National Instant Criminal Background Check System Regulation

DEPARTMENT OF JUSTICE

28 CFR Part 25

[AG Order No. 2186-98]

RIN 1105-AA51

National Instant Criminal Background Check System Regulation

AGENCY: Federal Bureau of Investigation, Department of Justice.

ACTION: Final rule.

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SUMMARY: The United States Department of Justice (DOJ) is publishing a

final rule implementing the National Instant Criminal Background Check

System (NICS) pursuant to the Brady Handgun Violence Prevention Act

(``Brady Act''), to provide notice of the establishment of the NICS, to

establish policies and procedures for ensuring the privacy and security

of this system, and to implement a NICS appeals policy for persons

denied acquisition of a firearm based on information in the NICS that

they believe to be erroneous or incomplete.

EFFECTIVE DATE: November 30, 1998.

FOR FURTHER INFORMATION CONTACT: Emmet A. Rathbun, Unit Chief, Federal

Bureau of Investigation, Module C-3, 1000 Custer Hollow Road,

Clarksburg, West Virginia 26306-0147, telephone number (304) 625-2000.

SUPPLEMENTARY INFORMATION: This rule finalizes two notices of proposed

rulemaking: the National Instant Criminal Background Check System

Regulation published in the Federal Register on June 4, 1998 (63 FR

30430), and the National Instant Criminal Background Check System User

Fee Regulation, published in the Federal Register on August 17, 1998

(63 FR 43893). The FBI accepted comments on the proposed rules from

interested parties until September 16, 1998, and approximately 2,000

comments were received.

In publishing this final rule, the Department also is giving

notice, pursuant to section 103(d) of the Brady Act, Public Law 103-

159, 107 Stat. 1536, to Federal Firearm Licensees (FFLs) and the chief

law enforcement officer of each state that the NICS is established as

of October 31, 1998. With limited exceptions, FFLs are required by the

Brady Act to begin contacting the system beginning on November 30,

1998, thirty days after the establishment of the system, before they

may transfer a firearm to a non-licensee. FFLs shall contact the NICS

by contacting either the FBI NICS Operations Center or a state point of

contact (POC) for the NICS, as specified by the Bureau of Alcohol,

Tobacco, and Firearms (ATF), United States Department of the Treasury.

The ATF will notify each FFL of the method by which FFLs must contact

the NICS in their state.

Significant Comments or Changes

The NICS User Fee

The largest number of comments pertained to the FBI's proposed user

fee to be charged FFLs that contact the FBI NICS Operations Center

directly for a NICS background check. All of those who commented on the

proposed user fee opposed the fee. This issue was the subject of

Congressional action since the time of the initial publication of the

proposed NICS rule. The Omnibus Appropriations Act for fiscal year 1999

provided additional monies to the FBI to fund the operation of the NICS

and prohibited the FBI from charging a fee for NICS checks.

Accordingly, the FBI will not be charging the user fee set forth in the

proposed NICS user fee regulation. This does not preclude state or

local agencies acting as POCs for the NICS from charging such fees as

may be appropriate under state or local law.

The NICS Audit Log

A significant number of comments were received opposing the

retention by the NICS of a temporary log of background check

transactions that allow a firearm transfer to proceed. Most of these

comments expressed an opinion that such a log would constitute a

national firearms registry, the establishment of which is prohibited by

the Brady Act.

The FBI will not establish a federal firearms registry. The FBI is

expressly barred from doing so by section 103(i) of the Brady Act. In

order to meet her responsibility to maintain the integrity of

Department systems, however, the Attorney General must establish an

adequate system of oversight and review. Consequently, the FBI has

proposed to retain records of approved transactions in an audit log for

a limited period of time solely for the purpose of satisfying the

statutory requirement of ensuring the privacy and security of the NICS

and the proper operation of the system. Although the Brady Act mandates

the destruction of all personally identified information in the NICS

associated with approved firearms transactions (other than the

identifying number and the date the number was assigned), the statute

does not specify a period of time within which records of approvals

must be destroyed. The Department attempted to balance various

interests involved and comply with both statutory requirements by

retaining such records in the NICS Audit Log for a limited, but

sufficient, period of time to conduct audits of the NICS.

