# 89 FR 100404: Bipartisan Safer Communities Act of 2022 and Consolidated Appropriations Act of 2022-Implementation Revisions for National Instant Criminal Background Check System (NICS)

> Federal · Regulations · In force

URL: https://www.frixlaw.com/law-library/statutes/FR_PRORULE_2024-28712

## Section

- **Citation:** 89 FR 100404
- **Heading:** Bipartisan Safer Communities Act of 2022 and Consolidated Appropriations Act of 2022-Implementation Revisions for National Instant Criminal Background Check System (NICS)
- **Jurisdiction:** Federal
- **Kind:** Regulations
- **Status:** In force
- **Text as of:** August 14, 2026
- **Source:** Compiled text
- **Location:** Federal Register / Vol. 89 / 89 FR 100404

## Text

DEPARTMENT OF JUSTICE 28 CFR Part 25 [Docket No. FBI-158; AG Order No. 6100-2024] RIN 1110-AA36 Bipartisan Safer Communities Act of 2022 and Consolidated Appropriations Act of 2022—Implementation Revisions for National Instant Criminal Background Check System (NICS) AGENCY:
Federal Bureau of Investigation, Department of Justice.

ACTION:
Notice of proposed rulemaking; request for comment.

SUMMARY:
The United States Department of Justice (“Department”) proposes to amend its regulations pertaining to the National Instant Criminal Background Check System (“NICS”) of the Federal Bureau of Investigation (“FBI”) to implement parts of the Consolidated Appropriations Act, 2022 (“CAA”) and the Bipartisan Safer Communities Act (“BSCA”) by proposing additional, relevant definitions and procedures to reflect and implement the statutory mandates described above.

DATES:
Written comments must be postmarked, and electronic comments must be submitted, on or before February 10, 2025. Commenters should be aware the electronic Federal Docket Management System will not accept comments after 11:59 p.m., Eastern Time, on the last day of the comment period.

ADDRESSES:
You may submit comments, identified by RIN 1110-AA36 or Docket No. FBI-158, by either of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov. Follow the instructions for submitting comments.
Mail: Charles Klebe, Assistant General Counsel, Federal Bureau of Investigation, Office of the General Counsel, Module C-3, 1000 Custer Hollow Road, Clarksburg, West Virginia 26306-0110; ATTN: Docket No. FBI-158.
Instructions: All submissions received must include the agency name and RIN (1110-AA36) or docket number (FBI-158) for this notice of proposed rulemaking. In general, all properly completed comments received will be posted without change to the Federal eRulemaking portal, https://www.regulations.gov, including any personal information provided
West Virginia 26306-0110; ATTN: Docket No. FBI-158.
Instructions: All submissions received must include the agency name and RIN (1110-AA36) or docket number (FBI-158) for this notice of proposed rulemaking. In general, all properly completed comments received will be posted without change to the Federal eRulemaking portal, https://www.regulations.gov, including any personal information provided. For detailed instructions on submitting comments and additional information on the rulemaking process, see the “Public Participation” heading of the SUPPLEMENTARY INFORMATION section of this document.
FOR FURTHER INFORMATION CONTACT:
Jill A. Montgomery, NICS Business and Liaison Unit Chief, Federal Bureau of Investigation, Criminal Justice Information Services Division, NICS Section. Telephone: (304) 625-0606 (this is not a toll-free number).

SUPPLEMENTARY INFORMATION:

I. Public Participation
A. Comments Sought
The Department welcomes public comments from any interested person on any aspect of the changes proposed in this rule. In particular, and as discussed in more detail in the parts of this preamble that describe specific changes, the Department seeks comments from the public on the proposed amendments to NICS regulations regarding: (1) identifying firearms prohibitions imposed by local
All comments must reference RIN 1110-AA36 or this document's docket number, FBI-158, and be legible. Please do not submit, under this proposed rule, any comments pertaining to a different rule that may be discussed in limited detail below. After those other proposed rules are published, public comments concerning those proposed rules should be submitted as directed within those rules.
Please note that all comments received are considered part of the public record and may be made available for public inspection online at https://www.regulations.gov. Information made available for public inspection may include personal identifying information (such as name, address, etc.) submitted by the commenter.
B
ng those proposed rules should be submitted as directed within those rules.
Please note that all comments received are considered part of the public record and may be made available for public inspection online at https://www.regulations.gov. Information made available for public inspection may include personal identifying information (such as name, address, etc.) submitted by the commenter.
B. Confidentiality
In general, the Department will make all comments, whether submitted electronically or on paper, available for public viewing on the internet through the Federal eRulemaking Portal. If you do not want your name or other personal identification information posted on the internet as part of your comment, you must include the phrase “PERSONAL IDENTIFYING INFORMATION” in the first paragraph of your comment. You must also locate all the personal identifying information that you do not want posted online in the first paragraph of your comment and identify what information you want the Department to redact. Personal identifying information identified and located as set forth above will be placed in the Department's public docket file but not posted online.
If you wish to submit confidential business information as part of your comment but do not wish it to be posted online, you must include the phrase “CONFIDENTIAL BUSINESS INFORMATION” in the first paragraph of your comment. You must also prominently identify confidential business information to be redacted within the comment. If a comment has so much confidential business information that it cannot be effectively redacted, the Department may choose not to post that comment (or to post only part of the comment) on https://www.regulations.gov. Confidential business information identified and located as set forth above will not be placed in the public docket file, nor will it be posted online.
C. Submitting Comments
Submit comments in either of the following ways (but do not submit the same comment multiple times or by more than one method)
not to post that comment (or to post only part of the comment) on https://www.regulations.gov. Confidential business information identified and located as set forth above will not be placed in the public docket file, nor will it be posted online.
C. Submitting Comments
Submit comments in either of the following ways (but do not submit the same comment multiple times or by more than one method). Hand-delivered comments will not be accepted.
• Federal eRulemaking Portal: The Department recommends that you submit your comments via the Federal eRulemaking portal at https://www.regulations.gov and follow the instructions. Please keep the comment tracking number that is provided after you have successfully uploaded your comment.
• Mail: Send written comments to the address listed in the ADDRESSES section of this document.
II. Background and Purpose
The Brady Handgun Violence Prevention Act of 1993 (“Brady Act”), Public Law 103-159, 107 Stat. 1536, required the Attorney General to establish a national system for FFLs, more specifically, federally licensed manufacturers, dealers, and importers of firearms under 18 U.S.C. 923, to request immediate information as to whether the transfer of a firearm to any given unlicensed person could proceed. To implement that requirement, the Department created NICS and delegated management of NICS to the FBI. See 28 CFR 25.3. NICS is managed by the NICS Section of the FBI's Criminal Justice Information Services (“CJIS”) Division. The NICS Section processed the first NICS background check on November 30, 1998. Background events that prohibited persons from being able, under the Brady Act, to receive a firearm were those specified in 18 U.S.C. 922(g) and (n) 1 and applicable State law(s). 2
1 Examples of prohibitions under 18 U.S.C
ed by the NICS Section of the FBI's Criminal Justice Information Services (“CJIS”) Division. The NICS Section processed the first NICS background check on November 30, 1998. Background events that prohibited persons from being able, under the Brady Act, to receive a firearm were those specified in 18 U.S.C. 922(g) and (n) 1 and applicable State law(s). 2
1 Examples of prohibitions under 18 U.S.C. 922(g) and (n) include, but are not limited to, having sustained a conviction for, or being under indictment or information for, a “crime punishable by imprisonment for a term exceeding one year” (including State offenses denominated as misdemeanors but punishable by more than 2 years of imprisonment, see 18 U.S.C. 921(a)(20)); being a fugitive from justice; being addicted to or being an unlawful user of a controlled substance; being adjudicated as a mental defective or being committed to a mental institution; being subject to certain protection orders; and having sustained a conviction for a misdemeanor crime of domestic violence.
2 Applicable State law prohibitions are those imposed by the State where the prospective transfer is occurring and the State where the transferee resides (if the State of residence is different than the State of transfer). Additionally, other State laws may be relevant to determining if a Federal firearms prohibition (under 18 U.S.C. 922(d), (g), or (n), as applicable) applies to the prospective transferee. Suppose, for instance, a resident of South Dakota is attempting to receive a rifle or shotgun (“long gun”) from an FFL in Iowa. That prospective transferee, however, has a prior felony-level conviction from a State court in Washington. The State laws of South Dakota, Iowa, and Washington would all be considered during that transaction to assess that person's ability to receive a firearm under State and Federal law.
Since that first NICS background check in 1998, FFLs have initiated NICS background checks by contacting the FBI or a designated “point of contact” (“POC”)
r felony-level conviction from a State court in Washington. The State laws of South Dakota, Iowa, and Washington would all be considered during that transaction to assess that person's ability to receive a firearm under State and Federal law.
Since that first NICS background check in 1998, FFLs have initiated NICS background checks by contacting the FBI or a designated “point of contact” (“POC”). 3 FFLs contacted the FBI by phone or electronically. 4 FFLs in each State are advised if they are required to contact the FBI's NICS Section or a POC to conduct a background check pursuant to 18 U.S.C. 922(t). See 28 CFR 25.6(a).
3 A POC is “a state or local law enforcement agency serving as an intermediary between an FFL and the federal databases checked by the NICS.” 28 CFR 25.2. POCs are agencies with express or implied authority to perform POC duties pursuant to State law. Id.
4 The FBI's NICS electronic check system, known as E-Check, began in 2002. FBI, NICS E-Check, https://www.fbi.gov/video-repository/nics-e-check.mp4/view (last visited Oct. 4, 2024).
Prior to the implementation of BSCA, when an FFL contacted the FBI to initiate a NICS background check, NICS searched three electronic systems—the National Crime Information Center (“NCIC”), 5 the Interstate Identification Index (“III”), 6 and the NICS Indices 7 — See 28 CFR 25.7. It has typically taken NICS a matter of seconds to collect the prospective transferee's identifying information and identify matching or potentially matching records in NCIC, III, or the NICS Indices.
5 NCIC is searched for records such as active warrants and protection orders. See, e.g., FBI, National Instant Criminal Background Check System Posts NICS Index Data (Mar. 18, 2016), https://www.fbi.gov/news/press-releases/national-instant-criminal-background-check-system-posts-nics-index-data (“ NICS Data ”)
nd identify matching or potentially matching records in NCIC, III, or the NICS Indices.
5 NCIC is searched for records such as active warrants and protection orders. See, e.g., FBI, National Instant Criminal Background Check System Posts NICS Index Data (Mar. 18, 2016), https://www.fbi.gov/news/press-releases/national-instant-criminal-background-check-system-posts-nics-index-data (“ NICS Data ”).
6 III is part of the FBI's Next Generation Identification system and is used to search for available Federal, State, local, and Tribal criminal history records such as arrests, charges, or case dispositions. See NICS Data, supra; see also Privacy Act of 1974; System of Records, 84 FR 54182, 54184 (Oct. 9, 2019).
7 The NICS Index consists of entries from Federal, State, local, and Tribal agencies of persons who are prohibited from receiving or possessing firearms under Federal or State law. See 28 CFR 25.2. When referencing the NICS Index, the remainder of this rule will refer to the “NICS Indices” as it is more commonly known today among NICS users. The changes made by this rule include updates to the FBI's regulations to use the term “NICS Indices” rather than “NICS Index.” The Department is also
If the search of those three systems resulted in no matching ( i.e., disqualifying) record, a “Proceed” response was provided to the FFL. If the search of those three systems resulted in at least one record demonstrating that the individual was prohibited from receiving a firearm, a “Denied” response was provided to the FFL. For those transactions in which the NICS Section could not provide a definitive response of either “Proceed” or “Denied” because additional research of a possible Federal or State disqualification was required, the transaction was placed in a “Delayed” status. Upon issuance of a “Delayed” response, NICS would continue to research the possible prohibitions, even after the initial 3 business days had elapsed
transactions in which the NICS Section could not provide a definitive response of either “Proceed” or “Denied” because additional research of a possible Federal or State disqualification was required, the transaction was placed in a “Delayed” status. Upon issuance of a “Delayed” response, NICS would continue to research the possible prohibitions, even after the initial 3 business days had elapsed. If the NICS Section was unable to determine whether a delayed transaction should receive a “Proceed” or “Denied” response within 3 business days of the initiation of the NICS check, the FFL was not federally prohibited from transferring the firearm beginning on the day after the third business day, which was and still is referred to as the Brady transfer date. See 18 U.S.C. 922(t)(1).
