[Federal Register Volume 79, Number 224 (Thursday, November 20, 2014)]
[Rules and Regulations]
[Pages 69047-69051]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-27386]


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DEPARTMENT OF JUSTICE

Federal Bureau of Investigation

28 CFR Part 25

[Docket No. FBI 152; AG Order No. 3477-2014]
RIN 1110-AA27


National Instant Criminal Background Check System Regulation

AGENCY: Federal Bureau of Investigation, Department of Justice.

ACTION: Final rule.

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SUMMARY: The United States Department of Justice (``the Department'') 
is publishing this final rule to amend the regulations implementing the 
National Instant Criminal Background Check System (``NICS'') pursuant 
to the Brady Handgun Violence Prevention Act (``Brady Act''). This 
final rule authorizes tribal criminal justice agencies to access the 
NICS Index for purposes of issuing firearm-related permits and 
licenses, authorizes criminal justice agencies to access the NICS Index 
for purposes of disposing of firearms in their possession, and updates 
the storage location of NICS Audit Log records relating to denied 
transactions.

DATES: This rule is effective on January 20, 2015.

FOR FURTHER INFORMATION CONTACT: Sean Ragan, Federal Bureau of 
Investigation, National Instant Criminal Background Check System 
Section, Module A-3, 1000 Custer Hollow Road, Clarksburg, West Virginia 
26306-0147, (304) 625-3500.

SUPPLEMENTARY INFORMATION: This rule finalizes the proposal in the 
Federal Register on January 28, 2013 (78 FR 5757). The Federal Bureau 
of Investigation (``FBI'') accepted comments on the proposed rule from 
interested parties until March 29, 2013, and received 38 comments. With 
the exception of deleting the requirement for a form as explained 
below, the proposed rule is adopted as final.
    Significant Comments or Changes:
    On January 28, 2013, the Department published a notice of proposed 
rulemaking (``NPRM'') that proposed three changes to the FBI's NICS 
regulations. The proposed changes were to authorize tribal criminal 
justice agencies to access the NICS Index for purposes of issuing 
firearm-related permits and licenses; authorize criminal justice 
agencies to access the NICS Index for purposes of disposing of firearms 
in their possession; and to update the storage location of NICS Audit 
Log records relating to denied transactions. The proposed changes 
balance the Brady Act's mandate that the Department protect legitimate 
privacy interests of law-abiding firearm transferees (Pub. L. 103-159, 
section 103 (h)) and the Department's obligation to enforce the Brady 
Act (Id., section 103 (b)) and prevent prohibited persons from 
receiving firearms. Comments received for each of the three proposals 
are addressed below.

[[Page 69048]]

Proposal #1: Authorizing Tribal Criminal Justice Agencies To Access 
NICS Index Records (28 CFR 25.6(j)(1))

    The Department proposed to extend to tribal criminal justice 
agencies authority to access the NICS Index. Some commenters were 
concerned that the proposal would undermine tribal sovereignty.
    That is a misunderstanding of the rule. This rule does not, in any 
way, preempt tribal law. Rather, it extends to federally recognized 
tribes authorization to access the NICS Index and provides a tool to 
help tribes exercise their law enforcement responsibilities, including 
the regulation of firearms, within the territories they oversee. NICS 
access is wholly discretionary on the part of the tribes. This rule 
does not in any way mandate tribal government action. Because NICS 
access is wholly voluntary on the part of tribal governments, the rule 
does not impose compliance costs on those governments. This rule merely 
provides authorization for a tribal government to use the NICS in 
connection with the issuance of firearm-related permits should the 
tribal government choose to do so.
    Tribal governments are responsible for law enforcement and the 
maintenance of good order within their Indian country. Some tribes have 
for years issued firearm permits authorizing persons in their 
territories to possess and to carry concealed firearms. If a tribe 
chooses to access NICS pursuant to this rule, it will improve that 
tribe's ability to prevent and reduce illegal gun possession in its 
jurisdiction.
    One commenter expressed concern that storing tribal information in 
a national database would ``take[] away'' that tribe's sovereignty. The 
Department does not believe that to be the case. This rule does not 
address the ability of a tribe to submit information to the NICS. What 
the rule does address is the ability of the tribes to access the 
information stored in the NICS for issuing firearm permits and other 
authorized purposes. Tribal use of this authorized access is completely 
voluntary. The Federal Government in no way mandates tribal use of the 
NICS.

