Proposed Rule2024-28712
Bipartisan Safer Communities Act of 2022 and Consolidated Appropriations Act of 2022-Implementation Revisions for National Instant Criminal Background Check System (NICS)
Primary source
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Published
December 12, 2024
Issuing agencies
Justice Department
Abstract
The United States Department of Justice ("Department") proposes to amend its regulations pertaining to the National Instant Criminal Background Check System ("NICS") of the Federal Bureau of Investigation ("FBI") to implement parts of the Consolidated Appropriations Act, 2022 ("CAA") and the Bipartisan Safer Communities Act ("BSCA") by proposing additional, relevant definitions and procedures to reflect and implement the statutory mandates described above.
Full Text
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<title>Federal Register, Volume 89 Issue 239 (Thursday, December 12, 2024)</title>
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[Federal Register Volume 89, Number 239 (Thursday, December 12, 2024)]
[Proposed Rules]
[Pages 100404-100424]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-28712]
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DEPARTMENT OF JUSTICE
28 CFR Part 25
[Docket No. FBI-158; AG Order No. 6100-2024]
RIN 1110-AA36
Bipartisan Safer Communities Act of 2022 and Consolidated
Appropriations Act of 2022--Implementation Revisions for National
Instant Criminal Background Check System (NICS)
AGENCY: Federal Bureau of Investigation, Department of Justice.
ACTION: Notice of proposed rulemaking; request for comment.
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SUMMARY: The United States Department of Justice (``Department'')
proposes to amend its regulations pertaining to the National Instant
Criminal Background Check System (``NICS'') of the Federal Bureau of
Investigation (``FBI'') to implement parts of the Consolidated
Appropriations Act, 2022 (``CAA'') and the Bipartisan Safer Communities
Act (``BSCA'') by proposing additional, relevant definitions and
procedures to reflect and implement the statutory mandates described
above.
DATES: Written comments must be postmarked, and electronic comments
must be submitted, on or before February 10, 2025. Commenters should be
aware the electronic Federal Docket Management System will not accept
comments after 11:59 p.m., Eastern Time, on the last day of the comment
period.
ADDRESSES: You may submit comments, identified by RIN 1110-AA36 or
Docket No. FBI-158, by either of the following methods:
[ssquf] Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Follow the instructions for submitting comments.
[ssquf] Mail: Charles Klebe, Assistant General Counsel, Federal
Bureau of Investigation, Office of the General Counsel, Module C-3,
1000 Custer Hollow Road, Clarksburg, West Virginia 26306-0110; ATTN:
Docket No. FBI-158.
Instructions: All submissions received must include the agency name
and RIN (1110-AA36) or docket number (FBI-158) for this notice of
proposed rulemaking. In general, all properly completed comments
received will be posted without change to the Federal eRulemaking
portal, <a href="https://www.regulations.gov">https://www.regulations.gov</a>, including any personal information
provided. For detailed instructions on submitting comments and
additional information on the rulemaking process, see the ``Public
Participation'' heading of the SUPPLEMENTARY INFORMATION section of
this document.
FOR FURTHER INFORMATION CONTACT: Jill A. Montgomery, NICS Business and
Liaison Unit Chief, Federal Bureau of Investigation, Criminal Justice
Information Services Division, NICS Section. Telephone: (304) 625-0606
(this is not a toll-free number).
SUPPLEMENTARY INFORMATION:
I. Public Participation
A. Comments Sought
The Department welcomes public comments from any interested person
on any aspect of the changes proposed in this rule. In particular, and
as discussed in more detail in the parts of this preamble that describe
specific changes, the Department seeks comments from the public on the
proposed amendments to NICS regulations regarding: (1) identifying
firearms prohibitions imposed by local
[[Page 100405]]
and Tribal governments; (2) providing denial notifications to local law
enforcement; (3) conducting enhanced background checks of under-21
transactions; (4) collecting, using, and purging, where applicable,
residential address information to comply with the statutory
requirements of the CAA and BSCA; and (5) implementing a delay of up to
10 business days for under-21 transactions where NICS has notified the
FFLs that additional research is required to determine if the
prospective transferees have prohibiting juvenile records as described
in 18 U.S.C. 922(d). The Department also seeks comments on a potential
attestation process to facilitate interactions with State and local
agencies, as described more fully in Section II.D of this preamble. The
Department will carefully consider all properly submitted public
comments in drafting any final rules.
All comments must reference RIN 1110-AA36 or this document's docket
number, FBI-158, and be legible. Please do not submit, under this
proposed rule, any comments pertaining to a different rule that may be
discussed in limited detail below. After those other proposed rules are
published, public comments concerning those proposed rules should be
submitted as directed within those rules.
Please note that all comments received are considered part of the
public record and may be made available for public inspection online at
<a href="https://www.regulations.gov">https://www.regulations.gov</a>. Information made available for public
inspection may include personal identifying information (such as name,
address, etc.) submitted by the commenter.
B. Confidentiality
In general, the Department will make all comments, whether
submitted electronically or on paper, available for public viewing on
the internet through the Federal eRulemaking Portal. If you do not want
your name or other personal identification information posted on the
internet as part of your comment, you must include the phrase
``PERSONAL IDENTIFYING INFORMATION'' in the first paragraph of your
comment. You must also locate all the personal identifying information
that you do not want posted online in the first paragraph of your
comment and identify what information you want the Department to
redact. Personal identifying information identified and located as set
forth above will be placed in the Department's public docket file but
not posted online.
If you wish to submit confidential business information as part of
your comment but do not wish it to be posted online, you must include
the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph
of your comment. You must also prominently identify confidential
business information to be redacted within the comment. If a comment
has so much confidential business information that it cannot be
effectively redacted, the Department may choose not to post that
comment (or to post only part of the comment) on <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Confidential business information identified and
located as set forth above will not be placed in the public docket
file, nor will it be posted online.
C. Submitting Comments
Submit comments in either of the following ways (but do not submit
the same comment multiple times or by more than one method). Hand-
delivered comments will not be accepted.
<bullet> Federal eRulemaking Portal: The Department recommends that
you submit your comments via the Federal eRulemaking portal at <a href="https://www.regulations.gov">https://www.regulations.gov</a> and follow the instructions. Please keep the
comment tracking number that is provided after you have successfully
uploaded your comment.
<bullet> Mail: Send written comments to the address listed in the
ADDRESSES section of this document.
II. Background and Purpose
The Brady Handgun Violence Prevention Act of 1993 (``Brady Act''),
Public Law 103-159, 107 Stat. 1536, required the Attorney General to
establish a national system for FFLs, more specifically, federally
licensed manufacturers, dealers, and importers of firearms under 18
U.S.C. 923, to request immediate information as to whether the transfer
of a firearm to any given unlicensed person could proceed. To implement
that requirement, the Department created NICS and delegated management
of NICS to the FBI. See 28 CFR 25.3. NICS is managed by the NICS
Section of the FBI's Criminal Justice Information Services (``CJIS'')
Division. The NICS Section processed the first NICS background check on
November 30, 1998. Background events that prohibited persons from being
able, under the Brady Act, to receive a firearm were those specified in
18 U.S.C. 922(g) and (n) \1\ and applicable State law(s).\2\
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\1\ Examples of prohibitions under 18 U.S.C. 922(g) and (n)
include, but are not limited to, having sustained a conviction for,
or being under indictment or information for, a ``crime punishable
by imprisonment for a term exceeding one year'' (including State
offenses denominated as misdemeanors but punishable by more than 2
years of imprisonment, see 18 U.S.C. 921(a)(20)); being a fugitive
from justice; being addicted to or being an unlawful user of a
controlled substance; being adjudicated as a mental defective or
being committed to a mental institution; being subject to certain
protection orders; and having sustained a conviction for a
misdemeanor crime of domestic violence.
\2\ Applicable State law prohibitions are those imposed by the
State where the prospective transfer is occurring and the State
where the transferee resides (if the State of residence is different
than the State of transfer). Additionally, other State laws may be
relevant to determining if a Federal firearms prohibition (under 18
U.S.C. 922(d), (g), or (n), as applicable) applies to the
prospective transferee. Suppose, for instance, a resident of South
Dakota is attempting to receive a rifle or shotgun (``long gun'')
from an FFL in Iowa. That prospective transferee, however, has a
prior felony-level conviction from a State court in Washington. The
State laws of South Dakota, Iowa, and Washington would all be
considered during that transaction to assess that person's ability
to receive a firearm under State and Federal law.
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Since that first NICS background check in 1998, FFLs have initiated
NICS background checks by contacting the FBI or a designated ``point of
contact'' (``POC'').\3\ FFLs contacted the FBI by phone or
electronically.\4\ FFLs in each State are advised if they are required
to contact the FBI's NICS Section or a POC to conduct a background
check pursuant to 18 U.S.C. 922(t). See 28 CFR 25.6(a).
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\3\ A POC is ``a state or local law enforcement agency serving
as an intermediary between an FFL and the federal databases checked
by the NICS.'' 28 CFR 25.2. POCs are agencies with express or
implied authority to perform POC duties pursuant to State law. Id.
\4\ The FBI's NICS electronic check system, known as E-Check,
began in 2002. FBI, NICS E-Check, <a href="https://www.fbi.gov/video-repository/nics-e-check.mp4/view">https://www.fbi.gov/video-repository/nics-e-check.mp4/view</a> (last visited Oct. 4, 2024).
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Prior to the implementation of BSCA, when an FFL contacted the FBI
to initiate a NICS background check, NICS searched three electronic
systems--the National Crime Information Center (``NCIC''),\5\ the
Interstate Identification Index (``III''),\6\ and the NICS Indices
\7\--
[[Page 100406]]
for the existence of a relevant record demonstrating that the
individual is prohibited from receiving or possessing firearms under
Federal or applicable State law(s). FFLs provided NICS the prospective
transferee's name, sex, race, complete date of birth, State of
residence, height, weight, eye and hair color, place of birth, and, if
provided, any unique identification number(s) such as a Social Security
number or military number. See 28 CFR 25.7. It has typically taken NICS
a matter of seconds to collect the prospective transferee's identifying
information and identify matching or potentially matching records in
NCIC, III, or the NICS Indices.
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\5\ NCIC is searched for records such as active warrants and
protection orders. See, e.g., FBI, National Instant Criminal
Background Check System Posts NICS Index Data (Mar. 18, 2016),
<a href="https://www.fbi.gov/news/press-releases/national-instant-criminal-background-check-system-posts-nics-index-data">https://www.fbi.gov/news/press-releases/national-instant-criminal-background-check-system-posts-nics-index-data</a> (``NICS Data'').
\6\ III is part of the FBI's Next Generation Identification
system and is used to search for available Federal, State, local,
and Tribal criminal history records such as arrests, charges, or
case dispositions. See NICS Data, supra; see also Privacy Act of
1974; System of Records, 84 FR 54182, 54184 (Oct. 9, 2019).
\7\ The NICS Index consists of entries from Federal, State,
local, and Tribal agencies of persons who are prohibited from
receiving or possessing firearms under Federal or State law. See 28
CFR 25.2. When referencing the NICS Index, the remainder of this
rule will refer to the ``NICS Indices'' as it is more commonly known
today among NICS users. The changes made by this rule include
updates to the FBI's regulations to use the term ``NICS Indices''
rather than ``NICS Index.'' The Department is also updating the
regulations to use ``NICS Section'' instead of ``NICS Operations
Center.''
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If the search of those three systems resulted in no matching (i.e.,
disqualifying) record, a ``Proceed'' response was provided to the FFL.
If the search of those three systems resulted in at least one record
demonstrating that the individual was prohibited from receiving a
firearm, a ``Denied'' response was provided to the FFL. For those
transactions in which the NICS Section could not provide a definitive
response of either ``Proceed'' or ``Denied'' because additional
research of a possible Federal or State disqualification was required,
the transaction was placed in a ``Delayed'' status. Upon issuance of a
``Delayed'' response, NICS would continue to research the possible
prohibitions, even after the initial 3 business days had elapsed. If
the NICS Section was unable to determine whether a delayed transaction
should receive a ``Proceed'' or ``Denied'' response within 3 business
days of the initiation of the NICS check, the FFL was not federally
prohibited from transferring the firearm beginning on the day after the
third business day, which was and still is referred to as the Brady
transfer date. See 18 U.S.C. 922(t)(1).
In instances where a POC had been designated to process NICS
background checks, upon being contacted by an FFL, the POC would
``check state or local record systems [and] perform NICS inquiries.''
28 CFR 25.2. In addition to using the NICS Transaction Number (``NTN'')
that NICS assigns to submitted transactions, POCs may also assign their
own unique ``State-Assigned Transaction Number'' (``STN'') to a valid
background check inquiry. Id. When NICS received an inquiry from a POC
for a NICS background check, it searched NCIC, III, and the NICS
Indices for any matching records and provided an electronic response to
the POC. See 28 CFR 25.6(f).\8\ When contacted by a POC, NICS provided
one of four types of responses to the POC: (1) ``No record'' response
if NICS determined that no matching records existed in the databases
searched; (2) ``partial'' response if NICS had not completed the search
of all of its records (this response provided the POC with the
information found in any database in which the search was completed and
sent a follow-up response when NICS completed the search in all
databases); (3) ``single matching record'' response when one matching
record was found; and (4) ``multiple matching record'' response if more
than one matching record was found. See id. It has been and remains the
responsibility of the POCs to review the responses that are provided by
NICS, conduct any further research, render a final determination, and
provide FFLs with the results. See 28 CFR 25.6(g).\9\
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\8\ State laws may require or allow POCs to collect further
identifying information from a prospective transferee.
\9\ Further discussion of POCs can be found below within the
discussion of denial notifications in Section II.B of this preamble
and the discussion of under-21 transactions in Section II.C of this
preamble.
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The CAA, Public Law 117-103, 136 Stat. 49 (2022), and BSCA, Public
Law 117-159, 136 Stat. 1313 (2022), mandated certain changes to the
NICS process. In particular, as described below, the CAA and BSCA added
new disqualifying events for consideration during NICS transactions.
The CAA and BSCA added local and Tribal prohibitions to the Federal and
State prohibitions already listed under 18 U.S.C. 922(t). The CAA
includes the NICS Denial Notification Act of 2022 (``NDNA''), 136 Stat.
at 919, which requires the FBI to send denial notification reports
(``denial notifications'') to local law enforcement authorities
following the FBI's denial of a NICS transaction involving a
prospective transfer of a firearm. BSCA sets forth new requirements for
under-21 transactions, including enhanced contacts to State and local
entities and, if needed, additional delay to further investigate
possibly disqualifying juvenile records. 136 Stat. at 1322-24. As
described below, the Department proposes to amend the regulations
outlining the NICS process to conform with these requirements of the
CAA and BSCA. The Department is publishing this notice of proposed
rulemaking to propose amendments to 28 CFR 25.1, 25.2, 25.6, 25.7,
25.8, 25.9, 25.10, and 25.11 to implement parts of the CAA and BSCA as
codified at 18 U.S.C. 922(d) and (t), 18 U.S.C. 925B, 18 U.S.C. 925C,
and 34 U.S.C. 40901(l).
A. Updated Prohibitions
As amended by the CAA and BSCA, 18 U.S.C. 922(t) now precludes
approval of a firearm transfer to a nonlicensee if the transfer or
receipt of a firearm would violate local or Tribal law. 136 Stat. at
921-22; 136 Stat. at 1323. The FBI now is required to review NICS
results for any applicable firearm prohibitions imposed by local or
Tribal authorities, in addition to reviewing NICS results for any
events that meet firearm prohibitions imposed by Federal law under 18
U.S.C. 922(d), (g), or (n), or applicable State law(s). See 18 U.S.C.
922(t)(1)(B)(ii), (t)(1)(C)(iii). Where a local or Tribal firearm
prohibition may be applicable to the prospective transferee, the FBI
must consider that prohibition in the same manner as Federal and State
prohibitions that may be applicable based upon the prospective
transferee's background-check results. To reduce the risk of under-
enforcement of local and Tribal prohibitions, this rule seeks public
comments to identify which local and Tribal governments may, or may
not, have enacted their own firearm prohibitions that are not already
reflected in applicable State or Federal laws. What background record
or event would prohibit a person from possessing firearms in the
future? To whom do those local or Tribal prohibitions apply?