In instances where a POC had been designated to process NICS background checks, upon being contacted by an FFL, the POC would “check state or local record systems [and] perform NICS inquiries.” 28 CFR 25.2. In addition to using the NICS Transaction Number (“NTN”) that NICS assigns to submitted transactions, POCs may also assign their own unique “State-Assigned Transaction Number” (“STN”) to a valid background check inquiry. Id. When NICS received an inquiry from a POC for a NICS background check, it searched NCIC, III, and the NICS Indices for any matching records and provided an electronic response to the POC. See 28 CFR 25.6(f). 8 When contacted by a POC, NICS provided one of four types of responses to the POC: (1) “No record” response if NICS determined that no matching records existed in the databases searched; (2) “partial” response if NICS had not completed the search of all of its records (this response provided the POC with the information found in any database in which the search was completed and sent a follow-up response when NICS completed the search in all databases); (3) “single matching record” response when one matching record was found; and (4) “multiple matching record” response if more than one matching record was fou
S had not completed the search of all of its records (this response provided the POC with the information found in any database in which the search was completed and sent a follow-up response when NICS completed the search in all databases); (3) “single matching record” response when one matching record was found; and (4) “multiple matching record” response if more than one matching record was found. See id. It has been and remains the responsibility of the POCs to review the responses that are provided by NICS, conduct any further research, render a final determination, and provide FFLs with the results. See 28 CFR 25.6(g). 9
8 State laws may require or allow POCs to collect further identifying information from a prospective transferee.
9 Further discussion of POCs can be found below within the discussion of denial notifications in Section II.B of this preamble and the discussion of under-21 transactions in Section II.C of this preamble.
The CAA, Public Law 117-103, 136 Stat. 49 (2022), and BSCA, Public Law 117-159, 136 Stat. 1313 (2022), mandated certain changes to the NICS process. In particular, as described below, the CAA and BSCA added new disqualifying events for consideration during NICS transactions. The CAA and BSCA added local and Tribal prohibitions to the Federal and State prohibitions already listed under 18 U.S.C. 922(t). The CAA includes the NICS Denial Notification Act of 2022 (“NDNA”), 136 Stat. at 919, which requires the FBI to send denial notification reports (“denial notifications”) to local law enforcement authorities following the FBI's denial of a NICS transaction involving a prospective transfer of a firearm. BSCA sets forth new requirements for under-21 transactions, including enhanced contacts to State and local entities and, if needed, additional delay to further investigate possibly disqualifying juvenile records. 136 Stat. at 1322-24
reports (“denial notifications”) to local law enforcement authorities following the FBI's denial of a NICS transaction involving a prospective transfer of a firearm. BSCA sets forth new requirements for under-21 transactions, including enhanced contacts to State and local entities and, if needed, additional delay to further investigate possibly disqualifying juvenile records. 136 Stat. at 1322-24. As described below, the Department proposes to amend the regulations outlining the NICS process to conform with these requirements of the CAA and BSCA. The Department is publishing this notice of proposed rulemaking to propose amendments to 28 CFR 25.1, 25.2, 25.6, 25.7, 25.8, 25.9, 25.10, and 25.11 to implement parts of the CAA and BSCA as codified at 18 U.S.C. 922(d) and (t), 18 U.S.C. 925B, 18 U.S.C. 925C, and 34 U.S.C. 40901(l).
A. Updated Prohibitions
As amended by the CAA and BSCA, 18 U.S.C. 922(t) now precludes approval of a firearm transfer to a nonlicensee if the transfer or receipt of a firearm would violate local or Tribal law. 136 Stat. at 921-22; 136 Stat. at 1323. The FBI now is required to review NICS results for any applicable firearm prohibitions imposed by local or Tribal authorities, in addition to reviewing NICS results for any events that meet firearm prohibitions imposed by Federal law under 18 U.S.C. 922(d), (g), or (n), or applicable State law(s). See 18 U.S.C. 922(t)(1)(B)(ii), (t)(1)(C)(iii). Where a local or Tribal firearm prohibition may be applicable to the prospective transferee, the FBI must consider that prohibition in the same manner as Federal and State prohibitions that may be applicable based upon the prospective transferee's background-check results. To reduce the risk of under-enforcement of local and Tribal prohibitions, this rule seeks public comments to identify which local and Tribal governments may, or may not, have enacted their own firearm prohibitions that are not already reflected in applicable State or Federal laws
Federal and State prohibitions that may be applicable based upon the prospective transferee's background-check results. To reduce the risk of under-enforcement of local and Tribal prohibitions, this rule seeks public comments to identify which local and Tribal governments may, or may not, have enacted their own firearm prohibitions that are not already reflected in applicable State or Federal laws. What background record or event would prohibit a person from possessing firearms in the future? To whom do those local or Tribal prohibitions apply?
The Department proposes amending 28 CFR 25.1, 25.2, 25.6, and 25.9 to reflect the fact that 18 U.S.C. 922(t) now includes firearm prohibitions imposed by local and Tribal law. The Department also proposes amendments to 28 CFR 25.7(a) and 25.8(f) to require an FFL, after initially providing NICS a prospective transferee's State of residence and State of purchase, to subsequently provide the address and city limits information listed by a prospective transferee on the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) Form 4473 (“Form 4473”), Firearms Transaction Record, when the FBI determines based on the State of residence and State of purchase that a local or Tribal firearms prohibition may apply. In such situations, and in the circumstances described further below, FFLs will be required to provide the FBI with the additional address information before the FBI provides the FFL with a transaction's status and an NTN. Providing further residence information in such instances may prevent NICS from unnecessarily delaying a transaction if the residence information 10 can help quickly determine if the prospective transferee is subject to the local or Tribal firearm prohibitions.
10 A full residential address, as reflected on the revised Form 4473, includes the number and full street address; city, State, and ZIP Code; county, parish, or borough of residence; and whether the subject resides within the city (to include town or other municipal boundary) limits
0 can help quickly determine if the prospective transferee is subject to the local or Tribal firearm prohibitions.
10 A full residential address, as reflected on the revised Form 4473, includes the number and full street address; city, State, and ZIP Code; county, parish, or borough of residence; and whether the subject resides within the city (to include town or other municipal boundary) limits.
The full street address is needed to determine whether a local or Tribal prohibition should be considered in making the determination. Because there are multiple jurisdictional boundaries that may fall within a ZIP Code, county, or city, more granular information for the address may be needed to make an accurate determination. For example, different parts of one street could be subject to different local jurisdictions. The FBI anticipates utilizing the same city, State, county, and ZIP Code mapping as described in Section II.B of this preamble to determine if a local or Tribal prohibition is applicable.
Under 18 U.S.C. 922(d), it is unlawful for any person to sell or otherwise dispose of a firearm or ammunition knowing, or having reasonable cause to believe, that the prospective transferee is subject to any of the described disqualifying events in that subsection. 11 As amended by section 12001(a) of BSCA, 18 U.S.C. 922(d) now prohibits such sales or dispositions to a person the transferor knows or has reasonable cause to believe is subject to one of the described disqualifying events, “including as a juvenile.” 136 Stat. at 1322. 12 This proposed rule would incorporate conforming changes into NICS regulations to reflect these statutory amendments expanding the Brady Act prohibitions as now described in 18 U.S.C. 922(t).
11 Historically, 18 U.S.C. 922(d) has encompassed the same prohibitions as referenced in 18 U.S.C. 922(g) and (n).
12 In addition to the other amendments relevant to NICS, title II, section 12004 of BSCA added two new prohibitions related to preventing illegal firearms trafficking
s to reflect these statutory amendments expanding the Brady Act prohibitions as now described in 18 U.S.C. 922(t).
11 Historically, 18 U.S.C. 922(d) has encompassed the same prohibitions as referenced in 18 U.S.C. 922(g) and (n).
12 In addition to the other amendments relevant to NICS, title II, section 12004 of BSCA added two new prohibitions related to preventing illegal firearms trafficking. See 18 U.S.C. 922(d)(10) and (d)(11).
The Department notes that, through various amendments to NICS regulations over the years, current NICS regulations contain inconsistent references to the Brady Act prohibitions, particularly the Federal prohibitions. The Department proposes amending NICS regulations found at 28 CFR 25.1, 25.2, 25.6, and 25.9 to ensure consistency with respect to how firearms prohibitions are described. To the extent necessary, the Department intends to reconcile these various references to Brady Act prohibitions in the Department's NICS regulations through this proposed rule as well as through RIN 1110-AA35 and through other technical updates to the Department's NICS regulations in a future rulemaking, RIN 1110-AA37.
B. Local Law Enforcement Notification
The NDNA, which was enacted as part of the CAA, requires that the Attorney General send a denial notification to a “local law enforcement authority” upon denial of a NICS transaction involving the prospective transfer of a firearm by an FFL. See CAA, Public Law 117-103, div. W, title XI, sec. 1101, 136 Stat. 49, 919-20. Since the NDNA's effective date, October 1, 2022, the FBI has been submitting denial notifications.
When the FBI denies a NICS transaction, as described in 18 U.S.C. 925B(a) related to the prospective transfer of a firearm, it sends a denial notification to the “local law enforcement authority” of the State or Tribe within whose jurisdiction the person sought the firearm transfer and, if different, to the “local law enforcement authority” of the State or Tribe within whose jurisdiction the person resides
FBI denies a NICS transaction, as described in 18 U.S.C. 925B(a) related to the prospective transfer of a firearm, it sends a denial notification to the “local law enforcement authority” of the State or Tribe within whose jurisdiction the person sought the firearm transfer and, if different, to the “local law enforcement authority” of the State or Tribe within whose jurisdiction the person resides. 13 This ensures that local law enforcement authorities in both jurisdictions are made aware of the denial. 14 As proposed by this rule in 28 CFR 25.2, “ `local law enforcement authority' means a bureau, office, department, or other authority of a State or local government or Tribe that has jurisdiction to investigate a violation or potential violation of, or enforce, a State, local, or Tribal law.” See also 18 U.S.C. 921(a)(36). The Department's proposed amendments to 28 CFR 25.2, 25.7(a), and 25.8(f) reflect the FBI's current process for collection of information for carrying out the NDNA's requirements and, if finalized, would generally not alter the current denial notification process as described herein.
13 Federal law allows an FFL to transfer a long gun to a resident of another State so long as, among other considerations, the sale, delivery, and receipt otherwise satisfy the State laws and published ordinances of both jurisdictions. See 18 U.S.C. 922(b).
14 For example, if a resident of Fort Wayne, Indiana, attempts to receive a firearm from an FFL in Indianapolis, Indiana, and the transaction is “Denied,” then the FBI would send a denial notification to the local law enforcement authorities in Fort Wayne (where the denied transferee resides) and Indianapolis (where the firearm was sought)
ordinances of both jurisdictions. See 18 U.S.C. 922(b).
14 For example, if a resident of Fort Wayne, Indiana, attempts to receive a firearm from an FFL in Indianapolis, Indiana, and the transaction is “Denied,” then the FBI would send a denial notification to the local law enforcement authorities in Fort Wayne (where the denied transferee resides) and Indianapolis (where the firearm was sought).
To reflect how the Department has implemented the NDNA, the Department proposes to amend 28 CFR 25.7(a) and 25.8(f) to require FFLs to provide additional residence address information for prospective transferees whose prospective firearm transfers will be “Delayed” or “Denied.” Again, after an FFL has initiated the transaction, NICS determines within seconds if NCIC, III, or the NICS Indices include records that require the transaction to be “Delayed” for further research or “Denied.” After NICS has identified that a transaction will be “Delayed” or “Denied,” the FFL must provide NICS with the subject's full residential address before the FFL will be provided with the NTN and status. This information will be requested over the phone or collected electronically, depending on how the FFL initiated the transaction. Once the system has received the subject's full residence address, the FBI will then, over the phone or electronically, provide the FFL with that transaction's NTN and initial status.
