow the associated requirements in 27 C.F.R. 478.102, 478.122, 478.123, 478.124, and 478.125.

If you eyes just glazed-over after seeing the laws and regulations to be followed for this transaction…don’t worry! We cover ALL of this and more in an easy-to-understand way in our ATF Compliance course.

What does all this have to do with transfers between two non-FFL persons? Great question…

Non-FFLs can’t use the NICS system and some states prohibit private transfers unless a NICS check is conducted on the buyer. Therefore, people in these states must use an FFL to assist with their private transfer.

Also, a private seller has no way of knowing whether the potential buyer is allowed to possess the firearm so they may want to have a NICS check run even though it isn’t required in their state.

ATF Private Party Sales Guide To solve this problem, the ATF published ATF Procedure 2013-1 which provides guidance to FFLs on how to handle these private party gun sales and transfers. Years later, the ATF also published a guide on Facilitating Private Sales.

If you are a customer of RocketFFL, or if you at least follow along with our information, you already know that the ATF updated the Form 4473 and the new version went into effect on January 16, 2017.

This new ATF Procedure 2017-1 (which replaces ATF Procedure 2013-1) addresses the changes in the new 4473 from earlier this year.

New Procedure Outlined in ATF Procedure 2017-1

The purpose of this Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) procedure is to update the record-keeping and National Instant Criminal Background Check System (NICS) procedures for a Federal firearms licensee (FFL) who facilitates the transfer of firearms between private unlicensed individuals. This procedure replaces the prior procedure on this topic, ATF Procedure 2013-1, and does not apply to pawn transactions, consignment sales, or repairs.

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General Procedure:

  1. The prospective buyer must complete Section A of the Form 4473;
  2. The FFL must complete Section B of the Form 4473, conduct a NICS check on the prospective buyer, and record the response;
  3. The FFL must complete Section D and check the box in Item 32 on the Form 4473; and
  4. The FFL must maintain the Form 4473 in accordance with 27 CFR 478.129(b).

The FFL must check the box in Item 32 on the Form 4473 to ensure it can be determined which transaction records correspond with private party transfers in the FFL’s A&D record. If the box is not checked, and there is no corresponding entry in the A&D record, ATF may conclude that the FFL transferred a firearm without making appropriate entries in the FFL’s A&D record.

Note: There are specific circumstances which have different requirements. Please review the full text of ATF Procedure 2017-1 available at the bottom of this article.  These special circumstances include, A. Immediate “Proceed” Transactions, B. “Denied” or “Cancelled” Transactions, and C. “Delayed” Transactions.

When completing these transactions, you as the FFL, must still follow the normal requirements that apply as if you were selling the firearm from your inventory.

For example, you must have secure gun storage devices available, you must follow the special rules for NFA items if they apply, and you must follow all of the other requirements under state and local law.

Also, multiple handgun and multiple rifles reports must still be made if applicable (depending on firearm type and your state of operation).

Each of these are detailed in ATF Procedure 2017-1 below.

ATF Ruling vs. ATF Procedure

Please note the ATF published ATF Procedure 2017-1 (not ATF Ruling 2017-1). “Procedures” are not “rulings.”

There’s not a whole lot of difference between the two when it comes to enforcement, however, RocketFFL aims to arm you with the knowledge you need to succeed as an FFL.

If you read our article on How to Become an FFL and took our course on how to get an FFL, you already know the difference between laws, regulations, and rulings.

Specifically, you know that regulations are made to enforce the laws and rulings help to explain the regulations. A procedure is unique in that it establishes the methods for performing operations in order to comply with the laws and regulations.

You won’t get cited by the ATF for failing to follow a ruling or a procedure. This is because neither are enforceable by the law. Instead, however, the rulings and procedures are used as a “precedent.” Thats a legal term describing information that is used to help interpret what action constitutes a violation or not.

This is language from the ATF that helps describe the difference between rulings and procedures:

“. . . The Bureau publishes rulings and procedures to promote uniform application of the laws and regulations it administers. Rulings interpret the requirement of laws and regulations and apply retroactively unless otherwise indicated. Procedures, how-ever, establish methods for performing operations to comply with such laws and regulations.
Rulings and procedures reported in the Bulletin do not have the force and effect of Treasury Department regulations, but they may be used as precedents. In applying published rulings and procedures, the effect of subsequent legislation, regulations, court decisions, rulings, and procedures must be considered. Concerned parties are cautioned against reaching the same conclusions in other cases unless the facts and circumstances are substantially the same. . .”

I hope that this information helps you understand your requirements as an FFL and helps to educate you on these potentially confusing terms.

