Bipartisan Safer Communities Act of 2022-Criteria for National Instant Criminal Background Check System (“NICS”) Background Checks of Firearm Handlers

Issuing agencies

Abstract

The United States Department of Justice ("Department") is amending several of its regulations pertaining to the National Instant Criminal Background Check System ("NICS" or "system") of the Federal Bureau of Investigation ("FBI") to authorize Federal Firearm Licensees ("FFLs" or "licensees") to use NICS for purposes of voluntarily conducting employment background checks relating to certain current or prospective FFL employees. This final rule describes in more detail how, upon its effective date, FFLs will be able to conduct "firearm handler background checks" ("FHCs") of "eligible employees."

Full Text

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<title>Federal Register, Volume 91 Issue 206 (Tuesday, October 27, 2026)</title>
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[Federal Register Volume 91, Number 206 (Tuesday, October 27, 2026)]
[Rules and Regulations]
[Pages 67460-67476]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-21920]


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DEPARTMENT OF JUSTICE

28 CFR Part 25

[Docket No. FBI-159; AG Order No. 7257-2026]
RIN 1110-AA35


Bipartisan Safer Communities Act of 2022--Criteria for National 
Instant Criminal Background Check System (``NICS'') Background Checks 
of Firearm Handlers

AGENCY: Federal Bureau of Investigation, Department of Justice.

ACTION: Final rule.

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SUMMARY: The United States Department of Justice (``Department'') is 
amending several of its regulations pertaining to the National Instant 
Criminal Background Check System (``NICS'' or ``system'') of the 
Federal Bureau of Investigation (``FBI'') to authorize Federal Firearm 
Licensees (``FFLs'' or ``licensees'') to use NICS for purposes of 
voluntarily conducting employment background checks relating to certain 
current or prospective FFL employees. This final rule describes in more 
detail how, upon its effective date, FFLs will be able to conduct 
``firearm handler background checks'' (``FHCs'') of ``eligible 
employees.''

DATES: This final rule is effective November 27, 2026.

FOR FURTHER INFORMATION CONTACT: Jill A. Montgomery, Assistant Section 
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. Executive Summary
II. Background
III. Notice of Proposed Rulemaking
IV. Analysis of Comments and Department Responses
V. Final Rule
VI. Statutory and Executive Order Review
VII. Disclosure
VIII. Severability

I. Executive Summary

A. Summary of the Regulatory Action

    As part of combatting firearms trafficking and straw purchasing and 
advancing other goals, Congress passed the Bipartisan Safer Communities 
Act (``BSCA''), requiring the Attorney General, in relevant part, to 
promulgate regulations authorizing licensees to voluntarily use NICS as 
part of the licensees' employment background checks of current or 
prospective FFL employees. See Public Law 117-159, sec. 12004, 136 
Stat. 1313, 1326-1332 (2022); 34 U.S.C. 40901(b)(2). On December 12, 
2024, the Department published a Notice of Proposed Rulemaking 
(``NPRM'') in the Federal Register seeking comments on the Department's 
proposed revisions to 28 CFR part 25 that, if finalized, would allow 
FFLs to voluntarily conduct FHCs of eligible FFL employees. See 
Bipartisan Safer Communities Act of 2022--Criteria for National Instant 
Criminal Background Check System (``NICS'') Background Checks of 
Firearm Handlers, 89 FR 100424 (Dec. 12, 2024). With limited exceptions 
discussed in Section V of this rule, the amendments to 28 CFR part 25 
will be finalized as proposed in the NPRM.

B. Summary of Costs and Benefits

    As proposed in the NPRM, this rule will impose little to no costs 
upon FFLs, eligible employees, or any State, local, or Tribal 
governmental entities. First, FFLs are not required by the rule to 
submit FHCs; FFLs may volunteer to submit FHCs. Similarly, FFLs will 
only incur minimal costs in terms of time and system upgrades if they 
opt to submit FHCs. Second, to submit an FHC, the eligible employee 
must have provided their informed, written consent for the background 
check. Agencies acting as ``points of contact'' (``POCs'') during NICS 
checks for firearm transfers will not be required to process FHCs 
unless they voluntarily choose to add FHC-related duties to their 
existing POC duties. POC duties are discussed further in Section II.A 
of this rule. Finally, this rule does not obligate State, local, and 
Tribal governmental entities to respond to FHC-related requests from 
the FBI or POCs.
    Once effective, this rule will benefit FFLs that choose to submit 
FHCs by letting them know whether information available to NICS 
indicates the eligible employee is, or may be, prohibited from 
receiving or possessing firearms or ammunition. Having such information 
can assist FFLs in making informed determinations about whether that 
person should have employment duties that may involve access to 
firearms, ammunition, or their manufacturing components. This rule will 
also benefit public safety by implementing another mechanism that can 
keep more prohibited persons from being placed in positions that would 
otherwise afford them with access to firearms, ammunition, or their 
manufacturing components.

II. Background

A. Regulatory Context

    BSCA made changes to Federal law regarding, among other things, 
firearms trafficking and the straw purchasing of firearms. See BSCA 
sec. 12004, 136 Stat. at 1326-1332. For instance, BSCA created new 
criminal offenses and increased punishments for some existing firearms-
related offenses. See id. sec. 12004(a)(1), 136 Stat. at 1326-27 (e.g., 
adding 18 U.S.C. 932 and 933). BSCA also provided for a new, voluntary 
use of NICS, requiring the Attorney General to promulgate regulations 
that will allow FFLs to access NICS ``for purposes of voluntarily 
conducting an employment background

[[Page 67461]]

check relating to a current or prospective employee.'' Id. sec. 
12004(h)(1)(B), 136 Stat. at 1330.
    FFLs may inadvertently employ prohibited persons, who would then 
have access to firearms or ammunition through their employment duties 
and who may be able to use that access to engage in illegal firearms 
trafficking or straw purchases, or to otherwise illegally possess or 
use firearms. This rule's expanded authorization for FFLs to use NICS 
to conduct NICS checks regarding certain current or prospective FFL 
employees is an additional tool to help prevent those illegal actions 
by reducing opportunities that some prohibited persons might otherwise 
have had to gain access to firearms, ammunition, or their manufacturing 
components.

B. The System

1. NICS Procedure
    The Brady Handgun Violence Prevention Act (``Brady Act'') required 
the Attorney General to establish NICS, which is a system that certain 
FFLs must contact before selling or otherwise transferring a firearm. 
Public Law 103-159, sec. 103, 107 Stat. 1536, 1541-43 (1993). 
Specifically, the Brady Act requires persons licensed by the Bureau of 
Alcohol, Tobacco, Firearms, and Explosives (``ATF'') as manufacturers, 
dealers, or importers to initiate a NICS background check when seeking 
to transfer firearms to individuals who are not FFLs. See 18 U.S.C. 
922(t)(1); see also 18 U.S.C. 921(a)(9)-(11) (defining ``importer,'' 
``manufacturer,'' and ``dealer'').\1\ NICS provides, when possible, 
immediate information on whether receipt or possession of a firearm by 
an unlicensed person would be prohibited. See 18 U.S.C. 922(t)(1). The 
FBI manages and operates NICS by delegation of the Attorney General 
pursuant to 28 CFR 25.3. The NICS Section of the FBI's Criminal Justice 
Information Services Division processed the first NICS background check 
on November 30, 1998.\2\
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    \1\ ATF's licensing authority is generally described in 18 
U.S.C. 923. Persons licensed under 18 U.S.C. 923(b) as 
``collectors'' are not required to conduct NICS transactions when 
transferring curios or relics under 18 U.S.C. 922(t), see 34 U.S.C. 
40901(j)(1) (defining ``licensee''); however, they are required to 
undergo a NICS check when purchasing a firearm other than a curio or 
relic.
    \2\ See National Instant Criminal Background Check System 
Regulation, 63 FR 58303, 58303 (Oct. 30, 1998).
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    An FFL initiates a NICS background check by contacting the FBI's 
NICS Section \3\ or a State or local law enforcement agency known as a 
POC--i.e., certain State or local law enforcement agencies with express 
or implied authority to perform NICS inquiries and respond to FFLs with 
the results. See 28 CFR 25.2, 25.6(a), (d).\4\ Relevant databases 
searched during NICS background checks are the NICS Index (now called 
the ``NICS Indices''),\5\ the National Crime Information Center 
(``NCIC''), and the Interstate Identification Index (``III''). See 28 
CFR 25.2, 25.4, 25.6; see also 89 FR 100425-100426. The NICS Indices is 
a database of information provided by Federal, State, local, and Tribal 
agencies about persons who are prohibited from receiving firearms under 
Federal or State law. See 28 CFR 25.2. After initiating background 
checks for the prospective transfer of firearms, FFLs receive one of 
three responses from NICS: ``Proceed,'' ``Delayed,'' or ``Denied.'' 28 
CFR 25.6(c)(1)(iv).
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    \3\ See 89 FR 100425 n.3 (discussing how ``the NICS Section'' 
was formerly known as the ``NICS Operation Center'' until July 24, 
2002).
    \4\ 28 CFR 25.2 defines ``POC (Point of Contact)'' as ``[a] 
state or local law enforcement agency serving as an intermediary 
between an FFL and the federal databases checked by the NICS.'' That 
provision further provides that a POC will receive NICS background 
check requests from FFLs, check State or local record systems, 
perform NICS inquiries, determine whether matching records provide 
information demonstrating that an individual is disqualified from 
possessing a firearm, and respond to FFLs with the results of a NICS 
background check. In addition, a POC must be an agency with express 
or implied authority to perform POC duties pursuant to State 
statute, regulation, or executive order. POCs perform NICS inquiries 
on either all or only a subset of the NICS background checks FFLs 
submit in the POC's State. See NICS Participation Map, FBI, <a href="https://www.fbi.gov/how-we-can-help-you/more-fbi-services-and-information/nics/about-nics">https://www.fbi.gov/how-we-can-help-you/more-fbi-services-and-information/nics/about-nics</a> (last visited Aug. 10, 2026).
    \5\ The NICS Index has become known by most NICS users as the 
``NICS Indices.'' The Department has proposed revisions, here and 
within another NPRM, to update references to the ``NICS Index'' to 
the ``NICS Indices.'' See Bipartisan Safer Communities Act of 2022 
and Consolidated Appropriations Act of 2022--Implementation 
Revisions for National Instant Criminal Background Check System 
(NICS), 89 FR 100404 (Dec. 12, 2024); see also proposed 28 CFR 25.2, 
25.4-25.6, 25.8, and 25.9 (as this rule revises).
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    There are other NICS uses authorized by Federal law or regulation. 
See 89 FR 100426. Until this final rule, however, the Department has 
expressly prohibited FFLs from initiating NICS background checks for 
any purpose other than the prospective transfer of firearms as required 
by the Brady Act. See 28 CFR 25.6(a).

III. The Notice of Proposed Rulemaking

    On December 12, 2024, the Department published its NPRM proposing 
various amendments to 28 CFR part 25 that the Department believed would 
be necessary to implement the use of NICS for FHCs. See 89 FR 100424. 
The comment period for the NPRM concluded at 11:59 p.m. on January 13, 
2025, with 25 total public comments received.
    The NPRM proposed changes to existing NICS regulations that would 
allow FFLs to voluntarily submit ``firearm handler background checks'' 
(i.e., FHCs) to the NICS. It was proposed that FFLs could submit these 
FHCs for persons who are or would be considered ``firearm handlers'' as 
well as other ``eligible employees.'' The NPRM defined each of these 
terms and also discussed exclusions.\6\ Both BSCA and the NPRM 
discussed that FFLs would have the discretion, under Federal law, to 
submit FHCs. State, local, or Tribal law(s) may mandate that some or 
all FFL employees be subjected to some level of background check, but 
those are matters outside of this rulemaking.
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    \6\ The NPRM proposed that, with exceptions, a ``firearm 
handler'' would ``include . . . a person who has or may have an 
opportunity to access firearms or ammunition because of [their] 
duties as an employee of an FFL, regardless of whether the 
employee's duties include or may include the actual or constructive 
transfer or handling of firearms or ammunition.'' 89 FR 100427. 
``Responsible Persons'' were defined and excluded from FHCs because 
they are already subject to background checks, including NICS 
checks, by ATF. Id. 100430. The NPRM also proposed ``that licensed 
manufacturers may submit FHCs for persons who do not have access to 
firearms or ammunition, but whose employment duties allow or may 
allow them access to the materials or tools used in firearms or 
ammunition manufacturing.'' Id. 100427, 100430 (similar). Further, 
the NPRM noted FHCs ``would not be available for any employee who 
does not or will not have employment duties that would allow the 
employee access to firearms or ammunition or any materials or tools 
necessary to manufacture firearms or ammunition.'' Id. 100427.
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    The NPRM noted that FFLs will not be able to submit an FHC without 
first providing notice to and obtaining written consent from the 
eligible employee. See 89 FR 100427 (citing 34 U.S.C. 
40901(b)(2)(B)).\7\ The NPRM discussed that one proposed method for 
FFLs to collect all necessary information from the eligible employee 
before submitting an FHC would be through a new form from ATF. See id. 
100432 (discussing ATF's proposed Form 5300.47).\8\
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    \7\ The NPRM noted that it was not written to address all 
employment-related matters that may arise should an FFL voluntarily 
begin submitting FHCs. See id. 100432 & n.39. The Department 
encourages FFLs to consult with their own legal counsel for 
individualized legal advice on what may or may not be authorized 
from an employment law perspective under State, local, or Tribal 
law.
    \8\ As discussed below in Sections IV.C and V of this preamble, 
ATF is no longer proposing to create the Form 5300.47. That change 
is one of only a few of the NPRM's proposals that this final rule 
updates or modifies.
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    The NPRM anticipated some POCs would be processing FHCs but 
acknowledged that the NICS Section would likely process FHCs for many

