[Federal Register Volume 63, Number 107 (Thursday, June 4, 1998)]
[Proposed Rules]
[Pages 30430-30438]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-14795]
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DEPARTMENT OF JUSTICE
28 CFR Part 25
[AG Order No. 2158-98]
RIN 1105-AA51
National Instant Criminal Background Check System Regulations
AGENCY: Department of Justice.
ACTION: Proposed rule.
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SUMMARY: The United States Department of Justice is publishing a
proposed rule for the National Instant Criminal Background Check System
(NICS) to establish policies and procedures for ensuring the privacy
and security of this system and to implement a NICS appeals policy for
persons who have been denied the purchase of a firearm because of
information in the NICS they believe to be erroneous or incorrect.
Specifically, this rule will detail policies for validating NICS data,
storing, accessing, and querying records in the system, retaining and
destroying NICS information, and correcting erroneous data in the
system.
DATES: Written comments must be received on or before September 2,
1998.
ADDRESSES: All comments concerning this proposed rule should be mailed
to: Mr. Emmet A. Rathbun, NICS Project Manager, Federal Bureau of
Investigation, CJIS Division, Module C-3, 1000 Custer Hollow Road,
Clarksburg, West Virginia 26306-0147.
FOR FURTHER INFORMATION CONTACT: Mr. Emmet A. Rathbun, NICS Project
Manager, telephone number (304) 625-2000.
SUPPLEMENTARY INFORMATION: On November 30, 1993, Pub. L. 103-159 (107
Stat. 1536) was enacted, amending the Gun Control Act of 1968 (GCA), as
amended (18 U.S.C Chapter 44). Title I of Pub. L. 103-159, the ``Brady
Handgun Violence Prevention Act'' (``Brady Act''), requires the
Attorney General to establish by November 30, 1998, ``a national
instant criminal background check system that any [firearms] licensee
may contact, by telephone or by other electronic means in addition to
the telephone, for information, to be supplied immediately, on whether
receipt of a firearm by a prospective transferee would violate section
922 of title 18, United States Code, or State law.'' To implement the
NICS, the Brady Act authorizes the development of hardware and software
systems to link State criminal history check systems into the national
system. It also authorizes the Attorney General to obtain official
information from any Federal Department or agency on persons for whom
receipt of a firearm would be in violation of the law.
The Bureau of Alcohol, Tobacco and Firearms (ATF), Department of
the Treasury, issued proposed regulations, 63 FR 8379 (Feb. 19, 1998),
Notice Number 857, ``Implementation of Pub. L. 53-159, Relating to the
Permanent Provisions of the Brady Handgun Violence Prevention Act,''
which specify how Federal firearms licensees (FFLs) shall interact with
the NICS. In general, the proposed ATF regulations: Specify the time
when an FFL must contact the NICS; detail the criteria that
[[Page 30431]]
must be met in order for a firearm permit to operate as an exception to
the requirement of a NICS background check, including the requirement
that state officials issuing such permits conduct a NICS check on all
applicants for permits issued on or after November 30, 1998; note the
applicability of the requirement of a NICS background check to pawned
firearm transactions; require the Director of ATF to contact the NICS
before approving a firearm transfer under the National Firearms Act;
amend the ATF firearms transaction record, Form 4473, to allow FFLs to
solicit additional optional information about the purchaser for
submission with a NICS background check request in order to help avoid
cases of misidentification by the system; and require FFLs to record on
Form 4473 all responses received from the NICS and to maintain a copy
of each Form 4473 for which a NICS transaction number (a unique
identification number assigned to each NICS check) has been received,
regardless of whether the transfer of the firearm was completed.
Prohibited Persons
Section 922 of title 18 prohibits certain persons from shipping or
transporting any firearm in interstate or foreign commerce, or
receiving any firearm that has been shipped or transported in
interstate or foreign commerce, or possessing any firearm in or
affecting commerce. These prohibitions apply to any person who:
(1) Is under indictment for or has been convicted in any court of a
crime punishable by imprisonment for a term exceeding one year;
(2) Is a fugitive from justice;
(3) Is an unlawful user of or addicted to any controlled substance;
(4) Has been adjudicated as a mental defective or committed to a
mental institution;
(5) Is an alien illegally or unlawfully in the United States;
(6) Has been discharged from the Armed Forces under dishonorable
conditions;
(7) Having been a citizen of the United States, has renounced U.S.
citizenship;
(8) Is subject to a court order that restrains the person from
harassing, stalking, or threatening an intimate partner or child of
such intimate partner; or
(9) Has been convicted in any court of a misdemeanor crime of
domestic violence.
The ATF published a final rule concerning ``Definitions for the
Categories of Persons Prohibited From Receiving Firearms'' in the
Federal Register on June 27, 1997 (T.D. ATF-391, 62 FR 34634). These
definitions became effective August 26, 1997, and shall apply to the
operation and use of the NICS.
Department of Justice Action
The Federal Bureau of Investigation (FBI), as directed by the
Attorney General, has coordinated the development efforts of the NICS
since 1994. The FBI is negotiating formal Memoranda of Understanding
(MOUs) between the FBI and Federal agencies that will supply data to
the NICS. The MOUs outline procedures for supplying data to the NICS
and define limits on the appropriate use of the data.