A “Delayed” transaction can change quickly to a “Denied” transaction. Consequently, by also collecting full address information before a “Delayed” status is provided to an FFL, the FBI will have that address information readily available should that transaction result in a denial. Collecting address information in such a manner avoids scenarios where the FFL is unavailable to receive a second contact from the FBI, which avoids delaying the address collection and denial notification
also collecting full address information before a “Delayed” status is provided to an FFL, the FBI will have that address information readily available should that transaction result in a denial. Collecting address information in such a manner avoids scenarios where the FFL is unavailable to receive a second contact from the FBI, which avoids delaying the address collection and denial notification. Thus, the amendments proposed in this rule and the process currently implemented by the FBI allow NICS to provide more timely denial notifications to local law enforcement authorities where the individual attempts to obtain the firearm and, if different, where the person resides. As discussed elsewhere in this rule, POCs will see similar results when they begin implementing the NDNA provisions (to the extent their State laws do not already require implementation of all or some aspects of the NDNA).
Local law enforcement authorities are not required by the NDNA to take any action upon receiving the denial notification. 15 However, to avoid potential conflict with ongoing Federal investigations, the denial notification effectively encourages local law i.e., the transferee's name, sex, height, date of birth, place of birth, and residence address); the date and time the transaction was denied; and the location and contact information for the FFL where the denied transfer occurred. 16 See 18 U.S.C. 925B(a)(1). The denial notification also contains a general reminder explaining why the denial notification is being provided and contact information for any other law enforcement entities to which NICS sent the denial notification.
15 In fact, some local law enforcement authorities will not have a State, local, or Tribal violation of law to enforce if, for example, the denial was due to a Federal violation
The denial notification also contains a general reminder explaining why the denial notification is being provided and contact information for any other law enforcement entities to which NICS sent the denial notification.
15 In fact, some local law enforcement authorities will not have a State, local, or Tribal violation of law to enforce if, for example, the denial was due to a Federal violation.
16 Additional information on this topic and a copy of a draft notification can be found at FBI, NICS Denial Notifications for Law Enforcement, https://le.fbi.gov/informational-tools/nics-denial-notifications-for-law-enforcement (last visited June 18, 2024).
The NDNA provides that, where practicable, a denial notification will be provided to State, local, or Tribal prosecutors in the jurisdiction where the firearm transfer was sought to assist with enforcing State, local, or Tribal laws (when applicable). See 18 U.S.C. 925B(a)(2). Should a “Denied” transaction be later overturned, the NDNA requires that any law enforcement authority and prosecutor previously provided with a denial notification for that transaction be provided an updated notification of the overturned denial. See 18 U.S.C. 925B(c). Such updated notifications are also provided via NCIC to all agencies that received a denial notification for that transaction.
Currently, FFLs obtain the prospective transferee's residence address on the Form 4473. See 27 CFR 478.124. This residence information is collected in box 10 of the Form 4473 and includes number and street address, city, whether the residence is within city limits, State, ZIP Code, and county or parish or borough. Under 28 CFR 25.7, the only address information that must be provided for the initial NICS check is the prospective transferee's State of residence; the regulations have not required FFLs to submit further information to NICS about a prospective transferee's residence address even though the FFL must collect such information on the Form 4473
imits, State, ZIP Code, and county or parish or borough. Under 28 CFR 25.7, the only address information that must be provided for the initial NICS check is the prospective transferee's State of residence; the regulations have not required FFLs to submit further information to NICS about a prospective transferee's residence address even though the FFL must collect such information on the Form 4473. 17
17 In addition to the prospective transferee's State of residence, an FFL must submit the prospective transferee's name, sex, race, and complete date of birth to initiate a NICS check. See 28 CFR 25.7.
The full street address of a prospective transferee is needed to determine which local jurisdiction(s) would be appropriate for notification of a denial determination. There are multiple agencies that may fall within a ZIP Code, county, or city. To notify the correct agency, specific information for the address is needed. For example, one street within a city could be within the jurisdiction of one police department while the adjacent street could be under a different police department's jurisdiction. When an FFL initially submits a prospective firearm transfer to the FBI and the initial NICS check of NCIC, III, and the NICS Indices finds information indicating the transaction will be “Delayed” or “Denied,” the FBI, during that same, initial contact with NICS, requests (by phone or electronically 18 ) the full residence address of the prospective transferee while the FFL waits for NICS to provide them with the initial status and the NTN. Once NICS has been provided with the full residence address, the FFL is provided with the NTN and the transaction's status.
18 For some transactions using NICS E-Check to submit information to NICS, NICS is able to systematically capture the residence without aid of the FFL
nce address of the prospective transferee while the FFL waits for NICS to provide them with the initial status and the NTN. Once NICS has been provided with the full residence address, the FFL is provided with the NTN and the transaction's status.
18 For some transactions using NICS E-Check to submit information to NICS, NICS is able to systematically capture the residence without aid of the FFL.
Through each State, local, and Tribal law enforcement agency's Originating Agency Identifier (“ORI”), the FBI has mapped those law enforcement agencies to the city, State, county, and ZIP Code(s) for which they have jurisdiction to enforce laws. 19 Each State (including Territories and the District of Columbia) has validated the mapping accuracy via an NCIC unsolicited message. NCIC unsolicited messages are automated communications that normally inform law enforcement and other criminal justice agencies about activity on an NCIC record, such as important details about a specific subject or property item or system status information. NICS now also uses this communication line to send denial notifications to applicable local law enforcement authorities. For transactions that are “Denied,” NICS systematically compares the full address information of the FFL and the prospective transferee with the address information of the mapped law enforcement agencies. NICS then submits, via NCIC unsolicited messages, the denial notifications to the State, local, and Tribal law enforcement agencies that fall within the jurisdiction of the FFL's address where the transfer was sought and, if different, the State, local, and Tribal law enforcement agencies with jurisdiction over the denied transferee's residence address.
19 An ORI is “a nine-character identifier assigned by the FBI to an agency that has met the established qualifying criteria for ORI assignment to identify the agency in transactions on the NCIC System.” 28 CFR 25.2.
ATF also revised the Form 4473 to request full residence information for prospective transferees
orcement agencies with jurisdiction over the denied transferee's residence address.
19 An ORI is “a nine-character identifier assigned by the FBI to an agency that has met the established qualifying criteria for ORI assignment to identify the agency in transactions on the NCIC System.” 28 CFR 25.2.
ATF also revised the Form 4473 to request full residence information for prospective transferees. In addition to assisting with the implementation of the CAA and BSCA provisions describing use of local and Tribal firearm prohibitions, the revised Form 4473 ensures the information is available to FFLs when the FBI seeks such information to support the continued implementation of the NDNA. The denial notifications provide timely assistance to State, local, and Tribal governments that wish to enforce existing laws in their jurisdictions against individuals attempting to illegally purchase, possess, or receive firearms (whether through fraudulent background checks or otherwise).
In the 19 States 20 in which partial or full POCs conduct NICS checks, POCs serve as intermediaries between FFLs and the Federal databases checked by NICS, with POCs acting on behalf of the FBI to perform the NICS transactions from those jurisdictions. See 28 CFR 25.2 and 25.6. Partial POCs elect to process background checks for handguns, long guns, or both, and the FBI processes all other checks for FFLs in the State. Currently, all four partial POCs process their own NICS checks for handguns. 21 The FBI has verified, based on discussions with POCs, that 14 of the 19 POCs that responded in time for this rule already have some type of denial notification process established within their State. The FBI does not render denial decisions for POCs. See 28 CFR 25.6(g). Therefore, this rule proposes revisions to 28 CFR 25.2 and 25.6 to reflect that POCs must, at a minimum, report denial notifications in accordance with the NDNA when the POC denies a prospective firearm transfer
responded in time for this rule already have some type of denial notification process established within their State. The FBI does not render denial decisions for POCs. See 28 CFR 25.6(g). Therefore, this rule proposes revisions to 28 CFR 25.2 and 25.6 to reflect that POCs must, at a minimum, report denial notifications in accordance with the NDNA when the POC denies a prospective firearm transfer. 22 If these
20 See FBI, NICS Participation Map, https://www.fbi.gov/file-repository/nics-participation-map.pdf/view (last visited Oct. 4, 2024).
21 See id.
22 The Department notes that the statutory obligation to issue denial notifications does not include the issuance of denial notifications to the same entity that denied the transaction. See 18 U.S.C. 925B(d) (denial notification to State authorities not required if the same State authorities made the original denial determination with respect to the transfer of the firearm). For example, if a resident of Fort Wayne, Indiana, attempts to receive a firearm from an FFL in Illinois, and the transaction is denied by the Illinois POC (the Illinois State Police), then the Illinois POC would issue denial notifications to the “local law
C. Enhanced Background Checks for Individuals Under 21 Years of Age
As described earlier in this rule, prior to BSCA's enactment of new enhanced background checks during under-21 transactions, when an FFL initiated a NICS transaction—regardless of the prospective transferee's age—NICS searched three primary systems to determine if the person was disqualified from possessing or receiving firearms. 23 If the traditional search resulted in no disqualifying or potentially disqualifying records, NICS provided a “Proceed” status to the FFL. If a juvenile or adult record was located that disqualified the person under Federal or State law, NICS provided a “Denied” status to the FFL
ICS searched three primary systems to determine if the person was disqualified from possessing or receiving firearms. 23 If the traditional search resulted in no disqualifying or potentially disqualifying records, NICS provided a “Proceed” status to the FFL. If a juvenile or adult record was located that disqualified the person under Federal or State law, NICS provided a “Denied” status to the FFL. If a possibly disqualifying record (whether having occurred as a juvenile or adult) resulted from the initial search, NICS provided a “Delayed” status and advised the FFL that, if the FFL did not receive a “Proceed” or “Denied” response from NICS on or before the end of the third business day after initiation of the check, the FFL was not federally prohibited from transferring the firearm on the day after the third business day. 24 Cf. 18 U.S.C. 922(b), (d). 25
23 Currently, BSCA's provisions related to under-21 transactions are to sunset September 30, 2032. 136 Stat. at 1324.
24 Currently, “Delayed” and “Open” are defined as follows: “Delayed means the response given to the FFL indicating that the transaction is in an `Open' status and that more research is required prior to a NICS `Proceed' or `Denied' response. A `Delayed' response to the FFL indicates that it would be unlawful to transfer the firearm until receipt of a follow-up `Proceed' response from the NICS or the expiration of three business days, whichever occurs first.” 28 CFR 25.2 “Open means those non-canceled transactions where the FFL has not been notified of the final determination. In cases of `open' responses, the NICS continues researching potentially prohibiting records regarding the transferee and, if definitive information is obtained, communicates to the FFL the final determination that the check resulted in a proceed or a deny. An `open' response does not prohibit an FFL from transferring a firearm after three business days have elapsed since the FFL provided to the system the identifying information about the prospective transferee.” Id
y prohibiting records regarding the transferee and, if definitive information is obtained, communicates to the FFL the final determination that the check resulted in a proceed or a deny. An `open' response does not prohibit an FFL from transferring a firearm after three business days have elapsed since the FFL provided to the system the identifying information about the prospective transferee.” Id.
25 The Department notes that, after receiving a “Proceed” or “Open” response from NICS, Federal law would not prohibit the FFL from transferring the firearm. Receipt of such a response, however, “[d]oes] not relieve” the FFL from complying with other provisions of law, such as 18 U.S.C. 922(d), that may be applicable to that transfer. 28 CFR 25.2 (defining “Proceed”). A similar caveat for the definition of “Open” has been proposed as part of this rule. When, throughout this rule, the Department observes that, in certain situations, receipt of a response from NICS indicates that Federal law would not prohibit an FFL from transferring a firearm, it should be understood that the FFL must still comply with other laws, such as 18 U.S.C. 922(d).