[[Page 67462]]

POCs. See id. 100429. The NPRM proposed that during FHCs, FFLs would 
receive new responses from NICS; FFLs were proposed to receive either 
``Pass,'' ``Pending,'' or ``Did Not Pass.'' See 89 FR 100427. The new 
terminology was proposed to clearly distinguish FHC responses from the 
responses of ``Proceed,'' ``Delayed,'' or ``Denied,'' that the NICS 
provides during background checks for firearm transfers submitted 
pursuant to 18 U.S.C. 922(t). See 89 FR 100427, 100430. The NPRM 
discussed how FFLs should not construe ``Did Not Pass'' responses from 
the NICS as telling the FFLs that those subjects could not be hired at 
all for other positions that would not have a nexus to firearms or 
ammunition. See 89 FR 100427.
    The NPRM stated that FFLs would receive a ``NICS transaction 
number'' (``NTN'') for each FHC they submit, see id. 100436, but that 
no prospective transfer date would be provided with FHC responses of 
``Pending.'' \9\ FHCs do not involve a firearm transfer and are not 
required by 34 U.S.C. 40901(b)(2) to be processed in any particular 
amount of time, whereas Federal law allows FFLs to transfer firearms 
after three business days if the FFL has not yet been informed the 
transfer was ``Denied.'' See 18 U.S.C. 922(t)(1)(B)-(C); 28 CFR 
25.6(c)(1). Providing FFLs with a transfer date during FHCs was 
therefore deemed--and is--unnecessary.
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    \9\ Compare 89 FR 100436 (proposing a definition of ``Pending'' 
without reference to timing), with 28 CFR 25.6(c)(1)(iv)(B) 
(including transfer timing as part of the definition of 
``Delayed'').
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    The NPRM proposed that, after submitting an FHC, the licensee would 
not be able to review the record sources searched during the FHC, nor 
would NICS provide the FFL with any of the underlying information 
reviewed during the FHC. See 89 FR 100436 (proposing amendments to 28 
CFR 25.6(c)). This exchange with FFLs would mirror the existing process 
used during prospective firearm transfers, which similarly limits 
dissemination of, and access to, record sources and information 
reviewed by NICS. See 28 CFR 25.6(c)(2). The NPRM also proposed that 
FFLs would generally be limited to one FHC per eligible employee every 
12 months, but also noted circumstances where subsequent queries would 
be allowed. 89 FR 100431-100432.
    The NPRM also proposed appeal rights that would be available when 
NICS has determined the eligible employee ``Did Not Pass'' their FHC. 
See id. 100430-100431. Such an individual would be able to appeal that 
result ``in the same manner and to the same extent as if the individual 
had been the subject of a background check relating to the transfer of 
a firearm.'' 34 U.S.C. 40901(b)(2)(D). The NPRM noted that the 
Department interpreted BSCA's appellate mandate to include all 
processes similarly available to persons who received a ``Denied'' 
response following a prospective firearm transfer, and therefore an 
administrative challenge (appeal) of an FHC ``Did Not Pass'' response 
would also include the ability of the subject of the FHC to request the 
reason for a ``Did Not Pass'' response, as well as submit a Voluntary 
Appeal File application and bring a civil action under 18 U.S.C. 925A. 
See 89 FR 100431.
    The NPRM did not propose any requirement that participating FFLs 
retain records of their FHC submissions for any particular amount of 
time. In a separate rulemaking, the Department suggested that 
participating FFLs retain FHC documentation for at least 90 days; 
keeping such paperwork even for a limited time (particularly if NICS 
provides a ``Did Not Pass'' response) can help in later proceedings and 
document that the FFL was appropriately using NICS. See 91 FR 24417. 
Neither the FBI nor ATF rulemakings have proposed provisions that would 
affect any State, local, or Tribal laws that may require FFLs to 
conduct background checks of certain employees or to retain those 
records.
    In addition, the NPRM discussed the severability of each proposal 
the NPRM put forth in the unlikely event that any individual provision 
were to be invalidated in litigation. Id. 100432. Consequently, the 
NPRM proposed a severability provision be added to 28 CFR 25.1. Id. 
100434. Further conforming amendments were proposed to 28 CFR 25.1, 
25.2, 25.6, 25.8, 25.10, and 25.11 to establish procedures for FHCs 
that are separate from those concerning prospective firearm transfers. 
Id. 100434-100435, 100436-100439. Amendments to 28 CFR 25.8 proposed 
technical and security safeguards to have in place while submitting 
FHCs. Id. 100437. Lastly, the NPRM proposed revisions to 28 CFR 25.11 
to reflect the Department's ability to institute monetary or access 
sanctions, or both, for misuse of NICS during FHCs. Id. 100439.

IV. Analysis of Comments and Department Responses

Subsections in Section IV
    A. Issues Raised in Support of the Rule
    B. Issues Raised in Opposition to the Rule
    C. Concerns with Specific Proposed Provisions

A. Overview of Comments

    The Department received 25 comments in response to the NPRM. The 
Department considers most comments (approximately 80 percent) to have 
been neutral or expressed support for the NPRM's proposals. The 
remaining comments expressed opposition to the NPRM. One comment did 
not address any issues presented in the NPRM and was accordingly not 
published on the electronic docket, nor is it addressed in this final 
rule.\10\ The Department addresses many of the 24 published comments in 
the following paragraphs.
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    \10\ See Thompson v. Clark, 741 F.2d 401, 408 (D.C. Cir. 1984) 
(``[The Administrative Procedure Act] has never been interpreted to 
require the agency to respond to every comment, or to analyze every 
issue or alternative raised by the comments, no matter how 
insubstantial.''); cf. Home Box Off., Inc. v. FCC, 567 F.2d 9, 35 
n.58 (D.C. Cir. 1977) (``[O]nly comments which, if true, raise 
points relevant to the agency's decision and which, if adopted, 
would require a change in an agency's proposed rule cast doubt on 
the reasonableness of a position taken by the agency.'').
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B. Issues Raised in Support of the Rule

1. General Support
    As this Section notes, commenters that supported the NPRM were 
generally FFLs and social policy-oriented organizations. Organizational 
commenters were the National Shooting Sports Foundation (``NSSF''), 
Giffords and Giffords Law Center to Prevent Gun Violence 
(``Giffords''), and Everytown for Gun Safety Support Fund 
(``Everytown''). Commenters raised various points about why they were 
supportive of the NPRM. Some comments supported the rule but provided 
suggestions where they believed the Department could do more or where 
regulatory text could be enhanced.
    One FFL broadly expressed support for the NPRM stating ``[a]s a gun 
store owner, I can wholeheartedly endorse this change[ ]'' and ``[t]his 
is fantastic news.'' Another FFL commented that ``[m]aking [NICS] 
available to employers for hiring purposes related to firearm 
interactions is long overdue'' while noting the FFL has historically 
used ``third party systems, and they don't return results in a timely 
manner and are not as comprehensive as'' NICS checks. NSSF and 
Everytown both share the sentiment of FHCs being long overdue. See 
Everytown at 1; NSSF at 7. Another gun shop owner commented FHCs 
``would be invaluable to safeguarding the inventory and operations[ 
],'' while another stated

[[Page 67463]]

FHCs ``will help ensure that those selling firearms are capable of 
doing so safely.''
    One commenter noted the NPRM ``would provide guidance to ensure 
FHCs are not abused'' and that the proposal for FHCs to be conducted 
upon ``eligible employees'' would ``faithfully implement[s] Congress' 
intent[.]'' NSSF said, overall, they ``strongly support'' the expanded 
use of NICS for this new purpose. Giffords' comments said the NPRM is 
``consistent with'' BSCA and noted it ``faithfully implement[s] 
Congress's intent in the BSCA.'' Giffords at 3. Similarly, Everytown 
said the NPRM should be ``promptly finalized'' as it was a ``sensible . 
. . well-crafted and balanced'' proposal that ``complies with BSCA[.]''
Department Responses
    The Department acknowledges, appreciates, and agrees with the 
support provided by many commenters. This regulation, when implemented, 
will allow a new use of NICS by FFLs, positively impact public safety, 
and impose no mandated costs on FFLs or the general public. Any costs 
will arise only if this new NICS use, or a response to FHC record 
requests, is voluntarily undertaken. See, e.g., 89 FR 100433-100434 
(noting costs are ``likely to be small'' and ``insignificant'').
2. Mandatory Checks
Comments Received
    Many comments, expressing support and opposition, incorrectly 
remarked in some form that FHCs were proposed as mandatory, should be 
mandatory, or asked, in various ways, whether a particular process 
would be considered equal to an FHC. One commenter stated that ``mom 
and pop FFLs with family units operating the business should be 
exempt'' from FHCs. Another said ``[t]his new requirement is not 
required and should not be allowed to take place.'' Another asked if 
someone had ``recently been approved for an NFA item wouldn't that 
background check suffice?'' Another asked if requiring employees to 
obtain a license to carry concealed firearms would ``satisfy the BSCA 
requirements.'' One commenter stated that ```Authorized Persons' on the 
FFL should automatically be exempt'' from the rule.
    One FFL wanted to discuss New Jersey's status as a POC, and their 
processes within the context of the NPRM. They noted New Jersey was 
``not an authorized [POC] in your listed states.'' That comment went on 
to describe a New Jersey ``pink card'' process the FFL had to complete 
for one of its employees, as well as how the FFL applied to ATF for the 
employee to be approved as a ``Responsible Person'' for the FFL. The 
FFL concluded by asking if those steps ``cover this new ruling? Can't 
imagine having to yet do more [for] employment.''
Department Response
    Although Congress required the Attorney General to issue these 
regulations and allow this new NICS query, as explained in the NPRM and 
throughout this preamble, neither BSCA nor the regulations as proposed 
in the NPRM required that licensees use NICS for this new purpose. See 
89 FR 100433 (noting ``this rule does not propose mandating that 
licensees submit FHCs''). Use of NICS for FHCs will be a completely 
voluntary choice under Federal law. All licensees and their eligible 
employees are, effectively, ``exempt'' from initiating or participating 
in FHCs according to Federal law. Whether an FHC is submitted to NICS 
is at the FFL's discretion (and upon informed consent of the employee). 
This rule only provides the process by which FHCs may be submitted and 
processed if and when the FFL decides to participate.
    As to the comments and questions posed specifically about New 
Jersey, the Department takes the comment about ``listed states'' to be 
discussing how the NPRM did not specify whether New Jersey or any other 
POC would be receiving FHCs from FFLs. The Department agrees the NPRM 
was not specific in that regard as time and circumstances could change 
those projections. The Department understands that, at the present 
time, New Jersey is not anticipated to process FHCs. As to the 
remainder of this specific comment, the Department reiterates how the 
NPRM specifically proposed that ``Responsible Persons'' not be 
considered ``eligible employees'' for purposes of FHCs because those 
individuals are already subjected to background clearance through ATF 
(including a NICS background check) every few years. See 89 FR 100430. 
Ultimately, again, because this final rule does not require FFLs to 
submit FHCs or any eligible employee to consent to an FHC, it is 
inconsequential whether any other process FFLs use during background 
checks of current or prospective employees ``meets,'' ``suffices,'' 
``covers,'' or is otherwise equivalent to what the NPRM proposed.