This proposed rule may directly impact the following groups:
prospective firearms purchasers, Federal firearms licensees (FFLs),
state and local law enforcement agencies, and certain Federal agencies.
Brady Act Task Group
Immediately after the Brady Act went into effect on February 28,
1994, the FBI established a Brady Act Task Group (BATG) composed of
experienced state and local law enforcement officials. The FBI has
worked closely with the BATG, whose purpose has been to assist in the
development and finalization of requirements for implementing the NICS.
The System
In order to establish the NICS in a way that incorporates relevant
information for the various categories of prohibited persons previously
mentioned, the FBI has created a new database called the ``NICS Index''
with information concerning individuals who fall within categories 3
through 7 of the prohibited persons described above. A NICS background
check will check this new database and also existing systems of records
operated by the FBI, such as the National Crime Information Center
(NCIC), and the Interstate Identification Index (III).
The NICS Index will contain (1) records provided by Federal
agencies to the FBI on persons prohibited from receiving firearms under
Federal law and (2) records provided voluntarily by some states on
persons who have been denied the purchase of a firearm or who are known
to be disqualified from possessing a firearm under Federal law.
Information in the NICS Index will be provided to the FBI on magnetic
tape media or through electronic access by Federal agencies and
authorized state or local law enforcement agencies. Access to the NICS
Index will generally be restricted to purposes related to NICS
background checks pursuant to the Brady Act; other access shall be
limited to uses for the purpose of (1) providing information to
Federal, state, or local criminal justice agencies in connection with
the issuance of a permit or license to possess, acquire, conceal, or
transfer a firearm or (2) responding to an inquiry from the ATF in
connection with a civil or criminal law enforcement activity relating
to the Gun Control Act (18 U.S.C. Chapter 44).
In states where they agree to do so, state or local law enforcement
agencies will serve as Points of Contact (POCs) for the NICS. As POCs,
these agencies will receive inquiries by FFLs, initiate NICS background
checks through electronic access to the NICS via the NCIC
communications network, receive and review any matching records
retrieved by the system, check state and local record systems
(including criminal justice databases) for disqualifying records,
determine whether any of the matching records provide reason to believe
that the individual is disqualified from possessing a firearm, and
provide responses back to the FFL. States may also exchange messages
regarding long-gun purchases made outside of a purchaser's state of
residence. The FBI will not charge FFLs a fee for NICS background
checks processed by state POCs.
In states where there is no POC, FFLs will contact the NICS
Operations Center, a unit run by the FBI, either by telephone or
through electronic dial-up access, to request a NICS background check.
In these non-POC states, the NICS Operations Center will perform the
NICS background check, analyze any matching records, and provide a
response back to the FFL. The FBI will charge FFLs in non-POC states a
fee for NICS background checks processed by the NICS Operations Center.
Background Checks
A NICS background check will consist of a search using name, sex,
race, date of birth, state of residence, and other identifying
information provided by a purchaser for records in the NICS Index,
NCIC, and III. In states where state or local law enforcement agencies
act as POCs, the POCs may also check state or local record systems. For
each background check, the NICS will consolidate matching records from
the NICS Index, NCIC and III. In cases where the checks are performed
by state or local POCs, an authorized state or local official will
receive and evaluate matching records forwarded by the FBI and any
available state records and will determine whether the prospective
purchaser is the subject of the matching
[[Page 30432]]
records and whether the records provide reason to believe that the
prospective purchaser is ineligible to receive a firearm under state or
Federal law. In states where FFLs contact the FBI directly, an FBI
analyst will make these determinations. In either case, only the
decision whether or not the transfer may proceed (communicated in the
form of a message stating ``proceed,'' ``delayed,'' or ``denied''), and
none of the underlying information, will be provided to the FFL.
Retention and Destruction of Records in the NICS
The FBI will retain indefinitely records in the NICS Index that
prohibit persons from receiving or possessing a firearm unless such
records are updated or canceled by the agency that supplied the records
to the NICS Index. In cases where the firearms disability is temporary
in nature, the NICS Index will automatically purge the record on the
date of its expiration or when it is no longer disabling.
The FBI will maintain an automated Audit Log of all transactions
that pass through the NICS. Transactions relating to firearm transfer
approvals in the Audit Log will be maintained for eighteen months.
After this time, information contained in the Audit Log related to the
person or the transfer will be destroyed; only the NICS Transaction
Number (NTN), a unique number assigned to each valid background check
inquiry received by the NICS, and the date on which the NTN was
assigned, will be retained. This temporary retention of information
will assist the FBI and state and local officials in auditing and/or
investigating unauthorized use of the NICS. The FBI will retain a log
of all transactions relating to firearm transfer denials for 10 years,
after which time the records will be transferred to a Federal Records
Center for retention.
System Security
This regulation requires the state and local law enforcement
agencies using the system to identify themselves before obtaining
access to the NICS through the use of an Originating Agency Identifier
(ORI) assigned by the FBI. The Control Terminal Agency (CTA) in each
state, typically the state police or department of public safety, will
be responsible for providing to the FBI a list of agencies authorized
in the state to serve as a POC for the NICS and for ensuring that
unauthorized agencies cannot access the system. In addition, the NICS
will individually identify and authenticate FBI personnel who access
the system. The NICS will also require the use of FBI-assigned ORIs by
authorized Federal agency employees who in the future may be provided
message-based access to the NICS Index via the NCIC communications
network for purposes of adding, updating, and canceling records.