The Department proposes amending 28 CFR 25.1, 25.2, 25.6, and 25.9
to reflect the fact that 18 U.S.C. 922(t) now includes firearm
prohibitions imposed by local and Tribal law. The Department also
proposes amendments to 28 CFR 25.7(a) and 25.8(f) to require an FFL,
after initially providing NICS a prospective transferee's State of
residence and State of purchase, to subsequently provide the address
and city limits information listed by a prospective transferee on the
Bureau of Alcohol, Tobacco, Firearms, and Explosives (``ATF'') Form
4473 (``Form 4473''), Firearms Transaction Record, when the FBI
determines based on the State of residence and State of purchase that a
local or Tribal firearms prohibition may apply. In such situations, and
in the circumstances described further below, FFLs will be required to
provide the FBI with the additional address information before the FBI
provides the FFL with a transaction's status and an NTN. Providing
further residence information in such instances may prevent NICS from
unnecessarily delaying a transaction if the residence information
[[Page 100407]]
excludes the possibility of local or Tribal laws applying to that
transfer or receipt of firearms. For example, for a prospective
transferee with a criminal history who resides in a State that also has
potentially applicable local or Tribal firearm prohibitions, the
individual's full residential address, as reported on the revised Form
4473,\10\ can help quickly determine if the prospective transferee is
subject to the local or Tribal firearm prohibitions.
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\10\ A full residential address, as reflected on the revised
Form 4473, includes the number and full street address; city, State,
and ZIP Code; county, parish, or borough of residence; and whether
the subject resides within the city (to include town or other
municipal boundary) limits.
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The full street address is needed to determine whether a local or
Tribal prohibition should be considered in making the determination.
Because there are multiple jurisdictional boundaries that may fall
within a ZIP Code, county, or city, more granular information for the
address may be needed to make an accurate determination. For example,
different parts of one street could be subject to different local
jurisdictions. The FBI anticipates utilizing the same city, State,
county, and ZIP Code mapping as described in Section II.B of this
preamble to determine if a local or Tribal prohibition is applicable.
Under 18 U.S.C. 922(d), it is unlawful for any person to sell or
otherwise dispose of a firearm or ammunition knowing, or having
reasonable cause to believe, that the prospective transferee is subject
to any of the described disqualifying events in that subsection.\11\ As
amended by section 12001(a) of BSCA, 18 U.S.C. 922(d) now prohibits
such sales or dispositions to a person the transferor knows or has
reasonable cause to believe is subject to one of the described
disqualifying events, ``including as a juvenile.'' 136 Stat. at
1322.\12\ This proposed rule would incorporate conforming changes into
NICS regulations to reflect these statutory amendments expanding the
Brady Act prohibitions as now described in 18 U.S.C. 922(t).
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\11\ Historically, 18 U.S.C. 922(d) has encompassed the same
prohibitions as referenced in 18 U.S.C. 922(g) and (n).
\12\ In addition to the other amendments relevant to NICS, title
II, section 12004 of BSCA added two new prohibitions related to
preventing illegal firearms trafficking. See 18 U.S.C. 922(d)(10)
and (d)(11).
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The Department notes that, through various amendments to NICS
regulations over the years, current NICS regulations contain
inconsistent references to the Brady Act prohibitions, particularly the
Federal prohibitions. The Department proposes amending NICS regulations
found at 28 CFR 25.1, 25.2, 25.6, and 25.9 to ensure consistency with
respect to how firearms prohibitions are described. To the extent
necessary, the Department intends to reconcile these various references
to Brady Act prohibitions in the Department's NICS regulations through
this proposed rule as well as through RIN 1110-AA35 and through other
technical updates to the Department's NICS regulations in a future
rulemaking, RIN 1110-AA37.
B. Local Law Enforcement Notification
The NDNA, which was enacted as part of the CAA, requires that the
Attorney General send a denial notification to a ``local law
enforcement authority'' upon denial of a NICS transaction involving the
prospective transfer of a firearm by an FFL. See CAA, Public Law 117-
103, div. W, title XI, sec. 1101, 136 Stat. 49, 919-20. Since the
NDNA's effective date, October 1, 2022, the FBI has been submitting
denial notifications.
When the FBI denies a NICS transaction, as described in 18 U.S.C.
925B(a) related to the prospective transfer of a firearm, it sends a
denial notification to the ``local law enforcement authority'' of the
State or Tribe within whose jurisdiction the person sought the firearm
transfer and, if different, to the ``local law enforcement authority''
of the State or Tribe within whose jurisdiction the person resides.\13\
This ensures that local law enforcement authorities in both
jurisdictions are made aware of the denial.\14\ As proposed by this
rule in 28 CFR 25.2, `` `local law enforcement authority' means a
bureau, office, department, or other authority of a State or local
government or Tribe that has jurisdiction to investigate a violation or
potential violation of, or enforce, a State, local, or Tribal law.''
See also 18 U.S.C. 921(a)(36). The Department's proposed amendments to
28 CFR 25.2, 25.7(a), and 25.8(f) reflect the FBI's current process for
collection of information for carrying out the NDNA's requirements and,
if finalized, would generally not alter the current denial notification
process as described herein.
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\13\ Federal law allows an FFL to transfer a long gun to a
resident of another State so long as, among other considerations,
the sale, delivery, and receipt otherwise satisfy the State laws and
published ordinances of both jurisdictions. See 18 U.S.C. 922(b).
\14\ For example, if a resident of Fort Wayne, Indiana, attempts
to receive a firearm from an FFL in Indianapolis, Indiana, and the
transaction is ``Denied,'' then the FBI would send a denial
notification to the local law enforcement authorities in Fort Wayne
(where the denied transferee resides) and Indianapolis (where the
firearm was sought).
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To reflect how the Department has implemented the NDNA, the
Department proposes to amend 28 CFR 25.7(a) and 25.8(f) to require FFLs
to provide additional residence address information for prospective
transferees whose prospective firearm transfers will be ``Delayed'' or
``Denied.'' Again, after an FFL has initiated the transaction, NICS
determines within seconds if NCIC, III, or the NICS Indices include
records that require the transaction to be ``Delayed'' for further
research or ``Denied.'' After NICS has identified that a transaction
will be ``Delayed'' or ``Denied,'' the FFL must provide NICS with the
subject's full residential address before the FFL will be provided with
the NTN and status. This information will be requested over the phone
or collected electronically, depending on how the FFL initiated the
transaction. Once the system has received the subject's full residence
address, the FBI will then, over the phone or electronically, provide
the FFL with that transaction's NTN and initial status.
A ``Delayed'' transaction can change quickly to a ``Denied''
transaction. Consequently, by also collecting full address information
before a ``Delayed'' status is provided to an FFL, the FBI will have
that address information readily available should that transaction
result in a denial. Collecting address information in such a manner
avoids scenarios where the FFL is unavailable to receive a second
contact from the FBI, which avoids delaying the address collection and
denial notification. Thus, the amendments proposed in this rule and the
process currently implemented by the FBI allow NICS to provide more
timely denial notifications to local law enforcement authorities where
the individual attempts to obtain the firearm and, if different, where
the person resides. As discussed elsewhere in this rule, POCs will see
similar results when they begin implementing the NDNA provisions (to
the extent their State laws do not already require implementation of
all or some aspects of the NDNA).
Local law enforcement authorities are not required by the NDNA to
take any action upon receiving the denial notification.\15\ However, to
avoid potential conflict with ongoing Federal investigations, the
denial notification effectively encourages local law
[[Page 100408]]
enforcement authorities to coordinate with their local ATF office prior
to taking any anticipated action. The city in which the local ATF
office is located and the office's contact information are provided in
the denial notification. The denial notification is transmitted through
NCIC and contains the NDNA-required information that NICS ``Denied''
the firearm transaction; the Federal, State, local, or Tribal
prohibition that was the basis for the denial; the prospective
transferee's identifying information (i.e., the transferee's name, sex,
height, date of birth, place of birth, and residence address); the date
and time the transaction was denied; and the location and contact
information for the FFL where the denied transfer occurred.\16\ See 18
U.S.C. 925B(a)(1). The denial notification also contains a general
reminder explaining why the denial notification is being provided and
contact information for any other law enforcement entities to which
NICS sent the denial notification.
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\15\ In fact, some local law enforcement authorities will not
have a State, local, or Tribal violation of law to enforce if, for
example, the denial was due to a Federal violation.
\16\ Additional information on this topic and a copy of a draft
notification can be found at FBI, NICS Denial Notifications for Law
Enforcement, <a href="https://le.fbi.gov/informational-tools/nics-denial-notifications-for-law-enforcement">https://le.fbi.gov/informational-tools/nics-denial-notifications-for-law-enforcement</a> (last visited June 18, 2024).
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The NDNA provides that, where practicable, a denial notification
will be provided to State, local, or Tribal prosecutors in the
jurisdiction where the firearm transfer was sought to assist with
enforcing State, local, or Tribal laws (when applicable). See 18 U.S.C.
925B(a)(2). Should a ``Denied'' transaction be later overturned, the
NDNA requires that any law enforcement authority and prosecutor
previously provided with a denial notification for that transaction be
provided an updated notification of the overturned denial. See 18
U.S.C. 925B(c). Such updated notifications are also provided via NCIC
to all agencies that received a denial notification for that
transaction.
Currently, FFLs obtain the prospective transferee's residence
address on the Form 4473. See 27 CFR 478.124. This residence
information is collected in box 10 of the Form 4473 and includes number
and street address, city, whether the residence is within city limits,
State, ZIP Code, and county or parish or borough. Under 28 CFR 25.7,
the only address information that must be provided for the initial NICS
check is the prospective transferee's State of residence; the
regulations have not required FFLs to submit further information to
NICS about a prospective transferee's residence address even though the
FFL must collect such information on the Form 4473.\17\
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\17\ In addition to the prospective transferee's State of
residence, an FFL must submit the prospective transferee's name,
sex, race, and complete date of birth to initiate a NICS check. See
28 CFR 25.7.
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The full street address of a prospective transferee is needed to
determine which local jurisdiction(s) would be appropriate for
notification of a denial determination. There are multiple agencies
that may fall within a ZIP Code, county, or city. To notify the correct
agency, specific information for the address is needed. For example,
one street within a city could be within the jurisdiction of one police
department while the adjacent street could be under a different police
department's jurisdiction. When an FFL initially submits a prospective
firearm transfer to the FBI and the initial NICS check of NCIC, III,
and the NICS Indices finds information indicating the transaction will
be ``Delayed'' or ``Denied,'' the FBI, during that same, initial
contact with NICS, requests (by phone or electronically \18\) the full
residence address of the prospective transferee while the FFL waits for
NICS to provide them with the initial status and the NTN. Once NICS has
been provided with the full residence address, the FFL is provided with
the NTN and the transaction's status.
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\18\ For some transactions using NICS E-Check to submit
information to NICS, NICS is able to systematically capture the
residence without aid of the FFL.
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Through each State, local, and Tribal law enforcement agency's
Originating Agency Identifier (``ORI''), the FBI has mapped those law
enforcement agencies to the city, State, county, and ZIP Code(s) for
which they have jurisdiction to enforce laws.\19\ Each State (including
Territories and the District of Columbia) has validated the mapping
accuracy via an NCIC unsolicited message. NCIC unsolicited messages are
automated communications that normally inform law enforcement and other
criminal justice agencies about activity on an NCIC record, such as
important details about a specific subject or property item or system
status information. NICS now also uses this communication line to send
denial notifications to applicable local law enforcement authorities.
For transactions that are ``Denied,'' NICS systematically compares the
full address information of the FFL and the prospective transferee with
the address information of the mapped law enforcement agencies. NICS
then submits, via NCIC unsolicited messages, the denial notifications
to the State, local, and Tribal law enforcement agencies that fall
within the jurisdiction of the FFL's address where the transfer was
sought and, if different, the State, local, and Tribal law enforcement
agencies with jurisdiction over the denied transferee's residence
address.
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\19\ An ORI is ``a nine-character identifier assigned by the FBI
to an agency that has met the established qualifying criteria for
ORI assignment to identify the agency in transactions on the NCIC
System.'' 28 CFR 25.2.
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ATF also revised the Form 4473 to request full residence
information for prospective transferees. In addition to assisting with
the implementation of the CAA and BSCA provisions describing use of
local and Tribal firearm prohibitions, the revised Form 4473 ensures
the information is available to FFLs when the FBI seeks such
information to support the continued implementation of the NDNA. The
denial notifications provide timely assistance to State, local, and
Tribal governments that wish to enforce existing laws in their
jurisdictions against individuals attempting to illegally purchase,
possess, or receive firearms (whether through fraudulent background
checks or otherwise).
In the 19 States \20\ in which partial or full POCs conduct NICS
checks, POCs serve as intermediaries between FFLs and the Federal
databases checked by NICS, with POCs acting on behalf of the FBI to
perform the NICS transactions from those jurisdictions. See 28 CFR 25.2
and 25.6. Partial POCs elect to process background checks for handguns,
long guns, or both, and the FBI processes all other checks for FFLs in
the State. Currently, all four partial POCs process their own NICS
checks for handguns.\21\ The FBI has verified, based on discussions
with POCs, that 14 of the 19 POCs that responded in time for this rule
already have some type of denial notification process established
within their State. The FBI does not render denial decisions for POCs.
See 28 CFR 25.6(g). Therefore, this rule proposes revisions to 28 CFR
25.2 and 25.6 to reflect that POCs must, at a minimum, report denial
notifications in accordance with the NDNA when the POC denies a
prospective firearm transfer.\22\ If these
[[Page 100409]]
revisions are finalized, POCs will also be required to provide the NICS
Section with applicable statistics necessary for the FBI to comply with
the provisions of 18 U.S.C. 925C.
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\20\ See FBI, NICS Participation Map, <a href="https://www.fbi.gov/file-repository/nics-participation-map.pdf/view">https://www.fbi.gov/file-repository/nics-participation-map.pdf/view</a> (last visited Oct. 4,
2024).
\21\ See id.
\22\ The Department notes that the statutory obligation to issue
denial notifications does not include the issuance of denial
notifications to the same entity that denied the transaction. See 18
U.S.C. 925B(d) (denial notification to State authorities not
required if the same State authorities made the original denial
determination with respect to the transfer of the firearm). For
example, if a resident of Fort Wayne, Indiana, attempts to receive a
firearm from an FFL in Illinois, and the transaction is denied by
the Illinois POC (the Illinois State Police), then the Illinois POC
would issue denial notifications to the ``local law enforcement
authorities'' in Indiana (where the denied transferee resides) but
would not need to issue a denial notification to the Illinois State
Police.
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C. Enhanced Background Checks for Individuals Under 21 Years of Age
As described earlier in this rule, prior to BSCA's enactment of new
enhanced background checks during under-21 transactions, when an FFL
initiated a NICS transaction--regardless of the prospective
transferee's age--NICS searched three primary systems to determine if
the person was disqualified from possessing or receiving firearms.\23\
If the traditional search resulted in no disqualifying or potentially
disqualifying records, NICS provided a ``Proceed'' status to the FFL.
If a juvenile or adult record was located that disqualified the person
under Federal or State law, NICS provided a ``Denied'' status to the
FFL. If a possibly disqualifying record (whether having occurred as a
juvenile or adult) resulted from the initial search, NICS provided a
``Delayed'' status and advised the FFL that, if the FFL did not receive
a ``Proceed'' or ``Denied'' response from NICS on or before the end of
the third business day after initiation of the check, the FFL was not
federally prohibited from transferring the firearm on the day after the
third business day.\24\ Cf. 18 U.S.C. 922(b), (d).\25\
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\23\ Currently, BSCA's provisions related to under-21
transactions are to sunset September 30, 2032. 136 Stat. at 1324.
\24\ Currently, ``Delayed'' and ``Open'' are defined as follows:
``Delayed means the response given to the FFL indicating that the
transaction is in an `Open' status and that more research is
required prior to a NICS `Proceed' or `Denied' response. A `Delayed'
response to the FFL indicates that it would be unlawful to transfer
the firearm until receipt of a follow-up `Proceed' response from the
NICS or the expiration of three business days, whichever occurs
first.'' 28 CFR 25.2 ``Open means those non-canceled transactions
where the FFL has not been notified of the final determination. In
cases of `open' responses, the NICS continues researching
potentially prohibiting records regarding the transferee and, if
definitive information is obtained, communicates to the FFL the
final determination that the check resulted in a proceed or a deny.
