Federal requirements for issuing the NICS number?

[Tashtego]

It is my understanding that the reason our FFLs (whom I greatly appreciate) are not issuing regulated firearms after 8 days have elapsed in the Maryland background check system, is that they also have to follow federal law requiring an NICS number before transfer, and that the federal NICS people refuse to give it to them but instead say it has to come from the Md. State Police (who of course are backed up over 30 days). Correct me if I am not describing this accurately.

Has anyone looked into whether there is a requirement in federal law that NICS not defer to the Md. State Police on this, and instead that the feds either provide the information, or if they don't within a certain time period, the item can legally be transferred?

It seems to me that the federal law, like the Maryland law, might have a time limit to prevent government officials from dragging their feet indefinitely. If so, it might be possible to get around the federal side of this delay, or theoretically, to sue not MSP but the feds. We would need to explore exactly which statutory and regulatory provisions are the stumbling blocks on the federal side of things.

 

[lx1x]

It is my understanding that the reason our FFLs (whom I greatly appreciate) are not issuing regulated firearms after 8 days have elapsed in the Maryland background check system, is that they also have to follow federal law requiring an NICS number before transfer, and that the federal NICS people refuse to give it to them but instead say it has to come from the Md. State Police (who of course are backed up over 30 days). Correct me if I am not describing this accurately.

Has anyone looked into whether there is a requirement in federal law that NICS not defer to the Md. State Police on this, and instead that the feds either provide the information, or if they don't within a certain time period, the item can legally be transferred?

It seems to me that the federal law, like the Maryland law, might have a time limit to prevent government officials from dragging their feet indefinitely. If so, it might be possible to get around the federal side of this delay, or theoretically, to sue not MSP but the feds. We would need to explore exactly which statutory and regulatory provisions are the stumbling blocks on the federal side of things.

NICs number is required to release the firearms. The question if mdsp do it as soon they get the paperwork. Doubt it. Probably state does the NICs check last. One can only guess.

 

[Tashtego]

NICs number is required to release the firearms.

This is my understanding as well. By "is required" I think you are referring to federal law. (Correct me if I am wrong about that.) Federal law requires an NICS number for the release. My question is: does federal law also require the federal government to give the FFL the NICS number, contrary to what the federal government is doing now: refusing to give the number, and instead insisting that the Md State Police provide that number. OR, is there a provision in federal law saying that if the feds do not release the number after a certain number of days, the firearm may be transferred. I might be missing something here--that is why I asked--so let me know.

 

[chale127]

No NICS # no gun = Fed Law
in MD for a Regulated Firearm, the MSP gives you the NICS # when they return their paperwork, hence the wait

 

[swinokur]

read the part that requires an FFL to record the NTN on the 4473. MSP is the deignated POC for regulated firearms by agreement with the FBI, not NICS.

http://www.fbi.gov/about-us/cjis/nics/general-information/fact-sheet

 

[Tashtego]

read the part that requires an FFL to record the NTN on the 4473. MSP is the deignated POC for regulated firearms by agreement with the FBI, not NICS.

Thank you for that reference. I have looked over the form, the statute (18 USC 922(t)), and the regulation (28 CFR Chapter 1 Part 25). It seems to me there might be time limits in here that we can utilize.

I would like further input from folks here familiar with this.

ATF form 4473 asks for the NICS Transaction Number in questions 21-23. Down on page 5 of that form, it explains that this section is triggered by the Brady Act requirement in 18 USC 922(t).

18 USC 922(t) declares that an FFL cannot transfer a firearm

unless--
(A) before the completion of the transfer, the licensee contacts the national instant criminal background check system established under section 103 of that Act;
(B)(i) the system provides the licensee with a unique identification number; OR
(ii) 3 business days (meaning a day on which State offices are open) have elapsed since the licensee contacted the system, and the system has not notified the licensee that the receipt of a firearm by such other person would violate subsection (g) or (n) of this section; and
(C) the transferor has verified the identity of the transferee by examining a valid identification document (as defined in section 1028(d) of this title) of the transferee containing a photograph of the transferee.

So unless I am missing something, the Brady Act does include a time limit trap door: if the "system" (meaning either the feds OR the State point of contact) does not provide the FFL (the "licensee") with the NICS number within three business days, it is not illegal under 18 USC 922(t).

This seems to be why, on ATF form 4473, it says in question 21(b) to list the NTN "if provided," then in 21(c) it asks if the State POC's response was proceed, cancelled, denied, or delayed, then in 21(d) it says if delayed the FFL can declare that "No resolution was provided within 3 business days".

In the regulation implementing 18 USC 922(t), which is 28 CFR Ch.1 Part 25.6(h), it says that State POCs (the state police) "shall transmit electronic NICS
transaction determination messages to the FBI for the following transactions:
open transactions that are not resolved before the end of the operational day
on which the check is requested; denied transactions; transactions reported
to the NICS as open and later changed to proceed; and denied transactions
that have been overturned. ... For transactions where a determination has not been communicated to the FFL [by the POC], the electronic messages
shall be communicated no later than the end of the operational day on
which the check was initiated. With the exception of permit checks, newly created POC NICS transactions that are not followed by a determination message (deny or open) before the end of the operational day on which they were initiated will be assumed to have resulted in a proceed notification to the FFL."