In addition to the searches of NCIC, III, and the NICS Indices, BSCA now requires enhanced NICS background checks for prospective transferees under 21 years of age. See 34 U.S.C. 40901(l). 26 With respect to these enhanced background checks conducted for under-21 transactions, Congress imposed two overarching requirements on NICS. First, in addition to the traditional NICS check of relevant FBI systems, NICS is required to make three enhanced requests to specified types of State and local entities to determine whether the prospective transferee has a “possibly disqualifying juvenile record” under 18 U.S.C. 922(d)
ed background checks conducted for under-21 transactions, Congress imposed two overarching requirements on NICS. First, in addition to the traditional NICS check of relevant FBI systems, NICS is required to make three enhanced requests to specified types of State and local entities to determine whether the prospective transferee has a “possibly disqualifying juvenile record” under 18 U.S.C. 922(d). The enhanced requests to State and local entities where the prospective transferee resides are to be made to (1) the State criminal history repository or juvenile justice information system, as appropriate; (2) the State custodian of mental health adjudication records; and (3) the local law enforcement agency. See 34 U.S.C. 40901(l)(1).
26 Under Federal law, persons who are at least 18 years of age are of lawful age to purchase long guns; however, some States set a higher minimum age to purchase long guns. See 18 U.S.C. 922(b).
In October of 2022, the FBI began a phased, manual implementation of the enhanced background checks BSCA requires for under-21 transactions coming from the State of Maine. For the remaining States 27 for which the FBI processes NICS checks for prospective firearm transfers, since January 4, 2023, NICS has been automatically submitting all three enhanced requests via email. To begin implementing BSCA's requirements of contacting the criminal history repository or juvenile justice information system and the appropriate State custodian of mental health records in the State in which the person resides for possibly disqualifying juvenile records pursuant to 18 U.S.C. 922(d), the NICS Section met with representatives from all States and Territories to establish contacts for those requests; this was because the NICS Section did not have such contacts required by BSCA at the time of enactment.
27 “State” is federally defined to include the District of Columbia, the Commonwealth of Puerto Rico, and most possessions (“Territories”) of the United States. See 18 U.S.C. 921(a)(2)
CS Section met with representatives from all States and Territories to establish contacts for those requests; this was because the NICS Section did not have such contacts required by BSCA at the time of enactment.
27 “State” is federally defined to include the District of Columbia, the Commonwealth of Puerto Rico, and most possessions (“Territories”) of the United States. See 18 U.S.C. 921(a)(2). United States Territories that submit background checks to NICS include Guam, Northern Mariana Islands, American Samoa, and the Virgin Islands. See FBI, NICS Participation Map, https://www.fbi.gov/file-repository/nics-participation-map-020124/view (last visited Oct. 4, 2024).
Some States informed the NICS Section they do not have a centralized contact for some of the juvenile records BSCA requires NICS to request. Those States directed the NICS Section to contact courts that handle juvenile criminal history or mental health information. The FBI has shared all identified contacts (centralized or otherwise) with POCs so that POCs can utilize the same contacts as the NICS Section for enhanced background checks. Both the NICS Section and POCs utilize their own existing contact methods for contacting local law enforcement agencies during under-21 transactions. The amendments proposed by this rule, unless noted otherwise, will not alter how the enhanced background checks related to under-21 transactions are being conducted.
Second, if NICS determines that cause exists to further investigate whether the prospective transferee has a disqualifying juvenile record under 18 U.S.C. 922(d), BSCA provides for an additional period of time for NICS to process that under-21 transaction before the FFL may transfer the firearm. See 18 U.S.C. 922(t)(1)(C); 34 U.S.C. 40901(l)(2). BSCA requires NICS to notify the FFL “as soon as possible, but in no case more than 3 business days” after the initiation of the check if such cause exists. 34 U.S.C. 40901(l)(2)
enile record under 18 U.S.C. 922(d), BSCA provides for an additional period of time for NICS to process that under-21 transaction before the FFL may transfer the firearm. See 18 U.S.C. 922(t)(1)(C); 34 U.S.C. 40901(l)(2). BSCA requires NICS to notify the FFL “as soon as possible, but in no case more than 3 business days” after the initiation of the check if such cause exists. 34 U.S.C. 40901(l)(2).
If NICS determines such cause exists, NICS notifies the FFL of that determination, and it is then unlawful for the FFL to transfer a firearm to the prospective transferee without receiving a follow-up “Proceed” response or waiting for the expiration of 10 business days from initial contact with NICS, whichever occurs first. See id. Accordingly, the Brady transfer date for an under-21 transaction where NICS has determined that cause exists for further investigation is the day after the tenth business day from the date the FFL contacted NICS. As NICS has begun submitting enhanced background checks for under-21 transactions, FFLs have also been notified by the FBI when cause for further investigation has been established and, consequently, that the Brady transfer date has changed to the day after the tenth business day. 28
28 The FFL is updated in the same manner as when the FFL initially contacted NICS, either electronically or by telephone.
To reflect BSCA's requirements during under-21 transactions, technical enhancements have been made to NICS to have NICS use the subject's complete date of birth to immediately calculate whether the prospective transferee is
After collecting the full residence address of the subject, NICS systematically sends the enhanced background check requests to the agencies corresponding to the subject's full residence address. 29 Generally, the FBI sends these enhanced requests by email communications to the designated agencies. Some States that are not centralized have designated that certain courts should be contacted for the requested juvenile records
esidence address of the subject, NICS systematically sends the enhanced background check requests to the agencies corresponding to the subject's full residence address. 29 Generally, the FBI sends these enhanced requests by email communications to the designated agencies. Some States that are not centralized have designated that certain courts should be contacted for the requested juvenile records. The FBI also conducts some enhanced outreach to State agencies by manually accessing State databases that were established during the FBI's outreach to States, the District of Columbia, and Territories.
29 During an under-21 transaction, a Tribal law enforcement authority may also receive a request for potentially prohibiting juvenile records if the Tribe shares the same ZIP Code as the prospective transferee.
Unless the under-21 transaction can be denied sooner based on available information, NICS now has up to 3 business days to determine if BSCA's enhanced background checks, or any responses from the initial searches of NCIC or III, provide cause for further delay of the under-21 transaction due to a potentially prohibiting juvenile record. During this time, NICS is also investigating those same sources for any adult records that are prohibiting or potentially prohibiting. Some under-21 transactions will be denied in a matter of seconds due to, for example, the NICS Indices responding with a prohibiting record that matches the subject's biographic information. Even if the under-21 transaction is immediately “Denied,” the Department reads BSCA to still require NICS to submit the enhanced background checks.
BSCA's enhanced background check requirements result in under-21 transactions being significantly more complex than NICS background checks conducted before BSCA
s responding with a prohibiting record that matches the subject's biographic information. Even if the under-21 transaction is immediately “Denied,” the Department reads BSCA to still require NICS to submit the enhanced background checks.
BSCA's enhanced background check requirements result in under-21 transactions being significantly more complex than NICS background checks conducted before BSCA. Unlike the pre-BSCA background check process (described above in the beginning of Section II of this preamble), BSCA mandates enhanced background checks that include requiring NICS to also contact, in 56 different jurisdictions, the State and local agencies identified under 34 U.S.C. 40901(l)(1). The results of those queries will then depend on the ability and capabilities of those State and local agencies.
Based on the FBI's experience in conducting BSCA's enhanced background checks, the FBI estimates the majority of State and local agencies that are contacted and that respond during the enhanced background checks of under-21 transactions do so within 3 business days. The Department does not consider an agency to have provided “cause for further investigation” within the first 3 business days if the agency contacted provides a substantive response that it has no potentially prohibiting juvenile record(s); if the agency responds to each enhanced background check request submitted to that agency that State law prohibits providing the type of juvenile records sought; or if the agency responds to each enhanced background check request submitted to that agency that the juvenile records sought are already provided to the relevant Federal system (NCIC, III, or the NICS Indices)
ibiting juvenile record(s); if the agency responds to each enhanced background check request submitted to that agency that State law prohibits providing the type of juvenile records sought; or if the agency responds to each enhanced background check request submitted to that agency that the juvenile records sought are already provided to the relevant Federal system (NCIC, III, or the NICS Indices).
If an agency informs the Department within 3 business days of the check being initiated that the agency requires more time to investigate whether a prospective transferee has potentially prohibiting juvenile records, or the agency has not responded at all within 3 business days, the Department interprets these circumstances as “cause for further investigation,” and the agency will be afforded up to 7 additional business days to respond to the request. See 34 U.S.C. 40901(l)(2). The Department believes Congress's imposition of additional checks for disqualifying State and local juvenile records during under-21 transactions would be frustrated by practical administrative delays inherent in conducting these enhanced checks if a State or local agency's failure to respond within the 3-business-day period could not be understood to constitute “cause for further investigation.” While this interpretation could result in a relatively short additional delay (up to 7 additional business days at most) before Federal law would allow the FFL to complete the firearm transfer for the prospective transferee, the alternative interpretation might result in subjecting the public to a risk that BSCA was intended to address.
As soon as all required checks are cleared of any possible disqualifications, the FBI will place the under-21 transaction in a “Proceed” status. See 34 U.S.C. 40901(l)(3). BSCA did not institute a mandatory 3- or 10-day waiting period for all under-21 transactions
pective transferee, the alternative interpretation might result in subjecting the public to a risk that BSCA was intended to address.
As soon as all required checks are cleared of any possible disqualifications, the FBI will place the under-21 transaction in a “Proceed” status. See 34 U.S.C. 40901(l)(3). BSCA did not institute a mandatory 3- or 10-day waiting period for all under-21 transactions. Instead, BSCA requires that NICS conduct the enhanced outreach described above, and it provides NICS up to 3 business days to determine if cause exists to further investigate whether the prospective under-21 transferee has a disqualifying juvenile record under 18 U.S.C. 922(d).
Another technical enhancement made for under-21 transactions is that NICS automatically calculates and populates, to the NICS Audit Log, 30 the 10-business-day transfer date in case that date becomes applicable. If that date is applied to the transaction, NICS provides the FFL with the 10-business-day transfer date during a follow-up communication. The FBI has also added to the NICS Audit Log fields for each under-21 transaction noting which State and local agencies were contacted during the enhanced background checks for a transaction and a general notation of whether and how those agencies responded ( e.g., no records, records, or cannot respond by law). NICS must contact these State and local agencies according to BSCA, but the FBI understands that currently not all States have one or both State-level systems described above and, further, some States' laws prohibit the sharing of juvenile justice records or mental health records. 31 Notwithstanding such limitations, the FBI has continued to submit the enhanced background check requests to relevant State and local agencies during every under-21 transaction since January 3, 2023.
30 For NICS purposes, “ [a]udit log means a chronological record of system (computer) activities that enables the reconstruction and examination of the sequence of events and/or changes in an event.” 28 CFR 25.2
ing such limitations, the FBI has continued to submit the enhanced background check requests to relevant State and local agencies during every under-21 transaction since January 3, 2023.
30 For NICS purposes, “ [a]udit log means a chronological record of system (computer) activities that enables the reconstruction and examination of the sequence of events and/or changes in an event.” 28 CFR 25.2.
31 FBI subject matter experts estimate that, currently, more than half of all States, including the District of Columbia and the Territories, have laws in place that prohibit the sharing of juvenile justice records, juvenile mental health records, or both. Many agencies in those States do not currently respond to each NICS request with substantive records or a notification that the records sought are protected from dissemination by State law.