C. Neutral Comments

1. FFLs in POC States
Comments Received
    One commenter noted, ``For multi-chain [FFLs] headquartered in a 
Point of Contact (`POC') state--please permit access to the FBI NICS E-
Check system so that company HR representatives can conduct the Firearm 
Handler Checks.''
Department Response
    The Department presumes the commenter was speaking of what the NPRM 
called ``big box'' FFLs headquartered in POC states that will not 
process FHCs. In such situations, the NICS Section will certainly be 
able to enroll FFLs in those POC states into NICS E-Check so that the 
headquarters of participating ``big box'' FFLs may submit FHCs to the 
FBI.
    As a general matter, where larger chain or big box FFLs choose to 
centralize submission of FHCs through their headquartered locations, 
the FFL headquarters will submit FHCs of consenting eligible employees 
according to (i) the state(s) where the eligible employees will work, 
in combination with (ii) whether the state(s) have a POC that is 
participating in FHCs.
    Scenario 1: Chain FFL XYZ (``XYZ'') has 37 stores licensed to deal 
firearms across POC1, POC2, POC3, and several non-POC states. All three 
POC states have said they will not receive FHCs for various reasons. If 
XYZ chooses to submit FHCs, then XYZ will submit all FHCs for 
consenting, eligible employees to the FBI for processing.
    Scenario 2: Same facts as Scenario 1, except POC1 and POC3 have 
said they will receive FHCs from FFLs in their respective states. If 
XYZ chooses to submit FHCs, then for stores doing business in POC1 or 
POC3, XYZ will submit those FHCs (for consenting, eligible employees) 
to the designated POC agencies in those respective states. XYZ would 
submit any FHCs to the FBI for consenting, eligible employees of their 
stores doing business in POC2 as well as any of the non-POC states.
2. Suggestions for the Department
Comments Received
    Everytown also provided several suggestions the Department could 
consider moving forward to help the FBI ``capably administer'' FHCs. It 
suggested that ATF ask FFL applicants about their intent to conduct 
FHCs as well as inquire of FFLs when renewing their licenses about the 
FHCs those FFLs conducted. Everytown also suggested annual statistics 
be reported about the number of FHCs submitted by FFLs, and

[[Page 67464]]

they requested the Department ensure that the FBI had sufficient 
staffing to process FHCs.
    Another commenter suggested the ``quickest and easiest'' way to do 
things is to allow FFLs to run the same check as that performed on a 
potential purchaser.
Department Response
    As to the ``quickest and easiest'' comment, FHCs will result in 
NICS searching the NCIC, the III, and the NICS Indices looking for 
available prohibiting or potentially prohibiting information about the 
eligible employee--so FHCs will consist of ``the same check as'' a 
prospective firearm transfer submitted pursuant to 18 U.S.C. 922(t).
    The Department also acknowledges Everytown's suggestions and, as 
the Department implements FHCs, it will give them due consideration. 
The FBI will coordinate with ATF regarding reminders on the 
availability of NICS for FHCs.\11\ The Department notes that ATF has a 
robust FFL training and education platform and routinely provides 
updated guidance to FFLs. The FBI intends to supplement ATF's already 
robust platform with FHC updates, including plans to issue annual 
statistics, through its annual NICS Operation's Reports, of FHCs that 
were conducted. Those statistics are anticipated to include similar, if 
not identical, statistical categories as already provided for current 
Brady Checks conducted pursuant to 18 U.S.C. 922(t). For example, the 
FBI anticipates reporting FHC statistics about administrative appeals 
received, as well as the number of ``Did Not Pass'' responses provided 
to FFLs.
---------------------------------------------------------------------------

    \11\ The Department notes that issuance of an FFL shall be 
approved by ATF if the conditions under 18 U.S.C. 923(d) are met and 
not conditioned on whether an FFL chooses to run an FHC.
---------------------------------------------------------------------------

    Finally, as to staffing concerns, BSCA provided further funding to 
the Department so that staffing could be added to handle, among other 
impacts BSCA has had upon NICS, the unknown volume of FHCs that may be 
submitted. This additional funding has been extremely beneficial to the 
NICS Section by allowing further staff hires, but the Department will 
continue to assess what, if any, additional staffing may be needed once 
this rule has been finalized.

D. Issues Raised in Opposition to the Rule

1. Providing FFLs With Background Data; Displeasure With Current NICS 
Responses
Comments Received
    One comment stated FHCs ``must include the immediate ability to 
provide the background check data to the employer/employee.'' The 
comment stated that denial information ``should be immediately 
[available] for review . . . in the same way law [enforcement] can see 
results of background checks.'' Finally, without further explanation, 
this comment expressed frustration by claiming the current processes 
for ``obtaining delayed or denial reasoning is arduous, burdensome, and 
confusing.''
Department Response
    The Department disagrees that ``background check data'' (i.e., 
records) used to arrive at any response should be provided to FFLs, and 
while this commenter did not provide their specific concerns with the 
processes for ``obtaining delayed or denial reasoning,'' the Department 
disagrees that existing processes are ``arduous, burdensome, and 
confusing.''
    The NICS website has a robust platform of helpful information, 
including general statistics and explanations of the appeal-related 
processes.\12\ Specific to firearm transfers that have been ``Delayed'' 
or ``Denied,'' the FBI also has a free ``Resolution Card'' available 
for FFLs to use to help individuals quickly find important information 
on processes that can help resolve issues whenever possible. FFLs are 
not required to use the Resolution Card. FFLs use the card to provide 
the individual with the NTN of their transaction as well as the status 
of that transaction at that time. From there, depending on the status, 
the individual is able to pursue a number of options.
---------------------------------------------------------------------------

    \12\ Firearms Checks (NICS)--FBI, <a href="https://www.fbi.gov/how-we-can-help-you/more-fbi-services-and-information/nics">https://www.fbi.gov/how-we-can-help-you/more-fbi-services-and-information/nics</a> (last visited 
Sept. 14, 2026).
---------------------------------------------------------------------------

    If ``Denied'' a firearm transfer, the Resolution Card tells 
individuals how they may quickly and easily request the general reason 
for the denial (Request), e.g., being subject to a prohibiting domestic 
protection order, see 18 U.S.C. 922(g)(8), and how the person may 
administratively challenge that denial (Challenge). Using the Request 
or Challenge processes is not required of a denied subject; they may 
instead seek applicable remedies by appealing a denial directly to a 
Federal district court. See 18 U.S.C. 925A.
    Challenges may be sent through the FBI or, when applicable, the POC 
agency that denied the transaction. Responses to Requests must be 
provided within 5 business days, see 34 U.S.C. 40901(f), and Challenge 
responses are due within 60 days. Id. 40901(g). If a Challenge is 
unsuccessful, the FBI's response identifies why the denial is being 
upheld, the agency (by name and location) that provided the prohibiting 
record, and other information when applicable (e.g., an underlying 
court case number, or a ``NICS Record Identifier'' that identifies a 
NICS Indices entry for that subject). See 28 CFR 25.10(c). When 
Challenges remain under investigation after 60 days, the challenger is 
provided with contact information of the agency whose record forms the 
basis of denial and the individual may then apply directly to that 
agency for correction of the record. Id. 25.10(c)-(d).
    A Request or Challenge may be sent to the FBI via snail mail or 
electronically.\13\ FBI subject matter experts note that nearly 90 
percent of all Requests and Challenges are electronically submitted. 
The FBI does not charge a fee to use either process, and the FBI 
responds to Requests and Challenges within applicable statutory 
deadlines. Upon implementation of FHCs, the Resolution Card will also 
reflect how applicable processes may be used by subjects who ``Did Not 
Pass'' their FHCs or, as applicable, subjects whose FHCs are 
``Pending.''
---------------------------------------------------------------------------

    \13\ Requesting Reason for and/or Challenging a NICS-Related 
Denial, <a href="https://www.fbi.gov/how-we-can-help-you/more-fbi-services-and-information/nics/requesting-reason-for-andor-challenging-a-nics-related-denial">https://www.fbi.gov/how-we-can-help-you/more-fbi-services-and-information/nics/requesting-reason-for-andor-challenging-a-nics-related-denial</a> (last visited Sept. 14, 2026).
---------------------------------------------------------------------------

    With respect to the commenter claiming underlying records should 
also be provided to FFLs, information that Federal, State, local, and 
Tribal governmental agencies (law enforcement or otherwise) share with 
the FBI is subject to various Federal laws that limit further 
dissemination of that information. See, e.g., 28 U.S.C. 534; \14\ 5 
U.S.C. 552a; \15\ 28 CFR part 20; \16\ see also 28 CFR 25.6(j); \17\ 
id.

[[Page 67465]]

25.9(b).\18\ To the extent the commenter was speaking to a State 
process, that process would not be germane to the NPRM. In short, just 
as is the case during prospective firearm transfers, there is no viable 
mechanism for NICS to share an eligible employee's substantive 
background information with an FFL as if the FFL were a criminal 
justice agency. FFLs will only be provided with an NTN, as well as a 
response of ``Pass,'' ``Pending,'' or ``Did Not Pass.'' FFLs will not 
be provided the details of any record information, if any, the FBI 
databases provide about the subject in response to an FHC.
---------------------------------------------------------------------------

    \14\ Pertaining to the ``[a]cquisition, preservation, and 
exchange of identification records and information; appointment of 
officials.''
    \15\ Pertaining to privacy protections of personal information 
that Federal agencies maintain.
    \16\ General parameters regarding Department criminal justice 
information systems.
    \17\ Infra, outlining the limited situations in which NICS 
Indices information can be used outside of background checks 
submitted pursuant to 18 U.S.C. 922(t).
    \18\ Allowing NICS Audit Log information to be shared with 
``appropriate authorities'' in appropriate circumstances. See also 
18 U.S.C. 925B.
---------------------------------------------------------------------------

    Congress mandated, through 34 U.S.C. 40901(b)(2)(D), that an 
individual who is found to be ``prohibited from possessing a firearm or 
ammunition pursuant to [18 U.S.C. 922(g) or (n)]'' can appeal ``in the 
same manner and to the same extent as if the individual had been the 
subject of a background check relating to the transfer of a firearm.'' 
Accordingly, FHC appeals of ``Did Not Pass'' responses are required to 
mirror the appeal process for appeals of ``Denied'' firearm transfers 
under the Brady Act. The appeal process for FHCs will provide the 
subject with an avenue to understand the reason for the ``Did Not 
Pass'' response as well as challenge any underlying records used in 
that determination.
    The Department also reiterates that a ``Did Not Pass'' response 
signifies that available information demonstrates the individual is 
prohibited from possessing or handling firearms and ammunition, but the 
response does not prohibit the employer from employing that individual 
in a position that does not require the handling of or access to 
firearms or ammunition.
2. Punishes Law-Abiding Citizens; Improper Focus
Comments Received
    One comment remarked ``another waste of money and time[ ]'' and the 
emphasis should be on criminals instead of ``law abiding US gun 
owners.''
Department Response
    The Department disagrees that this rule is a waste of time or 
focuses on gun owners. The Department reiterates that the goal of these 
instant national background checks is to aid FFLs in identifying those 
who are prohibited by law from possessing or receiving firearms before 
deciding to offer them (or retaining them in) a position where they 
have access to or can handle firearms or ammunition while minimizing 
any impact such queries have upon those who are not prohibited. Gun 
owners were not the focus of this rule, and this rule does not affect 
their ability to possess or receive firearms. As the NPRM discussed, 
Title II of BSCA was focused on those who do, or may, unlawfully engage 
in straw purchases or trafficking in firearms or ammunition. See 89 FR 
100427-100428. One aspect of Title II focused on the fact that some 
current or prospective FFL employees could engage in or facilitate 
those crimes. This rule simply expands NICS use by allowing FFLs to 
initiate NICS queries as part of their employment background checks and 
mandates no costs to FFLs, all while benefiting public safety by 
identifying prohibited persons. FHCs are simply a tool FFLs can utilize 
if, with the consent of the eligible employee, they choose to do so.
3. Fees for the FHC
Comments Received
    One comment expressed that ``the employer should be the one paying 
for the criminal background check.''
Department Response
    BSCA mandated that the Attorney General cannot charge a fee for 
FFLs to use NICS during FHCs. See 34 U.S.C. 40901(b)(2)(A). Thus, the 
NPRM did not propose, nor does this rule impose, a fee for FFLs to use 
NICS for FHCs. This rule requires that both the FFL and eligible 
employee choose to move forward with the FHC; otherwise, it cannot be 
submitted. POCs participating in receiving FHCs may, however, charge a 
fee, but this rule does not mandate that POCs charge a fee. The 
Department cannot otherwise control whether a participating POC will 
charge a fee to process FHCs.
    To the extent the comment is concerned that Federal funds are being 
used to implement FHCs, Congress mandated that FFLs be allowed (but not 
required) to use NICS for this purpose. It is well within Congress's 
power to legislate how Federal funds can and cannot be used, as well as 
the purposes for which Federal systems, like NICS, can be used.
4. Disproportionate Impact on Minorities
Comment Received
    Without further explanation, one comment claimed FHCs, ``could 
potentially have a disproportionate impact on minorities who have, as a 
subpopulation, higher rates of criminal convictions and arrests.''
Department Response
    The Department disagrees with this claim. This rule merely provides 
the process for conducting voluntary FHCs pursuant to BSCA; neither 
BSCA nor this rule distinguishes between communities in the United 
States. FHCs were not proposed to be, and will not be, a mandate on an 
FFL's ultimate hiring decision(s). FHCs are simply a tool made 
available to FFLs as part of their decision-making process.
    Further, whether the subject of an FHC has a criminal history or 
not, the question for NICS (in passing back an applicable response) is 
whether that history demonstrates the subject is or may be prohibited 
from receiving or possessing firearms. Finally, without multiple layers 
of intervening, voluntary actions by both FFLs and the eligible 
employees, FHCs cannot even be submitted. The individual must first 
choose to seek employment with an FFL; the FFL must then choose to 
employ that person in a position that would qualify as an ``eligible 
employee''; the FFL must then voluntarily choose to conduct an FHC on 
the individual; the individual must then choose to provide his or her 
informed, written consent to having an FHC submitted; and, finally, to 
receive a ``Did Not Pass'' response from NICS, the individual must have 
a background record that renders him or her ineligible to possess or 
receive firearms as described in 18 U.S.C. 922(t). All of those choices 
must align before an FHC could potentially impact the eligible 
employee. Even if all those conditions are met, this rule merely allows 
FFLs an opportunity to identify disqualified persons; FFLs are not 
mandated to take a particular employment action should NICS respond 
that the eligible employee ``Did Not Pass'' their FHC.
5. Violates the Second Amendment
Comments Received
    One comment also asserted the NPRM violated the Second Amendment 
``because these types of background checks for people earning a living 
are not authorized.''
Department Response
    The Department disagrees with the comment. This rule's provisions 
do not burden Second Amendment rights in a way that is materially 
distinct from the NICS system already in place: they empower FFLs to 
ensure that current or prospective employees who cannot lawfully 
possess arms do not have access to them through their job duties. And 
the Department does not understand the comment to be objecting