An `open' response does not prohibit an FFL from transferring a
firearm after three business days have elapsed since the FFL
provided to the system the identifying information about the
prospective transferee.'' Id.
\25\ The Department notes that, after receiving a ``Proceed'' or
``Open'' response from NICS, Federal law would not prohibit the FFL
from transferring the firearm. Receipt of such a response, however,
``[d]oes] not relieve'' the FFL from complying with other provisions
of law, such as 18 U.S.C. 922(d), that may be applicable to that
transfer. 28 CFR 25.2 (defining ``Proceed''). A similar caveat for
the definition of ``Open'' has been proposed as part of this rule.
When, throughout this rule, the Department observes that, in certain
situations, receipt of a response from NICS indicates that Federal
law would not prohibit an FFL from transferring a firearm, it should
be understood that the FFL must still comply with other laws, such
as 18 U.S.C. 922(d).
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In addition to the searches of NCIC, III, and the NICS Indices,
BSCA now requires enhanced NICS background checks for prospective
transferees under 21 years of age. See 34 U.S.C. 40901(l).\26\ With
respect to these enhanced background checks conducted for under-21
transactions, Congress imposed two overarching requirements on NICS.
First, in addition to the traditional NICS check of relevant FBI
systems, NICS is required to make three enhanced requests to specified
types of State and local entities to determine whether the prospective
transferee has a ``possibly disqualifying juvenile record'' under 18
U.S.C. 922(d). The enhanced requests to State and local entities where
the prospective transferee resides are to be made to (1) the State
criminal history repository or juvenile justice information system, as
appropriate; (2) the State custodian of mental health adjudication
records; and (3) the local law enforcement agency. See 34 U.S.C.
40901(l)(1).
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\26\ Under Federal law, persons who are at least 18 years of age
are of lawful age to purchase long guns; however, some States set a
higher minimum age to purchase long guns. See 18 U.S.C. 922(b).
---------------------------------------------------------------------------
In October of 2022, the FBI began a phased, manual implementation
of the enhanced background checks BSCA requires for under-21
transactions coming from the State of Maine. For the remaining States
\27\ for which the FBI processes NICS checks for prospective firearm
transfers, since January 4, 2023, NICS has been automatically
submitting all three enhanced requests via email. To begin implementing
BSCA's requirements of contacting the criminal history repository or
juvenile justice information system and the appropriate State custodian
of mental health records in the State in which the person resides for
possibly disqualifying juvenile records pursuant to 18 U.S.C. 922(d),
the NICS Section met with representatives from all States and
Territories to establish contacts for those requests; this was because
the NICS Section did not have such contacts required by BSCA at the
time of enactment.
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\27\ ``State'' is federally defined to include the District of
Columbia, the Commonwealth of Puerto Rico, and most possessions
(``Territories'') of the United States. See 18 U.S.C. 921(a)(2).
United States Territories that submit background checks to NICS
include Guam, Northern Mariana Islands, American Samoa, and the
Virgin Islands. See FBI, NICS Participation Map, <a href="https://www.fbi.gov/file-repository/nics-participation-map-020124/view">https://www.fbi.gov/file-repository/nics-participation-map-020124/view</a> (last
visited Oct. 4, 2024).
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Some States informed the NICS Section they do not have a
centralized contact for some of the juvenile records BSCA requires NICS
to request. Those States directed the NICS Section to contact courts
that handle juvenile criminal history or mental health information. The
FBI has shared all identified contacts (centralized or otherwise) with
POCs so that POCs can utilize the same contacts as the NICS Section for
enhanced background checks. Both the NICS Section and POCs utilize
their own existing contact methods for contacting local law enforcement
agencies during under-21 transactions. The amendments proposed by this
rule, unless noted otherwise, will not alter how the enhanced
background checks related to under-21 transactions are being conducted.
Second, if NICS determines that cause exists to further investigate
whether the prospective transferee has a disqualifying juvenile record
under 18 U.S.C. 922(d), BSCA provides for an additional period of time
for NICS to process that under-21 transaction before the FFL may
transfer the firearm. See 18 U.S.C. 922(t)(1)(C); 34 U.S.C.
40901(l)(2). BSCA requires NICS to notify the FFL ``as soon as
possible, but in no case more than 3 business days'' after the
initiation of the check if such cause exists. 34 U.S.C. 40901(l)(2).
If NICS determines such cause exists, NICS notifies the FFL of that
determination, and it is then unlawful for the FFL to transfer a
firearm to the prospective transferee without receiving a follow-up
``Proceed'' response or waiting for the expiration of 10 business days
from initial contact with NICS, whichever occurs first. See id.
Accordingly, the Brady transfer date for an under-21 transaction where
NICS has determined that cause exists for further investigation is the
day after the tenth business day from the date the FFL contacted NICS.
As NICS has begun submitting enhanced background checks for under-21
transactions, FFLs have also been notified by the FBI when cause for
further investigation has been established and, consequently, that the
Brady transfer date has changed to the day after the tenth business
day.\28\
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\28\ The FFL is updated in the same manner as when the FFL
initially contacted NICS, either electronically or by telephone.
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To reflect BSCA's requirements during under-21 transactions,
technical enhancements have been made to NICS to have NICS use the
subject's complete date of birth to immediately calculate whether the
prospective transferee is
[[Page 100410]]
under 21 years of age on the day the transaction was submitted to NICS.
Systematically, this age calculation is occurring at the same time NICS
is searching NCIC, III, and the NICS Indices. Once NICS determines the
subject is under 21 years of age, NICS will request the transferee's
full residence address, and, generally, will notify the FFL that the
transaction will be placed into a ``Delayed'' status. NICS collects the
full residence address of subjects who are under 21 years of age in the
same manner as NICS collects a full residence address for purposes of
the NDNA. For an under-21 transaction, the FBI uses the full residence
address of the subject to determine which ``local law enforcement
agency [has] jurisdiction where the person [under 21 years of age]
resides'' and, therefore, must be contacted by NICS. 34 U.S.C.
40901(l)(1)(C). The prospective transferee's State of residence is used
to identify which State-level agencies the FBI also needs to contact
during enhanced background checks.
After collecting the full residence address of the subject, NICS
systematically sends the enhanced background check requests to the
agencies corresponding to the subject's full residence address.\29\
Generally, the FBI sends these enhanced requests by email
communications to the designated agencies. Some States that are not
centralized have designated that certain courts should be contacted for
the requested juvenile records. The FBI also conducts some enhanced
outreach to State agencies by manually accessing State databases that
were established during the FBI's outreach to States, the District of
Columbia, and Territories.
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\29\ During an under-21 transaction, a Tribal law enforcement
authority may also receive a request for potentially prohibiting
juvenile records if the Tribe shares the same ZIP Code as the
prospective transferee.
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Unless the under-21 transaction can be denied sooner based on
available information, NICS now has up to 3 business days to determine
if BSCA's enhanced background checks, or any responses from the initial
searches of NCIC or III, provide cause for further delay of the under-
21 transaction due to a potentially prohibiting juvenile record. During
this time, NICS is also investigating those same sources for any adult
records that are prohibiting or potentially prohibiting. Some under-21
transactions will be denied in a matter of seconds due to, for example,
the NICS Indices responding with a prohibiting record that matches the
subject's biographic information. Even if the under-21 transaction is
immediately ``Denied,'' the Department reads BSCA to still require NICS
to submit the enhanced background checks.
BSCA's enhanced background check requirements result in under-21
transactions being significantly more complex than NICS background
checks conducted before BSCA. Unlike the pre-BSCA background check
process (described above in the beginning of Section II of this
preamble), BSCA mandates enhanced background checks that include
requiring NICS to also contact, in 56 different jurisdictions, the
State and local agencies identified under 34 U.S.C. 40901(l)(1). The
results of those queries will then depend on the ability and
capabilities of those State and local agencies.
Based on the FBI's experience in conducting BSCA's enhanced
background checks, the FBI estimates the majority of State and local
agencies that are contacted and that respond during the enhanced
background checks of under-21 transactions do so within 3 business
days. The Department does not consider an agency to have provided
``cause for further investigation'' within the first 3 business days if
the agency contacted provides a substantive response that it has no
potentially prohibiting juvenile record(s); if the agency responds to
each enhanced background check request submitted to that agency that
State law prohibits providing the type of juvenile records sought; or
if the agency responds to each enhanced background check request
submitted to that agency that the juvenile records sought are already
provided to the relevant Federal system (NCIC, III, or the NICS
Indices).
If an agency informs the Department within 3 business days of the
check being initiated that the agency requires more time to investigate
whether a prospective transferee has potentially prohibiting juvenile
records, or the agency has not responded at all within 3 business days,
the Department interprets these circumstances as ``cause for further
investigation,'' and the agency will be afforded up to 7 additional
business days to respond to the request. See 34 U.S.C. 40901(l)(2). The
Department believes Congress's imposition of additional checks for
disqualifying State and local juvenile records during under-21
transactions would be frustrated by practical administrative delays
inherent in conducting these enhanced checks if a State or local
agency's failure to respond within the 3-business-day period could not
be understood to constitute ``cause for further investigation.'' While
this interpretation could result in a relatively short additional delay
(up to 7 additional business days at most) before Federal law would
allow the FFL to complete the firearm transfer for the prospective
transferee, the alternative interpretation might result in subjecting
the public to a risk that BSCA was intended to address.
As soon as all required checks are cleared of any possible
disqualifications, the FBI will place the under-21 transaction in a
``Proceed'' status. See 34 U.S.C. 40901(l)(3). BSCA did not institute a
mandatory 3- or 10-day waiting period for all under-21 transactions.
Instead, BSCA requires that NICS conduct the enhanced outreach
described above, and it provides NICS up to 3 business days to
determine if cause exists to further investigate whether the
prospective under-21 transferee has a disqualifying juvenile record
under 18 U.S.C. 922(d).
Another technical enhancement made for under-21 transactions is
that NICS automatically calculates and populates, to the NICS Audit
Log,\30\ the 10-business-day transfer date in case that date becomes
applicable. If that date is applied to the transaction, NICS provides
the FFL with the 10-business-day transfer date during a follow-up
communication. The FBI has also added to the NICS Audit Log fields for
each under-21 transaction noting which State and local agencies were
contacted during the enhanced background checks for a transaction and a
general notation of whether and how those agencies responded (e.g., no
records, records, or cannot respond by law). NICS must contact these
State and local agencies according to BSCA, but the FBI understands
that currently not all States have one or both State-level systems
described above and, further, some States' laws prohibit the sharing of
juvenile justice records or mental health records.\31\ Notwithstanding
such limitations, the FBI has continued to submit the enhanced
background check requests to relevant State and local agencies during
every under-21 transaction since January 3, 2023.
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\30\ For NICS purposes, ``[a]udit log means a chronological
record of system (computer) activities that enables the
reconstruction and examination of the sequence of events and/or
changes in an event.'' 28 CFR 25.2.
\31\ FBI subject matter experts estimate that, currently, more
than half of all States, including the District of Columbia and the
Territories, have laws in place that prohibit the sharing of
juvenile justice records, juvenile mental health records, or both.
Many agencies in those States do not currently respond to each NICS
request with substantive records or a notification that the records
sought are protected from dissemination by State law.
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The Department proposes the following amendments to conform NICS
regulations with the above-described provisions of BSCA for under-21
[[Page 100411]]
transactions. First, the Department proposes amending 28 CFR 25.7(a)
and 25.8(f) to require submission of the full residential address \32\
for NICS checks of prospective transferees who are less than 21 years
old, in addition to the information already required to be submitted as
described above. Second, the Department proposes amending 28 CFR
25.6(c) to reflect that, upon initiation of an under-21 transaction
from an FFL, the FBI will immediately conduct a NICS check of NCIC,
III, and the NICS Indices and make the enhanced outreach to the
following agencies where the person resides: (1) the State criminal
history repository or juvenile justice information system, as
appropriate; (2) the State custodian of mental health adjudication
records; and (3) the local law enforcement agency. The FBI has
identified all necessary agencies to contact during this enhanced
outreach to determine if cause exists for additional delay of the
transaction to further investigate whether the person has a
disqualifying juvenile record under 18 U.S.C. 922(d). The amendments
proposed by the Department in this rule would not modify how the FBI is
conducting the enhanced background checks of under-21 transactions.
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\32\ As noted earlier, see supra note 10, a full residential
address, as reflected on the amended Form 4473, includes the number
and full street address; city, State, and ZIP Code; county, parish,
or borough of residence; and whether the subject resides within the
city (to include town or other municipal boundary) limits.
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Next, the Department proposes a new transaction status of ``No
Known Prohibitors: At least one state or local agency has not responded
or cannot respond,'' which is not a part of the current under-21
transaction process. A definition for this new status is proposed under
28 CFR 25.2. Also, the FBI proposes revisions to 28 CFR 25.6(c)(iv), 28
CFR 25.8(g)(2), 28 CFR 25.9(b), and 28 CFR 25.11(b)(1) to reflect the
status of ``No Known Prohibitors: At least one state or local agency
has not responded or cannot respond.'' The Department proposes that an
FFL be provided the status of ``No Known Prohibitors: At least one
state or local agency has not responded or cannot respond'' generally
in circumstances where NICS has either not received one or more
responses to the enhanced background checks or the relevant State is
barred from sharing juvenile information by a governing State law. This
status would be provided under the following circumstances:
<bullet> Barred from Responding. If at least one agency
affirmatively responds that it is barred by State law from sharing
relevant information with NICS, any other agencies have responded, and
the available information does not demonstrate a (potentially)
prohibiting record exists for the subject.
<bullet> Non-Response. At the end of the tenth business day if at
least one of the agencies contacted during the enhanced background
checks for that under-21 transaction has not responded and available
information does not demonstrate a (potentially) prohibiting record
exists for the subject.
A ``Proceed'' status to an FFL signifies that all systems have been
checked, requests for records have received responses, and available
information reveals no (potentially) prohibiting record exists.\33\
Accordingly, where State or local agencies either do not or cannot
share information on a prospective transferee, providing an FFL with
the status of ``Proceed'' would be inaccurate. Similarly, an ``Open''
response signifies to an FFL that NICS is still researching a potential
firearm prohibition. See 28 CFR 25.2. Accordingly, it would also be
inaccurate for an ``Open'' response to be provided in any of the above
circumstances because NICS would not be conducting further research at
that point. The Department believes providing this new status of ``No
Known Prohibitors: At least one state or local agency has not responded
or cannot respond'' to FFLs in these circumstances would more
accurately inform the FFL of the fact that the State or local agencies
at issue either did not or could not respond to the enhanced requests
for juvenile records. However, unless NICS has provided an FFL with a
status of ``Denied,'' the FFL retains the ultimate discretion to
transfer a firearm, or not, to the subject.
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\33\ As part of this rulemaking, the FBI is proposing an
amendment to the definition of ``Proceed'' to clarify that the
response indicates that all relevant systems have in fact been
checked and all requests for records have in fact received
responses.
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Do commenters believe the new status would have unforeseen impacts?
What further information would the public find useful or necessary
before approving or rejecting the new, proposed status? Should a
different status be proposed, and if so, why?
A prospective transferee who is under 21 years of age could have a
possibly disqualifying juvenile record under 18 U.S.C. 922(d) or a
possibly disqualifying record (incurred as an adult or juvenile) under
18 U.S.C. 922(g) or (n), or State, local, or Tribal law.\34\
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\34\ For instance, suppose a person who is now 20 years old
attempts to receive a firearm from an FFL. The NICS check reveals
that, at 17 years old, this person was adjudicated as a ``juvenile
delinquent'' under State law for an offense that would have been a
felony had the person been an adult. Within the next day, all three
agencies contacted under the enhanced contacts for the under-21
transaction respond and provide no other potential juvenile
prohibitions. Further suppose that, under the law of the State where
the adjudication occurred, that adjudication is not considered a
``conviction.'' As a result, Federal law cannot consider that
adjudication for purposes of 18 U.S.C. 922(d) or (g). See 18 U.S.C.