I look forward to having you in our industry,

 

 

 

 

ATF Procedure 2017-1

18 U.S.C. 922(b): 18 U.S.C. 922(t)(1): 18 U.S. C. 922(z): 27 CFR 478.58:
27 CFR 478.102:

27 CFR 478.122: 27 CFR 478.123: 27 CFR 478.124: 27 CFR 478.125: 27 CFR 478.126a:

27 CFR 478.129:

Title of Each Referenced Statute or Regulation

UNLAWFUL ACTS
NICS REQUIREMENTS AND EXCEPTIONS SECURE GUN STORAGE OR SAFETY DEVICE STATE OR OTHER LAW
SALES OR DELIVERIES OF FIREARMS ON AND AFTER NOVEMBER 30, 1998
RECORDS MAINTAINED BY IMPORTERS RECORDS MAINTAINED BY MANUFACTURERS FIREARMS TRANSACTION RECORD
RECORD OF RECEIPT AND DISPOSTION REPORTING MULTIPLE SALES OR OTHER DISPOSITION OF PISTOLS AND REVOLVERS RECORD RETENTION

Washington, DC 20226

July 28, 2017

Recordkeeping and Background Check Procedure for Facilitation of Private Party Firearms Transfers.

ATF Procedure 2017-1

Purpose: The purpose of this Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) procedure is to set forth the recordkeeping and National Instant Criminal Background Check System (NICS) procedures for a Federal firearms licensee (FFL) who facilitates the transfer of firearms between private unlicensed individuals. This procedure does not apply to pawn transactions, consignment sales, or repairs.

Background: Title 18, United States Code (U.S.C.), section 922(t)(1)(A) requires FFLs to contact NICS before completing the transfer of a firearm to an unlicensed person. Title 27, Code of Federal Regulations (CFR), sections 478.102, 478.122, 478.123, 478.124, and 478.125, set forth the recordkeeping and background check requirements with which FFLs must comply to conduct firearms transactions. As provided by 18 U.S.C. 922(t)(1), an FFL is required to conduct a NICS check in connection with a proposed firearm transfer by the FFL. For an FFL to lawfully complete the transfer of a firearm, the FFL must take the firearm into inventory, and record it as an acquisition in the FFL’s acquisition and disposition (A&D) record.

I.

General Procedure

In all cases:

  1. The prospective buyer must complete Section A of the Form 4473;
  2. The FFL must complete Section B of the Form 4473, conduct a NICS check on the prospective buyer, and record the response;
  3. The FFL must complete Section D and check the box in Item 32 on the Form 4473; and
  4. The FFL must maintain the Form 4473 in accordance with 27 CFR 478.129(b).

The FFL must check the box in Item 32 on the Form 4473 to ensure it can be determined which transaction records correspond with private party transfers in the FFL’s A&D record. If the box is not checked, and there is no corresponding entry in the A&D record, ATF may conclude that the FFL transferred a firearm without making appropriate entries in the FFL’s A&D record.

II. Procedure in Specific Circumstances

A. Immediate “Proceed” Transactions:
If the FFL receives an immediate “proceed” response from NICS, the FFL must:

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Unlicensed persons do not have the ability to use NICS to conduct a background check on a prospective transferee (buyer) and, consequently, have no comprehensive way to confirm whether the buyer is prohibited from receiving or possessing a firearm. In addition, several states have laws that prohibit the transfer of firearms between private individuals unless a NICS check is conducted on the buyer.

On March 15, 2013, ATF issued ATF Procedure 2013-1 providing guidance for FFLs who facilitate private party firearms transfers. In November of 2016, ATF issued a guide on Facilitating Private Sales: A Federal Firearms Licensee Guide, encouraging FFLs to facilitate the transfer of firearms between private individuals to enhance public safety and assist law enforcement. This new procedure addresses the updated Firearms Transaction Record, ATF Form 4473 (Form 4473), that went into effect January 16, 2017, and supersedes ATF Procedure 2013-1.

Procedure: For an FFL to comply with the recordkeeping and background check requirements while facilitating firearm transfers between private parties, the procedures below must be followed when the private party transferor (seller) takes a firearm to an FFL with the prospective buyer to conduct a transaction.

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  1. Enter the firearm into the FFL’s A&D record as an acquisition from the private party seller in accordance with 27 CFR 478.122, 478.123, and 478.125.
  2. Complete Section D of the Form 4473 and transfer the firearm to the buyer. If the transfer of the firearm takes place on a different day from the date that the prospective buyer signed Section A, the FFL must again check the photo identification of the prospective buyer at the FFL’s licensed business premises and the prospective buyer must complete the recertification in Section C of the Form 4473 immediately prior to the transfer of the firearm
  3. Record the disposition of the firearm in the FFL’s A&D record not later than seven days following the transaction
  1. “Denied”or“Cancelled”TransactionIf the FFL receives a “denied” or “cancelled” response from NICS, the firearm cannot be transferred to the prospective buyer. If the private party seller has not relinquished possession, he or she may leave the business premises with the firearm. The FFL does not enter the firearm as an acquisition in the FFL’s A&D record.If, for whatever reason, the private party seller leaves the firearm in the exclusive possession of the FFL at the FFL’s business premises, the FFL must:
    1. Enter the firearm in the FFL’s A&D record as an acquisition from the private party seller not later than the close of the next business day following the date the firearm is left with the FFL, in accordance with 27 CFR 478.122, 478.123, and 478.125;
    2. Complete a Form 4473 to return the firearm to the private party seller;
    3. 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; and
    4. Record the return as a disposition in the FFL’s A&D record not later than seven days following the transaction.
  2. “Delayed”TransactionWithoutaSubsequentDenialIf the FFL receives a “delayed” response from NICS, the private party seller has the option to:

1. Leave the FFL’s business premises with the firearm; or

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2. Allow the FFL to retain the firearm at the business premises (with the FFL’s consent) pending a response from NICS, or until the passage of three business days or applicable State waiting period.