The NICS Audit Log will contain information relating to each NICS

background check requested by FFLs and will allow the FBI to audit use

of the system by FFLs and POCs. By auditing the system, the FBI can

identify instances in which the NICS is used for unauthorized purposes,

such as running checks of people other than actual gun transferees, and

protect against the invasions of privacy that would result from such

misuse. Audits can also determine whether potential handgun purchasers

or FFLs have stolen the identity of innocent and unsuspecting

individuals or otherwise submitted false identification information, in

order to thwart the name check system. The Audit Log will also allow

the FBI to perform quality control checks on the

[[Page 58304]]

system's operation by reviewing the accuracy of the responses given by

the NICS record examiners to gun dealers.

Under the proposed rule, personally identified information in the

NICS Audit Log associated with allowed transfers would be destroyed

after eighteen months. Because of the numerous comments objecting to

this retention period as too long, the Department reexamined the time

period needed to perform audits of the NICS. In light of the statutory

requirement that records for allowed transfers be destroyed, and the

countervailing statutory requirement to provide for system privacy and

security, the Department determined that the general retention period

for records of allowed transfers in the NICS Audit Log should be the

minimum reasonable period for performing audits on the system, but in

no event more than six months. Section 25.9(b) in the final rule was

revised to reflect this and to provide that such information may be

retained for a longer period if necessary to pursue identified cases of

misuse of the system. The Department further determined that the FBI

shall work toward reducing the retention period to the shortest

practicable period of time less than six months that will allow basic

security audits of the NICS. By February 28, 1999, the Department will

issue a notice of a proposed revision of the regulation setting forth a

further reduced period of retention that will be observed by the

system.

Various comments expressed concern that the Audit Log would allow

POCs and law enforcement agencies access to records of approved

transfers. This is not a well-founded concern because only the FBI will

be able to access information in the transaction log. Section

25.9(b)(1) of the final rule was revised to provide explicitly that

such information is available only to the FBI, and only for the

purposes of conducting audits of the use and performance of the NICS or

pursing cases of misuse of the system.

There were also suggestions in the comments that more specific

language be added to the final rule setting forth requirements for the

FBI to ensure that transaction logs of the separate National Crime

Information Center (NCIC) record system also be destroyed to the extent

they reflect allowed firearm transfers. The NCIC information system is

separate from the NICS. Nonetheless, the FBI has taken steps to

preclude transaction logging of personally identified information in

either NCIC or the Interstate Identification Index (III) that would

pertain to allowed firearm transactions. Thus, the only logging of this

information by the FBI is in the NICS Audit Log. Similar steps will be

taken to prevent such logging in the future FBI information systems

NCIC 2000 and the Integrated Automated Fingerprint Identification

System (IAFIS) as soon as practicable, but in no event more than one

year after those systems come on-line in July 1999. For NICS disaster

recovery, a tape of each weekly, full system backup will be maintained

in an off-site location for up to six months. Full system backup tapes

will also be stored locally to recycle the off-site storage. The FBI

keeps no systematic paper copies of transactions.

Finally, comments were received from state and local law

enforcement agencies that will serve as POCs seeking clarification that

none of the information about NICS checks in state record systems that

they maintain pursuant to state law will be subject to the record

destruction requirement. The proposed rule provided: (1) that POC

records of inquiry and response messages relating to the initiation and

result of a NICS check that allows a transfer must be destroyed; and

(2) that POC records of NICS checks that the POC processes that are

part of a state record system created and maintained in accordance with

state law are not subject to the Brady Act record destruction

requirement. Sections 25.9(d)(1) and (2) of the final rule were revised

to make it clear that the referenced state records of allowed transfers

would not be subject to the Brady Act record destruction requirement if

they are part of a record system created and maintained pursuant to

independent state law regarding firearms transfers. The reason for this

clarification is to avoid interfering with state regulation of

firearms. If a state is performing a gun eligibility check under state

law, and state law requires or allows the retention of the records of

those checks, the state's retention of records of the concurrent

performance of a NICS check would not add any more information about

gun ownership than the state already retains under its own law.

NICS Checks on Pawnshop Redemptions and Gunsmith Transactions

A significant number of comments on this rule pertained to

conducting background checks on firearms redeemed from pawnshops and

firearms that were the subject of repair or modification by a gunsmith.