921(a)(20). Further, because that juvenile disposition would not
fall within the reach of 18 U.S.C. 922(d), it would not qualify for
consideration under 34 U.S.C. 40901(l) for application of further
delay of an under-21 transaction. However, suppose the law of the
State where the adjudication occurred imposes a 10-year firearm
prohibition for persons adjudicated as a juvenile delinquent for an
offense that would have been a felony. The adjudication would not
qualify for purposes of 18 U.S.C. 922(d), but it would prohibit that
person from receiving or being transferred a firearm in accordance
with 18 U.S.C. 922(t).
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The following examples clarify the types of records that NICS may
receive during an under-21 transaction and how the Department proposes
to have NICS process the different scenarios.
Scenario 1: No adult or juvenile disqualifying records are found in
NCIC, III, or the NICS Indices, and the under-21 enhanced background
checks rule out cause for additional delay before the end of the third
business day. The transaction is placed in a ``Proceed'' status.
Scenario 2: Only a possibly disqualifying adult record is located,
but cause for additional delay, related to a possibly disqualifying
juvenile record, is ruled out before the end of the third business day.
Although cause for additional delay of the transaction was ruled out,
the transaction will remain ``Delayed'' (in an ``Open'' status) due to
the possibly disqualifying adult record being found. The FFL may
transfer the firearm after the third business day if the FFL has not
first received a ``Denied'' status update. NICS will continue to
research to establish or rule out the possible adult prohibition until
the transaction is proceeded, denied, or purged in compliance with 28
CFR 25.9.
Scenario 3: No possibly disqualifying adult record is located, but
cause for additional delay is established based on a possibly
disqualifying juvenile record. NICS will notify the FFL of the
additional delay being applied up through the tenth business day (if
necessary) to further research whether there is a disqualifying
juvenile record. If cause for the additional delay of the transaction
is ruled out, the transaction will be updated to ``Proceed'' status. If
cause for additional delay cannot be ruled out by the end of the tenth
business day, the transaction will remain ``Delayed'' (in an ``Open''
status), and under Federal law, the FFL
[[Page 100412]]
may transfer the firearm after the tenth business day if the FFL has
not first received a ``Denied'' status update. NICS will continue
research to establish or rule out the relevant possible juvenile
prohibition until the transaction is proceeded, denied, or purged in
compliance with 28 CFR 25.9.
Scenario 4: A possibly disqualifying adult record is found and
cause for additional delay is established based on a possibly
disqualifying juvenile record on or before the third business day.
Because cause for additional delay has been found to exist, the FFL is
notified of additional delay being applied, up through the tenth
business day (if necessary), to further research whether there is a
disqualifying juvenile record. In accordance with Federal law, the FFL
may transfer the firearm after the tenth business day if the FFL has
not first received a ``Denied'' status update. NICS will continue
researching any possible prohibition until the transaction is
proceeded, denied, or purged in compliance with 28 CFR 25.9.
Scenario 5: No potentially prohibiting adult or juvenile records
return from NCIC, III, or the NICS Indices, but, after 10 business days
have elapsed, one of the agencies contacted during the enhanced
background check still has not responded in substance or by telling
NICS that the laws of the jurisdiction prohibit the agency from
disclosing the juvenile records sought. The Department proposes that
the transaction's status be updated to ``No Known Prohibitors: At least
one state or local agency has not responded or cannot respond.''
Federal law would then allow the FFL to transfer the firearm.
Scenario 6: After the transaction has been ``Delayed,'' and prior
to the firearm being transferred, a firearm disqualification (as
described in 18 U.S.C. 922(t)) is established. The transaction is
placed into a ``Denied'' status and the FFL is notified of the status.
The FFL is prohibited from transferring the firearm to the prospective
transferee.
In any under-21 transaction, as soon as all possible
disqualifications are ruled out, the transaction will be placed into
``Proceed'' status. If a transaction has been placed into ``Proceed''
status, or when Federal law otherwise allows the firearm to be
transferred, the FFL is permitted to transfer the firearm to the
prospective transferee if the person returns to the FFL to receive the
firearm within 30 days from when the FFL first contacted NICS. See 27
CFR 478.102(c). POCs are currently required to complete any research
for possible prohibiting records outside of system responses from NCIC,
III, and the NICS Indices. This proposed rule would amend the
definition of ``POC (Point of Contact)'' in 28 CFR 25.2 to reflect
that, similarly, POCs that receive and process under-21 transactions
\35\ will also be required to conduct the enhanced background checks
for under-21 transactions now required under 34 U.S.C. 40901. To the
extent POCs process under-21 transactions, those POCs have begun
conducting the enhanced background checks. To account for BSCA's
requirement to conduct the enhanced background checks, if finalized,
and in contrast to current practice under 28 CFR 25.6(h), NICS will not
presume that a POC proceeded a ``newly created'' under-21 transaction
if the applicable POC has not provided NICS with a ``Delayed'' or
``Denied'' determination message by ``the end of the operational day on
which the transaction was initiated.'' The FBI proposes that 28 CFR
25.6(h) be amended to reflect that change. As indicated previously, the
FBI has shared any identified contacts, centralized or otherwise, with
POCs so that POCs have the same contacts as the NICS Section. Both the
NICS Section and POCs will utilize their own existing contact methods
for contacting local law enforcement agencies during under-21
transactions.
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\35\ Again, persons under 21 are federally prohibited from
receiving a handgun through an FFL, and the NICS Section currently
processes only long gun transactions for all partial POCs.
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D. Attestation Process for Enhanced Background Checks
The Department seeks public comments about a potential attestation
process that is not a part of the current under-21 transaction process.
The Department envisions that this attestation process would allow
State agencies to voluntarily provide the FBI with an attestation that
State law prohibits sharing juvenile mental health or juvenile justice
records (or both). The attestation could be completed by a government
official in the jurisdiction (State, District of Columbia, or
Territory). For example, the head of the chief law enforcement agency
for the jurisdiction, or that person's designee, whether that be the
jurisdiction's Attorney General or the head of another agency, could
submit this attestation. In addition to noting that State law prohibits
the sharing of juvenile mental health or juvenile records (or both),
such an attestation could include additional information regarding the
law in the jurisdiction, including, for example, whether the State's
laws also prohibit local law enforcement agencies from sharing juvenile
records.
This potential attestation process also could be applicable to
State agencies that have informed NICS that they already send the
requested juvenile mental health or juvenile justice records to NCIC,
III, or the NICS Indices, as applicable. An option would be to make the
attestation renewable at some defined interval (for example every 6
months or annually), unless rescinded due to a change in State law. If
an attestation process were implemented, the submission of an
attestation would be discretionary; States could choose, for example,
to decline to submit an attestation and to instruct their agencies to
continue responding individually to NICS inquiries even if State law
generally prohibits the sharing of relevant records. Also, reliance on
an attestation would similarly be voluntary. Thus, even in States that
have executed attestations, agencies could still reply to individual
requests that they receive from the FBI or POCs. Finally, an agency
would remain free to reply to individual requests in circumstances in
which a State prohibition on disclosing the records has been lifted or
when the agency has potentially responsive adult records for a subject.
This potential attestation process may therefore afford the Department,
the States, and local jurisdictions more flexibility in deciding how to
process under-21 transactions.
Under this potential attestation process, the FBI and POCs would
continue to submit the requests for juvenile records as described in
the enhanced background check provisions of 34 U.S.C. 40901(l)(1). With
respect to a request involving a State jurisdiction that has submitted
an attestation that conveys that the State agency is prohibited by
State law from sharing the pertinent records, if the agency does not
individually respond by the end of the third business day, then the
attestation would prevent enhanced delay from being applied due to that
agency's non-response. The FBI in such circumstances would provide the
status ``No Known Prohibitors: At least one state or local agency has
not responded or cannot respond.'' In addition, where the State has
already verified by attestation that the requested juvenile records are
already shared, as applicable, with NCIC, III, or the NICS Indices, the
NICS Section would ``Proceed'' that transaction no later than the
expiration of the third business day if no other potential prohibition
exists needing further research, any other enhanced background check
requests have responses or are covered by an
[[Page 100413]]
attestation similarly indicating that the relevant records are already
shared, and the State has not individually responded to that enhanced
background check request.
For example, this potential attestation process could be used in
the following scenario: NICS receives an under-21 transaction from an
FFL in a State that is unable to share juvenile justice records or
juvenile mental health records pursuant to existing State law. No other
(potentially) prohibiting records are returned from NCIC, III, or the
NICS Indices. NICS collects the subject's full residence address to
complete the enhanced background checks. Using the full residence
address, NICS immediately sends the enhanced background check requests
as required by BSCA. These requests are sent to the State's established
contacts for juvenile justice and mental health records, as well as to
the relevant local law enforcement agency. The State has provided an
attestation conveying that State law prohibits sharing both types of
requested juvenile records. At the end of the third business day, all
responses to which the attestation applies will be considered received
and the transaction status will be updated to ``No Known Prohibitors:
At least one state or local agency has not responded or cannot
respond,'' provided there are no further prohibiting or potentially
prohibiting records returned during the enhanced background checks.
Federal law would then allow the FFL to transfer the firearm. If, under
the same facts but, before the end of the third business day, the State
and local agencies provide individual responses that the attestation no
longer applies (because, for example, State law has changed to allow
sharing of the relevant records) but that the agencies have found no
potentially disqualifying records to share with NICS, the transaction
will be updated to ``Proceed'' status. Federal law would then allow the
FFL to transfer the firearm.
If an attestation process is adopted, the FBI anticipates that the
FBI would continue working with State entities to encourage discrete
responses for each individual transaction where possible, even if a
response notes that State law prohibits the agency from providing the
juvenile records sought and would likewise prohibit the agency from
providing similar records for other transactions. However, the
attestation process may benefit the Department, prospective
transferees, and the agencies contacted during enhanced background
checks of under-21 transactions, as it could reduce, if not end,
problematic results that Congress likely did not intend during the
enhanced background check process.
During the FBI's current implementation of enhanced background
checks for under-21 transactions, it has found that agencies have grown
frustrated with NICS's continued requests for juvenile records that
cannot be shared. Consequently, some agencies have stopped responding
at all to NICS, even if they had just been responding that they were
prohibited from providing any records. The Department does not believe
Congress intended to require State and local partners to carry out a
potentially inconvenient process of repetitively providing responses to
requests for juvenile records even in circumstances where the State and
local partners know (and have already advised the FBI) that State law
prohibits the sharing of the records. Currently, the Department is
aware of 22 States and Territories that have laws that prohibit the
sharing of both juvenile mental health and juvenile criminal history
records,\36\ 6 States that have laws prohibiting the sharing of
juvenile mental health records,\37\ and 8 States (and the District of
Columbia) that have laws prohibiting the sharing of juvenile criminal
history records.\38\ Four States have changed their laws to allow for
sharing juvenile criminal history records, and one State has changed
its laws to allow for sharing juvenile mental health records since the
passage of BSCA.\39\
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\36\ Based on the FBI's experience in conducting background
checks for under-21 transactions, States and Territories with laws
that prohibit sharing of both juvenile mental health and juvenile
criminal history records are Arkansas, Alaska, Arizona, Colorado,
Georgia, Hawaii, Indiana, Iowa, Louisiana, Montana, Nebraska, New
Hampshire, North Dakota, Northern Mariana Islands, Puerto Rico,
Rhode Island, South Dakota, Tennessee, the U.S. Virgin Islands, West
Virginia, Wisconsin, and Wyoming.
\37\ Based on the FBI's experience in conducting background
checks for under-21 transactions, the States with laws that
currently prohibit sharing of juvenile mental health records are
Connecticut, Florida, Idaho, Massachusetts, New Mexico, and
Oklahoma.
\38\ Based on the FBI's experience in conducting background
checks for under-21 transactions, the States with laws that
currently prohibit sharing of juvenile criminal history records are
Mississippi, Missouri, New York, North Carolina, Oregon,
Pennsylvania, South Carolina, and Virginia. The District of Columbia
also prohibits such sharing.
\39\ Through correspondence with State agencies, the FBI learned
that Connecticut, Kentucky, Nevada, and Vermont have changed their
State laws to allow for sharing juvenile criminal history records.
Texas has changed its State law to allow for sharing juvenile mental
health records.
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Accordingly, the Department seeks comments as to whether a
potential attestation process could foster strong relationships with
State and local agencies while benefiting the Department and subjects
of under-21 transactions by more promptly resolving many under-21
transactions. The Department also seeks public comments as to any
potential benefits or costs of an attestation process. What further
information would the public find useful or necessary before the
attestation process proceeds? If an attestation process is adopted, who
do commenters believe should provide the attestation for the agencies?
Are commenters aware of any State with laws that would allow local law
enforcement agencies in that State to share juvenile justice or
juvenile mental health records where State-level agencies would be
limited or prohibited from sharing the same juvenile records? Are
commenters aware of any local government passing a law or laws that
limit or prohibit sharing juvenile records in circumstances where the
laws of the State in which the local government is located do not
similarly limit or prohibit such sharing? How frequently should
attestations be renewed? Would attesting agencies prefer to craft their
own attestations or use a template supplied by the FBI?
E. Severability
The CAA and BSCA address critical but distinct components of the
NICS background-check process. The Department believes that its
proposals to implement these statutes are well-supported in law,
reflect sound policy, and, once finalized, should be upheld against any
legal challenge. However, if any portion of the proposed rule, once
finalized, is declared invalid, the Department intends that the
proposals contained herein, once finalized, be viewed as independent,
necessary, and severable from each other to the maximum extent
possible. Further, the Department intends that the provisions contained
herein and in any resulting final rule be viewed as independent,
necessary, and severable from the current NICS regulations under 28 CFR
part 25. Accordingly, the Department proposes adding a severability
provision in 28 CFR 25.1.
As further described above, the CAA enacted the NDNA and added
consideration of relevant firearm prohibitions imposed by local and
Tribal governments during NICS checks under 18 U.S.C. 922(t). Further,
as relevant to this rule, BSCA mandated enhanced background checks
during each under-21 transaction and allowed for an extended delay
(potentially up through the tenth business day) of some under-21
transactions before an FFL may lawfully transfer the firearm(s) under
Federal law. Each of those statutory mandates is independently
[[Page 100414]]
significant to the functioning of the NICS background-check process and
thus independently requires updates to the Department's NICS
regulations. While certain features of the FBI's implementation efforts
overlap between proposals, these amendments remain severable proposals
necessary to accomplish each of the statutory mandates. For example,
residential address collection is necessary both to effectuate denial
notifications in satisfaction of the NDNA and, separately, to conduct
the enhanced State and local outreach required in connection with
under-21 transactions pursuant to BSCA. If a court were to invalidate
one or more of the provisions of the final rule resulting from the
FBI's proposals pertaining to (1) local and Tribal prohibitions, (2)
under-21 transactions, or (3) denial notifications, the Department
intends that the remaining provisions of the final rule be severed from
the invalidated provision(s) and that all remaining provisions stand.
To obviate any doubt as to the Department's intent, even if some
provision(s), once finalized, were deemed invalid (which, again, the
FBI does not believe is supported), the Department would still have
proposed each of the other provisions in this rule. Cf. American Fuel &
Petrochemical Manufacturers v. E.P.A., 3 F.4th 373, 384 (D.C. Cir.
2021) (EPA expressly stating the severability of sections of its rule
in issue eliminated the potential for substantial doubt of the agency's
intent). Each proposed amendment in this rule stands on its own with no
reliance on another proposed amendment. Each proposed amendment is
necessary, for example, to notify the public, update relevant NICS
regulations, or to implement the provisions of the CAA or BSCA.
F. Separate Rulemakings
BSCA also contained two provisions pertaining to FFLs for which the
Department is conducting separate rulemakings, as discussed below.
In RIN 1110-AA34, the Department has published an interim final
rule to address the new provision allowing FFLs to receive information
from the FBI's NCIC system relating to stolen firearms (specifically,
for the purpose of determining whether a firearm offered to the FFL has
been reported stolen). See Bipartisan Safer Communities Act--Access to
Records of Stolen Firearms in the National Crime Information Center, 89
FR 54344 (July 1, 2024). The amendments made by RIN 1110-AA34 do not
impact NICS regulations; please consult RIN 1110-AA34 for further
information about the regulatory amendments made therein. The
Department requests that any public comments concerning FFLs receiving
stolen gun information from NCIC be provided within and as directed by
RIN 1110-AA34.
