§ 478.96 Out-of-State and mail order sales. Non-over-the-counter and out-of-state sales

  1. [RIN 1140-AA82]

    a.(a) The provisions of this section shall apply when a firearm is purchased by or delivered to a person not otherwise prohibited by the Act from purchasing or receiving it. Applicability This section’s provisions apply when a licensee transfers or delivers a firearm to a person not otherwise prohibited by the Act from purchasing or receiving it. Licensees must retain records of these transactions in accordance with §§ 478.124(h) and (i), as applicable.

  2. b.(b) A licensed importer, licensed manufacturer, or licensed dealer may sell a firearm that is not subject to the provisions of § 478.102(a) to a nonlicensee who does not appear in person at the licensee's business premises if the nonlicensee is a resident of the same State in which the licensee's business premises are located, and the nonlicensee furnishes to the licensee the firearms transaction record, Form 4473, required by § 478.124. The nonlicensee shall attach to such record a true copy of any permit or other information required pursuant to any statute of the State and published ordinance applicable to the locality in which he resides. The licensee shall prior to shipment or delivery of the firearm, forward by registered or certified mail (return receipt requested) a copy of the record, Form 4473, to the chief law enforcement officer named on such record, and delay shipment or delivery of the firearm for a period of at least 7 days following receipt by the licensee of the return receipt evidencing delivery of the copy of the record to such chief law enforcement officer, or the return of the copy of the record to him due to the refusal of such chief law enforcement officer to accept same in accordance with U.S. Postal Service regulations. The original Form 4473, and evidence of receipt or rejection of delivery of the copy of the Form 4473 sent to the chief law enforcement officer shall be retained by the licensee as a part of the records required of him to be kept under the provisions of subpart H of this part. Non-over-the-counter (NOTC) transactions.

    1. 1.(1) Licensed importers, manufacturers, or dealers may transfer firearms to a non-licensee who is not subject to the provisions of § 478.102(a) due to an exception in § 478.102(d) and who does not appear in person at the licensee’s business premises, if the non-licensee meets the following requirements:

      1. i.(i) Is a resident of the same state in which the licensee's business premises are located;

      2. ii.(ii) Provides a Form 4473 to the licensee as required by § 478.124 of this part;

      3. iii.(iii) Submits with Form 4473 an executed sworn statement in the form prescribed by 18 U.S.C. 922(c)(1); and

      4. iv.(iv) Submits with Form 4473 a true copy of any permit and other information required pursuant to any statute of the state and published ordinance applicable to the locality in which the non-licensee resides.

    2. 2.(2) The licensee must ensure the transferee has completed all transferee portions of the form, and:

      1. i.(i) Document on the form the applicable NICS exception;

      2. ii.(ii) Comply with requirements in §§ 478.124(c), (g), (h), and (i) of this part as applicable, including verifying the transferee’s identity and residence;

      3. iii.(iii) Complete the rest of the form as applicable; and

      4. iv.(iv) Check the appropriate box on the form to indicate that this is a non-over-the-counter transaction.

  3. [RIN 1140-AB05]

    c.(c) NOTC transactions for NICS background check transfers. Licensed importers, manufacturers, or dealers may also transfer firearms to a non-licensee who is subject to the provisions of § 478.102(a) of this part and who does not appear in person at the licensee’s business premises, if the non-licensee meets the following requirements:

    1. 1.(1) The non-licensee complies with all the requirements in paragraph (b)(1) of this section; and

    2. 2.(2) Submits with Form 4473 a true copy of a valid photo identification document as defined by § 478.11 of this part, residence verification if the photo identification document does not contain the transferee’s current residence information (see § 478.124(g)), and any other applicable supporting documents prescribed in § 478.124(c).

    3. 3.(3) In such cases, licensees must, prior to every transfer, conduct a video conference with the transferee. During the conference, licensees must inspect the transferee’s actual photo identification document and compare it with the transferee’s appearance in conformance with § 478.124(c). Licensees must then ensure the transferee verifies their identity through a credential service provider (CSP) using a remote identity verification process.

      1. i.(i) A “remote identity verification process” requires a CSP to validate the transferee’s photo identification document and bind the document to the person who appears for remote identity proofing.

      2. ii.(ii) An independent third party must assess the CSP’s remote identity proofing process as conforming with the National Institute of Standards and Technology (NIST) guidelines for Identity Assurance Level 2 (IAL2). The CSP’s binding process must employ a live physical facial comparison by a CSP representative, or an automated biometrical facial comparison (e.g., “selfie” verification), using a live capture of the transferee’s facial image and liveness detection. An independent third party must assess the CSP’s authentication process for digital identity claimants as conforming with the NIST guidelines for Authentication Assurance Level 2 (AAL2).