To ensure the proper level of access for each transaction, an
agency must include its ORI in each message it sends to the NICS.
Agencies providing records to the NICS must include their ORI and a
unique agency record identifier (ARI) in each record provided. The
system will allow authorized Federal and state agencies to add data to
the NICS Index and to update or cancel only the data that they have
provided.
The NICS will authenticate electronic connections by all users to
prevent unauthorized access to the system. The FBI will provide to NICS
users ``NICS Security Guidelines'' which will detail their security
roles and responsibilities.
Personnel Security
Federal agencies and state and local law enforcement agencies
acting as POCs will be responsible for ensuring that their personnel
who process and handle data for the NICS comply with the NICS Security
Guidelines, the NCIC Security Policy of 1992, applicable Federal laws,
such as the Privacy Act of 1974 and the Computer Security Act of 1987,
and with their own policies and procedures for protecting information.
In addition, if the NICS allows a Federal agency direct terminal access
to the NICS for the purpose of adding, updating, or canceling records,
the agency, at a minimum, must ensure that terminal operators follow
the NCIC Security Policy.
Physical Security
Federal agencies and state and local law enforcement agencies that
contribute information to the NICS Index will label any magnetic media
used to transport NICS data. These labels will identify the agency
supplying the data and the sensitivity of the data. The FBI will store
NICS data only in areas that are physically safe from access by
unauthorized persons or exposure to environmental hazards.
If an agency communicates electronically with the NICS via the NCIC
communications network, the computer site and/or terminal area used by
the agency must have adequate physical security to protect against
unauthorized personnel gaining access to the computer equipment or to
any of the stored data, as discussed in the NCIC Security Policy.
Visitors in the area of the computer site and/or terminal must be
accompanied by staff personnel at all times, and access to the terminal
area is restricted to the minimum number of authorized employees needed
to complete the work.
Authority To Obtain Records From Federal Agencies
Section 103(e)(1) of the Brady Act states that ``[n]otwithstanding
any other law, the Attorney General may secure directly from any
department or agency of the United States such information on persons
for whom receipt of a firearm would violate subsection (g) or (n) of
section 922 of title 18, United States Code or State law, as is
necessary to enable the system to operate in accordance with this
section. On request of the Attorney General, the head of such
department or agency shall furnish such information to the system.''
Privacy Act Notice and Rule
Pursuant to the Privacy Act of 1974, a Privacy Act Notice
describing the system of records and exempting its records from certain
provisions of the Privacy Act is published elsewhere in today's Federal
Register.
User Fee Charge
FFLs who contact the NICS Operations Center by telephone or by
electronic means to initiate a background check will be assessed a fee.
The user fee will be published separately in the Federal Register.
Appeal From a Denial and the Correction of Erroneous System
Information
If, as a result of a NICS background check, an individual is unable
to purchase a firearm, the individual may request the reason(s) for the
denial from the agency that made the determination (either the FBI or
the POC). The denying agency (either the FBI or the POC) shall respond
with the reasons for the denial within five business days of receipt of
the request. The individual may challenge the accuracy of the record by
appealing to the state or local POC that denied the transfer, the
agency that originated the record, or the FBI. If a record is found to
be erroneous, the data in the NICS shall be corrected and the
individual will be provided a written confirmation of the correction of
erroneous data to present to the FFL. If more than 30 days have
transpired since the initial check, the FFL will recheck the NICS
without a fee before allowing the sale to continue. The Brady Act also
provides that an individual may contest the accuracy or validity of a
disqualifying record by bringing ``an action against the State or
political
[[Page 30433]]
subdivision responsible for providing the erroneous information, or
responsible for denying the transfer, or against the United States, as
the case may be, for an order directing that the erroneous information
be corrected or that the transfer be approved, as the case may be.''
Applicable Administrative Procedures and Executive Orders
Regulatory Flexibility Analysis
The Attorney General, in accordance with the Regulatory Flexibility
Act (5 U.S.C. 605(b)), has reviewed this regulation and by approving it
certifies that this regulation will not have a significant economic
impact on a substantial number of small entities. A Brady Act Task
Group, composed of experienced state and local law enforcement
officials, provided input on the design of the NICS. When developing
the guidelines for the NICS, both the Task Group and the FBI took into
account the fact that many FFLs are small businesses. The obligation of
FFLs to contact the NICS before transferring a firearm is imposed by
the Brady Act and is detailed in the above-described proposed ATF
regulations implementing the permanent provisions of the Brady Act. In
designing the NICS, the FBI has sought to avoid burdens on small
entities beyond those requirements needed to conduct the statutorily
prescribed background checks effectively and to ensure the privacy and
security of the information in the NICS. The FBI is not aware of any
relevant Federal rules that duplicate, overlap, or conflict with this
rule.
Executive Order 12866
This proposed rule has been drafted and reviewed in accordance with
Executive Order 12866, section 1(b), Principles of Regulation. The
Department of Justice has determined that this proposed rule is a
``significant regulatory action'' under Executive Order 12866, section
3(f), Regulatory Planning and Review, and thus it has been reviewed by
the Office of Management and Budget (OMB).