Additionally, in RIN 1110-AA35, the Department is planning to issue
a proposed rule amending the NICS regulations in compliance with a
congressional mandate to promulgate regulations that will help limit
firearms trafficking by allowing FFLs to voluntarily conduct NICS
background checks with respect to current or prospective employees of
the FFL if the person does, or will, transfer or otherwise handle
firearms or ammunition for the FFL and has provided written consent for
the NICS check. The Department proposes to describe those FFL employee
checks as ``firearm handler background checks'' (also referred to as
``FHCs'').
The Department anticipates that RIN 1110-AA35 will be published as
a proposed rule prior to finalizing the present rulemaking. Several
regulations in 28 CFR part 25 contain provisions for which this notice
of proposed rulemaking proposes amendments and which may also be the
subject of proposed amendments in the forthcoming proposed rule in RIN
1110-AA35. The Department will coordinate the final rules resulting
from these rulemakings to ensure clarity and consistency.
III. Statutory and Executive Order Reviews
A. Executive Orders 12866 (Regulatory Planning and Review), 13563
(Improving Regulation and Regulatory Review), and 14094 (Modernizing
Regulatory Review)
This proposed rule has been drafted and reviewed in accordance with
Executive Order 12866, Executive Order 13563, and Executive Order
14094. Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility.
The Office of Management and Budget (``OMB'') has determined that
this proposed rule is a ``significant regulatory action'' under
Executive Order 12866, as amended by Executive Order 14094, and
accordingly, this proposed rule has been reviewed by OMB.
1. Need for Federal Regulatory Action
The Department is publishing this proposed rule to amend NICS
regulations to implement various parts of the CAA, Public Law 117-103,
and BSCA, Public Law 117-159.
2. Population
Although manufacturers and importers may also initiate NICS checks
when transferring firearms to non-licensees, dealers and pawnbrokers
initiate most of the background checks on non-licensees. As of December
of 2021, there were an estimated 50,588 FFLs that the FBI served across
31 States and 5 Territories that will be impacted by this rule.\40\
There are also an estimated 10 or fewer computer software vendors that
may be affected by this proposed rule. As further set out below, the
FBI estimates, based on FBI subject matter experts' further internal
analysis of 2021 annual transaction numbers,\41\ this proposed rule
will impact approximately 2 million NICS transactions per calendar
year.\42\
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\40\ See FBI, National Instant Criminal Background Check System
Operational Report 2020-2021 7 (Apr. 2022), <a href="https://www.fbi.gov/file-repository/nics-2020-2021-operations-report.pdf/view">https://www.fbi.gov/file-repository/nics-2020-2021-operations-report.pdf/view</a>
(``Operational Report'').
\41\ See Operational Report at 13.
\42\ This number is based upon the transactions about which full
addresses are collected from FFLs for denial notifications
(approximately 1.428 million transactions) and under-21 transactions
(approximately 340,000 transactions), for a total of approximately
1.7 million transactions. That total would be increased by the
number of transactions that are impacted by local or Tribal firearm
prohibitions, but that number of transactions cannot be estimated at
this time. As described below, some FFLs will also be impacted by
needing to update additional delays of some under-21 transactions;
however, those under-21 transactions have already been included due
to the need to collect address information.
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3. Benefits
This proposed rule benefits the public, public safety, and
interested populations in several ways. First, this proposed rule
benefits the public and interested populations by further clarifying
how NICS procedures and regulations comply with the relevant mandates
imposed by the CAA and BSCA. As discussed above and below, public
safety will benefit from this proposed rule in several ways. Rather
than only a single State-level entity receiving a denial notification,
State and local law enforcement in multiple jurisdictions will, under
the proposed rule, each receive a timely notification
[[Page 100415]]
containing (1) the name of a prohibited person who has been denied the
receipt of a firearm during a NICS transaction, (2) information on
where that prohibited person claims to reside, and (3) information
about the FFL where that transaction took place. Authorities in the
jurisdiction in which the attempted transaction occurred will be able
to take more timely action(s) when prohibited persons attempt to obtain
firearms through FFLs in their jurisdiction. If the attempt is made
outside of the prohibited person's jurisdiction of residence, the State
and local law enforcement in the jurisdiction of residence will also
have timely awareness and be able to take any actions necessary. This
information will allow for potential retrievals of firearms,
apprehensions of prohibited persons, interviews of witnesses, and
collection of other potentially relevant evidence.
There are also public safety benefits in applying the NDNA to
delayed transactions. When a NICS transaction is denied after the third
business day, such circumstances are known as ``delayed denials.''
Delayed denials impact public safety because those transactions may
have resulted in an FFL transferring at least one firearm to a
prohibited person before the transaction could be denied. When a
delayed denial occurs, the FFL is contacted to determine whether the
transfer of one or more firearms occurred. If a transfer did occur, ATF
is notified by the NICS Section of the need to retrieve any firearms.
Providing address information up front in delayed transactions will
benefit public safety because prohibited persons' residential addresses
will be readily available to immediately provide to applicable local
law enforcement authorities, who can then take any applicable action.
Critical time will not be lost waiting for another contact with the FFL
to collect the address at that point in time (or perhaps await
confirmation as to whether the firearm was in fact transferred). If,
for example, the FFL happens to be closed and NICS cannot connect with
the FFL in a timely manner (to update the denial or collect the full
address), particularly after the third business day, at which time the
firearm may have already transferred, the resulting delays jeopardize
public safety by potentially increasing the time that a prohibited
person has a firearm.
This proposed rule also would benefit interested populations by
minimizing impacts to prospective transferees and FFLs by requiring
further residential address information only if the prospective
transferee has been denied by NICS, has had a prospective firearm
transfer delayed, may be subject to an applicable local or Tribal
firearm prohibition, or is under 21 years of age. The Department does
not propose that all prospective firearm transferees have their full
residential address information submitted to NICS simply because that
information is now required for some NICS transactions. Limiting the
scope of the proposed rule in this way benefits prospective transferees
because most will not need to have further address information provided
to NICS. Similarly, limiting the scope of the rule in this fashion
benefits FFLs as well by not requiring FFLs to spend time providing
NICS with unnecessary additional address information in every
transaction they submit. Further, by requiring the information be
provided upon the initial contact (where an instantaneous review of
available information about the person reveals that the transaction
must be delayed or denied, the person is under 21, or to determine if
the person is potentially subject to an applicable local or Tribal
firearm prohibition), this rule reduces the need to contact the FFL at
a later time to obtain this information.
4. Costs
This proposed rule will affect NICS transactions that: (1) may be
impacted by local or Tribal prohibitions; (2) have been delayed or
denied; or (3) involve persons under 21 years of age wishing to receive
or be transferred a firearm from an FFL. Because the scope of
applicable local or Tribal prohibitions is still being researched, it
is unknown how many such prohibitions exist, but the FBI does not
anticipate many will be identified. Notably, FBI research currently
reveals that 43 States have preempted local jurisdictions from imposing
firearms prohibitions that exceed the firearms prohibitions imposed by
State law.\43\ States cannot preempt Tribal laws, however, so the FBI
is continuing its research for applicable Tribal firearm prohibitions.
There are 574 federally recognized Tribes, see Indian Entities
Recognized by and Eligible To Receive Services From the United States
Bureau of Indian Affairs, 88 FR 54654, 54654 (Aug. 11, 2023),
exercising jurisdiction in Indian country, 18 U.S.C. 1151. More than
300 of these Tribes are currently located within the States of Alaska,
California, and Oklahoma.\44\ An initial review of publicly available
resources revealed that a number of these federally recognized Tribes
may have enacted laws regulating the possession or use of firearms
within their respective jurisdictions.\45\ Review of Tribal codes is
ongoing to determine to what extent the use of Tribal firearm
possession prohibitions will arise during NICS background checks and
will, therefore, impact FFLs, prospective transferees, or Tribes. More
specifically, to reasonably assess any applicable impact such
prohibitions may have, the FBI will review active Tribal codes for
firearm prohibitions that differ from existing Federal (or applicable
State) prohibitions. The Department welcomes comments from the public
that, for example, may assist the FBI in effectively and accurately
identifying the federally recognized Tribes that have imposed their own
firearm prohibitions. Many Tribes already contribute relevant orders to
FBI CJIS systems to help determine possible Federal firearm
prohibitions in individual cases, and the FBI encourages Tribes to
continue to do so. Given the number of Tribes and the diverse nature of
Tribal firearms laws, the FBI is unable, at this time, to reasonably
estimate the impact the additional Tribal firearm possession
prohibitions will have during NICS background checks. The FBI will be
conducting outreach with representatives of federally recognized Tribes
and seeking comment from the public generally as the FBI moves to
incorporate additional Tribal firearm prohibitions into the analysis of
prospective firearm transfers. Consequently, the fiscal impact analysis
of this proposed rule will focus upon the other impacts that denial
notifications and research associated with enhanced outreach during
under-21 transactions may have upon firearm transfers submitted by
FFLs.
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\43\ See Nat'l League of Cities, City Rights in an Era of
Preemption: A State-by-State Analysis 23 (2018), <a href="https://www.nlc.org/resource/city-rights-in-an-era-of-preemption-a-state-by-state-analysis/">https://www.nlc.org/resource/city-rights-in-an-era-of-preemption-a-state-by-state-analysis/</a>; see also Giffords Law Ctr., Preemption of Local
Laws, <a href="https://giffords.org/lawcenter/gun-laws/policy-areas/other-laws-policies/preemption-of-local-laws/">https://giffords.org/lawcenter/gun-laws/policy-areas/other-laws-policies/preemption-of-local-laws/</a> (last visited Oct 4, 2024)
(reporting that there are five States with ``no state laws expressly
preempting local authority to regulate firearms or ammunition'' and
two additional States that ``allow local governments to retain
substantial authority to regulate firearms and ammunition,'' but
where ``the state legislature has expressly removed this authority
in certain areas'').
\44\ See, e.g., U.S. Dep't of the Interior, Indian Affairs,
Tribal Leaders Directory, <a href="https://www.bia.gov/service/tribal-leaders-directory">https://www.bia.gov/service/tribal-leaders-directory</a> (last visited Oct. 4, 2024); Nat'l Cong. of Am.
Indians, Tribal Nations & the United States: An Introduction (Feb.
2020), <a href="https://www.ncai.org/about-tribes/demographics">https://www.ncai.org/about-tribes/demographics</a>.
\45\ See, e.g., Nat'l Indian Law Library, Tribal Law Gateway:
Find Tribal Law Material by Tribe, <a href="https://narf.org/nill/triballaw/index.html">https://narf.org/nill/triballaw/index.html</a> (last visited Oct. 4, 2024).
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As described above, under the NDNA, the FBI is required to send
denial notifications to the local law
[[Page 100416]]
enforcement authority of the State or Tribe in whose jurisdiction a
firearm was sought and, if different, where the denied person resides
when the FBI denies a NICS transaction that would violate 18 U.S.C.
922(g) or (n) or State, local, or Tribal law. The FBI needs to collect
more specific residency information during a subset of NICS
transactions to comply with the NDNA.
For under-21 transactions, as set out above, an enhanced NICS
background check entails contacting State and local entities to
determine if the prospective transferee has a possibly disqualifying
juvenile record as described in 18 U.S.C. 922(d). Some enhanced
outreach during under-21 transactions may show that cause exists to
further investigate a possibly disqualifying juvenile record under 18
U.S.C. 922(d). If such cause exists, the under-21 transaction will be
placed into an additional delay period not to exceed the tenth business
day from when the licensee contacted NICS.
For all of these described transactions, FFLs must, using
information the prospective transferee places on the revised Form 4473,
provide to the FBI the prospective transferee's complete residential
address so that NICS can determine whether a local or Tribal
prohibition should be considered and for investigation and reporting
when a NICS transaction has otherwise been delayed or denied. Further,
where cause exists for additional delay of an under-21 transaction, and
the FFL has been so notified before expiration of the third business
day, the FFL will be prohibited from transferring the firearm until
after the tenth business day, unless the FFL first receives a
``Proceed'' response. In such instances, conveying the additional delay
period to an FFL will likely require an additional contact--
telephonically or electronically--beyond what was previously necessary,
as well as an obligation by an FFL to record the additional delay on
the revised Form 4473.
i. Costs: Updated Prohibitions
In order to determine whether a local or Tribal prohibition would
be applicable to a prospective transfer, the Department proposes
requiring FFLs to provide the residential addresses (and city limits
information) of a prospective firearm transferee for certain
transactions. Address information would be based upon the State of
residence of the prospective transferee, State of purchase, and initial
results from the three primary databases NICS searches during each
transaction. As noted previously, State law preempts many local firearm
prohibitions, and initial research has not revealed a substantial
number of existing local firearm prohibitions.
As noted above, review of Tribal codes is ongoing to determine to
what extent the use of Tribal firearm possession prohibitions will
arise during NICS background checks and will, therefore, impact
prospective transferees or Tribes. The FBI is, however, unable at this
time to reasonably estimate the costs, if any, that the added
consideration of Tribal firearm possession prohibitions will have
during NICS background checks.
Ultimately, the FBI does not anticipate that a large number of NICS
transactions will involve local or Tribal prohibitions that would
preclude transfers permitted by applicable Federal or State law.
Further, the FBI believes that most instances would fall under the
broader delayed or denied circumstances noted below and would impose
nominal to no financial impact upon FFLs. The Department requests
public comments regarding potential costs that may impact Tribes,
prospective transferees, and FFLs.
ii. Costs: Under-21 Transactions
Federal law authorizes FFLs to transfer only long guns to
individuals under the age of 21. See 18 U.S.C. 922(b). In 2021,
internal FBI subject matter experts estimated there were approximately
6.5 million total transactions involving the prospective transfer of a
long gun.\46\ Subject matter experts within the FBI also anticipate 5
percent, or lower, of annual long gun transactions constitute under-21
transactions. That percentage equates to approximately 325,000 under-21
transactions.\47\ For the purposes of this analysis, the FBI estimates
that it would take 30 seconds (0.0083 hours) per under-21 transaction
to provide address information from the Form 4473 to NICS
(telephonically or electronically). That process is therefore estimated
to result in an additional 2,698 work hours from FFLs per year.\48\
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\46\ FBI, NICS Firearm Checks: Year by State/Type, <a href="https://www.fbi.gov/file-repository/nics_firearm_checks_-_year_by_state_type.pdf/view">https://www.fbi.gov/file-repository/nics_firearm_checks_-_year_by_state_type.pdf/view</a> (last visited Oct. 4, 2024).
\47\ 325,000 transactions = 6.5 million NICS checks * 5 percent
of transactions involving individuals under the age of 21.
\48\ 2,698 aggregate hourly burden = 325,000 transactions * 30
seconds (.0083 hours) per transaction.
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The FBI uses some possible wage rates from the Bureau of Labor
Statistics (``BLS'') and uses the average wage rate as the wage rate
for FFLs. The FBI uses a loaded wage rate to account for fringe
benefits such as insurance. The ``load rate'' used for this proposed
rule is 1.42.\49\ Table 1.0 shows the estimated wage rates and loaded
wage rates.
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\49\ BLS Series ID CMU2010000000000D,CMU2010000000000P (average
of 2021 quarterly Private Industry Compensation = $37.15)/BLS Series
ID CMU2020000000000D,CMU2020000000000P (average of 2021 quarterly
Private Industry Wages and Salaries = $26.23) = load rate of 1.42
(rounded up). See BLS, BLS Data Finder 1.1, <a href="https://beta.bls.gov/dataQuery/find?fq=survey:">https://beta.bls.gov/dataQuery/find?fq=survey:</a>[cm]&s=popularity:D (last Oct. 4, 2024).
The ``load rate'' takes into account additional compensation for
fringe benefits such as insurance.