      3. iii.(iii) In addition, the licensee must comply with applicable requirements in §§ 478.124(c), (g), (h), and (i) of this part, including verifying the transferee’s residence.

    4. 4.(4) If the CSP verifies the transferee’s identity, the licensee must initiate a NICS background check prior to transferring the firearm, pursuant to § 478.102(a). The licensee must wait for the NICS background check response or the end of the applicable investigatory period, as required by § 478.102(c) before shipping or delivering the firearm.

    5. 5.(5) When conducting a NOTC transfer subject to a NICS check, the licensee must follow all procedures listed in paragraph (b)(2) of this section, except the requirement to document a NICS exemption under (b)(2)(i).

  4. d.(d)

    1. 1.(1) A licensed importer, licensed manufacturer, or licensed dealer may sell or deliver a rifle or shotgun, and a licensed collector may sell or deliver a rifle or shotgun that is a curio or relic to a nonlicensed resident of a State other than the State in which the licensee's place of business is located if—

      1. i.(i) The purchaser meets with the licensee in person at the licensee's premises to accomplish the transfer, sale, and delivery of the rifle or shotgun;

      2. ii.(ii) The licensed importer, licensed manufacturer, or licensed dealer complies with the provisions of § 478.102;

      3. iii.(iii) The purchaser furnishes to the licensed importer, licensed manufacturer, or licensed dealer the firearms transaction record, Form 4473, required by § 478.124; and

      4. iv.(iv) The sale, delivery, and receipt of the rifle or shotgun fully comply with the legal conditions of sale in both such States.

    2. 2.(2) For purposes of paragraph (c) of this section, any licensed manufacturer, licensed importer, or licensed dealer is presumed, in the absence of evidence to the contrary, to have had actual knowledge of the State laws and published ordinances of both such States.

  5. d.(d) Law enforcement notice for NOTC transfers. Once the licensee receives all the information required under paragraph (b) of this section, and prior to shipping or delivering the firearm to a transferee who is receiving it through a NOTC transaction, the licensee must:

    1. 1.(1) Forward by registered or certified mail (return receipt requested) or by verified electronic notice as defined in 18 U.S.C. 921(a)(38), a copy of the Form 4473, true copies of the documents provided under paragraph (b) of this section, and the sworn statement required by statute, to the principal or chief law enforcement officer (“CLEO”) the transferee named in Form 4473.

    2. 2.(2) Receive a response showing that the CLEO accepted the notice documents or showing that delivery failed or was refused:

      1. i.(i) For documents sent by mail, receive U.S. Postal Service return receipt or receive the Form 4473 copy back, along with notification that the delivery failed or that the CLEO refused delivery, in accordance with U.S. Postal Service regulations; or

      2. ii.(ii) For documents sent electronically, receive an electronic response from the law enforcement officer indicating the CLEO received or refused the transmission or receive a delivery failure notice (such as an email bounce-back)

    3. 3.(3) If delivery fails (but is not refused), take steps to resolve the situation, as appropriate, until receiving the required return receipt, response, or refusal, or do not complete the transfer. But if the CLEO refuses delivery, continue to complete the transfer.

    4. 4.(4) Delay shipping or delivering the firearm to the transferee for a period of at least seven days after receiving the return receipt or response under paragraph (d)(2) and (3) of this section.

    5. 5.(5) Retain the original Form 4473, sworn statement, true copies of any permit or license, or other required information, and evidence that the CLEO received or did not accept the Form 4473 copy sent to the CLEO, as part of the records subpart H of this part requires licensees to keep.

  6. d.e.ee. Out-of-state transactions.

    1. 1.(1) A licensed importer, manufacturer, or dealer may sell or deliver a rifle or shotgun, and a licensed collector may sell or deliver a rifle or shotgun that is a curio or relic, to a non-licensed resident of a state other than the state in which the licensee's place of business is located if:

      1. i.(i) The purchaser meets with the licensee in person at the licensee's premises to transfer, sell, and deliver the rifle or shotgun;

      2. ii.(ii) The licensed importer, manufacturer, or dealer complies with the provisions of § 478.102;

      3. iii.(iii) The purchaser furnishes to the licensed importer, manufacturer, or dealer the firearms transaction record, Form 4473, required by § 478.124 and complies with other applicable provisions under § 478.124; and

      4. iv.(iv) Selling, delivering, and receiving the rifle or shotgun fully comply with the legal conditions of sale in both states.

    2. 2.(2) For purposes of paragraph (e)(1) of this section, any licensed manufacturer, importer, or dealer is presumed, in the absence of evidence to the contrary, to have actual knowledge of the state laws and published ordinances of both states.