Although the Brady Act requires the Attorney General to establish a

national instant criminal background check system, it is the Secretary

of Treasury through the ATF who defines what constitutes a firearms

transfer, how long a background check is valid, which firearm permits

constitute a substitute or alternative to a background check, and the

recordkeeping requirements for FFLs. The ATF has issued proposed

regulations dealing with these issues. (63 FR 8379). Questions and

comments about these matters should be directed to the ATF.

A number of comments from the pawnbrokers' industry addressed the

circumstances that will develop when a person redeems a firearm from

pawn but the firearm cannot be transferred back to the individual

because of a disqualifying record found by the NICS check. The U.S.

Department of Treasury Fiscal Year 1999 appropriations legislation

includes a provision to allow pawnbrokers the option of requesting a

NICS background check at the time a person offers the firearm for pawn.

An additional check would still be necessary at the time of redemption.

NICS will be made available to pawnbrokers for this purpose. No change

in the rule is necessary to address this.

Use of State Points of Contact

Some comments questioned the legality of using state POCs to

process NICS checks in light of the Supreme Court's decision in Printz

v. United States, 117 S. Ct. 2365 (1997), which held that Congress

could not compel the states to perform Brady checks. In response to

these comments we note that the states that will act as POCs for the

NICS are not being required to do so by Federal law or regulation, but

will do so voluntarily pursuant to their own state authority. The final

rule's definition of a POC acknowledges that a state or local agency

serving that function will be doing so by express or implied authority

pursuant to state statute or executive order.

Some commenters objected to the use of state or local law

enforcement agencies as NICS POCs even if such agencies do so

voluntarily. The FBI considers the use of POCs (serving as

intermediaries between FFLs and the system) to be an appropriate means

to implement the Brady Act. Fostering state and local participation in

the NICS is entirely consistent with both our federal form of

government and with practices under the Brady Act's interim provision.

Moreover, state and local authorities are likely to have readier access

to more detailed information than a single centralized processor, such

as the FBI, thus resulting in fewer system misses of disqualified

persons and enhancing system responsiveness

[[Page 58305]]

for non-disqualified persons. The final rule therefore retains the POC

provisions of the proposed rule.

Other Comments

Other comments addressed matters that were established by the Brady

Act and are not subject to change by regulation, or addressed matters

over which the Attorney General has no authority under the Brady Act.

Accordingly, no changes were made to this final rule for comments such

as the following: long guns should be exempted from background checks;

a government-issued photo identification should not be required for

transferee identification; disqualifying information should be included

on a person's drivers license to make a NICS check unnecessary; there

should be no immunity from liability for persons or agencies providing

information to the NICS; the Attorney General should not be permitted

to obtain information relevant to NICS determinations from other

federal agencies; and FFLs should be able to transfer a firearm sooner

than the expiration of three business days in the absence of a NICS

response.

Some comments also objected to the use of a NICS ``Delayed''

response, arguing that the Brady Act only provides for approval and

denial responses. We note that the ``Delayed'' response is merely a way

of communicating to the FFL that the system requires additional time to

research and evaluate whether the prospective transferee is

disqualified from receiving a firearm. The definition of the

``Delayed'' response in the final rule was revised to reflect this and

the fact that a ``Delayed'' response indicates that it would be

unlawful to transfer the firearm pending receipt of a follow-up

``Proceed'' response from the NICS or the expiration of three business

days, whichever occurs first. The law does not prohibit the system from

making such a response.

Some comments objected to solicitation and retention of a

prospective transferee's Social Security number (SSN). As noted in the

proposed rule, a prospective transferee is free not to provide his or

her SSN and will not be denied NICS processing for failure to do so.

However, voluntarily providing his or her SSN can benefit a prospective

transferee by helping NICS differentiate the prospective transferee

from other persons with similar names who may have disqualifying

records. Moreover, the SSNs of non-disqualified transferees will be

destroyed with the rest of the transferees' identifying data at the end

of 180 days. The final rule therefore retains this provision of the

proposed rule.

At least one comment asked about the system's handling of persons

who have been granted relief from disabilities and the safeguards to

ensure this relief is recognized by the NICS. Initially, the NICS will

not contain records on persons granted relief from firearm disabilities

by the ATF. A procedure will be implemented, however, so that the NICS

Operations Center can verify the status of such individuals when they

wish to obtain a firearm. The ATF has agreed to notify the FBI if and

when it grants relief from disabilities in the future by providing the

individuals' names and FBI identification numbers for inclusion in its

records. This matter will also be the subject of discussion with state

law enforcement agencies that include or should include information in

their record systems about relief granted to persons under state

statute.