[[Page 67466]]

to the constitutionality of NICS background checks writ large. Nor did 
the comment give any reason to conclude that the narrow, optional 
background checks here facially violate the Second Amendment under 
controlling precedent. In New York State Rifle & Pistol Ass'n, Inc. v. 
Bruen,\19\ the Supreme Court discussed background checks for firearms-
related purposes, stating:
---------------------------------------------------------------------------

    \19\ 597 U.S. 1, 142 S. Ct. 2111, 213 L. Ed. 2d 387 (2022).
---------------------------------------------------------------------------

    To be clear, nothing in our analysis should be interpreted to 
suggest the unconstitutionality of the 43 States' ``shall-issue'' 
licensing regimes, under which ``a general desire for self-defense is 
sufficient to obtain a [permit].'' [] Rather, it appears that these 
shall-issue regimes, which often require applicants to undergo a 
background check or pass a firearms safety course, are designed to 
ensure only that those bearing arms in the jurisdiction are, in fact, 
``law-abiding, responsible citizens.'' \20\
---------------------------------------------------------------------------

    \20\ Id. at 38 n.9 (cleaned up); see also id. at 80 (Kavanaugh, 
J., concurring) (noting that ``shall-issue licensing regimes are 
constitutionally permissible'' subject to as-applied challenges); 
McRorey v. Garland, 99 F.4th 831, 836 (5th Cir. 2024) (discussing 
how Bruen and District of Columbia v. Heller, 554 U.S. 570, 626-27 
(2008), ``make clear that background checks preceding firearm sales 
are presumptively constitutional'').
---------------------------------------------------------------------------

    The FBI will charge no fee for FHCs, and there will be no 
prohibition against FFLs selling firearms without running these 
background checks on eligible employees (although FFLs will of course 
still be required to comply with the Brady Act). At bottom, FFLs' 
ability to voluntarily run an existing background check of a consenting 
employee or prospective employee does not unconstitutionally burden 
that current or prospective employee's right to purchase, acquire, 
sell, or otherwise access constitutionally protected arms.
6. Paperwork Burden
Comments Received
    One comment remarked that FHCs ``only represent[ ] more 
paperwork[,] which will be completed and sent off and stored both by 
the government and by the business owner.''
Department Response
    The Department disagrees with these claims. The NPRM proposed, and 
this rule will impose, no mandates regarding any paperwork outside of 
noting that 34 U.S.C. 40901(b)(2) requires the FFL to collect the 
individual's written consent before submitting an FHC. To address FHCs 
and to accomplish that statutory mandate, ATF published in May 2026 two 
NPRMs that propose ATF's Form 5300.9 (``Form 4473'') as the vehicle for 
licensees to conduct FHCs, set out instructions for such use, and 
propose a 90-day records retention period for Forms 4473 used for that 
purpose.\21\ In addition, ATF concurrently published an information 
collection notice pursuant to the Paperwork Reduction Act on revisions 
to Form 4473, which include adding a box to indicate that the form is 
being used for an FHC, and to indicate the eligible employee's written 
consent/certification, among other changes.\22\ The Department 
anticipates ATF will publish guidance on how to handle FHCs in the 
interim, and will finalize the proposed new Form 4473 and proposed 
regulations to document FHCs. But this rule does not require that FFLs 
use a specific form. Any documentation is necessary under Federal law 
only if the FFL voluntarily chooses to take part in FHCs and, further, 
if the eligible employee consents to the FHC. This final rule requests, 
for best practices, that FFLs retain any paperwork for FHCs for a 
minimum of 90 days. ATF similarly proposed a 90-day retention period 
for FHCs in the ``Firearm Records Retention Periods.'' 91 FR 24417. If 
ATF finalizes that NPRM as drafted, then FFLs will have an obligation 
to retain Forms 4473 for FHCs for at least 90 days, but this current 
rule regarding FHCs does not impose any record retention requirement of 
its own. As noted previously, keeping such paperwork, even for a 
limited period of time, can also help document, if ever necessary, that 
the FFL was appropriately using NICS.
---------------------------------------------------------------------------

    \21\ See Revising Firearms Transaction Record, ``Form 4473,'' 91 
FR 25432, 25446 (May 8, 2026) (proposed rule) (revising 27 CFR 
478.124 to add a new paragraph (f) on using Form 4473 to facilitate 
FHCs); Firearm Records Retention Periods, 91 FR 24413, 24424 (May 6, 
2026) (proposed rule) (revising 27 CFR 478.129 to add a new 
paragraph (a)(3) on retention periods for Forms 4473 used to 
facilitate FHCs).
    \22\ At the time this final rule was being finalized, Form 4473 
had undergone proposed revisions and had begun the three-year 
renewal process required under the Paperwork Reduction Act for 
Office of Management and Budget (``OMB'') approval to continue using 
the form. On May 8, 2026, ATF published the required 60-day notice 
for this information collection. The notice listed the proposed 
changes to Form 4473 and was open for 60 days of public comment 
through July 7, 2026. It was followed by a 30-day public notice 
period before proceeding to OMB for review.
---------------------------------------------------------------------------

    In short, the rule is unlikely to result in a significant amount of 
paperwork. And to the extent the rule does create paperwork burdens, 
they will arise from voluntary decisions and be far outweighed by the 
rule's benefits.
8. The Term ``Eligible Employees'' Is Too Narrow
Comments Received
    Although NSSF said it ``strongly support[s]'' the expanded use of 
NICS for FHCs, it also expressed ``some concerns with the manner'' in 
which the FBI proposed implementing the expanded use. NSSF at 1. 
According to NSSF:
    Congress did not limit or restrict access to NICS for this purpose 
to any subsets or specific categories of FFL employees. The Proposed 
Rule, however, impermissibly places such a limit on NICS [FHCs] to 
``eligible employees.'' This restriction should be removed from the 
Proposed Rule because it is ultra vires.
    NSSF at 2. NSSF claimed the NPRM proposals were ``far from a 
natural interpretation of the statute[.]'' Id. at 3. ``Congress 
specifically required by statute that FHCs be available for all current 
or prospective employees without limitation.'' Id. at 4. NSSF cited 
Iancu \23\ and Cargill \24\ as supporting its claims that the 
Department did not apply FHCs in the proper manner.
---------------------------------------------------------------------------

    \23\ SAS Institute, Inc. v. Iancu, 584 U.S. 357 (2018).
    \24\ Garland v. Cargill, 602 U.S. 406 (2024).
---------------------------------------------------------------------------

    NSSF also provided certain statistics in an attempt to refute 
statistics cited by the Department in the NPRM. The Department cited 
the statistics to demonstrate the proper reading of 34 U.S.C. 
40901(b)(2).\25\ Specifically, NSSF stated:
---------------------------------------------------------------------------

    \25\ See 89 FR 100428-430.
---------------------------------------------------------------------------

    Since 2016, there have been more than 24 million NICS checks 
processed per year. NSSF's own research estimates the total number of 
individuals directly employed in the firearms industry is 154,611. [ ] 
Even assuming that FHCs are conducted on all direct firearms industry 
employees as well as all employees of ``big box store'' locations with 
licenses (which FBI estimates at 793,000), that figure only rises to 
3%.\26\
---------------------------------------------------------------------------

    \26\ NSSF at 4.
---------------------------------------------------------------------------

Department Response
    For the reasons set out in the NPRM, and as this final rule 
discusses in the paragraphs below, the Department respectfully 
disagrees with NSSF's arguments that FHCs must be available to persons 
outside of ``eligible employees.'' First, both Everytown and Giffords, 
which are organizations that, among other initiatives, advocate for 
more firearm-related background checks (e.g., ``universal'' background 
checks), did not share NSSF's position on this point. As noted earlier 
in this section, those organizations said the NPRM was,

[[Page 67467]]

e.g., ``well-crafted and balanced'' as well as being ``sensible,'' 
Everytown at 3-4, and that it ``faithfully implements Congress's intent 
in the BSCA,'' Giffords at 3. The Department is not acting ultra vires 
but, instead, is faithfully and appropriately implementing what 
Congress asked of the Department.
    Neither Iancu or Cargill is applicable here, as neither involved an 
agency defining the term ``employee.'' In Iancu, the Supreme Court was 
interpreting the meaning of the word ``any'' under a Federal statute 
that allowed private parties to administratively challenge approved 
patents. In Cargill, the Supreme Court was interpreting the Department 
rulemaking that added ``bump stocks'' to the regulatory definition of 
``machineguns'' under 27 CFR part 479. The legal analysis by the 
Supreme Court in those opinions also does not support NSSF's position 
on this point. In fact, contrary to NSSF's arguments here, Iancu shows 
that Congress clearly knows how to mandate that ``any'' (i.e., every) 
member of a group be included in a Federal statutory process. See 
Iancu, 584 U.S. at 359-60. Here, when it wrote 34 U.S.C. 40901(b)(2), 
Congress did not mandate that FFLs be allowed to run these checks on 
``any'' (or ``every,'' or ``all'') current or prospective employee(s). 
Further, unlike in Cargill, the Department's NPRM here did not propose 
altering the definition of a term Congress had already defined via 
statute. See Cargill, 602 U.S. at 413. As discussed in the NPRM, in 
Robinson v. Shell Oil Co., 519 U.S. 337, 340-46 (1997), the Supreme 
Court analyzed another Federal agency's regulatory definition of 
``employee'' and noted that the statute itself, the context in which 
the word ``employee'' appeared, and the ``primary purpose'' of the law 
at issue must all be considered when reviewing the agency's actions.
    In the NPRM, the Department followed that same approach in defining 
the term ``eligible employee.'' See 89 FR 100428. For example, the NPRM 
explained that the primary purpose of BSCA was to ``ensure that 
individuals prohibited from receiving firearms would not be able to 
obtain them.'' Id. (citing, e.g., BSCA sec. 12004(a)(1)). Focusing on 
employees who, by virtue of their current or prospective position, 
would have at least some connection to firearms or ammunition--rather 
than indiscriminately sweeping in all current or prospective 
employees--thus furthers the statute's purpose and properly limits the 
breadth of the term ``current or prospective employee.''
    This conclusion is fully consistent with Loper Bright Enters. v. 
Raimondo, 603 U.S. 369 (2024). Although that case directs courts to 
strive for the ``best'' interpretation of the law, rather than 
deferring to administrative interpretations, a statute's primary 
purpose remains a key interpretive tool in determining a statute's best 
meaning. For example, in United States v. Kokinda, 146 F.4th 405, 417 
(4th Cir. 2025), cert. denied, 146 S. Ct. 1775 (2025), the Fourth 
Circuit applied Loper Bright to the Attorney General's interpretation 
of the term ``habitually lives'' in the Sex Offender Registration and 
Notification Act (``SORNA''). The Attorney General had interpreted that 
term in light of SORNA's ``objective'' of comprehensively registering 
sex offenders, and the Fourth Circuit agreed that it was proper to 
``[t]ak[e] into account SORNA's broad purpose'' in arriving at a 
definition of the term. Id. at 418. BSCA's ``broad purpose''--
preventing prohibited persons from obtaining firearms--similarly 
informs the Department's interpretation of the term ``current or 
prospective employee'' and supports applying FHCs to those individuals 
who have at least some connection to firearms or ammunition. Accord, 
e.g., Gen. Elec. Co. v. Boilermaker-Blacksmith Nat'l Pension Tr., 176 
F.4th 1059, 1064 (8th Cir. 2026) (applying Loper Bright and adopting an 
interpretation that was most ``consistent with the purpose of the 
statute''); Mayfield v. U.S. Dep't of Lab., 117 F.4th 611, 618 (5th 
Cir. 2024) (discussing how the agency's definitional exemptions were 
consistent with the ``broader structure'' of the statute at issue 
there, and how application of that law to some persons would be 
``inconsistent with common sense'').
    NSSF suggests that expanding the scope of the term ``eligible 
employee'' to sweep in all current or prospective employees--regardless 
of their likely access to firearms--would actually be more consistent 
with the purpose of BSCA, as doing so would subject a greater absolute 
number of individuals to background checks. But ``[n]o statute pursues 
a single policy at all costs.'' Bartenwerfer v. Buckley, 598 U.S. 69, 
81 (2023). NSSF itself says it was ``a reasonable limitation'' for the 
Department's NPRM to propose generally allowing FFLs to submit only one 
FHC per year per eligible employee ``to manage any increased volume of 
NICS requests, or otherwise ensure that the system is not 
overwhelmed.'' NSSF at 4-5. Thus, NSSF itself recognizes that concerns 
such as workability and practical consequences must inform the proper 
interpretation of section 12004 of BSCA.
    Interpreting the term ``current or prospective employee'' to 
include only those persons with at least some connection to firearms or 
ammunition simply recognizes this same reality: As explained in the 
NRPM, expanding FHCs to any current or prospective employee, regardless 
of the person's potential connection to firearms or ammunition--could 
have pernicious consequences for both the operation of NICS and for 
individuals who might lose or be denied employment as a result of these 
background checks. 89 FR 100428-29. As explained in the NPRM, while the 
FBI was appropriated additional funding to help with salaries and 
expenses associated with BSCA, id. at 100429, that was a one-time 
appropriation; \27\ no portion of those funds have yet been annualized 
to continue covering any new NICS staff. Further, those FBI-designated 
funds were to also be used for other aspects of BSCA with FBI impacts 
(e.g., for system updates so NICS could conduct the newly required 
state and local outreach during ``under-21 transactions''). See 89 FR 
100429, 100432.
---------------------------------------------------------------------------