So it seems to me from this, which I am asking all of your input on, that if an FFL gets to "day 8" (including more than 3 state business-days), it could fill out ATF form 4473 answering question 21(a) listing the date the application was sent to the state police, leaving question 21(b) blank since the number was not provided and that question simply asks for the number "if provided," by answering question 21(c) either "delayed," or calling the NICS feds and asking them to deem the response to be "proceed" pursuant to 28 CFR Ch.1 Part 25.6(h) due to no response, and then answering 21(d) "No resolution was provided within 3 business days."

I think an FFL could press this issue with the FBI, to assure them that the transaction will be considered legal under 18 USC 922(t) due to the 3-business-day delay, and to obtain from them the "proceed" default determination indicated in 28 CFR Part 25.6(f). The FFL should also get that FBI person to give them his name and Brady ID number for section 21(f).

IF the FBI refused to do this, and especially if the FBI threatened to consider the transaction illegal, it seems to me the FFL might be able to file suit in federal court against the FBI for threatening to violate the statute and regulation, seeking emergency declaratory relief stating that the item can be released.

If I am correct about this, and I might not be so I seek your heightened experience on the question, then it might lead to FFLs being able to sell more items because people's 30-day waiting period would reset sooner.

 

[zoostation]

The question has been floated in the past about whether dealers can call and get a NICS number directly from NICS via the landline in order to release the gun after the 8th day. The answer was no, NICS will not give them a number for that. They have to wait for MSP. That is current policy. You may have some good points under federal law though, I think.

 

[swinokur]

No FFL I know is going to jeopardize their license by transferring a firearm without a NTN. The law says MAY TRANSFER IIRC. So the FFL cannot be compelled to transfer the firearm. Good luck trying to convince an FFL to do that.

 

[Tashtego]

I would add the following:

In creation of the NICS, the regulation says this about the three business day rule (63 Fed. Reg. at 58305):

a ‘‘Delayed’’ response indicates that it would be unlawful to transfer the firearm pending receipt of a follow-up ‘‘Proceed’’ response from the NICS or the expiration of three business days, whichever occurs first. The law does not prohibit the system from making such a response.

and at 58309

(Example: An FFL requests a NICS check on a prospective firearm transferee at 9:00 a.m. on Friday and shortly thereafter receives a ‘‘Delayed’’ response from the NICS. If state offices in the state in which the FFL is located are closed on Saturday and Sunday and open the following Monday, Tuesday, and Wednesday, and the NICS has not yet responded with a ‘‘Proceed’’ or ‘‘Denied’’ response, the FFL may transfer the firearm at 12:01 a.m. Thursday.)

This seems to reinforce the notion that if the state police do nothing for three business days, an FFL should be able to get from the FBI a default "proceed" response. This happens even after a "delayed" response.

It seems to me that under the Brady Act, neither the FBI nor the state POC is allowed to "prevent the clock from starting" for that 3-business days. If the feds are taking the position that the transfer cannot occur even after the 3 business days, due to the POC delay, then the feds would be violating the statute and probably their own regulations.

 

[Tashtego]

The question has been floated in the past about whether dealers can call and get a NICS number directly from NICS via the landline in order to release the gun after the 8th day. The answer was no, NICS will not give them a number for that. They have to wait for MSP. That is current policy. You may have some good points under federal law though, I think.

And I think that is correct: the feds won't give the NICS number. But the feds are apparently required, under the regulation, to deem the 3-day delay to be a "proceed" determination, and not to deem the transfer illegal for lack of a number in that circumstance.

 

[Tashtego]

No FFL I know is going to jeopardize their license by transferring a firearm without a NTN. The law says MAY TRANSFER IIRC. So the FFL cannot be compelled to transfer the firearm. Good luck trying to convince an FFL to do that.

I think you are probably correct, and I would not ask them to take the risk. But an FFL might decide to try this without risk. First, by asking the FBI, not to give the NTN, but to deem the determination "proceed" due to the 3-day delay, and if they refuse, there might be an FFL willing to seek a federal court order before doing such a transfer, to declare the transfer in advance to be Brady compliant. In fact an FFL might have already tried this or thought about it, which is why I am asking. They know much more about this than I do.

 

[swinokur]

Good luck with that interpretation.

It just doesn't happen that way. You'd need an official written opinion from someone like the AG or FBI before an FFL would do that IMO.

 

[mikey6480]

And I think that is correct: the feds won't give the NICS number. But the feds are apparently required, under the regulation, to deem the 3-day delay to be a "proceed" determination, and not to deem the transfer illegal for lack of a number in that circumstance.