A small number of comments suggested that the FBI establish its

regular business hours beginning at 8:00 a.m. in the earlier time zones

and/or requiring POCs to offer hours of 9:00 a.m. to 10:00 p.m. The

final rule retains the FBI business hours of 9:00 a.m. to 2:00 a.m. It

is understood that some places of business are open during hours during

which the NICS Operations Center is unavailable. However, the FBI is

servicing retail stores in seven different time zones and has attempted

to define its business hours to cover the peak sales times in each

zone. Additionally, in the near future, the FBI will make electronic

access available to FFLs. This access will essentially allow FFLs to

conduct background checks 24 hours a day except during minimal periods

of system maintenance. Guidelines for POCs have been distributed

suggesting minimum business hours of 10:00 a.m. to 9:00 p.m., although

these hours are not mandatory.

A number of law enforcement officials noted that the proposed rule

would not allow a law enforcement officer to check the NICS for the

status of a person in possession of a firearm to help investigate

whether the person is unlawfully in possession. The proposed rule also

would not allow checks for general law enforcement purposes. The final

rule remains unchanged in this regard largely due to privacy-related

concerns expressed by the federal agencies supplying records to the

NICS Index. Taking into account that the Brady Act expressly requires

agencies to provide records to the NICS for Brady Act purposes, the

agencies were concerned that use for other purposes would conflict with

privacy statutes that restrict the use of such information. The FBI

notes that law enforcement has access to the vast majority of records

available to the NICS through the National Crime Information Center

(NCIC) or the Interstate Identification Index (III).

A number of state officials who will be acting as POCs in their

states commented that they verify the identity of the FFLs by means

other than the FFL number assigned by the ATF. They further commented

that they may provide a state number rather than a NICS system

transaction number to the FFLs for approved sales. They may not provide

a number for a denied sale. Section 25.6(d), (g), and (i) were changed

to accommodate the state systems.

Several comments expressed the desire for the FBI to have both

telephone and electronic dial-up access fully available for background

checks when the NICS becomes available November 30, 1998. The FBI also

would like to have electronic access fully deployed as soon as possible

since the electronic access improves service and reduces the number of

people needed to operate the system. Since the Brady Act requires

telephone access at a minimum, the NICS system developers have focused

resources to make sure that the basic system would be operational on

schedule. It now appears that electronic dial-up access will become

available to FFLs sometime after November 30, 1998. Therefore, section

25.6(b) was changed accordingly. This section was changed further to

make it clear that there may be periods within a 24-hour day when NICS

would be unavailable due to scheduled or unscheduled downtime. As soon

as the NICS is proven to have fully successful operating capability

using telephone access, all available resources will be directed toward

the additional electronic access. The development time for this

capability should be relatively short because prototypes are already

complete.

Some comments suggested that the FBI provide a toll-free telephone

number to individuals who are denied the transfer of a firearm and wish

to appeal this denial, and that the FBI establish in the final rule a

time frame within which the FBI and POCs would have to respond to an

appeal. The FBI will provide a toll-free number for this purpose. In

most cases, however, a written appeal will be required to get the

appeal process started. No time frame for answering appeals was

included in this rule since the Brady Act specifically provides that

the NICS will respond within five business days

[[Page 58306]]

to individuals requesting the reasons for being found ineligible to

receive a firearm, and that the system immediately consider an

individual's submission to correct, clarify, or supplement records in

the NICS.

In response to comments about FFL access to the NICS, section

25.6(b) was modified to clarify that the FBI intends to provide FFLs a

toll-free number for both telephone and electronic dial-up access.

Technical Changes

The term ``password'' used in the proposed rule has been changed to

``code word'' in the final rule. The term ``password'' has a specific

meaning and implications when used in the context of computer security.

The ``code word'' selected by the FFL when enrolling with the FBI to

gain access to the NICS does not comply with all the security measures

normally associated with a ``password.'' Therefore, to avoid creating a

false impression, the term ``password'' has been replaced by ``code

word.''

In the final rule, words such as ``purchase'' and ``purchaser''

were changed to words such as ``obtain'' and ``transferee'' to clarify

that NICS checks apply to transfers and are not limited to firearm

sales.