    \27\ See BSCA, Division B, 136 Stat. at 1338.
---------------------------------------------------------------------------

    The NPRM estimated that the rule applied to approximately 80,000 
FFLs across the country. See id. at 100429. The NICS Section normally 
receives Brady Checks from more than 50,000 of those 80,000 FFLs.\28\ 
That number will only increase for purposes of FHCs because, as the 
NPRM described, it is believed that the majority of POCs that normally 
process Brady Checks will not have the legal authority under their 
State laws to also process FHCs. See id. Therefore, while it is yet 
unknown exactly how many of the remaining 30,000 FFLs will submit FHCs 
to POCs, the NICS Section anticipates it will process FHCs submitted by 
the majority of those remaining FFLs. See id. Additionally, the FBI 
anticipates increased transactional volume as it anticipates receiving 
FHCs from FFLs that normally do not submit Brady Checks (e.g., licensed 
manufacturers). Accordingly, once FHCs are implemented, the NICS 
Section will process transactional volume from FFLs and many states 
that is not processed by the NICS Section during Brady Checks.
---------------------------------------------------------------------------

    \28\ See FBI, 2022 NICS Operations Report 5 (2022), <a href="https://www.fbi.gov/file-repository/cjis/nics-2022-operations-report.pdf/view">https://www.fbi.gov/file-repository/cjis/nics-2022-operations-report.pdf/view</a>.
---------------------------------------------------------------------------

    Since 2022, the NICS Section processes approximately 10 million (or 
less) of all Brady Checks per year.\29\ If

[[Page 67468]]

the NICS Section ultimately processes FHCs for just 65,000 to 70,000 
FFLs (of the 80,000) cited above, and those FFLs submit just 10 FHCs 
per month, the NICS Section would be processing 7.8 to 8.4 million FHCs 
plus the annual Brady Check volume. If FFLs could effectively submit 
FHCs anyone who consents to the check, and as often as the FFL chooses, 
regardless of the subject's potential to access firearms or ammunition, 
the NICS Section could receive 10 million FHCs in a matter of months, 
if not weeks. The Department therefore concludes that considering the 
pool of ``current and prospective employees'' without boundaries 
properly scoped with BSCA's broad purpose in mind could overwhelm NICS 
and the FBI and, therefore, result in a significant overall ``cost'' to 
public safety. See Bartenwerfer, 598 U.S. at 81.
---------------------------------------------------------------------------

    \29\ See, e.g., id. at 31 and FBI, 2024 NICS Operational Report 
iii (2024), <a href="https://www.fbi.gov/file-repository/2024-nics-operational-report.pdf/view">https://www.fbi.gov/file-repository/2024-nics-operational-report.pdf/view</a>.
---------------------------------------------------------------------------

    The Department appreciates that NSSF provided some statistics 
regarding employees in the firearms industry that, NSSF believes, call 
into question the Department's concerns about practical consequences 
and workability. That information, however, has not swayed the 
Department on this question. NSSF estimates only 155,000 persons are 
``directly employed in the firearms industry,'' NSSF at 4, whereas the 
NPRM estimated approximately 793,000 persons alone were employed in 
``big box'' stores that are licensed to deal in firearms at various 
locations throughout the United States. see id. at 100429.\30\ Even 
dividing the ``big box'' number of current employees in half (to 
approximately 400,000) leaves a demonstrable gap between the 
Department's and NSSF's statistics.\31\ More problematically, NSSF's 
statistics do not address half of BSCA's mandate to the Attorney 
General. The scope of ``current'' employees of FFLs throughout the 
United States is just one factor that the Department was required by 
Congress to consider and discuss in the NPRM. The number of 
``prospective'' hires for every FFL also had to be considered in the 
NPRM, and NSSF's comment does not discuss that unquantified number of 
individuals. The Department accordingly believes that its analysis of 
the deleterious effects of expanding the scope of employees eligible 
for FHCs best reflects the potential magnitude of those effects. Even 
if the Department puts aside its disagreement with NSSF's current 
employee statistics, NSSF did not account for the full impact of FHCs 
on both current and prospective employees. The Department continues to 
believe that the term ``current or prospective employee'' in BSCA is 
limited to those whose employment actually presents, or would present, 
at least some risk of accessing firearms, ammunition, or their 
manufacturing components. See 89 FR 100428.
---------------------------------------------------------------------------

    \30\ The Department quoted employment numbers from the public 
website of just one of those big box stores that are licensed to 
deal in firearms, and that one corporation claims to employ more 
than 1.5 million people in the United States alone and more than 2 
million worldwide. See 89 FR 100428 (citing Walmart, How many people 
work at Walmart, <a href="https://corporate.walmart.com/askwalmart/how-many-people-work-at-walmart">https://corporate.walmart.com/askwalmart/how-many-people-work-at-walmart</a>). In drafting this regulation, that same 
website was rechecked and still reports employing ``approximately 
1.6 million associates'' in the United States as of the end of their 
FY2024 (last accessed Aug. 10, 2026).
    \31\ Further, the Department's estimate did not attempt to 
factor in the employees of the remaining FFLs, which would still be 
tens-of-thousands of licensed dealers (including both smaller retail 
chains and ``mom and pop'' dealers) in addition to all licensed 
manufacturers and importers.
---------------------------------------------------------------------------

    After publishing the NPRM and, to some extent, acknowledging NSSF's 
point regarding the proposed definition for ``eligible employee,'' the 
Department identified further situations where licensees may have 
working relationships with other individuals who would not ordinarily 
be classified as employees but could have access to the FFL's inventory 
of firearms, ammunition, or manufacturing components. Industry experts 
believe many de facto FFL employees may be misclassified by the FFL as 
contractors for tax-related purposes. Those people should still be 
included within the scope of this rule's background checks at the FFL's 
choice if they provide their written consent as required by BSCA. As 
previously discussed in this Section of this rule, the Supreme Court in 
Robinson analyzed another Federal agency's regulatory definition of 
``employee'' and noted that the statute itself, the context in which 
the word ``employee'' appeared, and the ``primary purpose'' of the law 
at issue must all be considered when reviewing the agency's actions. 
519 U.S. at 340-46. The Department recognizes that the primary purpose 
of this section of BSCA is to generally prevent prohibited persons that 
work for an FFL from accessing firearms, regardless of whether the FFL 
has formally classified that individual as an employee. Thus, the term 
employee should be read in context of this purpose and should include 
individuals who work at the FFL (e.g., contractors) and would have 
access to firearms. Accordingly, this final rule amends the definition 
of eligible employee to allow licensees to submit FHCs of consenting 
independent contractors and agents who work, or seek to work, at a 
licensee's business premises and are, or will be, capable of accessing 
firearms, ammunition, or their manufacturing components. Other than 
that modification, the application of FHCs to ``eligible employees'' 
will otherwise be finalized as the NPRM proposed.

V. Final Rule

    A. Summary
    B. Changes to NPRM Proposals

A. Summary

    With a few exceptions, the NPRM will be finalized as it was 
proposed because the majority of comments received either supported the 
rule, expressed no opposition to the rule, or provided critiques which 
do not merit revision or recission of the NPRM. The paragraphs below in 
this Section describe the final rule.

B. Changes to NPRM Proposals

1. Application Form
    The NPRM discussed a new form for FFLs to use to collect all 
necessary information from the eligible employee before submitting an 
FHC. See 89 FR 100432 (discussing ATF's proposed Form 5300.47). The 
NPRM also noted, however, that FFLs would not be required to use that 
form. Id. Since publication of the NPRM, ATF has determined that it 
will no longer move forward with ATF Form 5300.47. Instead, ATF has 
issued an NPRM proposing to use Form 4473 to document information 
necessary for FHC background checks and the employee's written 
consent.\32\ In addition, ATF has made available for review and public 
comment a revised version of ATF Form 4473 (``Revised Form 4473'').\33\ 
Those proposed rules and form revisions from ATF include, among others, 
a box to distinguish Forms 4473 used for FHCs, instructions on which 
parts of the Form to use, the written consent/certification for 
employees, and a proposed 90-day required records retention period 
(significantly shorter than for other Forms 4473). In the interim, 
should this regulation become effective prior to the Revised ATF Form 
4473 being finalized, ATF will issue guidance to FFLs on how they can 
utilize the existing ATF Form 4473 to submit FHCs to NICS without the 
FHC forms being confused with firearms transfer forms. Again, however, 
FFLs are not required to use a particular form to capture the eligible 
employees' biographic information, but BSCA and this regulation require 
that FFLs obtain their eligible employees' informed, written consent 
before submitting FHCs

[[Page 67469]]

of those persons to NICS. A corresponding amendment is being made to 
the last sentence of 28 CFR 25.6(i)(2) to revise the term ``applicable 
FHC form'' to read ``appropriate form'' to mirror existing language of 
Sec.  25.6(i).
---------------------------------------------------------------------------

    \32\ See footnote 21.
    \33\ See footnote 22.
---------------------------------------------------------------------------

2. Definitions in Sec.  25.2
a. ``Did Not Pass''
    Federal firearm laws 18 U.S.C. 922(g) and (n), for example, apply 
to shipping, transporting, receiving, or possessing firearms and 
ammunition. Because this rule will allow FHCs of eligible employees 
that may handle only ammunition, this definition is being updated to 
also remind readers that criminal liability can result if a prohibited 
person handles ammunition just the same as can occur if that person 
handles a firearm.
b. ``Eligible Employee''
    Upon final review, the Department noted that the NPRM should have 
proposed paragraph (2) of this definition to reference ``(1)(ii)(B)'' 
rather than ``(1)(B)(ii).'' This rule finalizes paragraph (2) of this 
definition to correctly reference ``(1)(ii)(B)[.]''
    Additionally, to reflect the discussion in Section IV of this 
preamble responding to NSSF comments, this final rule further amends 
the ``eligible employee'' definition by inserting a new subparagraph 
(1)(iii), immediately preceding paragraph (2), to read as follows:
    (iii) An independent contractor or agent who works, or seeks to 
work, at a licensee's business premises and is, or will be, capable of 
accessing firearms, ammunition, or their manufacturing components.
c. ``FFL (Federal Firearms Licensee)''
    The NPRM proposed revising the definition of ``FFL (federal 
firearms licensee).'' See 89 FR 100435. However, as NSSF noted, that 
proposed revision was not necessary as the existing definition covered 
the same licensees. Accordingly, this rule will not finalize that 
proposed revision within 28 CFR 25.2.
d. ``NICS Section''
    The NPRM's instructions for 28 CFR 25.2 stated that it was 
revising, among other terms, the definition of ``NICS Section.'' The 
NPRM, however, should have instead noted it was ``adding'' that term to 
the definitions in 28 CFR 25.2. This rule instead notes that Sec.  25.2 
is being amended by ``adding'' a new definition for ``NICS Section.''
3. Modifications to 28 CFR 25.6
    To more closely follow language of 18 U.S.C. 922(d), a technical 
revision will be made to the language the NPRM proposed for 28 CFR 
25.6(c)(4). The NPRM proposed that an additional FHC could be submitted 
of someone ``where the FFL believes it has received sufficient 
information demonstrating'' that a person was subject to a potentially 
prohibiting event. As finalized, the relevant language will authorize 
subsequent FHCs ``where an FFL has reasonable cause to believe'' the 
person is subject to a potentially prohibiting event.
    Next, a minor drafting error was located within Sec.  25.6(h)(2). 
When discussing transmission of NICS determination messages, the NPRM 
proposed paragraph (h)(2) referenced ``paragraphs (h)(i) and (h)(ii) of 
this section.'' While the citation should have been to ``paragraphs 
(h)(1)(i) and (h)(1)(ii),'' to further simplify that provision, 
paragraph (h)(2) is being finalized to simply reference ``paragraph 
(h)(1) of this section.''
    The NPRM proposed that Sec.  25.6(i)(1) be updated to reference 27 
CFR part 478, rather than part 178. See 89 FR 100437. Upon its 
implementation, this rule finalizes further technical revisions to 
Sec.  25.6(i)(1) to clarify that FFLs must record system responses ``in 
accordance with the recordkeeping requirements in 27 CFR part 478.'' 
Currently, the recordkeeping requirements in part 478 are detailed in 
subpart H titled ``Records.''
    Finally, a pair of drafting errors were found in the last two 
sentences of Sec.  25.6(h)(2). In the NPRM, those two provisions should 
not have solely referenced ``firearm transfer checks.'' The NPRM should 
have included language broad enough to reflect that, in accordance with 
Sec.  25.9(b), the NICS Audit Log would maintain and destroy POC 
determination messages for both firearm transfer checks and, when 
applicable, FHCs. Accordingly, to better reflect FHC information in the 
NICS Audit Log, the last two sentences of Sec.  25.6(h)(2) are being 
finalized to remove references to ``firearm transfer checks.''
4. Modifications to 28 CFR 25.10
    While finalizing this rule, the Department noted that some 
revisions proposed to 28 CFR 25.10 were needed. A minor technical 
revision is being made at the end of Sec.  25.10(a). That paragraph 
reads, in relevant part, ``as applicable. (POCs at their discretion may 
waive the requirement for a written request.).'' That language will be 
finalized instead to remove unnecessary punctuation and read, ``as 
applicable (POCs at their discretion may waive the requirement for a 
written request).'' Next, a drafting error inadvertently deleted ``a'' 
near the end of the second sentence of Sec.  25.10(c). As finalized, 
that provision will reference, in relevant part, ``information upon 
which a `Denied' or `Did Not Pass' response was based.'' Next, 
revisions proposed within Sec.  25.10(e) (see 89 FR 100438-100439) 
could be reasonably misconstrued. There, the Department proposed Sec.  
25.10(e) to read, in relevant part: ``In the case of a prospective 
firearm transfer, . . . and there are no other disqualifying or 
potentially disqualifying records upon which to continue the denial, 
the NICS will communicate a `Proceed' response to the FFL. . . . In the 
case of an FHC, . . . and there are no other disqualifying or 
potentially disqualifying records upon which to continue the `Did Not 
Pass' status, the NICS will communicate a `Pass' response to the FFL.''
    The spirit of these revisions is still accurate in that, after a 
successful appeal, NICS can only provide an FFL with an updated 
response of ``Proceed'' or ``Pass,'' as applicable, when no 
``disqualifying or potentially disqualifying records'' remain within 
the subject's background. However, as written, those revisions could 
have been read to suggest the FBI would maintain a ``Denied'' or ``Did 
Not Pass'' response if a ``potentially disqualifying'' record still 
needed to be resolved after a ``disqualifying'' record was cleared. To 
be clear: the FBI only provides and maintains ``Denied'' responses and 
will only provide and maintain ``Did Not Pass'' responses when 
information demonstrates the subject is in fact disqualified; those 
responses are not applicable if the subject is ``potentially'' 
disqualified.
    Accordingly, this final rule provides a slight modification to 28 
CFR 25.10(e), which will keep the intent of the original proposal, 
while eliminating the language that could be misinterpreted. Within the 
relevant passage, this rule eliminates the language ``upon which to 
continue the denial'' and ``upon which to continue the Did Not 
Pass[.]'' For FHCs, where a disqualifying record is cleared, but a 
potentially disqualifying record needs further research, the response 
to the FFL will change from ``Did Not Pass'' to ``Pending'' (the same 
way a prospective firearm transfer response would change from 
``Denied'' to ``Delayed'' (i.e., ``Open'').