Executive Order 12612
This rule will not have a substantial direct effect on the states,
on the relationship between the national government and the states, or
on the distribution of power and responsibilities among the various
levels of government. Therefore, in accordance with Executive Order
12612, it is determined that this rule does not have sufficient
federalism implications to warrant the preparation of a Federal
Assessment.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by state, local, and
tribal governments, in the aggregate, or by the private sector, of
$100,000,000 or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This proposed rule is not a major rule as defined by Section 804 of
the Small Business Regulatory Enforcement Fairness Act of 1996. This
proposed rule will not result in an annual effect on the economy of
$100,000,000 or more, a major increase in costs or prices, or have
significant adverse effects on competition, employment, investment,
productivity, innovation, or on the ability of United States-based
companies to compete with foreign-based companies in domestic and
export markets.
Paperwork Reduction Act of 1995
The collection of information contained in this notice of proposed
rulemaking has been submitted to the OMB for review in accordance with
the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)). Comments on
the collection of information should be sent to the Office of
Management and Budget, Attention: Desk Officer of the Department of
Justice, Office of Information and Regulatory Affairs, Washington, DC
20503, with copies to Mr. Robert B. Briggs, Clearance Officer, United
States Department of Justice, Information Management and Security
Staff, Justice Management Division, Suite 850, Washington Center, 1001
G Street, NW, Washington, DC 20530. Comments are specifically requested
concerning:
(1) Whether the proposed collection of information is necessary for
the proper performance of the functions of the Department of Justice
and the FBI, including whether the information will have practical
utility;
(2) The accuracy of the estimated burden associated with the
proposed collection of information (see below);
(3) How the quality, utility, and clarity of the information to be
collected may be enhanced; and
(4) How the burden of complying with the proposed collection of
information may be minimized, including through the use of appropriate
automated, electronic, mechanical, or other technological collection
techniques or other forms of information technology.
The collection of information in this proposed regulation is for
the purpose of establishing the NICS, a national background check
system that FFLs are required by the Brady Act to contact for
information about whether the transfer of a firearm to a prospective
purchaser would violate Federal or state law. A database called the
NICS Index is being created which will contain information about
individuals who fall into the non-criminal categories of persons who
are disqualified from possessing a firearm under Federal law. Some
states may voluntarily submit information to the FBI concerning certain
individuals who fall into one or more of these categories, such as
persons who have been adjudicated as mental defectives or who have been
committed to mental institutions, for input into the NICS Index. This
data may be submitted by such states on a magnetic tape medium, which
the FBI will download into the NICS Index. The FBI will also allow such
states to make individual record submissions via the NCIC
communications network. It is estimated that, at the outset, five
states will voluntarily contribute such data to the NICS Index.
Additional states may contribute data in the future. It is estimated
that it will require 24 hours for each contributing state to write the
specifications and program for the magnetic tapes that will be
submitted to the FBI. Thereafter, it is estimated that it will require
one hour to place data on the tape each time it is submitted to the
FBI. Tape submissions will be made approximately once per month;
electronic submissions may be made at the state's convenience. Thus, it
is estimated that, in the first year in which it makes data submissions
to the NICS Index, a contributing state will spend up to 36 hours in
making its submissions. In succeeding years, it is estimated that each
submitting state will spend up to 12 hours per year in making
submissions. The total public burden (in hours) associated with the
collection from the estimated five initial respondents, therefore, is
180 hours in the first year and 60 hours each succeeding year.
List of Subjects in 28 CFR Part 25
Administrative practice and procedure, Automatic data processing,
Business and industry, Courts, Firearms, Information, Law enforcement
officers, Reporting and recordkeeping requirements, and
Telecommunications.
[[Page 30434]]
Accordingly, Title 28 of the Code of Federal Regulations is
proposed to be amended by adding the following new part 25:
PART 25--DEPARTMENT OF JUSTICE INFORMATION SYSTEMS
Subpart A--The National Instant Criminal Background Check System
Sec.
25.1 Purpose and authority.
25.2 Definitions.
25.3 System information.
25.4 Record source categories.
25.5 Validation and data integrity of records in the system.
25.6 Accessing records in the system.
25.7 Querying records in the system.
25.8 System safeguards.
25.9 Retention and destruction of records in the system.
25.10 Correction of erroneous system information.
25.11 Prohibited activities and penalties.
Authority: Pub. L. 103-159, 107 Stat. 1536.
Subpart A--The National Instant Criminal Background Check System
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 determination of
whether the transfer of a firearm to any person who is not licensed
under 18 U.S.C. 923 would be in violation of Federal or state law.
These regulations are issued pursuant to section 103(h) of the Brady
Act, 107 Stat. 1542, and include requirements to ensure the privacy and
security of the system and appeals procedures for persons who have been
denied the right to purchase a firearm as a result of a NICS background
check performed by the Federal Bureau of Investigation (FBI) or a state
or local law enforcement agency.
Sec. 25.2 Definitions.
Appeal means a formal procedure to challenge the denial of a
firearm transfer.