The definition of the term ``Proceed'' was modified in the final

rule to clarify that it means that information available to the system

at the time of the response did not demonstrate that transfer of the

firearm would violate Federal or state law and that, notwithstanding a

``Proceed'' response from the NICS, an FFL may not lawfully transfer a

firearm if he or she knows or has reasonable cause to believe that the

prospective transferee is prohibited from receiving or possessing

firearms, or is otherwise prohibited from transferring the firearm

under applicable Federal or state law.

The proposed rule provided that a denial by the NICS of a firearm

transfer would be based upon one or more matching records that provide

reason to believe that receipt of a firearm by a prospective transferee

would violate 18 U.S.C. 922 or state law. The final rule changes the

terminology relating to NICS denials to ``information demonstrating''

rather than ``reason to believe'' in order to conform the language of

the regulation more closely to the language relating to denials in the

Brady Act.

Section 25.6(a) in the final rule was modified to indicate that the

ATF will advise FFLs whether they are required to contact the FBI or a

POC to initiate a NICS check and how they are to do so. Section 25.6(j)

was modified to clarify the allowable non-Brady Act uses of the NICS

Index to include responding to inquiries by criminal justice agencies

in connection with licenses or permits to carry a concealed firearm or

to import, manufacture, deal in, or purchase explosives, and inquiries

by the ATF in connection with enforcement of the Gun Control Act (18

U.S.C. Chapter 44), or the National Firearms Act (26 U.S.C. Chapter

53). Section 25.8(b) was modified to indicate that the states will not

be required to give the FBI a list of the Originating Agency

Identifiers (ORIs) for POCs within the state. Section 25.8(i) was

modified to correctly identify the documents where security

requirements are outlined. Section 25.9(a) was modified to clarify that

in cases of firearms disabilities that are not permanent, e.g.,

disqualifying restraining orders, the NICS will automatically purge the

pertinent record when it is no longer disqualifying. Section 25.10(a)

was modified to allow states to accept denial appeals in other than

written form.

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 final 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. A small firearm

retailer is defined as having under $5.0 million in annual gross

receipts as defined by 13 CFR 121.201. Firearm retailers are included

in the Standard Industrial Class (SIC) Code 5941. The FBI has further

considered that this rule will apply to pawn redemptions, and that many

pawnbrokers are small entities. The obligation of FFLs to contact the

NICS before transferring a firearm, and the applicability of NICS

checks to pawn redemptions, are imposed by the Brady Act and detailed

in the proposed ATF regulations implementing the permanent provisions

of the Brady Act (63 FR 8379). 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.

The FBI has sent a notice, including a letter describing NICS and a

NICS brochure, to each FFL in the states and territories that are

currently expected to be serviced directly by the FBI. The FBI has also

met with FFLs at regional firearm seminars conducted by ATF to inform

FFLs about NICS plans and to solicit comments needed to finalize these

plans. These efforts were made by the FBI also to satisfy the

``outreach'' provisions of 5 U.S.C. 609.

Executive Order 12866

The Department of Justice has completed its examination of this

final rule in light of Executive Order 12866, section 1(b), Principles

of Regulation. The Department of Justice has determined that this final

rule is a ``significant regulatory action'' under section 3(f) of

Executive Order 12866, Regulatory Planning and Review, and thus it has

been reviewed by the Office of Management and Budget (OMB).

Executive Order 12612

This final 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 final 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 final rule is not a major rule as defined by the Small

Business Regulatory Enforcement Fairness Act of 1996. 5 U.S.C. 804.

This 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

[[Page 58307]]

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 final rule has been

submitted to OMB for review in accordance with the Paperwork Reduction

Act of 1995 (44 U.S.C. 3507(d)). Public comment was solicited in the

notice of proposed rulemaking that preceded this final rule (63 FR

30430). In addition, three data collection activities deemed necessary

for the implementation of the NICS were the subject of separate

publications.

On May 31, 1998, the FBI submitted a Paperwork Reduction Act

request for emergency OMB review and clearance of a proposed data

collection entitled the NICS Firearm Dealers Survey. On June 1, 1998,

the FBI published a Federal Register notice (63 FR 29755) announcing

its intention to collect this information. On June 21, 1998, the OMB

granted approval for the data collection effort, and issued OMB control

number 1110-0025 for inclusion on the data collection instrument. This

control number allows the FBI to collect survey data for 180 days from

the date of issue. The FBI published a second notice in the Federal

Register (63 FR 44925) on August 21, 1998, requesting OMB approval to

collect this data for a period of up to three years.