Table 1.0--Wage Categories Used for the FFL Community \50\
------------------------------------------------------------------------
Loaded wage
Job category Wage rate rate
------------------------------------------------------------------------
11-2022 Sales Managers.................. $68.46 $97.22
41-2011 Cashiers........................ 12.87 18.28
41-2031 Retail Salespersons............. 15.35 21.80
-------------------------------
Average............................. 32.23 45.77
------------------------------------------------------------------------
Using an average, loaded wage rate for staff of BLS job categories
that the FBI anticipates may be involved in prospective firearm
transfers for FFLs, which is $46.00 per hour (rounded up), providing
address information to NICS
[[Page 100417]]
for under-21 transactions would result in an estimated annual cost to
the FFL community of $125,000.\51\ Even if the FBI's address collection
time from an FFL is estimated at 1 minute (.0167 hours) per
transaction, this would only be an anticipated yearly cost of
approximately $250,000.
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\50\ Chart sources for Wage Categories used for the FFL
community from BLS:
BLS, Occupational Employment and Wages, May 2021: 11-2022 Sales
Managers (Mar. 31, 2022), <a href="https://www.bls.gov/oes/2021/may/oes112022.htm">https://www.bls.gov/oes/2021/may/oes112022.htm</a>.
BLS, Occupational Employment and Wages, May 2021: 41-2011
Cashiers (Mar. 31, 2022) <a href="https://www.bls.gov/oes/2021/may/oes412011.htm">https://www.bls.gov/oes/2021/may/oes412011.htm</a>.
BLS, Occupational Employment and Wages, May 2021: 41-2031 Retail
Salespersons (Mar. 31, 2022), <a href="https://www.bls.gov/oes/2021/may/oes412031.htm">https://www.bls.gov/oes/2021/may/oes412031.htm</a>.
\51\ 2,698 work hours * $46 loaded hourly wage rate = $124,108
($125,000, rounded up).
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For a subset of these under-21 transactions, there may be an
additional delay notification. For the purposes of this analysis, the
Department assumes 50 percent (162,500) of all under-21 transactions
will have cause established and require that the FFL be notified of
additional delay being applied to the transaction (which includes
providing the FFL with the amended Brady transfer date \52\).
Estimating an average of 3 minutes (.05 hours) per additional delay
notification, this may require an additional 8,125 work hours per year
for all FFLs in total.\53\ Multiplying 8,125 hours by the estimated BLS
average loaded wage rate of $46.00 (rounded up), this additional delay
notification will impose an estimated yearly combined cost to FFLs of
approximately $374,000. The aggregate estimated impact to all FFLs in
total for under-21 transactions is therefore anticipated to be $499,000
per year.\54\
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\52\ The amended Brady transfer date would be the day after the
tenth business day.
\53\ FBI internal subject matter experts have noted that almost
all POCs have some form of State-implemented processes that, even
before BSCA, already required FFLs in those States to collect and
report the full residence addresses of some subjects. Further, FFLs
in some POC States will not be impacted by enhanced delay for some
subjects of under-21 transactions because those States have
mandatory waiting periods that meet or exceed 10 business days.
Additionally, many POC States currently have laws that, generally,
do not allow even long guns to be transferred to persons who are
under 21 years of age. See, e.g., Giffords Law Ctr., Minimum Age to
Purchase & Possess, <a href="https://giffords.org/lawcenter/gun-laws/policy-areas/who-can-have-a-gun/minimum-age/">https://giffords.org/lawcenter/gun-laws/policy-areas/who-can-have-a-gun/minimum-age/</a> (last visited Oct. 4, 2024).
\54\ $499,000 = $374,000 (50 percent additional delay of under-
21 transactions total of 162,500) + $125,000 (aggregate cost to
provide under-21 address information at 30 seconds (.0083 hours) per
transaction). The aggregate cost impact to the FFL community for
under-21 transactions is approximately $635,000 ($374,000 +
$261,000) if estimating 1 minute (.0167 hours) average for FFLs to
provide address information during each under-21 transaction.
---------------------------------------------------------------------------
In conjunction with the impacts to FFLs, there are a limited number
of vendors that will also incur cost to provide software programming
updates to some FFLs' electronic systems used to communicate with NICS.
These updates will be required for the FFL to receive the amended Brady
transfer date during an under-21 transaction when cause for additional
delay exists. This cost will only impact those FFLs who submit their
background checks by E-Check and are eXtensible Markup Language
(``XML'') users.\55\ There are approximately 10 total vendors serving
all XML users. XML users predominantly are within the larger, corporate
FFLs (some of which have in-house personnel that would perform these
system updates), but the FBI estimates 95 FFLs that would be considered
small entities also utilize XML to communicate with NICS and are served
by these vendors. Using the same load rate (1.42) used in Table 1.0
above for calculating costs to FFLs, the FBI calculates below the
average loaded wage rate for anticipated job categories of vendors
providing XML software updates for the FFLs. The Department has
identified BLS job categories within these 10 vendors that are
anticipated to be involved with these software updates. Table 2.0
provides the wage rates and loaded wage rates for such vendor employees
as well as their averages.
---------------------------------------------------------------------------
\55\ XML provides FFLs an additional, electronic secure server-
to-server method (in addition to E-Check) of submitting a NICS
background check to the FBI. Operational Report at 10.
Table 2.0--Wage Categories Used for the Software Updates \56\
------------------------------------------------------------------------
Loaded
Job category Wage wage
rate rate
------------------------------------------------------------------------
15-1251 Computer Programmers.......................... $46.46 $65.97
15-1252 Software Developers........................... 58.17 82.60
-----------------
Average........................................... 52.32 74.29
------------------------------------------------------------------------
Assuming that it would take 100 hours to update their software,
multiplied by an estimated average loaded wage rate (rounded up) of
$75.00, the FBI anticipates a one-time cost to each vendor of $7,500 or
less to make these updates. The FBI anticipates this would not be a
significant financial impact to the vendors because the costs would
likely be passed onto the particular FFLs that would require the
updates or the costs would be covered by existing contracts or
agreements between the vendors and FFLs.
---------------------------------------------------------------------------
\56\ Chart sources for Wage Categories used for the FFL
community from BLS:
BLS, Occupational Employment and Wages, May 2021: 15-1251
Computer Programmers (Mar. 31, 2022), <a href="https://www.bls.gov/oes/2021/may/oes151251.htm">https://www.bls.gov/oes/2021/may/oes151251.htm</a>.
BLS, Occupational Employment and Wages, May 2021: 15-1252
Software Developers (Mar. 31, 2022), <a href="https://www.bls.gov/oes/2021/may/oes151252.htm">https://www.bls.gov/oes/2021/may/oes151252.htm</a>.
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iii. Costs: Notifications Required by the NDNA
In addition to requiring that FFLs provide address information for
under-21 transactions and where needed to determine whether a local or
Tribal prohibition may apply, the proposed rule will require FFLs to
provide the residential addresses of prospective firearm transferees
for all delayed and denied transactions to allow the FBI and POCs to
implement the NDNA's requirement of sending denial notifications as
described above. In 2021, internal FBI subject matter experts estimated
that 1,428,000 \57\ firearm background checks processed by the FBI \58\
were either delayed or denied.\59\
[[Page 100418]]
As above for under-21 transactions, if it takes 30 seconds (0.0083
hours) per transaction for the FFL to provide the NICS Section with the
applicant's address as required, then providing this information will
require an additional 11,853 (rounded up) working hours per year for
the FFL community. The average loaded wage rate used for the FFL
community (see Table 1.0) is estimated at $46.00 per hour (rounded up).
This address collection for delayed and denied transactions will impose
an estimated yearly cost of $545,238 \60\ to the FFL community.\61\
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\57\ According to internal FBI subject matter experts' estimate
of transactions the NICS Section performed in 2021, 1,388,000 were
delayed and approximately 40,000 more were immediately denied
without being placed into delay. An example of an immediate denial
would be a transaction denied based upon a biographic match to a
NICS Indices entry. The NICS Section reported performing a total of
11,106,931 NICS background checks in 2021. See Operational Report at
13.
\58\ The NDNA will impact POCs but, due to a variety of factors,
the Department anticipates the address collection necessary to
implement the NDNA will have little to no economic impact (let alone
a significant economic impact) on small entity FFLs in POC States.
FBI internal subject matter experts estimate there are 10,300 FFLs
in POC States that would be considered small entities. In addition
to the Form 4473 needing to be completed by prospective firearm
transferees, some POC States have laws that also require separate
State paperwork to be completed and provided to the POC. Those State
forms will often require FFLs in those States to collect and provide
the POC with the subject's full residence address. See, e.g.,
California Dep't of Just., Bureau of Firearms, Dealer's Record of
Sale (DROS) Worksheet (May 2023), <a href="https://des.doj.ca.gov/forms/DROS_Worksheet_BOF-929.pdf">https://des.doj.ca.gov/forms/DROS_Worksheet_BOF-929.pdf</a>. Also, as discussed in Section II.B of
this preamble, before the NDNA was enacted, most POC States already
had their own denial notification procedures in place, and those
procedures would require the FFLs to produce the subject's residence
information at some point. Some POCs may collect full residence
address information through means other than the FFL, such as by
completing a driver's license check on the subject. Some POC States
have laws that require that permits to purchase be obtained before
any firearms can be purchased in those States; as a result, some of
those permit applicants may never be approved for a permit that
would allow them to attempt a firearm transfer through FFLs in that
State. These State processes mean there are a variety of ways in
which FFLs in POC States are already required to collect and report
residence address information of subjects or where State laws
reduced the pool of (potentially) prohibited persons that could be
subject to the NDNA because they are ineligible to attempt firearm
purchases in those POC States.
\59\ The NICS Section reported denying 153,565 transactions in
2021. See Operational Report at 18-19. FBI subject matter experts
note that this total includes an estimated 3,000 denials of non-
Brady NICS background checks, which would not be denied transactions
where the NDNA mandates notification to local law enforcement
authorities. These other checks include checks for the Disposition
of Firearms and for the Nuclear Regulatory Commission, see id. at
25, as well as those conducted for ATF under their National Firearms
Act and Gun Control Act responsibilities, see, e.g., id. at 21.
Further, also not subject to this rule, the totals for explosives
checks, see id. at 14, would be in addition to the totals provided
in this footnote and footnote 57 above.
\60\ Even if the address collection time were estimated at 1
minute (.0167 hours) per transaction, this would be an anticipated
yearly cost of $1.1 million.
\61\ The FBI notes that there were 7,711,803 total, non-permit
NICS checks conducted by all POCs in 2021. See Operational Report at
13.
---------------------------------------------------------------------------
Between anticipated yearly under-21 transaction costs and other
costs anticipated from yearly delay or denial address collections
stemming from the NDNA, the FBI anticipates an aggregate economic
impact of approximately $1.04 to $1.18 million for all FFLs in States
in which the FBI processes NICS background checks and an estimated cost
of $75,000 for the vendor community, which is expected to be passed
onto the FFLs.\62\ The total impact to the FFL community is estimated
to be $1.12 to $1.26 million. This amount includes the requirement to
produce to NICS further address information during under-21
transactions and for purposes of the NDNA; some FFLs receiving
subsequent notification for (and recording on the revised Form 4473)
the amended Brady transfer date during under-21 transactions as
required by BSCA; and the estimated vendor costs that are anticipated
to be passed on to the FFLs.\63\
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\62\ Not taken into account is the fact that use of the 2021
total of delayed and denied transactions will include some persons
who also fall into the under-21 transaction category, resulting in
some duplication of FFL costs related to address collection needs
described in this preamble.
\63\ The total estimated cost incurred by FFLs for under-21
transactions is $499,000 ($635,000 if estimating 1 minute per
address collection) + $545,238 (FFL total costs incurred by the NDNA
address collection) + $75,000 (estimated vender costs passed on to
FFLs), for a total of between $1.12 million and $1.26 million.
---------------------------------------------------------------------------
iv. Costs: Government
State, local, and Tribal agencies that enforce juvenile criminal
justice and mental health laws, as well as any State repositories of
such records, may receive requests for juvenile record information from
NICS that they have not received in years past; however, those entities
are under no obligation to respond, and some government entities are
prohibited under State laws from providing juvenile records to NICS.
The Department seeks comments from State, local, and Tribal entities on
costs of processing a contact for juvenile records for an under-21
transaction. In addition to the State, local, and Tribal agencies
described in 34 U.S.C. 40901(l) receiving the FBI's requests for
juvenile justice and mental health records, any records those agencies
provide to the FBI may lead to the FBI requesting further records from
additional State, local, or Tribal agencies (such as courts or
prosecuting authorities). Again, Federal law does not require State,
local, or Tribal agencies to respond to the FBI's requests for records
(and, in some instances, State, local, or Tribal laws may prohibit
those agencies from disseminating records concerning a juvenile's
mental health or juvenile justice history).
Should the Department ultimately decide to use the enhanced under-
21 outreach or denial notifications during other authorized uses of
NICS, there would be some additional contacts of some State and local
entities. That additional number of contacts cannot be currently
estimated because there are unknown numbers of persons determined to be
prohibited or under 21 years of age who may be checked through NICS.
While some statistics are available concerning denials recommended
through use of NICS, those numbers also cannot be reasonably estimated
after enactment of BSCA.\64\
---------------------------------------------------------------------------
\64\ For example, 2021 saw ATF run about 138,500 NICS checks for
explosives licensing, see 18 U.S.C. chapter 40, with 1656 being
recommended for denial; there were 133 total backgrounds of security
personnel under 42 U.S.C. 2201a in 2021; and there were 121,961
Disposition of Firearms checks through NICS, with 2150 denied.
Operational Report at 14, 25. The FBI routinely publishes such
statistics.
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B. Executive Order 13132 (Federalism)
This proposed rule may have direct effects on the States; however,
such effects will not be substantial, nor will such impact concern the
relationship between the Federal Government and the States, or the
distribution of power and responsibilities among the various levels of
government. Therefore, in accordance with section 6 of Executive Order
13132, the Attorney General has determined that the proposed rule does
not have sufficient federalism implications to warrant the preparation
of a federalism summary impact statement.
C. Executive Order 12988 (Civil Justice Reform)
This proposed rule meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive Order 12988.
D. Regulatory Flexibility Act
This proposed rule amends the Department's regulations to
incorporate changes made by statutory provisions enacted as part of the
CAA and BSCA. The FBI is developing systematic solutions for
collections, notifications, and contacts required by the CAA and BSCA.
The Regulatory Flexibility Act (``RFA''), 5 U.S.C. 601 et seq.,
generally requires that when an agency issues a proposed rule or a
final rule pursuant to section 553(b) of the Administrative Procedure
Act or another law, the agency must prepare a regulatory flexibility
analysis that meets the requirements of the RFA and publish such
analysis in the Federal Register. See 5 U.S.C. 603, 604. An initial
regulatory flexibility analysis (``IRFA'') is not required if the head
of the agency certifies that the rule would not, if promulgated, have a
significant economic impact on a substantial number of small entities.
See 5 U.S.C. 605(b). While the statistics below support a conclusion
that this proposed rule, if promulgated, would not result in a
significant economic impact on a substantial number of small entities,
the FBI has, in an abundance of caution, nonetheless prepared an IRFA.
In accordance with the RFA, the FBI prepared an IRFA that examines
the impacts of the proposed rule on small entities. The term ``small
entities'' comprises small businesses, not-for-profit organizations
that are independently owned and operated and are not dominant in their
fields, and governmental jurisdictions with populations of fewer than
50,000 people. The FBI performed an IRFA of the impacts on small
businesses and other entities of this proposed rule. The FBI performed
this IRFA using the known or estimated statistical and cost information
discussed below.
Based on the information from this analysis, the FBI found:
[cir] The FBI's internal subject matter experts estimate that in
States in which the FBI processes NICS background checks, the FBI
served 47,100 FFLs (rounded up) in 2021 that would have been considered
small businesses under
[[Page 100419]]
Small Business Administration sizing standards.\65\
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\65\ There are an estimated 3,500 FFLs in States where the FBI
processes NICS background checks and that the FBI anticipates would
not be considered small entities because they are larger, retail, or
corporate stores that have chains of locations throughout the United
States. As noted in footnotes 53 and 58 of this preamble, for a
variety of reasons, internal FBI subject matter experts anticipate
that, because of State processes required in many POC States before
the NDNA or BSCA were effective, the processes this rule reflects or
proposes to implement for denial notifications and under-21
transactions will not result in a significant economic impact to
most of the 10,300 small entity FFLs in POC States. For those same
reasons, however, the Department cannot reasonably estimate a more
precise economic impact that those FFLs in POC States may experience
due to denial notifications or under-21 transactions; again,
however, it is anticipated that most FFLs in POC States will
experience little to no economic impact due to this rule.