ARI means a unique Agency Record Identifier assigned by the agency
submitting records for inclusion in the NICS Index.
Audit log means a chronological record of system (computer)
activities that enables the reconstruction and examination of the
sequence of events and/or changes in an event.
Business day means a 24-hour day (beginning at 12:01 a.m.) on which
state offices are open in the state in which the proposed firearm
transaction is to take place.
Control Terminal Agency means a state or territorial criminal
justice agency recognized by the FBI as the agency responsible for
providing state-or territory-wide service to criminal justice users of
NCIC data.
Data source means an agency that provided specific information to
the NICS.
Delayed means a temporary denial of a firearm transfer requiring
more research prior to a NICS ``Proceed'' or ``Denied'' response.
Denied means denial of a firearm transfer based on a NICS response
indicating one or more matching records were found providing reason to
believe that receipt of a firearm by a prospective purchaser would
violate 18 U.S.C. 922 or state law.
Denying agency means a POC or the NICS Operations Center, whichever
determines that information in the NICS indicates that the transfer of
a firearm to a person would violate Federal or state law, based on a
background check.
Dial-up access means any routine access through commercial switched
circuits on a continuous or temporary basis.
Federal agency means any authority of the United States that is an
``Agency'' under 44 U.S.C. 3502(1), other than those considered to be
independent regulatory agencies, as defined in 44 U.S.C. 3502(10).
FFL (federal firearms licensee) means a person licensed by the
Bureau of Alcohol, Tobacco and Firearms as a manufacturer, dealer, or
importer of firearms.
Firearm has the same meaning as in 18 U.S.C. 921(a)(3).
Licensed dealer means any person defined in 27 CFR 178.11.
Licensed importer has the same meaning as in 27 CFR 178.11.
Licensed manufacturer has the same meaning as in 27 CFR 178.11.
NCIC (National Crime Information Center) means a nationwide
computerized information system of criminal justice data established by
the FBI as a service to local, state, and Federal criminal justice
agencies.
NICS means the National Instant Criminal Background Check System,
which an FFL may contact for information on whether receipt of a
firearm by a person who is not licensed under 18 U.S.C. 923 would
violate Federal or state law.
NICS Index means the database, to be managed by the FBI, containing
information provided by Federal and state agencies about persons
prohibited under Federal law from receiving or possessing a firearm.
The NICS Index is separate and apart from the NCIC and the Interstate
Identification Index (III).
NICS Operations Center means the unit of the FBI that receives
telephone or electronic inquiries from FFLs to perform background
checks, makes a determination based upon available information as to
whether the receipt or transfer of a firearm would be in violation of
state or Federal law, researches criminal history records, tracks and
finalizes appeals, and conducts audits of system use.
NICS Operations Center's regular business hours means the hours of
9 a.m. to 2 a.m., Eastern Time, seven days a week.
NICS Representative means a person who receives telephone inquiries
to the NICS Operations Center from FFLs requesting background checks
and provides a response as to whether the receipt or transfer of a
firearm may proceed or is delayed.
NRI (NICS Record Identifier) means the system-generated unique
number associated with each record in the NICS Index.
NTN (NICS Transaction Number) means the unique number that will be
assigned to each valid background check inquiry received by the NICS.
Its primary purpose will be to provide a means of associating inquiries
to the NICS with the response provided by the NICS to the FFL.
ORI (Originating Agency Identifier) means a nine-character
identifier assigned by the FBI to an agency which has met the
established qualifying criteria for ORI assignment to identify the
agency in transactions on the NCIC System.
Originating Agency means an agency that provides a record to a
database checked by the NICS.
POC (Point of Contact) means a state or local law enforcement
agency serving as an intermediary between an FFL and the system. A POC
will receive NICS background check requests from FFLs, check state or
local record systems, perform NICS inquiries, determine whether
matching records provide reason to believe that an individual is
disqualified from possessing a firearm under Federal or state law, and
respond to FFLs with the results of a NICS background check.
Proceed means a NICS response indicating no matching record was
found to prohibit the transfer of a firearm.
[[Page 30435]]
Record means any item, collection, or grouping of information about
an individual that is maintained by an agency, including but not
limited to information that disqualifies the individual from receiving
a firearm and that contains his or her name or other personal
identifiers.
STN (State-Assigned Transaction Number) means a unique number that
may be assigned by a POC to each valid background check inquiry.
System means the National Instant Criminal Background Check System
(NICS).
Sec. 25.3 System information.
(a) There is established at the FBI a National Instant Criminal
Background Check System.
(b) The system will be located at the Federal Bureau of
Investigation, 1000 Custer Hollow Road, Clarksburg, West Virginia
26306-0147.
(c) The system manager and address are: Director, Federal Bureau of
Investigation, J. Edgar Hoover F.B.I. Building, 935 Pennsylvania
Avenue, NW, Washington, DC. 20535.
Sec. 25.4 Record source categories.
It is anticipated that most records in the NICS Index will be
obtained from Federal agencies. It is also anticipated that a limited
number of authorized state and local law enforcement agencies will
voluntarily contribute records to the NICS Index. Information in the
NCIC and III systems that will be searched during a background check
will be contributed voluntarily by Federal, state, local, and
international criminal justice agencies.