[[Page 67470]]

5. Modifications to Sec.  25.11(b)
    In finalizing this rule, it was noted that Sec.  25.11(b)(1) 
utilizes the possessive-plural words of ``agencies,' '' ``FFLs,' '' and 
``individuals.' '' In context, those words should not include the 
possessive apostrophes. This final rule makes technical amendments to 
that provision by removing those apostrophes, as well as identical 
apostrophes used in Sec.  25.11(b)(2). Those deletions will not impact 
the substantive aspects of this rule.

C. Finalized Revisions

    Beyond the limited exceptions described above, the Department is 
finalizing all other regulation amendments that the NPRM proposed. This 
includes, but is not limited to, all other new and modified 
definitions, how FHCs will be processed, FFL obligations, and 
provisions related to appeals.

VI. Statutory and Executive Order Reviews

A. Regulatory Flexibility Act

    This regulation amends the Department's NICS regulations to 
incorporate changes applicable to FHCs as required by BSCA. These 
changes provide FFLs the ability to use NICS to voluntarily request 
background checks for eligible employees. 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. A final regulatory flexibility 
analysis (``FRFA'') 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).
    ``[T]he term `small entity' shall have the same meaning as the 
terms `small business', `small organization' and `small governmental 
jurisdiction' defined in paragraphs (3), (4) and (5) of this 
section[.]'' 5 U.S.C. 601(6). Therefore, 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. See 5 U.S.C. 601(3)-(6). The Department still anticipates that 
a majority of the licensees that will request FHCs under this rule 
would be considered small entities for purposes of the RFA.
    The FBI still anticipates that this rule will have no impact, 
economic or otherwise, on any licensee, including small entity 
licensees, unless the licensee voluntarily chooses to request FHCs 
through NICS. The FBI still concludes that this rule does not require 
any governmental unit, small entity or otherwise, to take any specific 
action upon being contacted by NICS for the purpose of an FHC. There 
are no maintenance or compliance costs and POCs are not required to 
conduct FHCs on behalf of the FBI. Again, neither the FBI, nor this 
rule, imposes any fee upon any licensee when using NICS to submit FHCs. 
See 34 U.S.C. 40901(b)(2).
    The public comments received did not provide a basis to alter the 
FBI's certification in the NPRM that this rule would not have a 
significant economic impact on a substantial number of small entities. 
Further, the NPRM is generally being finalized as it was proposed with 
no changes that would impact the small entity certification. 
Accordingly, the Attorney General certifies that this final rule will 
not have a significant impact on a substantial number of small entities 
and, as a result, a FRFA is not necessary for this regulation.

B. Executive Orders 12866 (Regulatory Planning and Review) and 13563 
(Improving Regulation and Regulatory Review)

    This regulation was drafted and reviewed in accordance with 
Executive Order 12866, section 1(b), The Principles of Regulation and 
Executive Order 13563, section 1(b), General Principles of Regulation. 
Both 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. Executive Order 13563 emphasizes the importance of using 
the best available methods to quantify both costs and benefits, and of 
reducing costs, harmonizing rules, and promoting flexibility.
    Alternatives Considered. Promulgating this rule was required by 
BSCA, see 34 U.S.C. 40901(b)(2), so not putting forth this rule was 
quickly discarded as an option. The FBI considered the impacts of 
broader definitions and processes that would allow FHCs to be used as 
widely and as often as possible. See 89 FR 100428-100432. However, it 
was determined that FHCs being used in an overly broad manner (either 
in population or frequency) could negatively impact NICS as well as 
persons whose employment responsibilities afford them access to 
firearms, ammunition, or their manufacturing components. See id.
    Therefore, to meet the clear intent of 34 U.S.C. 40901(b)(2) to 
promulgate this rulemaking, while mitigating unnecessary negative 
consequences to the FBI and the public, the FBI determined that FHCs 
would be available regarding ``eligible employees'' and, generally, 
could be run one time per year for each eligible employee. 89 FR 
100429-100430. Reasons for scoping the pool of eligible employees were 
discussed in Section V of this rule, as well as within the NPRM. See 
id. As to conducting FHCs once per year, the FBI could have proposed 
authorizing FHCs of each eligible employee once every five years. Such 
a time limit would mirror time limits used within 18 U.S.C. 
922(t)(3).\34\ The FBI could have also proposed mirroring ATF's FFL 
licensing timeframes by proposing FHCs be allowed only once every three 
years. See 27 CFR 478.49. These procedures effectively allow a NICS 
background check to be considered valid for multiple years before 
needing to be refreshed. However, the FBI instead proposed FHCs could 
be submitted more frequently, while also giving each FFL flexibility to 
submit an FHC sooner should circumstances merit an additional FHC of 
the subject. Id. at 100431-100432. This rule, upon implementation, will 
keep those same considerations in mind.
---------------------------------------------------------------------------

    \34\ Section 922(t)(3) establishes when firearms-related permits 
or licenses can be used by FFLs in-lieu of the FFL conducting a 
Brady Check. Those provisions state, in relevant part, that such 
license or permit qualifies if ``issued not more than 5 years 
earlier.'' 18 U.S.C. 922(t)(3)(A)(i)(II). FFLs retain the discretion 
to submit a Brady Check even when being presented with a qualifying 
in-lieu of permit.
---------------------------------------------------------------------------

    The Office of Management and Budget (``OMB'') has determined that 
this rule is a ``significant regulatory action'' under Executive Order 
12866, section 3(f), as amended, and accordingly this rule has been 
reviewed by OMB.
    The Department has, to the extent possible, assessed the costs and 
benefits of this regulation and believes that the final regulatory 
approach selected maximizes net benefits. The public comments either 
support the NPRM's proposals or did not provide a basis to alter the 
affected populations, benefits, or costs analyses that the NPRM offered 
for purposes of these Executive Orders. As such, the discussion 
provided in the NPRM about these Executive Orders remains unchanged and 
a final economic impact analysis cannot be provided. In any event, due 
to FHCs

[[Page 67471]]

being a completely voluntary process by those participating, this 
regulation is not expected to have an annual impact of over $100 
million dollars.

C. Executive Order 13132 (Federalism)

    This regulation may impact federalism to the extent that State 
entities respond to NICS inquiries during research of ``Pending'' 
transactions. Any such effects, however, will be only an indirect 
result of this rule because State entities may freely choose whether to 
respond to such NICS inquiries. In addition, such effects will not be 
substantial, nor will such effects 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.

D. Executive Order 12988 (Civil Justice Reform)

    This regulation meets the applicable plain language standards set 
forth in sections 3(a) and 3(b)(2) of Executive Order 12988.

E. Unfunded Mandates Reform Act of 1995

    This regulation will not result in the expenditure by State, local, 
or Tribal governments, in the aggregate, or by the private sector, of 
$100 million or more (adjusted for inflation) in any one year, and it 
will not significantly or uniquely affect small governments. Therefore, 
no actions are 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.

F. Paperwork Reduction Act

    This regulation does not impose any new reporting or recordkeeping 
requirements under the Paperwork Reduction Act of 1995, Public Law 104-
13, 109 Stat. 163. See 44 U.S.C. 3501-3521.

G. Executive Order 13175--Tribal Consultation (Consultation and 
Coordination With Indian Tribal Governments)

    The Department determined that formal Tribal consultation under 
Executive Order 13175 was not required. The NPRM was provided as part 
of a public collaboration that includes Tribes. The NPRM received no 
public comments from Tribes and no comments expressed concerns from a 
tribal perspective. This regulation implements Congress's mandate of 
the Attorney General to promulgate regulations that allow licensees 
under 18 U.S.C. 923 to use NICS for purposes of FHCs as described in 
this regulation. Implementation of these regulations will not have any 
substantial direct effects on federally recognized Tribes.

H. Executive Order 14192--Deregulation

    Executive Order 14192, titled ``Unleashing Prosperity Through 
Deregulation,'' was issued on January 31, 2025. Section 3(a) of 
Executive Order 14192 requires an Agency, unless prohibited by law, to 
identify at least ten existing regulations to be repealed when the 
Agency publicly proposes for notice and comment or otherwise 
promulgates a new regulation. In furtherance of this requirement, 
section 3(c) of Executive Order 14192 requires that the new incremental 
costs associated with new regulations shall, to the extent permitted by 
law, be offset by the elimination of existing costs associated with at 
least ten prior regulations. This rule is intended to be a deregulatory 
action under Executive Order 14192 by allowing FFLs to be allowed to 
access NICS for another purpose in accordance with 34 U.S.C. 
40901(b)(2).

I. Congressional Review Act

    Pursuant to the Congressional Review Act, 5 U.S.C. 801 et seq., 
OMB's Office of Information and Regulatory Affairs has determined this 
rule does not meet the criteria in 5 U.S.C. 804(2). This rule will not 
result in an annual effect on the economy of $100 million or more; a 
major increase in costs or prices; or significant adverse effects on 
competition, employment, investment, productivity, innovation, or on 
the ability of United States-based enterprises to compete with foreign-
based enterprises in domestic and export markets. While there may be 
impacts to FFLs, governmental agencies, or the general public (e.g., 
through employment background checks), these impacts are all 
voluntarily assumed by those participating in FHCs or responding to FHC 
inquiries, as applicable, and this regulation will not have a 
significant impact on the overall economy.

J. Executive Order 14294

    Executive Order 14294, titled ``Overcriminalization in Federal 
Regulations,'' requires agencies promulgating regulations with criminal 
regulatory offenses potentially subject to criminal enforcement to 
explicitly describe the conduct subject to criminal enforcement, the 
authorizing statutes, and the mens rea standard applicable to each 
element of those offenses. This rule does not create or impose a 
criminal regulatory offense and is thus exempt from Executive Order 
14924 requirements.

VII. Disclosure

    Copies of the final rule, proposed rule, and comments received in 
response to the proposed rule will be available for public inspection 
through the Federal eRulemaking portal, <a href="https://regulations.gov">https://regulations.gov</a>.

VIII. Severability

    BSCA addresses critical but distinct components of the NICS 
background check process. The Department believes that the provisions 
in this final rule are well-supported in law, reflect sound policy, and 
should be upheld against any legal challenge. However, if any portion 
of this final rule should be declared invalid or unenforceable by a 
court, the Department intends that the provisions contained herein be 
viewed as independent, necessary, and severable from each other to the 
maximum extent possible. As described previously, BSCA mandated that 
the Attorney General ``promulgate regulations allowing licensees to use 
[NICS] for purposes of voluntarily conducting an employment background 
check relating to a current or prospective employee.'' 34 U.S.C. 
40901(b)(2)(A). Each of the policy and operational considerations 
described in this final rule is independently significant to the 
functioning of this rule. If a court were to invalidate one or more of 
the provisions of the final rule, the Department intends that the 
remaining provisions of the rule be severed from any invalidated 
provision and that all remaining provisions stand.
    To obviate any doubt as to the Department's intent, even if a 
provision (contrary to the Department's views regarding legal support) 
were deemed invalid, the Department would still have proposed each of 
the other provisions that this rule finalizes. Cf. Am. Fuel & 
Petrochemical Mfrs. v. EPA, 3 F.4th 373, 384 (D.C. Cir. 2021) (severing 
one section of a rule that the court found invalid where the agency had 
stated that it intended that relevant section to be ``severable from'' 
another section that ``operate[d] independently''). Each amendment in 
this final rule stands on its own with no reliance on another 
amendment. Each amendment is necessary, for example, to provide for the 
implementation of FHCs or to

[[Page 67472]]

account for the potential application of existing regulations (such as 
appellate procedures and penalty provisions) to FHCs. Consequently, 
this final rule amends 28 CFR 25.1 to include a general statement about 
the severability of the provisions within 28 CFR, part 25, subpart A.