---------------------------------------------------------------------------
[cir] The FBI estimates that this proposed rule would potentially
affect most FFLs that use NICS to determine whether a potential firearm
transfer may ``Proceed,'' is ``Denied,'' or is ``Delayed.''
[cir] The highest anticipated cost will be for under-21
transactions, where personnel for a small entity FFL, within the third
business day, would need to take time to locate the prospective
transferee's Form 4473 and indicate that additional delay of that
transaction has been established and that there is a new Brady transfer
date (the day after the tenth business day). The Brady transfer date
reflects when Federal law would allow that firearm to be transferred if
the FFL is not first provided with a ``Proceed'' or ``Denied'' response
from the FBI or a POC. The FBI anticipates these scenarios will average
3 minutes (.05 hours) of time for the FFL to complete this new process.
[cir] FFLs would need to make $2,200 or less in revenue in order to
incur an impact of 1 percent or more. This estimate is based upon the
following analysis: The FBI estimates a $2.65 cost per small-entity FFL
to provide address information for under-21 transactions ($125,000
aggregate cost to FFL community/47,100 estimated small entity FFLs) + a
$7.82 cost per FFL for additional delay notifications ($373,000
aggregate/47,100) + a $11.58 cost per FFL for the NDNA address
collection ($545,238/47,100) = estimated $22 (rounded down) per small
entity FFL, per year to implement these new provisions.\66\
---------------------------------------------------------------------------
\66\ The total impact to each FFL using the larger estimates
provided earlier is $37.00 (rounded up) cost per small entity FFL
($5.54 (for under-21 address collection of $261,000/47,100 FFLs) +
$23.36 (for NDNA address collection at $1.1 million/47,100) + $7.94
(for additional delay notifications $374,000/47,100)). This results
in an FFL needing to earn $3,700 or less in revenue to incur an
impact of one percent or more. Again, not taken into account is the
fact that the use of the 2021 total delayed and denied transactions
will include some persons who also fall into the under-21
transaction category, resulting in some duplication of FFL costs
related to address collection needs described in the preamble. Also
not included here are FFLs located in POC States because there are
variety of factors that may exclude many of those FFLs from the
equations noted above. For example, not all FFLs in POC States will
conduct under-21 transactions because several of those States, like
Florida and Hawaii, have laws that do not (or with limited
exceptions, do not) allow persons under 21 years of age to purchase
firearms. See footnotes 53, 58, and 65.
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[cir] The FBI estimates that 10 or fewer software vendors that
serve a limited portion (estimated to be 100 or fewer) of these 47,100
small entity FFLs may indirectly have a one-time significant impact as
a result of the mandates from Congress reflected in this proposed rule,
but that they may redistribute the overall costs in small fees to the
FFLs they serve.
[cir] There will be an impact on government entities, but that
impact will not be significant, and those government entities are not
obligated to take any particular actions based upon the notifications
or requests that are submitted to them by the FBI.
Preliminary Initial Regulatory Flexibility Analysis
The RFA establishes that agencies must try to fit regulatory and
informational requirements to the scale of the businesses,
organizations, and governmental jurisdictions subject to regulation. To
achieve this goal, agencies must solicit and consider flexible
regulatory proposals and explain the rationale for their actions to
assure that such proposals are given serious consideration.
Under the RFA, agencies are required to consider what, if any,
impact a proposed rule would have on small entities. Although the FBI
anticipates that this proposed rule will not have a significant
economic impact upon a substantial number of small entities, the FBI
has prepared an IRFA. Under 5 U.S.C. 603(b), the regulatory flexibility
analysis must provide or address:
(1) A description of the reasons why action by the agency is being
considered;
(2) A succinct statement of the objectives of, and legal basis for,
the proposed rule;
(3) A description of and, where feasible, an estimate of the number
of small entities to which the proposed rule will apply;
(4) A description of the projected reporting, recordkeeping, and
other compliance requirements of the proposed rule, including an
estimate of the classes of small entities that will be subject to the
requirement and the type of professional skills necessary for
preparation of the report or record; and
(5) An identification, to the extent practicable, of all relevant
Federal rules that may duplicate, overlap, or conflict with the
proposed rule.
In addition, under 5 U.S.C. 603(c), the IRFA must also contain a
description of any significant alternatives to the proposed rule that
accomplish the stated objectives of applicable statutes and that
minimize any significant economic impact of the proposed rule on small
entities.
Following is an analysis of each of these factors:
A description of the reasons why action by the agency is being
considered.
The Department is publishing this proposed rule to amend NICS
regulations to implement various parts of the CAA and BSCA.
A succinct statement of the objectives of, and legal basis for, the
proposed rule.
The objective of this proposed rule is to comply with procedures
mandated by Congress to prevent prohibited persons from obtaining
firearms from FFLs. The Department is publishing this proposed rule to
amend NICS regulations to implement various parts of the CAA and BSCA.
A description of and, where feasible, an estimate of the number of
small entities to which the proposed rule will apply.
Based on the FBI's statistics reported from 2021,\67\ there are an
estimated 50,855 FFLs that may be impacted by this rule, the majority
of which would be considered as small entities. The FBI's internal
subject matter experts note that, indirectly, an estimated 10 or fewer
computer software vendors may be affected by this proposed rule. The
FBI's internal subject matter experts also estimate the majority of
these FFLs and vendors would be considered small.
---------------------------------------------------------------------------
\67\ See Operational Report at 7.
---------------------------------------------------------------------------
A description of the projected reporting, recordkeeping, and other
compliance requirements of the proposed rule, including an estimate of
the classes of small entities that will be subject to the requirement
and the type of professional skills necessary for preparation of the
report or record.
As described previously, FFLs currently collect the information
about prospective transferees necessary for NICS to implement the
congressional mandates of the CAA and BSCA as relevant to this proposed
rule. This rule proposes that FFLs would now be
[[Page 100420]]
required to provide this information to NICS for (1) under-21
transactions subject to an enhanced background check under BSCA; (2)
individuals who may be subject to a firearm prohibition under
applicable local or Tribal law; and (3) individuals whose background
has led to their NICS transaction being delayed for further research of
a possible disqualification or denied due to a disqualification as
described in 18 U.S.C. 922(t). Each FFL will also, on an annual basis,
likely have to record the additional delay of a limited number of
under-21 transactions that the FFL processes (moving the allowed Brady
transfer date from the day after the third business day to the day
after the tenth business day) after the FBI has notified the FFL the
transaction has been placed into additional delay. Where an FFL
utilizes electronic recordkeeping, the FBI anticipates updates to those
computer systems by software vendors necessary to capture the
additional delay information.
An identification, to the extent practicable, of all relevant
Federal rules that may duplicate, overlap, or conflict with the
proposed rule.
There are no duplicate or overlapping rules. While there may be
similar rulemakings from ATF associated with BSCA, these rulemakings
are coordinated with each other and do not overlap.
A description of any significant alternatives to the proposed rule
that accomplish the stated objectives of applicable statutes and that
minimize any significant economic impact of the proposed rule on small
entities.
There are no significant alternatives to the proposed rule. This
proposed rule puts in place the minimum changes to NICS regulations
needed to accomplish the mandates of the CAA or BSCA and avoid any
significant impact on small entities.
E. Congressional Review Act
This rule, when finalized, is not expected to be a major rule as
defined for purposes of the legislation commonly known as the
Congressional Review Act, Public Law 104-121, sec. 251, 110 Stat. 847,
868 (1996). See 5 U.S.C. 804(2).
F. Unfunded Mandates Reform Act of 1995
This proposed rule will not result in the expenditure by State,
local, and Tribal governments, in the aggregate, or by the private
sector, of $100 million or more (adjusted for inflation) in any 1 year,
and it will not significantly or uniquely affect small governments.
Therefore, no actions were deemed necessary under the provisions of the
Unfunded Mandates Reform Act of 1995, Public Law 104-4, 109 Stat. 48.
See 2 U.S.C. 1532.
G. Paperwork Reduction Act
The Department believes any collections of information needed to
implement the above requirements, such as further residential address
information, are or will be generally covered under the collection of
information through ATF Form 4473. All address information sought by
these amendments, except for whether an individual resides within city
or municipal limits, is currently collected by the FFL on the Form
4473. To further implement any ``local'' firearm prohibitions added by
the CAA, the Department is proposing to require the FFL to inquire and
collect whether the prospective transferee lives within city or
municipal limits if that information is known by the transferee. A
revised Form 4473 received approval by OMB on August 30, 2023, and was
renewed for another 3-year period. Use of the new form by the industry
becomes mandatory on February 1, 2024, and will continue through August
31, 2026.\68\ The revisions add this question and make other
modifications relevant to carrying out the new requirements imposed by
the NDNA and BSCA. ATF has published the revised Form 4473.\69\ The
Department is amending relevant NICS regulations through this proposed
rule to reflect that, for some transactions as noted herein, the FBI
will require the FFL to provide all address information already
collected on the revised Form 4473 to NICS regarding a prospective
transferee.
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\68\ ATF, Updated ATF Form 4473--Firearms Transaction Record
(August 2023 Revisions) (last reviewed Feb. 12, 2024), <a href="https://www.atf.gov/firearms/updated-atf-form-4473-firearms-transaction-record-august-2023-revisions">https://www.atf.gov/firearms/updated-atf-form-4473-firearms-transaction-record-august-2023-revisions</a>.
\69\ See id.
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H. Executive Order 13175 (Consultation and Coordination With Indian
Tribal Governments)
The Department has determined that formal Tribal consultation under
Executive Order 13175 is not required because this proposed rule is
provided as part of a public collaboration that includes Tribes and is
being issued to implement congressional mandates regarding Tribal law
prohibitors, enhanced background checks for transferees under the age
of 21 years, and NICS denial notifications. Further, implementation of
these provisions is not discretionary, nor do there appear to be any
policy decisions in this proposed rule that would affect federally
recognized Tribes.
List of Subjects
Administrative practice and procedure, Arms and munitions, Computer
technology, Crime, Firearms, Juvenile delinquency, Law Enforcement,
Penalties, Privacy, Reporting and recordkeeping requirements.
Authority and Issuance
Accordingly, for the reasons set forth in the preamble, 28 CFR part
25, subpart A, is proposed to be amended as follows:
PART 25--DEPARTMENT OF JUSTICE INFORMATION SYSTEMS
0
1. The authority citation for part 25 is revised to read as follows:
Authority: Public Law 103-159, 107 Stat. 1536, 49 U.S.C. 30501-
30505; Public Law 101-410, 104 Stat. 890, as amended by Public Law
104-134, 110 Stat. 1321; Public Law 117-103, 136 Stat. 49; Public
Law 117-159, 136 Stat. 1313; 34 U.S.C. 40901; 18 U.S.C. 921; 18
U.S.C. 922; 18 U.S.C. 925B; 18 U.S.C. 925C.
Subpart A--the National Instant Criminal Background Check System
0
2. Revise Sec. 25.1 to read as follows:
Sec. 25.1 Purpose and authority.
The purpose of this subpart is to establish policies and procedures
implementing the Brady Handgun Violence Prevention Act (Brady Act),
Public Law 103-159, 107 Stat. 1536. The Brady Act requires the Attorney
General to establish a National Instant Criminal Background Check
System (NICS) to be contacted by any licensed importer, licensed
manufacturer, or licensed dealer of firearms for information as to
whether the transfer of a firearm to any person who is not licensed
under 18 U.S.C. 923 would be in violation of law as described in
subsection (t) of 18 U.S.C. 922. The regulations in this subpart A are
issued pursuant to section 103(h) of the Brady Act, 107 Stat. 1542 (18
U.S.C. 922 note), and include requirements to ensure the privacy and
security of the NICS and appeals procedures for persons who have been
denied the right to obtain a firearm as a result of a NICS background
check performed by the Federal Bureau of Investigation (FBI) or a state
or local law enforcement agency. The regulations in this subpart A are
also issued pursuant to Public Law 117-103 (18 U.S.C. 925B, 925C), and
Public Law 117-159 (34 U.S.C. 40901) to reflect the need to contact
local law enforcement for purposes of providing denial
[[Page 100421]]
notification reports in accordance with 18 U.S.C. 925B and reporting
certain data in accordance with 18 U.S.C. 925C; and with respect to
enhanced background checks of prospective transferees who are under 21
years of age. The provisions of this subpart A shall be construed as
being severable from one another and any remaining upheld or
unchallenged provisions shall be treated independently of any
invalidated provision.
0
3. Amend Sec. 25.2 by:
0
a. Revising the definitions of ``Delayed'', ``Denied'', and ``Denying
agency'';
0
b. Adding the definition of ``Local Law Enforcement Authority,''
0
c. Revising the definition of ``NICS'';
0
d. Adding the definition of ``NICS Indices'';
0
e. Removing the definitions of ``NICS Index'' and ``NICS Operations
Center'';
0
f. Revising the definition of ``NICS Representative'';
0
g. Adding the definitions of ``NICS Section,'' and ``No Known
Prohibitors: At least one state or local agency has not responded or
cannot respond;'' and
0
h. Revising the definitions ``Open,'' ``POC (Point of Contact),'' and
``Proceed;''
The revisions and additions read as follows:
Sec. 25.2 Definitions.
* * * * *
Delayed means the response given to the FFL indicating that the
transaction is in an ``Open'' status and that more research is required
prior to a NICS ``Proceed'' or ``Denied'' response.
(1) Except as provided in paragraph (2) of this definition, a
``Delayed'' response to the FFL indicates that it would be unlawful to
transfer the firearm until receipt of a follow-up ``Proceed'' response
from the NICS or the expiration of three business days without
notification of a ``Denied'' response, whichever occurs first.
(2) For a prospective transferee under 21 years of age, if the NICS
has notified the FFL before three business days have elapsed from
initial contact that additional delay is required to determine whether
the prospective transferee has a prohibiting record under 18 U.S.C.
922(d), a ``Delayed'' response to the FFL indicates it would be
unlawful to transfer the firearm until receipt of a follow-up
``Proceed'' or ``No Known Prohibitors: At least one state or local
agency has not responded or cannot respond'' response from the NICS or
the expiration of 10 business days from initial contact without
notification of a ``Denied'' response, whichever occurs first.
Denied means denial of a firearm transfer based on a NICS response,
or through the enhanced background check of a person under 21 years of
age as provided in 34 U.S.C. 40901, indicating one or more matching
records were found providing information demonstrating that a
prospective transferee is prohibited from receiving or being
transferred a firearm as described in 18 U.S.C. 922(t).
Denying agency means a POC or the NICS Section, whichever
determines that the subject is prohibited from receiving or being
transferred a firearm as described in 18 U.S.C. 922(t).
* * * * *
Local Law Enforcement Authority means a bureau, office, department,
or other authority of a state or local government or tribe that has
jurisdiction to investigate a violation or potential violation of, or
enforce, a state, tribal, or local law.
* * * * *
NICS means the National Instant Criminal Background Check System,
which an FFL must, with limited exceptions, contact for information on
whether a person who is not licensed under 18 U.S.C. 923 can lawfully
receive, or be transferred, a firearm as described in 18 U.S.C. 922(t).
* * * * *
NICS Indices means the database, to be managed by the FBI,
containing information provided by Federal, state, tribal and local
agencies about persons prohibited from receiving or being transferred a
firearm as described in 18 U.S.C. 922(t). The NICS Indices is separate
and apart from the NCIC and the Interstate Identification Index (III).
For purposes of this subpart, the term NICS Index shall be understood
to refer to the NICS Indices.
* * * * *
NICS Representative means a person who receives telephone or
electronic inquiries to the NICS Section from FFLs requesting
background checks and provides a response of ``Proceed,'' ``No Known
Prohibitors: At least one state or local agency has not responded or
cannot respond,'' ``Delayed,'' or ``Denied.''
NICS Section means the section of the FBI that receives telephone
or electronic inquiries from FFLs to perform background checks, makes a
determination based upon available information as to whether the
receipt or transfer of a firearm would be prohibited as described in 18
U.S.C. 922(t), researches criminal history records, tracks and
finalizes appeals, and conducts audits of system use. For purposes of
this subpart, the term NICS Operations Center shall be understood to
refer to the NICS Section.