The Department proposes the following amendments to conform NICS regulations with the above-described provisions of BSCA for under-21 32 for NICS checks of prospective transferees who are less than 21 years old, in addition to the information already required to be submitted as described above. Second, the Department proposes amending 28 CFR 25.6(c) to reflect that, upon initiation of an under-21 transaction from an FFL, the FBI will immediately conduct a NICS check of NCIC, III, and the NICS Indices and make the enhanced outreach to the following agencies where the person resides: (1) the State criminal history repository or juvenile justice information system, as appropriate; (2) the State custodian of mental health adjudication records; and (3) the local law enforcement agency. The FBI has identified all necessary agencies to contact during this enhanced outreach to determine if cause exists for additional delay of the transaction to further investigate whether the person has a disqualifying juvenile record under 18 U.S.C. 922(d)
ce information system, as appropriate; (2) the State custodian of mental health adjudication records; and (3) the local law enforcement agency. The FBI has identified all necessary agencies to contact during this enhanced outreach to determine if cause exists for additional delay of the transaction to further investigate whether the person has a disqualifying juvenile record under 18 U.S.C. 922(d). The amendments proposed by the Department in this rule would not modify how the FBI is conducting the enhanced background checks of under-21 transactions.
32 As noted earlier, see supra note 10, a full residential address, as reflected on the amended Form 4473, includes the number and full street address; city, State, and ZIP Code; county, parish, or borough of residence; and whether the subject resides within the city (to include town or other municipal boundary) limits.
Next, the Department proposes a new transaction status of “No Known Prohibitors: At least one state or local agency has not responded or cannot respond,” which is not a part of the current under-21 transaction process. A definition for this new status is proposed under 28 CFR 25.2. Also, the FBI proposes revisions to 28 CFR 25.6(c)(iv), 28 CFR 25.8(g)(2), 28 CFR 25.9(b), and 28 CFR 25.11(b)(1) to reflect the status of “No Known Prohibitors: At least one state or local agency has not responded or cannot respond.” The Department proposes that an FFL be provided the status of “No Known Prohibitors: At least one state or local agency has not responded or cannot respond” generally in circumstances where NICS has either not received one or more responses to the enhanced background checks or the relevant State is barred from sharing juvenile information by a governing State law. This status would be provided under the following circumstances:
• Barred from Responding
of “No Known Prohibitors: At least one state or local agency has not responded or cannot respond” generally in circumstances where NICS has either not received one or more responses to the enhanced background checks or the relevant State is barred from sharing juvenile information by a governing State law. This status would be provided under the following circumstances:
• Barred from Responding. If at least one agency affirmatively responds that it is barred by State law from sharing relevant information with NICS, any other agencies have responded, and the available information does not demonstrate a (potentially) prohibiting record exists for the subject.
• Non-Response. At the end of the tenth business day if at least one of the agencies contacted during the enhanced background checks for that under-21 transaction has not responded and available information does not demonstrate a (potentially) prohibiting record exists for the subject.
A “Proceed” status to an FFL signifies that all systems have been checked, requests for records have received responses, and available information reveals no (potentially) prohibiting record exists. 33 Accordingly, where State or local agencies either do not or cannot share information on a prospective transferee, providing an FFL with the status of “Proceed” would be inaccurate. Similarly, an “Open” response signifies to an FFL that NICS is still researching a potential firearm prohibition. See 28 CFR 25.2. Accordingly, it would also be inaccurate for an “Open” response to be provided in any of the above circumstances because NICS would not be conducting further research at that point. The Department believes providing this new status of “No Known Prohibitors: At least one state or local agency has not responded or cannot respond” to FFLs in these circumstances would more accurately inform the FFL of the fact that the State or local agencies at issue either did not or could not respond to the enhanced requests for juvenile records
ot be conducting further research at that point. The Department believes providing this new status of “No Known Prohibitors: At least one state or local agency has not responded or cannot respond” to FFLs in these circumstances would more accurately inform the FFL of the fact that the State or local agencies at issue either did not or could not respond to the enhanced requests for juvenile records. However, unless NICS has provided an FFL with a status of “Denied,” the FFL retains the ultimate discretion to transfer a firearm, or not, to the subject.
33 As part of this rulemaking, the FBI is proposing an amendment to the definition of “Proceed” to clarify that the response indicates that all relevant systems have in fact been checked and all requests for records have in fact received responses.
Do commenters believe the new status would have unforeseen impacts? What further information would the public find useful or necessary before approving or rejecting the new, proposed status? Should a different status be proposed, and if so, why?
A prospective transferee who is under 21 years of age could have a possibly disqualifying juvenile record under 18 U.S.C. 922(d) or a possibly disqualifying record (incurred as an adult or juvenile) under 18 U.S.C. 922(g) or (n), or State, local, or Tribal law. 34
34 For instance, suppose a person who is now 20 years old attempts to receive a firearm from an FFL. The NICS check reveals that, at 17 years old, this person was adjudicated as a “juvenile delinquent” under State law for an offense that would have been a felony had the person been an adult. Within the next day, all three agencies contacted under the enhanced contacts for the under-21 transaction respond and provide no other potential juvenile prohibitions. Further suppose that, under the law of the State where the adjudication occurred, that adjudication is not considered a “conviction.” As a result, Federal law cannot consider that adjudication for purposes of 18 U.S.C. 922(d) or (g). See 18 U.S.C. 921(a)(20)
ree agencies contacted under the enhanced contacts for the under-21 transaction respond and provide no other potential juvenile prohibitions. Further suppose that, under the law of the State where the adjudication occurred, that adjudication is not considered a “conviction.” As a result, Federal law cannot consider that adjudication for purposes of 18 U.S.C. 922(d) or (g). See 18 U.S.C. 921(a)(20). Further, because that juvenile disposition would not fall within the reach of 18 U.S.C. 922(d), it would not qualify for consideration under 34 U.S.C. 40901(l) for application of further delay of an under-21 transaction. However, suppose the law of the State where the adjudication occurred imposes a 10-year firearm prohibition for persons adjudicated as a juvenile delinquent for an offense that would have been a felony. The adjudication would not qualify for purposes of 18 U.S.C. 922(d), but it would prohibit that person from receiving or being transferred a firearm in accordance with 18 U.S.C. 922(t).
The following examples clarify the types of records that NICS may receive during an under-21 transaction and how the Department proposes to have NICS process the different scenarios.
Scenario 1: No adult or juvenile disqualifying records are found in NCIC, III, or the NICS Indices, and the under-21 enhanced background checks rule out cause for additional delay before the end of the third business day. The transaction is placed in a “Proceed” status.
Scenario 2: Only a possibly disqualifying adult record is located, but cause for additional delay, related to a possibly disqualifying juvenile record, is ruled out before the end of the third business day. Although cause for additional delay of the transaction was ruled out, the transaction will remain “Delayed” (in an “Open” status) due to the possibly disqualifying adult record being found. The FFL may transfer the firearm after the third business day if the FFL has not first received a “Denied” status update
bly disqualifying juvenile record, is ruled out before the end of the third business day. Although cause for additional delay of the transaction was ruled out, the transaction will remain “Delayed” (in an “Open” status) due to the possibly disqualifying adult record being found. The FFL may transfer the firearm after the third business day if the FFL has not first received a “Denied” status update. NICS will continue to research to establish or rule out the possible adult prohibition until the transaction is proceeded, denied, or purged in compliance with 28 CFR 25.9.
Scenario 3: No possibly disqualifying adult record is located, but cause for additional delay is established based on a possibly disqualifying juvenile record. NICS will notify the FFL of the additional delay being applied up through the tenth business day (if necessary) to further research whether there is a disqualifying juvenile record. If cause for the additional delay of the transaction is ruled out, the transaction will be updated to “Proceed” status. If cause for additional delay cannot be ruled out by the end of the tenth business day, the transaction will remain “Delayed” (in an “Open” status), and under Federal law, the FFL
Scenario 4: A possibly disqualifying adult record is found and cause for additional delay is established based on a possibly disqualifying juvenile record on or before the third business day. Because cause for additional delay has been found to exist, the FFL is notified of additional delay being applied, up through the tenth business day (if necessary), to further research whether there is a disqualifying juvenile record. In accordance with Federal law, the FFL may transfer the firearm after the tenth business day if the FFL has not first received a “Denied” status update. NICS will continue researching any possible prohibition until the transaction is proceeded, denied, or purged in compliance with 28 CFR 25.9
tenth business day (if necessary), to further research whether there is a disqualifying juvenile record. In accordance with Federal law, the FFL may transfer the firearm after the tenth business day if the FFL has not first received a “Denied” status update. NICS will continue researching any possible prohibition until the transaction is proceeded, denied, or purged in compliance with 28 CFR 25.9.
Scenario 5: No potentially prohibiting adult or juvenile records return from NCIC, III, or the NICS Indices, but, after 10 business days have elapsed, one of the agencies contacted during the enhanced background check still has not responded in substance or by telling NICS that the laws of the jurisdiction prohibit the agency from disclosing the juvenile records sought. The Department proposes that the transaction's status be updated to “No Known Prohibitors: At least one state or local agency has not responded or cannot respond.” Federal law would then allow the FFL to transfer the firearm.
Scenario 6: After the transaction has been “Delayed,” and prior to the firearm being transferred, a firearm disqualification (as described in 18 U.S.C. 922(t)) is established. The transaction is placed into a “Denied” status and the FFL is notified of the status. The FFL is prohibited from transferring the firearm to the prospective transferee.
In any under-21 transaction, as soon as all possible disqualifications are ruled out, the transaction will be placed into “Proceed” status. If a transaction has been placed into “Proceed” status, or when Federal law otherwise allows the firearm to be transferred, the FFL is permitted to transfer the firearm to the prospective transferee if the person returns to the FFL to receive the firearm within 30 days from when the FFL first contacted NICS. See 27 CFR 478.102(c). POCs are currently required to complete any research for possible prohibiting records outside of system responses from NCIC, III, and the NICS Indices
se allows the firearm to be transferred, the FFL is permitted to transfer the firearm to the prospective transferee if the person returns to the FFL to receive the firearm within 30 days from when the FFL first contacted NICS. See 27 CFR 478.102(c). POCs are currently required to complete any research for possible prohibiting records outside of system responses from NCIC, III, and the NICS Indices. This proposed rule would amend the definition of “POC (Point of Contact)” in 28 CFR 25.2 to reflect that, similarly, POCs that receive and process under-21 transactions 35 will also be required to conduct the enhanced background checks for under-21 transactions now required under 34 U.S.C. 40901. To the extent POCs process under-21 transactions, those POCs have begun conducting the enhanced background checks. To account for BSCA's requirement to conduct the enhanced background checks, if finalized, and in contrast to current practice under 28 CFR 25.6(h), NICS will not presume that a POC proceeded a “newly created” under-21 transaction if the applicable POC has not provided NICS with a “Delayed” or “Denied” determination message by “the end of the operational day on which the transaction was initiated.” The FBI proposes that 28 CFR 25.6(h) be amended to reflect that change. As indicated previously, the FBI has shared any identified contacts, centralized or otherwise, with POCs so that POCs have the same contacts as the NICS Section. Both the NICS Section and POCs will utilize their own existing contact methods for contacting local law enforcement agencies during under-21 transactions.
35 Again, persons under 21 are federally prohibited from receiving a handgun through an FFL, and the NICS Section currently processes only long gun transactions for all partial POCs.
D. Attestation Process for Enhanced Background Checks
The Department seeks public comments about a potential attestation process that is not a part of the current under-21 transaction process
er-21 transactions.
35 Again, persons under 21 are federally prohibited from receiving a handgun through an FFL, and the NICS Section currently processes only long gun transactions for all partial POCs.
D. Attestation Process for Enhanced Background Checks
The Department seeks public comments about a potential attestation process that is not a part of the current under-21 transaction process. The Department envisions that this attestation process would allow State agencies to voluntarily provide the FBI with an attestation that State law prohibits sharing juvenile mental health or juvenile justice records (or both). The attestation could be completed by a government official in the jurisdiction (State, District of Columbia, or Territory). For example, the head of the chief law enforcement agency for the jurisdiction, or that person's designee, whether that be the jurisdiction's Attorney General or the head of another agency, could submit this attestation. In addition to noting that State law prohibits the sharing of juvenile mental health or juvenile records (or both), such an attestation could include additional information regarding the law in the jurisdiction, including, for example, whether the State's laws also prohibit local law enforcement agencies from sharing juvenile records.