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
Index records supplied by Federal agencies;
(2) An automatic rejection of any attempted entry of records into
the NICS Index that contain detectable invalid data elements;
(3) Automatic purging of records in the NICS Index after they are
on file for a prescribed period of time; and
(4) Quality control checks in the form of periodic internal audits
by FBI personnel to verify that the information provided to the NICS
Index 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 Index and will
immediately correct any record determined to be invalid or incorrect.
Sec. 25.6 Accessing records in the system.
(a) FFLs may initiate a NICS background check only in connection
with a proposed firearm transfer as required by the Brady Act. 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 Operations Center (by telephone or electronic dial-up
access) or a POC. FFLs in each state will be advised by the FBI or a
POC whether they are required to initiate NICS background checks with
the NICS Operations Center or the POC and how they are to do so.
(b) Access to the NICS through the FBI NICS Operations Center. FFLs
may contact the NICS Operations Center by telephone only during its
regular business hours. Electronic dial-up access to the NICS will be
provided to a limited number of FFLs at the beginning of the system's
operation. As the system develops its capacity to accept such access, a
larger number of FFLs may be provided electronic dial-up access in the
future. FLLs with electronic dial-up access will be able to contact the
NICS 24 hours each day.
(c) The FBI NICS Operations Center, upon receiving an FFL telephone
or electronic dial-up request for a background check, will:
(1) Verify the FFL Number and password;
(2) Assign a NICS Transaction Number (NTN) to a valid inquiry and
provide the NTN to the FFL;
(3) Search the relevant databases (i.e., NICS Index, NCIC, III) for
any matching records; and
(4) Provide the following NICS responses based upon the
consolidated NICS search results to the FFL that requested the
background check:
(i) Proceed response, if no disqualifying information was found in
the NICS Index, NCIC, or III.
(ii) Delayed response, if the NICS search finds a record that may
indicate that the prospective purchaser is disqualified from possessing
a firearm by Federal or state law. A ``Delayed'' response to the FFL
indicates that the firearm transfer should not proceed pending receipt
of a follow-up response from the NICS or the expiration of three
business days (exclusive of the day on which the query is made),
whichever occurs first. (Example: An FFL requests a NICS check on a
prospective firearm purchaser at 9 a.m. on Friday and shortly
thereafter receives a ``Delayed'' response from the NICS. Assuming
state offices in the state in which the FFL is located are closed on
Saturday and Sunday and open the following Monday, Tuesday, and
Wednesday, and the NICS has not yet responded with a ``Proceed'' or
``Denied'' response, the FFL may transfer the firearm at 12:01 a.m.
Thursday.)
(iii) Denied response, when at least one matching record is found
in either the NICS Index, NCIC, or III that provides reason to believe
that receipt of a firearm by the prospective purchaser would violate 18
U.S.C. 922 or state law. The ``Denied'' response will be provided to
the requesting FFL by the NICS Operations Center during its regular
business hours after review of any potentially disqualifying
information.
(5) None of the responses provided to the FFL will contain any of
the underlying information in the records checked by the system.
(d) Access to the NICS through POCs. In states where a POC is
designated to process background checks for the NICS, FFLs will contact
the POC to initiate a NICS background check. The POC will notify FFLs
in its state of the means by which FFLs can contact the POC. The NICS
will provide POCs with electronic access to the system 24 hours each
day through the NCIC communication network. Upon receiving a request
for a background check from an FFL, a POC will:
(1) Verify the FFL number;
(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; and
(3) Transmit the request for a background check via the NCIC
interface to the NICS.
(e) Upon receiving a request for a NICS background check, POCs may
also conduct a search of available files in state and local law
enforcement and other relevant record systems, and may provide a unique
State-Assigned Transaction Number (STN) to each valid inquiry for a
background check.
(f) When the NICS receives an inquiry from a POC, a search will be
made of the relevant databases (i.e., NICS Index, NCIC, III) for any
matching record(s), and the NICS 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:
[[Page 30436]]
(1) No record response, if the NICS determines, through a complete
search, that no matching record exists.
(2) Partial response, if the NICS has not completed the search of
all of its records. This response will indicate the databases that have
been searched (i.e., III, NCIC, and/or NICS Index) 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.
(3) Single matching record response, if all records in the relevant
databases have been searched and one matching record was found.
(4) Multiple matching record response, if all records in the
relevant databases have been searched and more than one matching record
was found.
(g) Generally, based on the response(s) provided by the NICS, and
other information available in the state and local record systems, a
POC will:
(1) Confirm any matching records; and
(2) Notify the FFL of the NICS response that the transfer may
proceed, is delayed pending further record analysis, or is denied and
include in this notification the NTN and, if applicable, an STN.
(h) In cases where a transfer is denied by a POC, the POC may
provide a denial notification to the NICS. This denial notification
will include the name of the person who was denied a firearm and the
NTN. The information provided in the denial notification will be
maintained in the NICS Audit Log described in Sec. 25.9(b). This
notification may be provided immediately by electronic message to the
NICS (i.e., at the time the transfer is denied) or as soon thereafter
as possible. If a denial notification is not provided by a POC, the
NICS will assume that the transfer was allowed and will destroy its
records regarding the transfer in accordance with the procedures
detailed in Sec. 25.9.