No Known Prohibitors: At least one state or local agency has not
responded or cannot respond means, for a prospective transferee under
21 years of age, a NICS response indicating that the information
available to the system at the time of the response did not demonstrate
that the prospective transferee would be prohibited from receiving or
being transferred a firearm as described in 18 U.S.C. 922(t), and: (1)
all agencies contacted during the enhanced background checks required
by 34 U.S.C. 40901(l) have responded and at least one of those
responses is that state law prohibits juvenile justice records,
juvenile mental health records, or both from being shared; or (2) at
the end of the tenth business day if at least one of the state or local
agencies contacted during the enhanced background checks required by 34
U.S.C. 40901(l) has not responded to the request for records. A ``No
Known Prohibitors: At least one state or local agency has not responded
or cannot respond'' response to the FFL indicates that Federal law does
not prohibit the licensee from transferring the firearm.
* * * * *
Open means those non-canceled transactions related to the
prospective transfer of a firearm where the FFL has not been notified
of a final determination. In cases of ``Open'' responses, the NICS
continues researching potentially prohibiting records regarding the
prospective transferee and, if definitive information is obtained,
communicates to the FFL the final determination that the check resulted
in a ``Proceed'' or a ``Denied'' response.
(1) Except as provided in paragraph (2) of this definition, an
``Open'' response does not prohibit an FFL from transferring a firearm
after three business days have elapsed since the FFL provided to the
system the identifying information about the prospective transferee.
(2) For an individual under 21 years of age, if the NICS has
notified the FFL within three business days that additional research is
required, an ``Open'' response does not prohibit an FFL from
transferring a firearm after 10 business days have elapsed since the
FFL provided to the system the identifying information about the
prospective transferee.
(3) An ``Open'' response, whether under paragraph (1) or (2) of
this definition, does not relieve an FFL from compliance with other
provisions of Federal, state, local, or tribal law that
[[Page 100422]]
may be applicable to firearms transfers. For example, under 18 U.S.C.
922(d), an FFL may not lawfully transfer a firearm if the FFL knows or
has reasonable cause to believe that the prospective transferee is
prohibited by law from receiving or possessing a firearm for certain
reasons.
* * * * *
POC (Point of Contact) means a state or local law enforcement
agency serving as an intermediary between an FFL and the Federal
databases checked by the NICS. A POC will receive NICS background check
requests from FFLs, check available state, local, or tribal record
systems, perform NICS inquiries, determine whether matching records
provide information demonstrating that the prospective transferee is
prohibited from receiving or being transferred a firearm as described
in 18 U.S.C. 922(t), and respond to FFLs with the results of a NICS
background check. For an individual under 21 years of age, the POC will
contact state and local agencies, in accordance with 34 U.S.C. 40901(l)
and as further described in Sec. 25.6, to determine if the individual
has a possibly disqualifying juvenile record under 18 U.S.C. 922(d).
When a POC processes a NICS transaction and notifies the FFL of a
denial determination, the POC shall report that denial notification to
local law enforcement authorities in accordance with 18 U.S.C. 925B. A
POC shall also provide applicable statistics necessary for the FBI to
comply with the requirements of 18 U.S.C. 925C. A POC will be an agency
with express or implied authority to perform POC duties pursuant to
state statute, regulation, or executive order.
Proceed means a NICS response indicating that all relevant systems
have been checked, all requests for records have received responses,
and the information available to the system at the time of the response
did not demonstrate that the prospective transferee would be prohibited
from receiving or being transferred a firearm as described in 18 U.S.C.
922(t). A ``Proceed'' response does not relieve an FFL from compliance
with other provisions of Federal, state, local, or tribal law that may
be applicable to firearms transfers. For example, under 18 U.S.C.
922(d), an FFL may not lawfully transfer a firearm if the FFL knows or
has reasonable cause to believe that the prospective transferee is
prohibited by law from receiving or possessing a firearm for certain
reasons.
* * * * *
Sec. 25.6 [Amended]
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4. Amend Sec. 25.6 by revising paragraphs (c)(1)(iii), (c)(1)(iv),
(f)(1), (g), (h) and (i) to read as follows:
Sec. 25.6 Accessing records in the system.
* * * * *
(c) * * *
(iii) Search the relevant databases (i.e., NICS Indices, NCIC, III)
for any matching records and, for a prospective transferee under 21
years of age, perform the contacts required by 34 U.S.C. 40901(l),
specifically: the criminal history repository or juvenile justice
information system, as appropriate, of the state in which the person
resides; the appropriate state custodian of mental health adjudication
records in the state in which the person resides; and a local law
enforcement agency of the jurisdiction in which the person resides.
These contacts are made for the purpose of determining whether the
prospective transferee has a disqualifying juvenile record under 18
U.S.C. 922(d). If a state has identified to the NICS Section that it
does not have a criminal history repository, juvenile justice
information system, or state custodian of mental health adjudication
records, a contact to an alternative agency (if one is identified by
the state) shall be made; and
(iv) Provide the following NICS responses based upon the
consolidated NICS search results to the FFL that requested the
background check:
(A) ``Proceed'' response, if no disqualifying information was
found:
(1) As a result of searching the NICS Indices, NCIC, or III; and
(2) During the enhanced background check required by 34 U.S.C.
40901 for transactions involving a person under 21 years of age.
(B)(1) ``Delayed'' response, except as provided in paragraph
(c)(1)(iv)(B)(2) of this section, if the NICS search finds a record
that requires more research to determine whether the prospective
transferee is disqualified from receiving or being transferred a
firearm as described in 18 U.S.C. 922(t). A ``Delayed'' response to the
FFL indicates that the firearm transfer should not proceed until the
receipt of a follow-up ``Proceed'' response from the NICS or the
expiration of three business days (exclusive of the day on which the
query is made), whichever occurs first. (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.)
(2) In the case of a prospective transferee under 21 years of age
at the time of the NICS check, if NICS notifies the FFL that additional
delay is needed to further investigate whether the prospective
transferee has a disqualifying juvenile record under 18 U.S.C. 922(d),
the firearm transfer shall not proceed until receipt of a follow-up
``Proceed'' or ``No Known Prohibitors: At least one state or local
agency has not responded or cannot respond'' response from the NICS, or
the expiration of 10 business days (exclusive of the day on which the
query is made) without a ``Denied'' response, whichever occurs first.
(C) ``Denied'' response, when at least one matching record is found
as a result of searching the NICS Indices, NCIC, III, or through the
enhanced background checks described in 34 U.S.C. 40901 for persons
under 21 years of age, that provides information demonstrating that the
prospective transferee would be prohibited from receiving or being
transferred a firearm as described in 18 U.S.C. 922(t). The ``Denied''
response will be provided to the requesting FFL by the NICS Section
during its regular business hours.
(D) ``No Known Prohibitors: At least one state or local agency has
not responded or cannot respond'' response, when available information
does not demonstrate the subject would be (potentially) prohibited from
receiving or being transferred a firearm as described in 18 U.S.C.
922(t) and: (1) all agencies contacted during the enhanced background
checks required by 34 U.S.C. 40901(l) have responded and at least one
of those responses is that state law prohibits juvenile justice
records, juvenile mental health records, or both from being shared; or
(2) at the end of the tenth business day if at least one of the state
or local agencies contacted during the enhanced background checks
required by 34 U.S.C. 40901(l) has not responded to the request for
records. A ``No Known Prohibitors: At least one state or local agency
has not responded or cannot respond'' response to the FFL indicates
that Federal law does not prohibit the licensee from transferring the
firearm.
* * * * *
(f) * * *
(1) ``No record'' response, if the NICS determines, through a
complete search, that no matching record exists. A ``no record''
response does not relieve a POC
[[Page 100423]]
from its obligation under Sec. 25.6 to perform an enhanced background
check described in 34 U.S.C. 40901 for persons under 21 years of age.
* * * * *
(g) Generally, based on the response(s) provided by the NICS, and
other information available in the state and local record systems, a
POC will:
(1) Confirm any matching records;
(2) Notify the FFL with a response of ``Proceed,'' ``No Known
Prohibitors: At least one state or local agency has not responded or
cannot respond,'' ``Delayed,'' or ``Denied.'' ``Proceed,'' ``Delayed,''
and ``No Known Prohibitors: At least one state or local agency has not
responded or cannot respond'' notifications will be accompanied by the
NTN or STN traceable to the NTN. The POC may or may not provide a
transaction number (NTN or STN) when notifying the FFL of a ``Denied''
response; and
(3)(i) Report denial notifications to local law enforcement
authorities in accordance with 18 U.S.C. 925B (NICS Denial Notification
Act) when a POC provides denial determination to FFLs; and
(ii) Provide the NICS Section with applicable statistics necessary
for the FBI to comply with the requirements of 18 U.S.C. 925C.
(h) POC Determination Messages. POCs shall transmit electronic NICS
transaction determination messages to the FBI for the following
transactions: ``Delayed'' 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 ``Delayed'' or
``Open'' and later changed to ``Proceed'' or ``No Known Prohibitors: At
least one state or local agency has not responded or cannot respond;''
and ``Denied'' transactions that have been overturned. The FBI shall
provide POCs with an electronic capability to transmit this
information. These electronic messages shall be provided to the NICS
immediately upon communicating the POC determination to the FFL. For
transactions where a determination has not been communicated to the
FFL, 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 and NICS transactions of persons under 21
years of age, newly created POC NICS transactions that are not followed
by a determination message (``Denied'' or ``Delayed'') 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. The information
provided in the POC determination messages will be maintained in the
NICS Audit Log described in Sec. 25.9(b). The NICS will destroy its
records regarding POC determinations in accordance with the procedures
detailed in Sec. 25.9(b).
(i) Response recording. FFLs are required to record the system
response, whether provided by the FBI NICS Section or a POC, on the
appropriate ATF form for audit and inspection purposes, under 27 CFR
part 478 recordkeeping requirements. The FBI NICS Section response will
always include an NTN and associated ``Proceed,'' ``No Known
Prohibitors: At least one state or local agency has not responded or
cannot respond,'' ``Delayed,'' or ``Denied'' determination. POC
responses may vary as discussed in paragraph (g) of this section. In
these instances, FFLs will record the POC response, including any
transaction number or determination.
* * * * *
0
5. Revise Sec. 25.7(a) to read as follows:
Sec. 25.7 Querying records in the system.
(a)(1) The following search descriptors will be required in all
queries of the system for purposes of a background check:
(i) Name;
(ii) Sex;
(iii) Race;
(iv) Complete date of birth;
(v) State of residence;
(2) For a transaction that involves a subject under 21 years of
age, or where initial background check results of the subject reveal
the transaction will be delayed or denied, or may be subject to a local
or tribal prohibition preventing the transfer or receipt of a firearm,
the following information will also be required prior to the FFL being
provided with the NTN (or applicable STN) and initial status:
(i) Residence address of the subject of the NICS check, to include
the number and full street address, city, state, and ZIP Code;
(ii) County, parish, or borough of residence; and
(iii) Whether the individual resides within the city (to include
town or other municipal boundary) limits.
* * * * *
0
6. In Sec. 25.8, revise paragraphs (f)(2) and (g)(2) to read as
follows:
Sec. 25.8 System safeguards.
* * * * *
(f) * * *
(2) FFLs will provide the NICS Representative with their FFL Number
and code word, the type of sale, and the name, sex, race, date of
birth, and state of residence of the prospective buyer. For those
transactions that are delayed or denied, may be subject to a local or
tribal prohibition on the transfer or receipt of a firearm (based on
initial background check results), or involve a prospective transferee
under 21 years of age, the FFL must provide additional residence
address information, to include the number and street address, city,
state, and ZIP Code; county, borough, or parish of residence; and
whether the residence is within the city (to include town or other
municipal boundary) limits.
* * * * *
(g) * * *
(2) The NICS Representative will provide only a response of
``Proceed'' or ``Delayed'' (with regard to the prospective firearms
transfer) and will not provide the details of any record information
about the transferee. In cases in which potentially disqualifying
information is found in response to an FFL query, the NICS
Representative will provide a ``Delayed'' response to the FFL. Follow-
up ``Proceed,'' ``No Known Prohibitors: At least one state or local
agency has not responded or cannot respond,'' or ``Denied'' responses
will be provided by the NICS Section during its regular business hours.
* * * * *
0
7. In Sec. 25.9, revise paragraphs (a), (b)(1)(ii) and (iii),
(b)(2)(i), and (b)(3), to read as follows:
Sec. 25.9 Retention and destruction of records in the system.
(a) The NICS will retain NICS Indices records indicating that the
individuals to whom the records pertain would be prohibited from
receiving or being transferred firearms as described in 18 U.S.C.
922(t). The NICS will retain such records indefinitely unless they are
canceled by the originating agency. In cases where a firearms
disability is not permanent (e.g., a disqualifying restraining order),
the NICS will automatically purge the pertinent record when it is no
longer disqualifying. Unless otherwise removed, records contained in
the NCIC and III files that are accessed during a background check will
remain in those files in accordance with established policy.
(b) * * *
(1) * * *
(ii) NICS Audit Log records relating to transactions in an ``Open
status, except the NTN and date, will be destroyed after not more than
90 days from the date of inquiry; and
(iii) In cases of NICS Audit Log records relating to allowed
transactions, all identifying information submitted by
[[Page 100424]]
or on behalf of the transferee will be destroyed within 24 hours after
the FFL receives a determination of ``Proceed,'' or ``No Known
Prohibitors: At least one state or local agency has not responded or
cannot respond.'' All other information, except the NTN and date, will
be destroyed after not more than 90 days from the date of inquiry.
(2) * * *
(i) In addition to denial information required by law to be shared
with relevant local law enforcement authorities, information in the
NICS Audit Log, including information not yet destroyed under Sec.
25.9(b)(1)(iii), that indicates, either on its face or in conjunction
with other information, a violation or potential violation of law or
regulation, may be shared with appropriate authorities responsible for
investigating, prosecuting, or enforcing such law or regulation; and
* * * * *
(3) Limitation on use. The NICS, including the NICS Audit Log, may
not be used by any department, agency, officer, or employee of the
United States to establish any system for the registration of firearms,
firearm owners, or firearm transactions or dispositions, except with
respect to persons prohibited from receiving or being transferred a
firearm as described in 18 U.S.C. 922(t). The NICS Audit Log will be
monitored and reviewed on a regular basis to detect any possible misuse
of NICS data.
* * * * *
0
8. In Sec. 25.10, revise paragraph (g) to read as follows:
Sec. 25.10 Correction of erroneous system information.
* * * * *
(g) An individual may provide written consent to the FBI to
maintain information about that individual in a Voluntary Appeal File
to be established by the FBI and checked by the NICS for the purpose of
preventing the future erroneous denial or extended delay by the NICS of
a firearm transfer. Such file shall be used only by the NICS for this
purpose. In accordance with 34 U.S.C. 40901 and applicable regulations
of this part, for persons under 21 years of age, entry into the
Voluntary Appeal File may not prevent that transaction from being
subject to additional delay as described in paragraph (2) of the
``Delayed'' definition provided in Sec. 25.2. The FBI shall remove all
information in the Voluntary Appeal File pertaining to an individual
upon receipt of a written request by that individual. However, the FBI
may retain such information contained in the Voluntary Appeal File as
long as needed to pursue cases of identified misuse of the system. If
the FBI finds a disqualifying record on the individual after the
individual's entry into the Voluntary Appeal File, the FBI may remove
the individual's information from the file.
* * * * *
0
9. In Sec. 25.11, revise paragraph (b)(1) to read as follows:
Sec. 25.11 Prohibited activities and penalties.
* * * * *
(b) * * *
(1) State or local agencies', FFLs', or individuals' purposefully
furnishing incorrect information to the system to obtain a ``Proceed''
or ``No Known Prohibitors: At least one state or local agency has not
responded or cannot respond'' response, thereby allowing a firearm
transfer;
* * * * *
Dated: November 29, 2024.
Merrick B. Garland,
Attorney General.
[FR Doc. 2024-28712 Filed 12-11-24; 8:45 am]
BILLING CODE 4410-02-P
</pre></body>
</html>Indexed from Federal Register on December 12, 2024.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.