This potential attestation process also could be applicable to State agencies that have informed NICS that they already send the requested juvenile mental health or juvenile justice records to NCIC, III, or the NICS Indices, as applicable. An option would be to make the attestation renewable at some defined interval (for example every 6 months or annually), unless rescinded due to a change in State law
potential attestation process also could be applicable to State agencies that have informed NICS that they already send the requested juvenile mental health or juvenile justice records to NCIC, III, or the NICS Indices, as applicable. An option would be to make the attestation renewable at some defined interval (for example every 6 months or annually), unless rescinded due to a change in State law. If an attestation process were implemented, the submission of an attestation would be discretionary; States could choose, for example, to decline to submit an attestation and to instruct their agencies to continue responding individually to NICS inquiries even if State law generally prohibits the sharing of relevant records. Also, reliance on an attestation would similarly be voluntary. Thus, even in States that have executed attestations, agencies could still reply to individual requests that they receive from the FBI or POCs. Finally, an agency would remain free to reply to individual requests in circumstances in which a State prohibition on disclosing the records has been lifted or when the agency has potentially responsive adult records for a subject. This potential attestation process may therefore afford the Department, the States, and local jurisdictions more flexibility in deciding how to process under-21 transactions.
Under this potential attestation process, the FBI and POCs would continue to submit the requests for juvenile records as described in the enhanced background check provisions of 34 U.S.C. 40901(l)(1). With respect to a request involving a State jurisdiction that has submitted an attestation that conveys that the State agency is prohibited by State law from sharing the pertinent records, if the agency does not individually respond by the end of the third business day, then the attestation would prevent enhanced delay from being applied due to that agency's non-response
of 34 U.S.C. 40901(l)(1). With respect to a request involving a State jurisdiction that has submitted an attestation that conveys that the State agency is prohibited by State law from sharing the pertinent records, if the agency does not individually respond by the end of the third business day, then the attestation would prevent enhanced delay from being applied due to that agency's non-response. The FBI in such circumstances would provide the status “No Known Prohibitors: At least one state or local agency has not responded or cannot respond.” In addition, where the State has already verified by attestation that the requested juvenile records are already shared, as applicable, with NCIC, III, or the NICS Indices, the NICS Section would “Proceed” that transaction no later than the expiration of the third business day if no other potential prohibition exists needing further research, any other enhanced background check requests have responses or are covered by an
For example, this potential attestation process could be used in the following scenario: NICS receives an under-21 transaction from an FFL in a State that is unable to share juvenile justice records or juvenile mental health records pursuant to existing State law. No other (potentially) prohibiting records are returned from NCIC, III, or the NICS Indices. NICS collects the subject's full residence address to complete the enhanced background checks. Using the full residence address, NICS immediately sends the enhanced background check requests as required by BSCA. These requests are sent to the State's established contacts for juvenile justice and mental health records, as well as to the relevant local law enforcement agency. The State has provided an attestation conveying that State law prohibits sharing both types of requested juvenile records
ng the full residence address, NICS immediately sends the enhanced background check requests as required by BSCA. These requests are sent to the State's established contacts for juvenile justice and mental health records, as well as to the relevant local law enforcement agency. The State has provided an attestation conveying that State law prohibits sharing both types of requested juvenile records. At the end of the third business day, all responses to which the attestation applies will be considered received and the transaction status will be updated to “No Known Prohibitors: At least one state or local agency has not responded or cannot respond,” provided there are no further prohibiting or potentially prohibiting records returned during the enhanced background checks. Federal law would then allow the FFL to transfer the firearm. If, under the same facts but, before the end of the third business day, the State and local agencies provide individual responses that the attestation no longer applies (because, for example, State law has changed to allow sharing of the relevant records) but that the agencies have found no potentially disqualifying records to share with NICS, the transaction will be updated to “Proceed” status. Federal law would then allow the FFL to transfer the firearm.
If an attestation process is adopted, the FBI anticipates that the FBI would continue working with State entities to encourage discrete responses for each individual transaction where possible, even if a response notes that State law prohibits the agency from providing the juvenile records sought and would likewise prohibit the agency from providing similar records for other transactions. However, the attestation process may benefit the Department, prospective transferees, and the agencies contacted during enhanced background checks of under-21 transactions, as it could reduce, if not end, problematic results that Congress likely did not intend during the enhanced background check process
and would likewise prohibit the agency from providing similar records for other transactions. However, the attestation process may benefit the Department, prospective transferees, and the agencies contacted during enhanced background checks of under-21 transactions, as it could reduce, if not end, problematic results that Congress likely did not intend during the enhanced background check process.
During the FBI's current implementation of enhanced background checks for under-21 transactions, it has found that agencies have grown frustrated with NICS's continued requests for juvenile records that cannot be shared. Consequently, some agencies have stopped responding at all to NICS, even if they had just been responding that they were prohibited from providing any records. The Department does not believe Congress intended to require State and local partners to carry out a potentially inconvenient process of repetitively providing responses to requests for juvenile records even in circumstances where the State and local partners know (and have already advised the FBI) that State law prohibits the sharing of the records. Currently, the Department is aware of 22 States and Territories that have laws that prohibit the sharing of both juvenile mental health and juvenile criminal history records, 36 6 States that have laws prohibiting the sharing of juvenile mental health records, 37 and 8 States (and the District of Columbia) that have laws prohibiting the sharing of juvenile criminal history records. 38 Four States have changed their laws to allow for sharing juvenile criminal history records, and one State has changed its laws to allow for sharing juvenile mental health records since the passage of BSCA
have laws prohibiting the sharing of juvenile mental health records, 37 and 8 States (and the District of Columbia) that have laws prohibiting the sharing of juvenile criminal history records. 38 Four States have changed their laws to allow for sharing juvenile criminal history records, and one State has changed its laws to allow for sharing juvenile mental health records since the passage of BSCA. 39
36 Based on the FBI's experience in conducting background checks for under-21 transactions, States and Territories with laws that prohibit sharing of both juvenile mental health and juvenile criminal history records are Arkansas, Alaska, Arizona, Colorado, Georgia, Hawaii, Indiana, Iowa, Louisiana, Montana, Nebraska, New Hampshire, North Dakota, Northern Mariana Islands, Puerto Rico, Rhode Island, South Dakota, Tennessee, the U.S. Virgin Islands, West Virginia, Wisconsin, and Wyoming.
37 Based on the FBI's experience in conducting background checks for under-21 transactions, the States with laws that currently prohibit sharing of juvenile mental health records are Connecticut, Florida, Idaho, Massachusetts, New Mexico, and Oklahoma.
38 Based on the FBI's experience in conducting background checks for under-21 transactions, the States with laws that currently prohibit sharing of juvenile criminal history records are Mississippi, Missouri, New York, North Carolina, Oregon, Pennsylvania, South Carolina, and Virginia. The District of Columbia also prohibits such sharing.
39 Through correspondence with State agencies, the FBI learned that Connecticut, Kentucky, Nevada, and Vermont have changed their State laws to allow for sharing juvenile criminal history records. Texas has changed its State law to allow for sharing juvenile mental health records
h Carolina, Oregon, Pennsylvania, South Carolina, and Virginia. The District of Columbia also prohibits such sharing.
39 Through correspondence with State agencies, the FBI learned that Connecticut, Kentucky, Nevada, and Vermont have changed their State laws to allow for sharing juvenile criminal history records. Texas has changed its State law to allow for sharing juvenile mental health records.
Accordingly, the Department seeks comments as to whether a potential attestation process could foster strong relationships with State and local agencies while benefiting the Department and subjects of under-21 transactions by more promptly resolving many under-21 transactions. The Department also seeks public comments as to any potential benefits or costs of an attestation process. What further information would the public find useful or necessary before the attestation process proceeds? If an attestation process is adopted, who do commenters believe should provide the attestation for the agencies? Are commenters aware of any State with laws that would allow local law enforcement agencies in that State to share juvenile justice or juvenile mental health records where State-level agencies would be limited or prohibited from sharing the same juvenile records? Are commenters aware of any local government passing a law or laws that limit or prohibit sharing juvenile records in circumstances where the laws of the State in which the local government is located do not similarly limit or prohibit such sharing? How frequently should attestations be renewed? Would attesting agencies prefer to craft their own attestations or use a template supplied by the FBI?
E. Severability
The CAA and BSCA address critical but distinct components of the NICS background-check process. The Department believes that its proposals to implement these statutes are well-supported in law, reflect sound policy, and, once finalized, should be upheld against any legal challenge
d attesting agencies prefer to craft their own attestations or use a template supplied by the FBI?
E. Severability
The CAA and BSCA address critical but distinct components of the NICS background-check process. The Department believes that its proposals to implement these statutes are well-supported in law, reflect sound policy, and, once finalized, should be upheld against any legal challenge. However, if any portion of the proposed rule, once finalized, is declared invalid, the Department intends that the proposals contained herein, once finalized, be viewed as independent, necessary, and severable from each other to the maximum extent possible. Further, the Department intends that the provisions contained herein and in any resulting final rule be viewed as independent, necessary, and severable from the current NICS regulations under 28 CFR part 25. Accordingly, the Department proposes adding a severability provision in 28 CFR 25.1.
As further described above, the CAA enacted the NDNA and added consideration of relevant firearm prohibitions imposed by local and Tribal governments during NICS checks under 18 U.S.C. 922(t). Further, as relevant to this rule, BSCA mandated enhanced background checks during each under-21 transaction and allowed for an extended delay (potentially up through the tenth business day) of some under-21 transactions before an FFL may lawfully transfer the firearm(s) under Federal law. Each of those statutory mandates is independently
To obviate any doubt as to the Department's intent, even if some provision(s), once finalized, were deemed invalid (which, again, the FBI does not believe is supported), the Department would still have proposed each of the other provisions in this rule. Cf. American Fuel & Petrochemical Manufacturers v. E.P.A., 3 F.4th 373, 384 (D.C. Cir. 2021) (EPA expressly stating the severability of sections of its rule in issue eliminated the potential for substantial doubt of the agency's intent)
zed, were deemed invalid (which, again, the FBI does not believe is supported), the Department would still have proposed each of the other provisions in this rule. Cf. American Fuel & Petrochemical Manufacturers v. E.P.A., 3 F.4th 373, 384 (D.C. Cir. 2021) (EPA expressly stating the severability of sections of its rule in issue eliminated the potential for substantial doubt of the agency's intent). Each proposed amendment in this rule stands on its own with no reliance on another proposed amendment. Each proposed amendment is necessary, for example, to notify the public, update relevant NICS regulations, or to implement the provisions of the CAA or BSCA.
F. Separate Rulemakings
BSCA also contained two provisions pertaining to FFLs for which the Department is conducting separate rulemakings, as discussed below.
In RIN 1110-AA34, the Department has published an interim final rule to address the new provision allowing FFLs to receive information from the FBI's NCIC system relating to stolen firearms (specifically, for the purpose of determining whether a firearm offered to the FFL has been reported stolen). See Bipartisan Safer Communities Act—Access to Records of Stolen Firearms in the National Crime Information Center, 89 FR 54344 (July 1, 2024). The amendments made by RIN 1110-AA34 do not impact NICS regulations; please consult RIN 1110-AA34 for further information about the regulatory amendments made therein. The Department requests that any public comments concerning FFLs receiving stolen gun information from NCIC be provided within and as directed by RIN 1110-AA34
ms in the National Crime Information Center, 89 FR 54344 (July 1, 2024). The amendments made by RIN 1110-AA34 do not impact NICS regulations; please consult RIN 1110-AA34 for further information about the regulatory amendments made therein. The Department requests that any public comments concerning FFLs receiving stolen gun information from NCIC be provided within and as directed by RIN 1110-AA34.
Additionally, in RIN 1110-AA35, the Department is planning to issue a proposed rule amending the NICS regulations in compliance with a congressional mandate to promulgate regulations that will help limit firearms trafficking by allowing FFLs to voluntarily conduct NICS background checks with respect to current or prospective employees of the FFL if the person does, or will, transfer or otherwise handle firearms or ammunition for the FFL and has provided written consent for the NICS check. The Department proposes to describe those FFL employee checks as “firearm handler background checks” (also referred to as “FHCs”).