(i) Recording the NTN. FFLs are required to record the NTN they
receive in a NICS response on the appropriate ATF form for audit and
inspection purposes, under 27 CFR 178.124 recordkeeping requirements.
This requirement applies regardless of whether the NTN is provided to
the FFL by the FBI NICS Operations Center or a POC and whether the
transfer of the firearm is completed.
(j) Access to the NICS Index for purposes unrelated to background
checks required by the Brady Act. Access to the NICS Index for purposes
unrelated to NICS background checks pursuant to 18 U.S.C. 922(t) shall
be limited to uses for the purpose of:
(1) Providing information to Federal, state, or local criminal
justice agencies in connection with the issuance of a permit or license
to possess, acquire, conceal, or transfer a firearm; or
(2) Responding to an inquiry from the ATF in connection with a
civil or criminal law enforcement activity relating to the Gun Control
Act (18 U.S.C. Chapter 44).
Sec. 25.7 Querying records in the system.
(a) The following search descriptors will be required in all
queries of the system for purposes of a background check:
(1) Name;
(2) Sex;
(3) Race;
(4) Complete date of birth; and
(5) State of residence.
(b) A unique numeric identifier may also be provided to search for
additional records based on exact matches by the numeric identifier.
Examples of unique numeric identifiers for purposes of this system are:
Social Security number (to comply with Privacy Act requirements, a
Social Security number will not be required by the NICS to perform any
background check) and miscellaneous identifying numbers (military
number or number assigned by Federal, state, or local authorities to an
individual's record). Additional identifiers that may be requested by
the system after an initial query include height, weight, eye and hair
color, and place of birth. At the option of the querying agency, these
additional identifiers may also be included in the initial query of the
system.
Sec. 25.8 System safeguards.
(a) Information maintained in the NICS Index is stored
electronically for use in an FBI computer environment. The NICS central
computer will reside inside a locked room within a secured facility.
Access to the facility will be restricted to authorized FBI personnel
who have identified themselves and their need for access to a system
security officer.
(b) Access to data stored in the NICS is restricted to duly
authorized agencies. The security measures listed in paragraphs (c)
through (f) of this section are the minimum to be adopted by all POCs
and data sources having access to the NICS. Each state's Control
Terminal Agency will provide to the NICS Operations Center a list of
valid ORIs for those agencies that will serve as POCs for the NICS.
(c) State or local law enforcement agency computer centers
designated by a Control Terminal Agency as POCs shall be authorized
NCIC users and shall observe all procedures set forth in the NCIC
Security Policy of 1992 when processing NICS background checks. The
responsibilities of the Control Terminal Agencies and the computer
centers include the following:
(1) The criminal justice agency computer site must have adequate
physical security to protect against any unauthorized personnel gaining
access to the computer equipment or to any of the stored data.
(2) Since personnel at these computer centers can have access to
data stored in the NICS, they must be screened thoroughly under the
authority and supervision of a state Control Terminal Agency. This
authority and supervision may be delegated to responsible criminal
justice agency personnel in the case of a satellite computer center
being serviced through a state Control Terminal Agency. This screening
will also apply to non-criminal justice maintenance or technical
personnel.
(3) All visitors to these computer centers must be accompanied by
staff personnel at all times.
(4) POCs utilizing a state/NCIC terminal to access the NICS must
have the proper computer instructions written and other built-in
controls to prevent data from being accessible to any terminals other
than authorized terminals.
(5) Each state Control Terminal Agency shall build its data system
around a central computer, through which each inquiry must pass for
screening and verification.
(d) Authorized state agency remote terminal devices operated by
POCs and having access to the NICS must meet the following
requirements:
(1) POCS and data sources having terminals with access to the NICS
must physically place these terminals in secure locations within the
authorized agency;
(2) The agencies having terminals with access to the NICS must
screen terminal operators and must restrict access to the terminals to
a minimum number of authorized employees; and
(3) Copies of NICS data obtained from terminal devices must be
afforded appropriate security to prevent any unauthorized access or
use.
(e) FFL remote terminal devices may be used to transmit queries to
the NICS via electronic dial-up access. The following procedures will
apply to such queries:
(1) The NICS will incorporate a security authentication mechanism
that performs FFL dial-up user
[[Page 30437]]
authentication before network access takes place;
(2) The proper use of dial-up circuits by FFLs will be included as
part of the periodic audits by the FBI; and
(3) All failed authentications will be logged by the NICS and
provided to the NICS security administrator.
(f) FFLs may use the telephone to transmit queries to the NICS, in
accordance with the following procedures:
(1) FFLs may contact the NICS Operations Center during its regular
business hours by a telephone number provided by the FBI;
(2) FFLs will provide the NICS Representative with their FFL Number
and password, the type of sale, and the name, sex, race, date of birth,
and state of residence of the prospective buyer; and
(3) The NICS will verify the FFL Number and password before
processing the request.
(g) The following precautions will be taken to help ensure the
security and privacy of NICS information when FFLs contact the NICS
Operations Center:
(1) Access will be restricted to the initiation of a NICS
background check in connection with the proposed transfer of a firearm.