On July 16, 1998, the FBI submitted a Paperwork Reduction Act

request for emergency OMB review and clearance of a proposed data

collection entitled the NICS Federal Firearms Licensee (FFL) Enrollment

Form. On July 23, 1998, the FBI published a Federal Register notice (63

FR 39594) announcing its intention to collect this information. On

August 3, 1998, OMB granted approval for the data collection effort,

and issued OMB control number 1110-0026 for inclusion on the data

collection instrument. This control number allows the FBI to collect

enrollment information for 180 days from the date of issue. The FBI

will publish a second notice in the Federal Register requesting OMB

approval to collect this data for a period of up to three years.

On July 27, 1998, the FBI submitted a Paperwork Reduction Act

request for emergency OMB review and clearance of a proposed data

collection entitled the FFL Execution of Acknowledgment of Obligations

and Responsibilities Under the NICS. On August 3, 1998, the FBI

published a Federal Register notice (63 FR 41296) announcing its

intention to collect this information. On August 3, 1998, the OMB

granted approval for the data collection effort, and issued OMB control

number 1110-0027 for inclusion on the data collection instrument. This

control number allows the FBI to collect this information for 180 days

from the date of issue. The FBI will publish a second notice in the

Federal Register requesting OMB approval to collect this data for a

period of up to three years.

List of Subjects in 28 CFR Part 25

Administrative practice and procedure, Business and industry,

Computer technology, Courts, Firearms, Law enforcement officers,

Penalties, Privacy, Reporting and recordkeeping requirements, Security

measures, Telecommunications.

Accordingly, chapter I of title 28 of the Code of Federal

Regulations is amended by adding part 25 to read as follows:

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 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 Federal or state law. 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 include

requirements to ensure the privacy and security of the NICS and appeals

procedures for persons who have been denied the right to obtain a

firearm as a result of a NICS background check performed by the Federal

Bureau of Investigation (FBI) or a state or local law enforcement

agency.

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.

ATF means the Bureau of Alcohol, Tobacco, and Firearms of the

Department of Treasury.

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 that more research is required prior to a NICS

``Proceed'' or ``Denied'' response. A ``Delayed'' response to the FFL

indicates that it would be unlawful to transfer the firearm until

receipt of a follow-up ``Proceed'' response from the NICS or the

expiration of three business days, whichever occurs first.

Denied means denial of a firearm transfer based on a NICS response

indicating one or more matching records were found providing

information demonstrating that receipt of a firearm by a prospective

transferee 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 ATF

as a

[[Page 58308]]

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 the 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 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 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

Federal or state 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

9:00 a.m. to 2:00 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 responses provided by the NICS to the FFLs.

ORI (Originating Agency Identifier) means a nine-character

identifier assigned by the FBI to an agency that has met the

established qualifying criteria for ORI assignment to identify the

agency in transactions on the NCIC System.

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 federal

databases checked by the NICS. 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 under Federal or state law, and respond to FFLs with the

results of a NICS background check. A POC will be an agency with

express or implied authority to perform POC duties pursuant to state

statute, regulation, or executive order.

Proceed means a NICS response indicating that the information

available to the system at the time of the response did not demonstrate

that transfer of the firearm would violate federal or state law. A

``Proceed'' response would not relieve an FFL from compliance with

other provisions of Federal or state law that may be applicable to

firearms transfers. For example, under 18 U.S.C. 922(d), an FFL may not

lawfully transfer a firearm if he or she knows or has reasonable cause

to believe that the prospective recipient is prohibited by law from

receiving or possessing a firearm.

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 a 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 based 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, D.C. 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

has been or 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) Automatically rejecting 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 ATF whether

they are required to initiate NICS background checks with the NICS

Operations Center or a 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 use of a toll-free telephone

number, only during its regular business hours. In addition to

telephone access, toll-free electronic dial-up access to the NICS will

be provided to FFLs after the

[[Page 58309]]

beginning of the NICS operation. FFLs with electronic dial-up access

will be able to contact the NICS 24 hours each day, excluding scheduled

and unscheduled downtime.