If the private party seller chooses to leave the FFL’s premises with the firearm, the FFL does not need to record the acquisition into the FFL’s A&D record. However, the private party seller must return the firearm to the FFL’s business premises prior to transfer of the firearm to the prospective buyer.

If the private party seller chooses to allow the FFL to retain the firearm at the FFL’s business premises, the FFL is required to take the firearm into inventory and record the firearm as an acquisition in the FFL’s A&D record not later than the close of the next business day following the date the firearm is left with the FFL in accordance with 27 CFR 478.122, 478.123, and 478.125. If NICS later issues a “proceed” or no response after three business days (or appropriate State waiting period), and the FFL chooses to proceed with the transfer, the private party seller need not return to the FFL’s business premises for transfer of the firearm to the buyer.

The FFL must complete Section D of the Form 4473 prior to transferring the firearm to the prospective buyer. The FFL must check the box in Item 32 on the Form 4473 and file the form as prescribed by 27 CFR 478.124(b). In addition, the FFL must record in the FFL’s A&D record the disposition of the firearm to the buyer not later than seven days following the transaction. If the private parties do not return to complete the transfer, the FFL must retain the Form 4473 in accordance with section 478.129(b).

D. Delayed Transactions With a Subsequent Denial

If the FFL receives a “denied” response from NICS prior to transfer of the firearm, it cannot be transferred to the prospective buyer.

If the private party seller has chosen to allow the FFL to retain the firearm pending NICS approval, the FFL and the private party seller must complete a Form 4473 prior to returning the firearm to the private party seller.

The FFL must also conduct a NICS background check on the private party seller and receive a “proceed” response, or no response after three business days (or appropriate State waiting period), prior to returning the firearm. The FFL must also record the return as a disposition in the FFL’s A&D record not later than seven days following the transaction.

III. Additional Requirements

A. Secure Handgun Storage or Safety Devices

The FFL must provide the buyer or private party seller with a secure gun storage or safety device for each handgun he or she transfers, pursuant to 18 U.S.C.

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922(z). The FFL is not required to provide the private party seller with a secure gun storage or safety device if the private party seller does not relinquish exclusive dominion or control of the firearm.

  1. Reports of Multiple Sale or Other Disposition of Pistols and RevolversAs provided by 27 CFR 478.126a, the FFL must complete an ATF Form 3310.4 and report all transactions in which an unlicensed person acquires, at one time or during five consecutive business days, two or more pistols or revolvers. The form is not required when the pistols or revolvers are returned to the same person from whom they were received.
  2. Reports of Multiple Sale or Other Disposition of Certain RiflesAll applicable FFLs and pawnbrokers located in Arizona, California, New Mexico, and Texas must complete an ATF Form 3310.12 and report all transactions in which an unlicensed person acquires, at one time or during five consecutive business days, two or more semi-automatic rifles larger than .22 caliber (including .223/5.56 caliber) with the ability to accept a detachable magazine. The form is not required when the rifles are returned to the same person from whom they were received.

D. NFA Firearms

Transfers of National Firearms Act firearms may be accomplished only pursuant to the manner outlined in Subpart F, Part 479, Title 27, Code of Federal Regulations.

  1. State and Local LawAn FFL facilitating private party firearms transfers must comply with all applicable State laws and local ordinances. As provided by 27 CFR 478.58, a Federal firearms license confers no right or privilege to conduct business or activity contrary to State or other law. It is unlawful for an FFL to sell or deliver any firearm to any person in any State where the purchase or possession by such person of such firearm would be in violation of any State law or published ordinance applicable at the place of sale, delivery, or other disposition. See 18 U.S.C. 922(b)(2). Compliance with the provisions of any State or other law affords no immunity under Federal law or regulations.
  2. Out-of-State and Underage TransactionsPrivate party firearm transfers conducted with out-of-State FFLs, or underage persons (i.e., under 18 for all firearms, or 21 for firearms other than a shotgun or rifle), must comply with all interstate controls and age requirements under the Gun Control Act, 18 U.S.C. 921 et. seq. See also 18 U.S.C. 922(b)(1), (3).

-6- This procedure supersedes ATF Procedure 2013-1.

Date approved: July 28, 2017

Thomas E. Brandon Acting Director

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