The Department anticipates that RIN 1110-AA35 will be published as a proposed rule prior to finalizing the present rulemaking. Several regulations in 28 CFR part 25 contain provisions for which this notice of proposed rulemaking proposes amendments and which may also be the subject of proposed amendments in the forthcoming proposed rule in RIN 1110-AA35. The Department will coordinate the final rules resulting from these rulemakings to ensure clarity and consistency.
III. Statutory and Executive Order Reviews
A. Executive Orders 12866 (Regulatory Planning and Review), 13563 (Improving Regulation and Regulatory Review), and 14094 (Modernizing Regulatory Review)
This proposed rule has been drafted and reviewed in accordance with Executive Order 12866, Executive Order 13563, and Executive Order 14094
from these rulemakings to ensure clarity and consistency.
III. Statutory and Executive Order Reviews
A. Executive Orders 12866 (Regulatory Planning and Review), 13563 (Improving Regulation and Regulatory Review), and 14094 (Modernizing Regulatory Review)
This proposed rule has been drafted and reviewed in accordance with Executive Order 12866, Executive Order 13563, and Executive Order 14094. Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.
The Office of Management and Budget (“OMB”) has determined that this proposed rule is a “significant regulatory action” under Executive Order 12866, as amended by Executive Order 14094, and accordingly, this proposed rule has been reviewed by OMB.
1. Need for Federal Regulatory Action
The Department is publishing this proposed rule to amend NICS regulations to implement various parts of the CAA, Public Law 117-103, and BSCA, Public Law 117-159.
2. Population
Although manufacturers and importers may also initiate NICS checks when transferring firearms to non-licensees, dealers and pawnbrokers initiate most of the background checks on non-licensees. As of December of 2021, there were an estimated 50,588 FFLs that the FBI served across 31 States and 5 Territories that will be impacted by this rule. 40 There are also an estimated 10 or fewer computer software vendors that may be affected by this proposed rule
NICS checks when transferring firearms to non-licensees, dealers and pawnbrokers initiate most of the background checks on non-licensees. As of December of 2021, there were an estimated 50,588 FFLs that the FBI served across 31 States and 5 Territories that will be impacted by this rule. 40 There are also an estimated 10 or fewer computer software vendors that may be affected by this proposed rule. As further set out below, the FBI estimates, based on FBI subject matter experts' further internal analysis of 2021 annual transaction numbers, 41 this proposed rule will impact approximately 2 million NICS transactions per calendar year. 42
40 See FBI, National Instant Criminal Background Check System Operational Report 2020-2021 7 (Apr. 2022), https://www.fbi.gov/file-repository/nics-2020-2021-operations-report.pdf/view (“Operational Report”).
41 See Operational Report at 13.
42 This number is based upon the transactions about which full addresses are collected from FFLs for denial notifications (approximately 1.428 million transactions) and under-21 transactions (approximately 340,000 transactions), for a total of approximately 1.7 million transactions. That total would be increased by the number of transactions that are impacted by local or Tribal firearm prohibitions, but that number of transactions cannot be estimated at this time. As described below, some FFLs will also be impacted by needing to update additional delays of some under-21 transactions; however, those under-21 transactions have already been included due to the need to collect address information.
3. Benefits
This proposed rule benefits the public, public safety, and interested populations in several ways. First, this proposed rule benefits the public and interested populations by further clarifying how NICS procedures and regulations comply with the relevant mandates imposed by the CAA and BSCA. As discussed above and below, public safety will benefit from this proposed rule in several ways
Benefits
This proposed rule benefits the public, public safety, and interested populations in several ways. First, this proposed rule benefits the public and interested populations by further clarifying how NICS procedures and regulations comply with the relevant mandates imposed by the CAA and BSCA. As discussed above and below, public safety will benefit from this proposed rule in several ways. Rather than only a single State-level entity receiving a denial notification, State and local law enforcement in multiple jurisdictions will, under the proposed rule, each receive a timely notification
There are also public safety benefits in applying the NDNA to delayed transactions. When a NICS transaction is denied after the third business day, such circumstances are known as “delayed denials.” Delayed denials impact public safety because those transactions may have resulted in an FFL transferring at least one firearm to a prohibited person before the transaction could be denied. When a delayed denial occurs, the FFL is contacted to determine whether the transfer of one or more firearms occurred. If a transfer did occur, ATF is notified by the NICS Section of the need to retrieve any firearms. Providing address information up front in delayed transactions will benefit public safety because prohibited persons' residential addresses will be readily available to immediately provide to applicable local law enforcement authorities, who can then take any applicable action. Critical time will not be lost waiting for another contact with the FFL to collect the address at that point in time (or perhaps await confirmation as to whether the firearm was in fact transferred)
ublic safety because prohibited persons' residential addresses will be readily available to immediately provide to applicable local law enforcement authorities, who can then take any applicable action. Critical time will not be lost waiting for another contact with the FFL to collect the address at that point in time (or perhaps await confirmation as to whether the firearm was in fact transferred). If, for example, the FFL happens to be closed and NICS cannot connect with the FFL in a timely manner (to update the denial or collect the full address), particularly after the third business day, at which time the firearm may have already transferred, the resulting delays jeopardize public safety by potentially increasing the time that a prohibited person has a firearm.
This proposed rule also would benefit interested populations by minimizing impacts to prospective transferees and FFLs by requiring further residential address information only if the prospective transferee has been denied by NICS, has had a prospective firearm transfer delayed, may be subject to an applicable local or Tribal firearm prohibition, or is under 21 years of age. The Department does not propose that all prospective firearm transferees have their full residential address information submitted to NICS simply because that information is now required for some NICS transactions. Limiting the scope of the proposed rule in this way benefits prospective transferees because most will not need to have further address information provided to NICS. Similarly, limiting the scope of the rule in this fashion benefits FFLs as well by not requiring FFLs to spend time providing NICS with unnecessary additional address information in every transaction they submit
ome NICS transactions. Limiting the scope of the proposed rule in this way benefits prospective transferees because most will not need to have further address information provided to NICS. Similarly, limiting the scope of the rule in this fashion benefits FFLs as well by not requiring FFLs to spend time providing NICS with unnecessary additional address information in every transaction they submit. Further, by requiring the information be provided upon the initial contact (where an instantaneous review of available information about the person reveals that the transaction must be delayed or denied, the person is under 21, or to determine if the person is potentially subject to an applicable local or Tribal firearm prohibition), this rule reduces the need to contact the FFL at a later time to obtain this information.
4. Costs
This proposed rule will affect NICS transactions that: (1) may be impacted by local or Tribal prohibitions; (2) have been delayed or denied; or (3) involve persons under 21 years of age wishing to receive or be transferred a firearm from an FFL. Because the scope of applicable local or Tribal prohibitions is still being researched, it is unknown how many such prohibitions exist, but the FBI does not anticipate many will be identified. Notably, FBI research currently reveals that 43 States have preempted local jurisdictions from imposing firearms prohibitions that exceed the firearms prohibitions imposed by State law. 43 States cannot preempt Tribal laws, however, so the FBI is continuing its research for applicable Tribal firearm prohibitions. There are 574 federally recognized Tribes, see Indian Entities Recognized by and Eligible To Receive Services From the United States Bureau of Indian Affairs, 88 FR 54654, 54654 (Aug. 11, 2023), exercising jurisdiction in Indian country, 18 U.S.C. 1151. More than 300 of these Tribes are currently located within the States of Alaska, California, and Oklahoma
applicable Tribal firearm prohibitions. There are 574 federally recognized Tribes, see Indian Entities Recognized by and Eligible To Receive Services From the United States Bureau of Indian Affairs, 88 FR 54654, 54654 (Aug. 11, 2023), exercising jurisdiction in Indian country, 18 U.S.C. 1151. More than 300 of these Tribes are currently located within the States of Alaska, California, and Oklahoma. 44 An initial review of publicly available resources revealed that a number of these federally recognized Tribes may have enacted laws regulating the possession or use of firearms within their respective jurisdictions. 45 Review of Tribal codes is ongoing to determine to what extent the use of Tribal firearm possession prohibitions will arise during NICS background checks and will, therefore, impact FFLs, prospective transferees, or Tribes. More specifically, to reasonably assess any applicable impact such prohibitions may have, the FBI will review active Tribal codes for firearm prohibitions that differ from existing Federal (or applicable State) prohibitions. The Department welcomes comments from the public that, for example, may assist the FBI in effectively and accurately identifying the federally recognized Tribes that have imposed their own firearm prohibitions. Many Tribes already contribute relevant orders to FBI CJIS systems to help determine possible Federal firearm prohibitions in individual cases, and the FBI encourages Tribes to continue to do so. Given the number of Tribes and the diverse nature of Tribal firearms laws, the FBI is unable, at this time, to reasonably estimate the impact the additional Tribal firearm possession prohibitions will have during NICS background checks. The FBI will be conducting outreach with representatives of federally recognized Tribes and seeking comment from the public generally as the FBI moves to incorporate additional Tribal firearm prohibitions into the analysis of prospective firearm transfers
, at this time, to reasonably estimate the impact the additional Tribal firearm possession prohibitions will have during NICS background checks. The FBI will be conducting outreach with representatives of federally recognized Tribes and seeking comment from the public generally as the FBI moves to incorporate additional Tribal firearm prohibitions into the analysis of prospective firearm transfers. Consequently, the fiscal impact analysis of this proposed rule will focus upon the other impacts that denial notifications and research associated with enhanced outreach during under-21 transactions may have upon firearm transfers submitted by FFLs.
43 See Nat'l League of Cities, City Rights in an Era of Preemption: A State-by-State Analysis 23 (2018), https://www.nlc.org/resource/city-rights-in-an-era-of-preemption-a-state-by-state-analysis/; see also Giffords Law Ctr., Preemption of Local Laws, https://giffords.org/lawcenter/gun-laws/policy-areas/other-laws-policies/preemption-of-local-laws/ (last visited Oct 4, 2024) (reporting that there are five States with “no state laws expressly preempting local authority to regulate firearms or ammunition” and two additional States that “allow local governments to retain substantial authority to regulate firearms and ammunition,” but where “the state legislature has expressly removed this authority in certain areas”).
44 See, e.g., U.S. Dep't of the Interior, Indian Affairs, Tribal Leaders Directory, https://www.bia.gov/service/tribal-leaders-directory (last visited Oct. 4, 2024); Nat'l Cong. of Am. Indians, Tribal Nations & the United States: An Introduction (Feb. 2020), https://www.ncai.org/about-tribes/demographics.
45 See, e.g., Nat'l Indian Law Library, Tribal Law Gateway: Find Tribal Law Material by Tribe, https://narf.org/nill/triballaw/index.html (last visited Oct. 4, 2024)
irectory, https://www.bia.gov/service/tribal-leaders-directory (last visited Oct. 4, 2024); Nat'l Cong. of Am. Indians, Tribal Nations & the United States: An Introduction (Feb. 2020), https://www.ncai.org/about-tribes/demographics.
45 See, e.g., Nat'l Indian Law Library, Tribal Law Gateway: Find Tribal Law Material by Tribe, https://narf.org/nill/triballaw/index.html (last visited Oct. 4, 2024).
As described above, under the NDNA, the FBI is required to send denial notifications to the local law
For under-21 transactions, as set out above, an enhanced NICS background check entails contacting State and local entities to determine if the prospective transferee has a possibly disqualifying juvenile record as described in 18 U.S.C. 922(d). Some enhanced outreach during under-21 transactions may show that cause exists to further investigate a possibly disqualifying juvenile record under 18 U.S.C. 922(d). If such cause exists, the under-21 transaction will be placed into an additional delay period not to exceed the tenth business day from when the licensee contacted NICS.