(c)(1) The FBI NICS Operations Center, upon receiving an FFL

telephone or electronic dial-up request for a background check, 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 Index, 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) ``Proceed'' response, if no disqualifying information was found

in the NICS Index, NCIC, or III.

(B) ``Delayed'' response, if the NICS search finds a record that

requires more research to determine whether the prospective transferee

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 ``Proceed'' response

from the NICS or the expiration of three business days (exclusive of

the day on which the query is made), whichever occurs first. (Example:

An FFL requests a NICS check on a prospective firearm transferee at

9:00 a.m. on Friday and shortly thereafter receives a ``Delayed''

response from the NICS. If state offices in the state in which the FFL

is located are closed on Saturday and Sunday and open the following

Monday, Tuesday, and Wednesday, and the NICS has not yet responded with

a ``Proceed'' or ``Denied'' response, the FFL may transfer the firearm

at 12:01 a.m. Thursday.)

(C) ``Denied'' response, when at least one matching record is found

in either the NICS Index, NCIC, or III that provides information

demonstrating that receipt of a firearm by the prospective transferee

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.

(2) None of the responses provided to the FFL under paragraph

(c)(1) of this section 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. Both ATF and the POC will

notify FFLs in the POC's state of the means by which FFLs can contact

the POC. The NICS will provide POCs with electronic access to the

system virtually 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 eligibility of the FFL either by verification of the

FFL number or an alternative POC-verification system;

(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 a valid inquiry for a

background check.

(f) When the NICS receives an inquiry from a POC, it will search

the relevant databases (i.e., NICS Index, 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:

(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 that the transfer may proceed, is delayed

pending further record analysis, or is denied. ``Proceed''

notifications made within three 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.

(h) In cases where a transfer is denied by a POC, the POC should

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) Response recording. FFLs are required to record the system

response, whether provided by the FBI NICS Operations Center or a POC,

on the appropriate ATF form for audit and inspection purposes, under 27

CFR part 178 recordkeeping requirements. The FBI NICS Operations Center

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 and/or

determination.

(j) Access to the NICS Index for purposes unrelated to NICS

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 firearm-related

or explosives-related permit or license, including permits or licenses

to possess, acquire, or transfer a firearm, or to carry a concealed

firearm, or to import, manufacture, deal in, or purchase explosives; 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) or the National Firearms Act (26 U.S.C.

Chapter 53).

[[Page 58310]]

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 (e.g., 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 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.

(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.

(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 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 code word, 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 code word 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 transferee. 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. Follow-

up ``Proceed'' or ``Denied'' responses will be provided by the NICS

Operations Center during its regular business hours.

(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 applicable system security requirements outlined in the NICS POC

Guidelines and the NICS FFL Manual (available from the NICS Operations

Center, Federal Bureau of Investigation, 1000 Custer Hollow Road,

Clarksburg, West Virginia 26306-0147).

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

(a) The NICS will retain NICS Index records that indicate that

receipt of a firearm by the individuals to whom the records pertain

would violate Federal or state law. The NICS will retain such records

indefinitely, unless they are canceled by the originating agency. In

cases where a firearms disability is not permanent, e.g., a

disqualifying restraining order, the NICS will automatically purge the

pertinent record when it is no longer disqualifying. Unless otherwise

removed, records contained in the NCIC and III files that are accessed

during a background check

[[Page 58311]]

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 transferee and

the NTN). In cases of allowed transfers, all information in the Audit

Log related to the person or the transfer, other than the NTN assigned

to the transfer and the date the number was assigned, will be destroyed

after not more than six months after the transfer is allowed. 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 U.S.C. 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. Information in the Audit Log pertaining

to allowed transfers may only be used by the FBI for the purpose of

conducting audits of the use and performance of the NICS. Such

information, however, may be retained and used as long as needed to

pursue cases of identified misuse of the system. 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 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 person or the transfer

created as a result of a NICS check that are not part of a record

system created and maintained pursuant to independent state law

regarding firearms transactions.

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. (POCs at their discretion may waive the requirement for

a written request.)

(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 may so notify

the denying 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 where a POC was the

denying agency, 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 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 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 thirty (30) days or less 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 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.

[[Page 58312]]

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: October 27, 1998.

Janet Reno,

Attorney General.

[FR Doc. 98-29109 Filed 10-29-98; 8:45 am]

BILLING CODE 4410-06-P