Depends on what it is. If it is a handgun the FFL cannot get a NTN from the NICS system. It will be denied because all handgun purchases must go through MSP. If you are buying a "regulated" rifle (AR etc.) the FFL COULD call NICS and get an NTN. There is no such selection when calling NICS as regulated rifles (either handgun or rifle). Your FFL likely won't because when MSP finally gets around to your paperwork they will call and it will create duplicate NTNs for the same firearm. I had my FFL agree that they could (meaning there is no legal reason they cannot) but they will not because MSP doesn't want them to.

I'm with you though, i would love to find some way to get my firearms in the proper timeframe, I just don't see how it will be possible. The court system moves so slowly that you will end up getting your firearm before you case is heard. It sucks but we are all stuck waiting.

 

[Mark75H]

So it seems to me from this, which I am asking all of your input on, that if an FFL gets to "day 8" (including more than 3 state business-days), it could fill out ATF form 4473 answering question 21(a) listing the date the application was sent to the state police, leaving question 21(b) blank since the number was not provided and that question simply asks for the number "if provided," by answering question 21(c) either "delayed," or calling the NICS feds and asking them to deem the response to be "proceed" pursuant to 28 CFR Ch.1 Part 25.6(h) due to no response, and then answering 21(d) "No resolution was provided within 3 business days."

I think an FFL could press this issue with the FBI, to assure them that the transaction will be considered legal under 18 USC 922(t) due to the 3-business-day delay, and to obtain from them the "proceed" default determination indicated in 28 CFR Part 25.6(f). The FFL should also get that FBI person to give them his name and Brady ID number for section 21(f).

IF the FBI refused to do this, and especially if the FBI threatened to consider the transaction illegal, it seems to me the FFL might be able to file suit in federal court against the FBI for threatening to violate the statute and regulation, seeking emergency declaratory relief stating that the item can be released.

If I am correct about this, and I might not be so I seek your heightened experience on the question, then it might lead to FFLs being able to sell more items because people's 30-day waiting period would reset sooner.

I think the problem is, the MSPLD can hide the date of contact from us ... unless you file a (what ever Freedom of Information Act is called in MD) to make them tell you the date. Without the date, you are screwed. Just because the forms have been received by MSPLD, does not mean they have started the process with the Feds.

 

[Wojo]

I am glad this thread is going better than the one I am commenting in about the same thing

The MSP as the POC and only source for NICs # in MD really throws people off...

 

[2AHokie]

I think the problem is, the MSPLD can hide the date of contact from us ... unless you file a (what ever Freedom of Information Act is called in MD) to make them tell you the date. Without the date, you are screwed. Just because the forms have been received by MSPLD, does not mean they have started the process with the Feds.

MSP receiving the form counts as the start of the NICS process per the 4473 instructions. Bottom of page 5 into page 6. As long as you know when the form was sent in, you know all that is needed.

http://www.atf.gov/forms/download/atf-f-4473-1.pdf

For purposes of this form, contacts to NICS
include contacts to State agencies designated to conduct NICS checks for the
Federal Government.

 

[Tashtego]

I think the problem is, the MSPLD can hide the date of contact from us

Thanks for raising this. Are you referring to the date to be entered in question 21(a)? Why is this not simply the date that the FFL contacts the State Police? The regulation in 28 CFR declares that "Both ATF and the POC will notify FFLs in the POC's state of the means by which FFLs can contact the POC." So if the FFL complies with that contact process (say by sending a fax in the middle of the day), why would this date of contact not be simply the date that the FFL knows it sent in the contact by the designated means?

 

[Tashtego]

I can't really tell without finding out from the FFLs themselves, but I wonder if the problem might be that when the FFL contacts the State Police, the State Police are supposed to declare that the application is "delayed" (pursuant to 28 CFR Part 25.6(h) I quoted above), and perhaps they aren't doing that.

But if this is the problem, it seems to me that the FBI itself should, under that same section, deem the application "proceed" after the time elapses, and if it refuses to do so, or if it does not care that the MSP are not doing this, the regs themselves are being violated and the feds might possibly be held accountable for it.

 

[Wojo]

I can't really tell without finding out from the FFLs themselves, but I wonder if the problem might be that when the FFL contacts the State Police, the State Police are supposed to declare that the application is "delayed" (pursuant to 28 CFR Part 25.6(h) I quoted above), and perhaps they aren't doing that.

But if this is the problem, it seems to me that the FBI itself should, under that same section, deem the application "proceed" after the time elapses, and if it refuses to do so, or if it does not care that the MSP are not doing this, the regs themselves are being violated and the feds might possibly be held accountable for it.

It's not the fed that is delaying. People in other states call and get an NICS # in minutes. The delay is in MD. In fact, some are reporting here hat some MD FFLs have called the Feds directly for an NICS # and received them. Whether or not the release them after that is a whole other thing; comes back to the POC argument again.

 

[Mark75H]

I follow what you say. Looks like the important thing to learn now is if there is any precedent in interaction between state and federal agencies with regulations that say the state agency "shall" do such and such in a certain timeframe.

With as many agencies as there are, it would be difficult to imagine that something like this has not come up before.

If the precedent was favorable to us, it would hold more weight in court; even if its just the state providing seeds for flower boxes for Section 8 housing