List of Subjects in 28 CFR Part 25

    Administrative practice and procedure, Arms and munitions, Computer 
technology, Privacy, Security measures, Telecommunications.

Authority and Issuance

    For the reasons discussed in the preamble, 28 CFR part 25 is 
amended as follows:

PART 25--DEPARTMENT OF JUSTICE INFORMATION SYSTEMS

0
1. The authority citation for 28 CFR 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 117-159, 136 Stat. 1313; 34 
U.S.C. 40901; 18 U.S.C. 921, 922.

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 subsection (t) of 18 
U.S.C. 922. The NICS may also be contacted, pursuant to the Bipartisan 
Safer Communities Act, Public Law 117-159, 136 Stat. 1313, by any 
Federal Firearms Licensee (FFL) for purposes of a firearm handler 
background check (FHC). The regulations in this subpart are issued 
pursuant to section 103(h) of the Brady Act, 107 Stat. 1542 (18 U.S.C. 
922 note) and section 12004(h)(1) of the Bipartisan Safer Communities 
Act, 136 Stat. 1330-31 (34 U.S.C. 40901(b)(2)(A)), and include 
requirements to ensure the privacy and security of the NICS and appeals 
procedures for persons who have been determined not to have the right 
to receive a firearm as a result of a NICS background check, including 
an FHC, performed by the Federal Bureau of Investigation (FBI) or a 
state or local law enforcement agency. The provisions of this subpart 
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 ``Appeal'' and ``ARI'';
0
b. Adding definitions of ``Did Not Pass,'' ``Eligible Employee,'' 
``Firearm Handler,'' ``Firearm Handler Background Check (FHC)'' in 
alphabetical order;
0
c. Revising the definition of ``NICS,'' ``NICS Representative,'' ``NRI 
(NICS Record Identifier)'';
0
d. Adding definitions of ``NICS Section,'' ``Pass,'' and ``Pending'' in 
alphabetical order;
0
e. Revising the definition of ``POC (Point of Contact)''; and
0
f. Adding definitions of ``Responding Agency'' and ``Responsible 
person'' in alphabetical order.
    The revisions and additions read as follows:


Sec.  25.2  Definitions

    Appeal means a formal procedure to challenge the denial of a 
firearm transfer or a ``Did Not Pass'' response for an FHC.
    ARI means a unique Agency Record Identifier assigned by the agency 
submitting records for inclusion in the NICS Indices.
* * * * *
    Did Not Pass means the response given by the NICS, in the case of 
an FHC, to indicate that at least one matching record was found that 
demonstrates the eligible employee is prohibited from receiving or 
being transferred a firearm as described in 18 U.S.C. 922(t). The 
receipt of a ``Did Not Pass'' response should not be construed to 
indicate the person is not eligible for any employment with the FFL, 
but rather is solely a determination, based on information available to 
the NICS, that the person is not eligible to receive or be transferred 
firearms under 18 U.S.C. 922(t). Circumstances in which that person 
handles a firearm or ammunition during the person's employment could 
lead to criminal liability for the person (and potentially the FFL) 
under applicable Federal, State, local or Tribal law.
* * * * *
    Eligible Employee:
    (1) For purposes of conducting FHCs, eligible employee means a 
person who is not listed as a responsible person of the FFL and is a:
    (i) Firearm handler;
    (ii) Person whose current or prospective employment duties for a 
licensed manufacturer include, or will include, access to, or the 
handling of; any
    (A) Forging, casting, printing, extrusion, unmachined body, or 
similar article that has not yet reached a stage of manufacture where 
it is clearly identifiable as an unfinished component part of a firearm 
or ammunition (e.g., unformed block of metal, liquid polymer, or other 
raw material); or
    (B) Tool or other equipment used to manufacture a firearm or 
ammunition, or to otherwise finish a component part of a firearm or 
ammunition; or
    (iii) An independent contractor or agent who works, or seeks to 
work, at a licensee's business premises and is, or will be, capable of 
accessing firearms, ammunition, or their manufacturing components.
    (2) Persons who have or will have access to tools or other 
equipment as described in paragraph (1)(ii)(B) of this definition 
include, but are not limited to, persons whose employment duties allow 
them entry to any device, room, or facility where such tools or other 
equipment of the manufacturer are used or stored.
* * * * *
    Firearm handler means a person whose current or prospective 
employment duties for an FFL include or will include the opportunity to 
access firearms or ammunition, regardless of whether the person's 
employment duties include or will include the actual or constructive 
transfer or handling in any way of firearms or ammunition. Persons who 
have or will have access to firearms or ammunition include, but are not 
limited to, persons whose employment duties allow them entry to any 
device, room, or facility where firearms or ammunition of the licensee 
are stored.
    Firearm Handler Background Check (FHC) means a NICS background 
check voluntarily initiated by the FFL pursuant to 34 U.S.C. 40901(b) 
for an eligible employee after that eligible employee has provided the 
FFL with the employee's written consent to the FHC.
* * * * *
    NICS means the National Instant Criminal Background Check System, 
which an FFL must, with limited exceptions, contact for information on 
whether receipt of a firearm by a person who is not licensed under 18 
U.S.C. 923 would be prohibited as described under 18 U.S.C. 922(t). An 
FFL also may

[[Page 67473]]

voluntarily contact the NICS for the purpose of conducting FHCs.
* * * * *
    NICS Representative means a person who receives telephone inquiries 
to the NICS Section from FFLs requesting background checks and provides 
a response as to whether the receipt or transfer of a firearm may 
proceed or is delayed or, for FHCs, whether an eligible employee 
``Passed'' or ``Did Not Pass'' a NICS background check or whether the 
FHC is ``Pending.''
    NICS Section means the section of the FBI that receives telephone 
or electronic inquiries from FFLs, performs NICS background checks, 
including FHCs, makes determinations based upon available information 
as to whether the receipt or transfer of a firearm would be prohibited 
as described under 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.
    NRI (NICS Record Identifier) means the system-generated unique 
number associated with each record in the NICS Indices.
* * * * *
    Pass means, in the case of an FHC, the response given by the NICS 
to indicate that, at the time of the response, no information was 
available to the NICS demonstrating that the eligible employee is 
prohibited from receiving or being transferred a firearm as described 
under 18 U.S.C. 922(t).
    Pending means, in the case of an FHC, the response given by the 
NICS to indicate that more research is required prior to the NICS being 
able to provide a ``Pass'' or ``Did Not Pass'' response.
    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 for prospective firearm transfers, check state or 
local record systems, perform NICS inquiries, determine whether 
matching records provide information demonstrating that an individual 
is disqualified from receiving or being transferred a firearm as 
described under 18 U.S.C. 922(t), and respond to FFLs with the results 
of a NICS background check. A POC may also, if its state law allows, 
receive FHC requests from FFLs, check state or local record systems, 
perform NICS inquiries, determine whether matching records provide 
information demonstrating that an eligible employee is disqualified 
from receiving or being transferred a firearm as described under 18 
U.S.C. 922(t), and respond to FFLs with the results of an FHC. A POC 
will be an agency with express or implied authority to perform POC 
duties pursuant to state statute, regulation, or executive order.
* * * * *
    Responding agency means, in the case of an FHC, a POC or the NICS 
Section, whichever provides the response that information available to 
the NICS demonstrates that the eligible employee is prohibited from 
receiving or being transferred a firearm as described under 18 U.S.C. 
922(t).
    Responsible person means a sole proprietor or, in the case of a 
corporation, partnership, or association, any individual possessing, 
directly or indirectly, the power to direct or cause the direction of 
the management, policies, and practices of the corporation, 
partnership, or association, insofar as they pertain to any FFL.
* * * * *

0
4. Revise Sec.  25.4 to read as follows:


Sec.  25.4  Record source categories.

    It is anticipated that most records in the NICS Indices will be 
obtained from Federal agencies. It is also anticipated that a limited 
number of authorized state, local, and tribal law enforcement agencies 
will voluntarily contribute records to the NICS Indices. Information in 
the NCIC and III systems that will be searched during a background 
check has been or will be contributed voluntarily by Federal, state, 
local, tribal, and international criminal justice agencies.

0
5. Revise Sec.  25.5 to read as follows:


Sec.  25.5  Validation and data integrity of records in the system.

    (a) The FBI will be responsible for maintaining data integrity 
during all NICS operations that are managed and carried out by the FBI. 
This responsibility includes:
    (1) Ensuring the accurate adding, canceling, or modifying of NICS 
Indices records supplied by Federal agencies;
    (2) Automatically rejecting any attempted entry of records into the 
NICS Indices that contain detectable invalid data elements;
    (3) Automatically purging records in the NICS Indices after they 
have been on file for a prescribed period of time; and
    (4) Performing quality control checks in the form of periodic 
internal audits by FBI personnel to verify that the information 
provided to the NICS Indices remains valid and correct.
    (b) Each data source will be responsible for ensuring the accuracy 
and validity of the data it provides to the NICS Indices and will 
immediately correct any record determined to be invalid or incorrect.

0
6. Amend Sec.  25.6 by:
0
a. Revising paragraphs (a), (c)(1) introductory text, (c)(2);
0
b. Adding paragraphs (c)(3) and (4);
0
c. Revising paragraphs (d)(2), (f) introductory text, (f)(2), and 
(g)(2);
0
d. Adding paragraph (g)(3); and
0
e. Revising paragraphs (h), (i), and (j) introductory text.
    The revisions and additions read as follows:


Sec.  25.6  Accessing records in the system.

    (a) FFLs shall initiate a NICS background check in connection with 
a proposed firearm transfer as required by the Brady Act and may 
initiate a NICS background check in connection with an FHC. FFLs are 
strictly prohibited from initiating a NICS background check for any 
other purpose. The process of accessing the NICS for the purpose of 
conducting a NICS background check is initiated by an FFL's contacting 
the FBI NICS Section (by telephone or electronic dial-up access) or a 
POC. FFLs in each state will be advised by ATF whether they are 
required to initiate NICS background checks with the NICS Section or a 
POC and how they are to do so.
* * * * *
    (c)(1) The FBI NICS Section, upon receiving an FFL's request for a 
background check for the transfer of a firearm, will:
* * * * *
    (2) The FBI NICS Section, upon receiving an FFL telephone or 
electronic dial-up request for a background check for an FHC, will:
    (i) Verify the FFL Number and code word;
    (ii) Assign a NICS Transaction Number (NTN) to a valid inquiry and 
provide the NTN to the FFL;
    (iii) Search the relevant databases (i.e., NICS Indices, NCIC, III) 
for any matching records; and
    (iv) Provide the following NICS responses based upon the 
consolidated NICS search results to the FFL that requested the 
background check:
    (A) ``Pass'' response, if no disqualifying information is found 
demonstrating the eligible employee is prohibited from receiving or 
being transferred a firearm as described under 18 U.S.C. 922(t).
    (B) ``Pending'' response, if a NICS search requires more research 
to determine whether the eligible employee is prohibited from receiving 
or being transferred a firearm as described under 18 U.S.C. 922(t).
    (C) ``Did Not Pass'' response, when at least one matching record is 
found that

[[Page 67474]]

provides information demonstrating that the eligible employee is 
prohibited from receiving or being transferred a firearm as described 
under 18 U.S.C. 922(t).
    (3) None of the responses provided to the FFL under paragraph 
(c)(1) or (2) of this section will contain any of the underlying 
information in the records checked by the system.
    (4) Except where an FFL has reasonable cause to believe the 
eligible employee has become subject to a potentially prohibiting event 
(for example, a new criminal charge or conviction or a protection 
order), an FFL may conduct only one FHC for each eligible employee 
every 12 months.
    (d) * * *
    (2) Enter a purpose code indicating that the query of the system is 
for the purpose of performing a NICS background check in connection 
with the transfer of a firearm or an FHC; and
* * * * *
    (f) When the NICS receives an inquiry from a POC, it will search 
the relevant databases (i.e., NICS Indices, NCIC, III) for any matching 
record(s) and will provide an electronic response to the POC. This 
response will consolidate the search results of the relevant databases 
and will include the NTN. The following types of responses may be 
provided by the NICS to a state or local agency conducting a background 
check:
* * * * *
    (2) Partial response, if the NICS has not completed the search of 
all of its records. This response will indicate the databases (i.e., 
NICS Indices, NCIC, and III) that have been searched and the databases 
that have not been searched. It will also provide any potentially 
disqualifying information found in any of the databases searched. A 
follow-up response will be sent as soon as all the relevant databases 
have been searched. The follow-up response will provide the complete 
search results.
* * * * *
    (g) * * *
    (2) In the case of a prospective firearm transfer, notify the FFL 
that the transfer may ``Proceed,'' is ``Delayed'' pending further 
record analysis, or is ``Denied.'' ``Proceed'' notifications made 
within 3 business days 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.
    (3) In the case of an FHC, notify the FFL of a ``Pass'' or ``Did 
Not Pass'' result for the FHC, or that the FHC is ``Pending.'' The POC 
may or may not provide a transaction number (NTN or STN) when notifying 
the FFL of a ``Did Not Pass'' result.
    (h)(1) POCs shall transmit electronic NICS transaction 
determination messages to the FBI for the following transactions:
    (i) In the case of a prospective firearm transfer, ``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''; and ``Denied'' transactions that have been 
overturned.
    (ii) In the case of FHCs, transactions resulting in a ``Pass'' or 
``Did Not Pass'' response; and transactions that have been overturned.
    (2) The FBI shall provide POCs with an electronic capability to 
transmit the information identified in paragraph (h)(1) of this 
section. These electronic messages shall be provided to the NICS 
immediately upon communicating the POC determination to the FFL. For 
firearm transfer checks 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 FHCs, newly created POC NICS firearm 
transfer checks 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)(1) In the case of a background check for the transfer of a 
firearm, 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, in accordance with the recordkeeping 
requirements in 27 CFR part 478. The FBI NICS Section response will 
always include an NTN and associated ``Proceed,'' ``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.
    (2) In the case of a background check for an FHC, FFLs may record 
the system response, whether provided by the FBI NICS Section or a POC, 
on the appropriate form for FHC checks. The FBI NICS Section response 
will always include an NTN and associated response of ``Pass,'' 
``Pending,'' or ``Did Not Pass.'' POC responses may vary as discussed 
in paragraph (g) of this section. In these instances, FFLs may be 
required to record the POC response, including any transaction number 
or determination. FFLs should follow the instructions on the 
appropriate form when recording responses.
    (j) Access to the NICS Indices for purposes unrelated to NICS 
background checks required by the Brady Act or an FHC. Access to the 
NICS Indices for purposes unrelated to NICS background checks pursuant 
to 18 U.S.C. 922(t) or an FHC shall be limited to uses for the purposes 
of:
* * * * *