(2) The NICS Representative will only provide a response of
``Proceed'' or ``Delayed'' (with regard to the prospective firearms
transfer), and will not provide the details of any record information
about the purchaser. In cases where potentially disqualifying
information is found in response to an FFL query, the NICS
Representative will provide a ``Delayed'' response to the FFL. A
follow-up ``Proceed'' or ``Denied'' response will be provided by the
NICS Operations Center during its regular business hours and before the
expiration of three business days (exclusive of the day on which the
query is made) after the FFL query.
(3) The FBI will periodically monitor telephone inquiries to ensure
proper use of the system.
(h) All transactions and messages sent and received through
electronic access by POCs and FFLs will be automatically logged in the
NICS Audit Log described in Sec. 25.9(b). Information in the NICS Audit
Log will include initiation and termination messages, failed
authentications, and matching records located by each search
transaction.
(i) The FBI will monitor and enforce compliance by NICS users with
the system security requirements outlined in the NICS Security
Guidelines.
Sec. 25.9 Retention and destruction of records in the system.
(a) The NICS will retain indefinitely NICS Index records that
indicate that receipt of a firearm by the individuals to whom the
records pertain would violate Federal or state law unless such records
are canceled by the originating agency. In cases where a firearms
disability is only temporary, as defined by 27 CFR part 178, the NICS
will automatically purge the pertinent record on a specified date as
determined by the referenced regulation. 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) The Audit Log will record the following information: type of
transaction (inquiry or response), line number, time, date of inquiry,
header, message key, ORI, and inquiry/response data (including the name
and other identifying information about the prospective purchaser and
the NTN). After eighteen months, if the transfer is allowed, all
information in the Audit Log related to the person or the transfer will
be destroyed, other than the NTN assigned to the transfer and the date
the number was assigned. Audit Log records relating to denials will be
retained for 10 years, after which time they will be transferred to a
Federal Records Center for storage. The NICS will not be used to
establish any system for the registration of firearms, firearm owners,
or firearm transactions or dispositions, except with respect to persons
prohibited from receiving a firearm by 18 USC 922 (g) or (n) or by
state law.
(2) The 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 of the system. Searches may be
conducted on the Audit Log by time frame, i.e., by day or month, or by
a particular state or agency. 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. The Audit Log
will be monitored and reviewed on a regular basis to detect any
possible misuse of the NICS data.
(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; and
(2) All information (regardless of media) contained in the NICS
Audit Log relating to a background check that results in an allowed
transfer.
(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
allows a transfer; and
(2) All other records relating to the person or the transfer
created as a result of a NICS check that are not part of a record
system created and maintained in accordance with state law.
Sec. 25.10 Correction of erroneous system information.
(a) An individual may request the reason for the denial 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. The
request for the reason for the denial must be made in writing to the
denying agency.
(b) The denying agency will respond to the individual with the
reasons for the denial 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 who was
denied).
(c) If the individual wishes to challenge the accuracy of the
record upon which the denial is based, or if the individual wishes to
assert that his or her rights to possess a firearm have been restored,
he or she may make application first to the denying agency, i.e.,
either the FBI or the POC. If the denying agency is unable to resolve
the appeal, the denying 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 the denial 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 shall so notify
the denying
[[Page 30438]]
agency, which will, in turn, verify the record correction with the
originating agency (assuming the originating agency has not already
notified the denying agency of the correction) and take all necessary
steps to correct the record in the NICS.
(d) As an alternative to the above procedure, the individual may
elect to direct his or her challenge to the accuracy of the record, in
writing, to the FBI, NICS Operations Center, Criminal Justice
Information Services Division, 1000 Custer Hollow Road, Module C-3,
Clarksburg, West Virginia 26306-0147. Upon receipt of the information,
the FBI will investigate the matter by contacting the POC that denied
the transaction or the data source. The FBI will request the POC or the
data source to verify that the record in question pertains to the
individual who was denied or 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 that was the 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 agency shall
provide a written confirmation of the correction of the erroneous data
to the individual for presentation to the FFL. If the appeal of a
contested record is successful and less than thirty (30) days have
transpired since the initial check, and there are no other
disqualifying records upon which the denial was based, the NICS will
communicate a ``proceed'' response to the FFL. If the appeal is
successful and more than thirty (30) days have transpired since the
initial check, the FFL must recheck the NICS (without being charged a
fee) before allowing the sale to continue. In cases where multiple
disqualifying records are the basis for the denial, the individual must
pursue a correction for each record.
(f) An individual 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.
Sec. 25.11 Prohibited activities and penalties.
(a) State or local agencies, FFLs, or individuals violating this
subpart A shall be subject to a fine not to exceed $10,000 and subject
to cancellation of NICS inquiry privileges.
(b) Misuse or unauthorized access includes, but is not limited to,
the following:
(1) State or local agencies', FFLs', or individuals' purposefully
furnishing incorrect information to the system to obtain a ``proceed''
response, thereby allowing a firearm transfer;
(2) State or local agencies'', FFLs', or individuals' purposefully
using the system to perform a check for unauthorized purposes; and
(3) Any unauthorized person's accessing the NICS.
Dated: May 28, 1998.
Janet Reno,
Attorney General.
[FR Doc. 98-14795 Filed 6-1-98; 8:45 am]
BILLING CODE 4410-02-U