For all of these described transactions, FFLs must, using information the prospective transferee places on the revised Form 4473, provide to the FBI the prospective transferee's complete residential address so that NICS can determine whether a local or Tribal prohibition should be considered and for investigation and reporting when a NICS transaction has otherwise been delayed or denied. Further, where cause exists for additional delay of an under-21 transaction, and the FFL has been so notified before expiration of the third business day, the FFL will be prohibited from transferring the firearm until after the tenth business day, unless the FFL first receives a “Proceed” response
red and for investigation and reporting when a NICS transaction has otherwise been delayed or denied. Further, where cause exists for additional delay of an under-21 transaction, and the FFL has been so notified before expiration of the third business day, the FFL will be prohibited from transferring the firearm until after the tenth business day, unless the FFL first receives a “Proceed” response. In such instances, conveying the additional delay period to an FFL will likely require an additional contact—telephonically or electronically—beyond what was previously necessary, as well as an obligation by an FFL to record the additional delay on the revised Form 4473.
i. Costs: Updated Prohibitions
In order to determine whether a local or Tribal prohibition would be applicable to a prospective transfer, the Department proposes requiring FFLs to provide the residential addresses (and city limits information) of a prospective firearm transferee for certain transactions. Address information would be based upon the State of residence of the prospective transferee, State of purchase, and initial results from the three primary databases NICS searches during each transaction. As noted previously, State law preempts many local firearm prohibitions, and initial research has not revealed a substantial number of existing local firearm prohibitions.
As noted above, review of Tribal codes is ongoing to determine to what extent the use of Tribal firearm possession prohibitions will arise during NICS background checks and will, therefore, impact prospective transferees or Tribes. The FBI is, however, unable at this time to reasonably estimate the costs, if any, that the added consideration of Tribal firearm possession prohibitions will have during NICS background checks.
Ultimately, the FBI does not anticipate that a large number of NICS transactions will involve local or Tribal prohibitions that would preclude transfers permitted by applicable Federal or State law
ibes. The FBI is, however, unable at this time to reasonably estimate the costs, if any, that the added consideration of Tribal firearm possession prohibitions will have during NICS background checks.
Ultimately, the FBI does not anticipate that a large number of NICS transactions will involve local or Tribal prohibitions that would preclude transfers permitted by applicable Federal or State law. Further, the FBI believes that most instances would fall under the broader delayed or denied circumstances noted below and would impose nominal to no financial impact upon FFLs. The Department requests public comments regarding potential costs that may impact Tribes, prospective transferees, and FFLs.
ii. Costs: Under-21 Transactions
Federal law authorizes FFLs to transfer only long guns to individuals under the age of 21. See 18 U.S.C. 922(b). In 2021, internal FBI subject matter experts estimated there were approximately 6.5 million total transactions involving the prospective transfer of a long gun. 46 Subject matter experts within the FBI also anticipate 5 percent, or lower, of annual long gun transactions constitute under-21 transactions. That percentage equates to approximately 325,000 under-21 transactions. 47 For the purposes of this analysis, the FBI estimates that it would take 30 seconds (0.0083 hours) per under-21 transaction to provide address information from the Form 4473 to NICS (telephonically or electronically). That process is therefore estimated to result in an additional 2,698 work hours from FFLs per year. 48
46 FBI, NICS Firearm Checks: Year by State/Type, https://www.fbi.gov/file-repository/nics_firearm_checks_-_year_by_state_type.pdf/view (last visited Oct. 4, 2024).
47 325,000 transactions = 6.5 million NICS checks * 5 percent of transactions involving individuals under the age of 21.
48 2,698 aggregate hourly burden = 325,000 transactions * 30 seconds (.0083 hours) per transaction
r year. 48
46 FBI, NICS Firearm Checks: Year by State/Type, https://www.fbi.gov/file-repository/nics_firearm_checks_-_year_by_state_type.pdf/view (last visited Oct. 4, 2024).
47 325,000 transactions = 6.5 million NICS checks * 5 percent of transactions involving individuals under the age of 21.
48 2,698 aggregate hourly burden = 325,000 transactions * 30 seconds (.0083 hours) per transaction.
The FBI uses some possible wage rates from the Bureau of Labor Statistics (“BLS”) and uses the average wage rate as the wage rate for FFLs. The FBI uses a loaded wage rate to account for fringe benefits such as insurance. The “load rate” used for this proposed rule is 1.42. 49 Table 1.0 shows the estimated wage rates and loaded wage rates.
49 BLS Series ID CMU2010000000000D,CMU2010000000000P (average of 2021 quarterly Private Industry Compensation = $37.15)/BLS Series ID CMU2020000000000D,CMU2020000000000P (average of 2021 quarterly Private Industry Wages and Salaries = $26.23) = load rate of 1.42 (rounded up). See BLS, BLS Data Finder 1.1, https://beta.bls.gov/dataQuery/find?fq=survey:[cm]&s=popularity:D (last Oct. 4, 2024). The “load rate” takes into account additional compensation for fringe benefits such as insurance.
Table 1.0—Wage Categories Used for the FFL Community 50 Job category Wage rate Loaded wage rate 11-2022 Sales Managers $68.46 $97.22 41-2011 Cashiers 12.87 18.28 41-2031 Retail Salespersons 15.35 21.80 Average 32.23 45.77 Using an average, loaded wage rate for staff of BLS job categories that the FBI anticipates may be involved in prospective firearm transfers for FFLs, which is $46.00 per hour (rounded up), providing address information to NICS 51 Even if the FBI's address collection time from an FFL is estimated at 1 minute (.0167 hours) per transaction, this would only be an anticipated yearly cost of approximately $250,000.
50 Chart sources for Wage Categories used for the FFL community from BLS:
BLS, Occupational Employment and Wages, May 2021: 11-2022 Sales Managers (Mar
r hour (rounded up), providing address information to NICS 51 Even if the FBI's address collection time from an FFL is estimated at 1 minute (.0167 hours) per transaction, this would only be an anticipated yearly cost of approximately $250,000.
50 Chart sources for Wage Categories used for the FFL community from BLS:
BLS, Occupational Employment and Wages, May 2021: 11-2022 Sales Managers (Mar. 31, 2022), https://www.bls.gov/oes/2021/may/oes112022.htm.
BLS, Occupational Employment and Wages, May 2021: 41-2011 Cashiers (Mar. 31, 2022) https://www.bls.gov/oes/2021/may/oes412011.htm.
BLS, Occupational Employment and Wages, May 2021: 41-2031 Retail Salespersons (Mar. 31, 2022), https://www.bls.gov/oes/2021/may/oes412031.htm.
51 2,698 work hours * $46 loaded hourly wage rate = $124,108 ($125,000, rounded up).
For a subset of these under-21 transactions, there may be an additional delay notification. For the purposes of this analysis, the Department assumes 50 percent (162,500) of all under-21 transactions will have cause established and require that the FFL be notified of additional delay being applied to the transaction (which includes providing the FFL with the amended Brady transfer date 52 ). Estimating an average of 3 minutes (.05 hours) per additional delay notification, this may require an additional 8,125 work hours per year for all FFLs in total. 53 Multiplying 8,125 hours by the estimated BLS average loaded wage rate of $46.00 (rounded up), this additional delay notification will impose an estimated yearly combined cost to FFLs of approximately $374,000. The aggregate estimated impact to all FFLs in total for under-21 transactions is therefore anticipated to be $499,000 per year. 54
52 The amended Brady transfer date would be the day after the tenth business day
by the estimated BLS average loaded wage rate of $46.00 (rounded up), this additional delay notification will impose an estimated yearly combined cost to FFLs of approximately $374,000. The aggregate estimated impact to all FFLs in total for under-21 transactions is therefore anticipated to be $499,000 per year. 54
52 The amended Brady transfer date would be the day after the tenth business day.
53 FBI internal subject matter experts have noted that almost all POCs have some form of State-implemented processes that, even before BSCA, already required FFLs in those States to collect and report the full residence addresses of some subjects. Further, FFLs in some POC States will not be impacted by enhanced delay for some subjects of under-21 transactions because those States have mandatory waiting periods that meet or exceed 10 business days. Additionally, many POC States currently have laws that, generally, do not allow even long guns to be transferred to persons who are under 21 years of age. See, e.g., Giffords Law Ctr., Minimum Age to Purchase & Possess, https://giffords.org/lawcenter/gun-laws/policy-areas/who-can-have-a-gun/minimum-age/ (last visited Oct. 4, 2024).
54 $499,000 = $374,000 (50 percent additional delay of under-21 transactions total of 162,500) + $125,000 (aggregate cost to provide under-21 address information at 30 seconds (.0083 hours) per transaction). The aggregate cost impact to the FFL community for under-21 transactions is approximately $635,000 ($374,000 + $261,000) if estimating 1 minute (.0167 hours) average for FFLs to provide address information during each under-21 transaction.
In conjunction with the impacts to FFLs, there are a limited number of vendors that will also incur cost to provide software programming updates to some FFLs' electronic systems used to communicate with NICS. These updates will be required for the FFL to receive the amended Brady transfer date during an under-21 transaction when cause for additional delay exists
during each under-21 transaction.
In conjunction with the impacts to FFLs, there are a limited number of vendors that will also incur cost to provide software programming updates to some FFLs' electronic systems used to communicate with NICS. These updates will be required for the FFL to receive the amended Brady transfer date during an under-21 transaction when cause for additional delay exists. This cost will only impact those FFLs who submit their background checks by E-Check and are eXtensible Markup Language (“XML”) users. 55 There are approximately 10 total vendors serving all XML users. XML users predominantly are within the larger, corporate FFLs (some of which have in-house personnel that would perform these system updates), but the FBI estimates 95 FFLs that would be considered small entities also utilize XML to communicate with NICS and are served by these vendors. Using the same load rate (1.42) used in Table 1.0 above for calculating costs to FFLs, the FBI calculates below the average loaded wage rate for anticipated job categories of vendors providing XML software updates for the FFLs. The Department has identified BLS job categories within these 10 vendors that are anticipated to be involved with these software updates. Table 2.0 provides the wage rates and loaded wage rates for such vendor employees as well as their averages.
55 XML provides FFLs an additional, electronic secure server-to-server method (in addition to E-Check) of submitting a NICS background check to the FBI. Operational Report at 10.
Table 2.0—Wage Categories Used for the Software Updates 56 Job category Wage rate Loaded wage rate 15-1251 Computer Programmers $46.46 $65.97 15-1252 Software Developers 58.17 82.60 Average 52.32 74.29 Assuming that it would take 100 hours to update their software, multiplied by an estimated average loaded wage rate (rounded up) of $75.00, the FBI anticipates a one-time cost to each vendor of $7,500 or less to make these updates
or the Software Updates 56 Job category Wage rate Loaded wage rate 15-1251 Computer Programmers $46.46 $65.97 15-1252 Software Developers 58.17 82.60 Average 52.32 74.29 Assuming that it would take 100 hours to update their software, multiplied by an estimated average loaded wage rate (rounded up) of $75.00, the FBI anticipates a one-time cost to each vendor of $7,500 or less to make these updates. The FBI anticipates this would not be a significant financial impact to the vendors because the costs would likely be passed onto the particular FFLs that would require the updates or the costs would be covered by existing contracts or agreements between the vendors and FFLs.
56 Chart sources for Wage Categories used for the FFL community from BLS:
BLS, Occupational Employment and Wages, May 2021: 15-1251 Computer Programmers (Mar. 31, 2022), https://www.bls.gov/oes/2021/may/oes151251.htm.
BLS, Occupational Employment and Wages, May 2021: 15-1252 Software Developers (Mar. 31, 2022), https://www.bls.gov/oes/2021/may/oes151252.htm.
iii. Costs: Notifications Required by the NDNA
In addition to requiring that FFLs provide address information for under-21 transactions and where needed to determine whether a local or Tribal prohibition may apply, the proposed rule will require FFLs to provide the residential addresses of prospective firearm transferees for all delayed and denied transactions to allow the FBI and POCs to implement the NDNA's requirement of sending denial notifications as described above. In 2021, internal FBI sub

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Source: Frix Law Library, https://www.frixlaw.com/law-library/statutes/FR_PRORULE_2024-28712. Check the current official text before relying on it. Not legal advice.