0
7. Amend Sec.  25.8 by:
0
a. Revising paragraphs (a), (f)(2), and (g)(1);
0
b. Redesignating paragraph (g)(2) as paragraph (g)(2)(i); and
0
c. Adding paragraph (g)(2)(ii).
    The addition and revisions read as follows:


Sec.  25.8  System safeguards.

    (a) Information maintained in the NICS Indices is stored 
electronically for use in an FBI computer environment. The NICS central 
computer will reside inside a locked room within a secure facility. 
Access to the facility will be restricted to authorized personnel who 
have identified themselves and their need for access to a system 
security officer.
* * * * *
    (f) * * *
    (2) FFLs will provide the NICS Representative with their FFL Number 
and code word, the type of sale or whether the background check is an 
FHC, and the name, sex, race, date of birth, and state of residence of 
the prospective buyer or eligible employee.
* * * * *
    (g) * * *
    (1) Access will be restricted to the initiation of a NICS 
background check in connection with the proposed transfer of a firearm 
or an FHC.
    (2) * * *
    (ii) The NICS Representative will only provide a response of 
``Pass,'' ``Pending,'' or ``Did Not Pass'' (with regard to an FHC) and 
will not provide the details of any record information about the 
subject of the FHC. In cases where potentially disqualifying 
information is found in response to an FFL query, the NICS 
Representative will provide a ``Pending'' response to the FFL. Follow-
up ``Pass'' or ``Did Not Pass'' responses will be provided by the

[[Page 67475]]

NICS Section during its regular business hours.
* * * * *

0
8. Revise Sec.  25.9 to read as follows:


Sec.  25.9  Retention and destruction of records in the system.

    (a) The NICS will retain NICS Indices records that indicate that 
receipt of a firearm by the individuals to whom the records pertain 
would be prohibited as described under 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 firearm 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) The FBI will maintain an automated NICS Audit Log of all 
incoming and outgoing transactions that pass through the system.
    (1) Contents. The NICS Audit Log will record the following 
information: Type of transaction (inquiry or response), line number, 
time, date of inquiry, header, message key, ORI or FFL identifier, and 
inquiry/response data (including the name and other identifying 
information about the prospective transferee or, with respect to FHCs, 
employee and the NTN).
    (i) NICS ``Denied'' and ``Did Not Pass'' transaction records 
obtained or created in the course of the operation of the system will 
be retained in the Audit Log for 110 years.
    (ii) NICS Audit Log records relating to transactions remaining in 
an ``Open'' or ``Pending'' status, except the NTN and the NTN's 
creation 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 or on behalf of 
the transferee will be destroyed within 24 hours after the FFL receives 
communication of the determination of ``Pass'' or ``Proceed'' response, 
as applicable. All other information, except the NTN and the NTN's 
creation date, will be destroyed after not more than 90 days from the 
date of inquiry.
    (2) Use of information in the NICS Audit Log. The NICS Audit Log 
will be used to analyze system performance, assist users in resolving 
operational problems, support the appeals process, or support audits of 
the use and performance of the system. Searches may be conducted on the 
Audit Log by timeframe, i.e., by day or month, or by a particular state 
or agency. Information in the NICS Audit Log pertaining to allowed 
transactions may be accessed directly only by the FBI and only for the 
purpose of conducting audits of the use and performance of the NICS, 
except that:
    (i) Information in the NICS Audit Log, including information not 
yet destroyed under paragraph (b)(1)(iii) of this section, 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, and/or enforcing such law or regulation; and
    (ii) The NTNs and their creation dates for allowed transactions may 
be shared with ATF in Individual FFL Audit Logs as specified in 
paragraph (b)(4) of this section.
    (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 under 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.
    (4) Creation and Use of Individual FFL Audit Logs. Upon written 
request from ATF containing the name and license number of the FFL and 
the proposed date of inspection of the named FFL by ATF, the FBI may 
extract information from the NICS Audit Log and create an Individual 
FFL Audit Log for transactions originating at the named FFL for a 
limited period of time. An Individual FFL Audit Log shall contain all 
information on denied transactions, and, with respect to all other 
transactions, only non-identifying information from the transaction. In 
no instance shall an Individual FFL Audit Log contain more than 60 
days' worth of transaction records with a status of ``Delayed,'' 
``Open,'' ``Pass,'' ``Pending,'' or ``Proceed'' originating at the FFL. 
The FBI will provide POC states the means to provide to the FBI 
information that will allow the FBI to generate Individual FFL Audit 
Logs in connection with ATF inspections of FFLs in POC states. POC 
states that elect not to have the FBI generate Individual FFL Audit 
Logs for FFLs in their states must develop a means by which the POC 
will provide such Logs to ATF.
    (c) The following records in the FBI-operated terminals of the NICS 
will be subject to the Brady Act's requirements for destruction:
    (1) All inquiry and response messages (regardless of media) 
relating to a background check that results in an allowed transfer or 
``Pass'' status for an FHC; and
    (2) All information (regardless of media) contained in the NICS 
Audit Log relating to a background check that results in an allowed 
transfer or ``Pass'' status for an FHC.
    (d) The following records of state and local law enforcement units 
serving as POCs will be subject to the Brady Act's requirements for 
destruction:
    (1) All inquiry and response messages (regardless of media) 
relating to the initiation and result of a check of the NICS that 
results in an allowed transfer or ``Pass'' status for an FHC that are 
not part of a record system created and maintained pursuant to 
independent state law regarding firearms transactions; and
    (2) All other records relating to the subject and result of a NICS 
check that are not part of a record system created and maintained 
pursuant to independent state law regarding firearms transactions.

0
9. Revise Sec.  25.10 to read as follows:


Sec.  25.10   Correction of erroneous system information.

    (a) An individual may request the reason for the denial of a 
firearm transfer of a firearm from the agency that conducted the check 
of the NICS (the ``denying agency,'' which will be either the FBI or 
the state or local law enforcement agency serving as a POC). The FFL 
will provide to the denied individual the name and address of the 
denying agency and the unique transaction number (NTN or STN) 
associated with the NICS background check. In the case of an FHC, an 
individual may request the reason for the ``Did Not Pass'' response 
from the agency that conducted the check of the NICS (the ``responding 
agency,'' which will be either the FBI or the state or local law 
enforcement agency serving as a POC). The FFL will provide the 
individual the name and address of the responding agency and the unique 
NTN or STN associated with the FHC. A request for the reason for the 
``Denied'' or ``Did Not Pass'' response must be made in writing to the 
denying agency or responding agency, as applicable (POCs at their 
discretion may waive the requirement for a written request).
    (b) The denying or responding agency will respond to the individual 
with the reasons for the ``Denied'' or ``Did Not

[[Page 67476]]

Pass'' response within five business days of its receipt of the 
individual's request. The response should indicate whether additional 
information or documents are required to support an appeal, such as 
fingerprints in appeals involving questions of identity (i.e., a claim 
that the record in question does not pertain to the individual making 
the request).
    (c) If the individual wishes to challenge the accuracy of the 
record upon which a ``Denied'' or ``Did Not Pass'' response is based, 
or if the individual wishes to assert that the individual's right to 
possess a firearm has been restored, the individual may make 
application first to the denying or responding agency, i.e., either the 
FBI or the POC. If the denying or responding agency is unable to 
resolve the appeal, the agency will so notify the individual and shall 
provide the name and address of the agency that originated the document 
containing the information upon which a ``Denied'' or ``Did Not Pass'' 
response was based. The individual may then apply for correction of the 
record directly to the agency from which it originated. If the record 
is corrected as a result of the appeal to the originating agency, the 
individual may so notify the agency that issued a ``Denied'' or ``Did 
Not Pass'' response, which will, in turn, verify the record correction 
with the originating agency (assuming the originating agency has not 
already notified the denying or responding agency of the correction) 
and take all necessary steps to correct the record in the NICS.
    (d) As an alternative to the procedure as described in paragraphs 
(a) through (c) of this section, where a POC was the denying or 
responding agency, the individual may elect to direct the individual's 
challenge to the accuracy of the record, in writing, to the FBI, NICS 
Section, Criminal Justice Information Services Division, 1000 Custer 
Hollow Road, Module C-1, Clarksburg, West Virginia 26306-0147. Upon 
receipt of the information, the FBI will investigate the matter by 
contacting the POC that provided the ``Denied'' or ``Did Not Pass'' 
response or by contacting the source of the data on which the 
``Denied'' or ``Did Not Pass'' response was based. The FBI will request 
the POC or the data source to verify that the record in question 
pertains to the individual who was the subject of the ``Denied'' or 
``Did Not Pass'' response or to verify or correct the challenged 
record. The FBI will consider the information it receives from the 
individual and the response it receives from the POC or the data 
source. If the record is corrected as a result of the challenge, the 
FBI shall so notify the individual, correct the erroneous information 
in the NICS, and give notice of the error to any Federal department or 
agency, or any state, local, or tribal agency that was the data source 
of such erroneous records.
    (e) Upon receipt of notice of the correction of a contested record 
from the originating agency, the FBI or the agency that contributed the 
record shall correct the data in the NICS and the denying or responding 
agency shall provide a written confirmation of the correction of the 
erroneous data to the individual for presentation to the FFL. In cases 
where multiple disqualifying or potentially disqualifying records are 
the basis for the ``Denied'' or ``Did Not Pass'' response, or where 
further disqualifying or potentially disqualifying records otherwise 
exist in the subject's background, the individual must pursue a 
correction for each record before a ``Proceed'' or ``Pass'' response 
can be provided to the FFL. In the case of a prospective firearm 
transfer, if the appeal of a contested record is successful and 30 or 
fewer days have transpired since the initial check, and there are no 
other disqualifying or potentially disqualifying records, the NICS will 
communicate a ``Proceed'' response to the FFL. If the appeal of a 
prospective firearm transfer is successful and more than 30 days have 
transpired since the initial check, the FFL must recheck the NICS 
before allowing the transfer to continue. In the case of an FHC, if the 
appeal of a contested record is successful and there are no other 
disqualifying or potentially disqualifying records, the NICS will 
communicate a ``Pass'' response to the FFL.
    (f) An individual who is the subject of a denied transfer may also 
contest the accuracy or validity of a disqualifying record by bringing 
an action against the state or political subdivision responsible for 
providing the contested information, or responsible for denying the 
transfer, or against the United States, as the case may be, for an 
order directing that the contested information be corrected or that the 
firearm transfer be approved. Similarly, an individual who is the 
subject of a ``Did Not Pass'' response during an FHC may bring an 
action against the state or political subdivision responsible for 
providing the contested information, or responsible for providing the 
``Did Not Pass'' response or against the United States, as the case may 
be, for an order directing that the contested information be corrected 
or that the FHC be passed.
    (g) An individual may provide written consent to the FBI to 
maintain information about the individual in a Voluntary Appeal File to 
be established by the FBI and checked by the NICS for the purpose of 
preventing future erroneous ``Denied'' or ``Did Not Pass'' responses or 
extended responses of ``Delayed'' or ``Pending'' by the NICS. Such file 
shall be used only by the NICS for prospective firearm transfers and 
FHCs. The FBI shall remove all information in the Voluntary Appeal File 
pertaining to an individual upon receipt of a written request by the 
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
10. Amend Sec.  25.11 by revising paragraphs (b)(1) and (2) 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 ``Pass'' response.
    (2) State or local agencies, FFLs, or individuals purposefully 
using the system to perform a check for unauthorized purposes.
* * * * *

    Dated: October 22, 2026.
Todd Blanche,
Attorney General.
[FR Doc. 2026-21920 Filed 10-26-26; 8:45 am]
BILLING CODE 4410-02-P


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