Proposal #2: Authorizing Law Enforcement Agencies To Conduct NICS 
Checks Before Transferring Firearms (28 CFR 25.6(j)(3))

    The Department proposed to permit law enforcement agencies to 
conduct NICS checks before transferring to another person or persons a 
firearm. Comments regarding this proposal were generally favorable. 
Therefore, the Department is finalizing the proposal unchanged.

Proposal #3: Storage Location of NICS Audit Log Records Relating to 
Denied Transactions (28 CFR 25.9(b)(1)(i))

    The Department proposed a change to the storage location and 
storage agency for its Audit Log records relating to denied 
transactions retained for more than 10 years. Specifically, the 
Department proposed to retain those records on-site after the National 
Archives and Records Administration (``NARA'') informed the FBI that it 
could not accept the records for storage. Retaining denied transaction 
records indefinitely is specifically authorized by the Brady Act, Pub. 
L. 103-159, section 103(i)(2) (codified at 18 U.S.C. 922(t) note)). The 
Department intends to retain Audit Log records of denied transactions 
on-site with the NICS Section given the unavailability of space to 
accommodate those records elsewhere. This change modifies the prior 
regulation only with regard to the storage location for denied 
transaction records older than 10 years. The change will not affect the 
extent to which denied transaction records may be disseminated or 
accessed.
    The original determination of where to store denied transactions 
older than 10 years was made by the Department in conjunction with 
NARA. When NICS reached its 10th anniversary, NARA determined that it 
lacked the capacity to house the NICS denied transaction records. 
However, the FBI was directed by NARA to retain its NICS denied records 
for a period up to 110 years. This period is consistent with the 
retention period prescribed by NARA for the other records in the FBI's 
Criminal Justice Information Service (``CJIS'') Division. Because the 
NICS business model obliges it to maintain all of its records in 
electronic format, it is a simple matter for the FBI to retain the NICS 
denied transaction records older than 10 years in an electronic format 
on-site for the period prescribed by NARA.
    One commenter questioned the benefit of retaining its denied 
transaction records for more than 10 years on-site. On-site retention 
beyond 10 years will enhance NICS operations for those rare occasions 
when a person appeals a very old denied transaction. There is no 
statute of limitations for appealing denied transactions. Denied 
transaction record information is not provided to any firearms dealer 
or private third party. It is used to defend lawsuits, respond to 
appeals, respond to law enforcement queries, support criminal 
prosecutions, provide precautionary alerts to law enforcement, and 
provide information for NICS audits. On those occasions when the FBI 
must resort to archived denied transaction records, there will be no 
need for the FBI to make a separate request for the record, wait while 
warehouse personnel search for it, and, if it is located, wait for its 
receipt. By storing the records on-site, the FBI will maintain control 
over the record location, establish its own retrieval priorities, and 
improve the efficiency of the search and retrieval process.
    One commenter suggested that the Department should impose on itself 
a requirement to report annually to Congress the number of firearm 
transactions denied by the NICS Section, the reason(s) for the denials, 
and the number of transactions denied then later found to be in error 
in the year immediately preceding the report. The commenter further 
suggested that the report should be indexed by Federal judicial 
district and that it include the number of Federal prosecutions for any 
applicable violations of law as a result of the attempted purchase(s) 
of a firearm.
    The Department already reports much of this information in other 
locations. For example, Federal prosecution information can be found on 
the Department's Web site for the Executive Office for United States 
Attorneys. Statistics regarding denied transactions are annually 
published by the NICS on the CJIS Division's Web site. Therefore, there 
is no need to duplicate this information in a new reporting 
requirement.
    Finally, some commenters expressed concern that storing the denied 
records on-site by the FBI versus storage by NARA presented a risk of 
improper use by the FBI due to its law enforcement and national 
security missions. Specifically, one commenter feared that storage by 
the FBI could lead to an erosion of the data's protection and adherence 
to ``the rules'' (not further identified) to the same degree as NARA. 
Other commenters feared this change could cause creation of arbitrary 
blacklists of innocent persons, otherwise erode the privacy of 
citizens, or result in an illegal registry.
    These fears are unfounded as the only records retained will be 
those authorized to be retained by law and belonging to persons who 
were denied firearms transactions based on statutory criteria specified 
under 18 U.S.C. 922(g) or (n). Moreover, the security provided by the 
FBI for NICS data is comprehensive and robust. Those records are not 
publicly accessible and will be appropriately safeguarded and protected 
from unauthorized access or

[[Page 69049]]

use. NICS system information is stored electronically in an FBI 
computer environment in a locked room within a secure facility. Access 
to the facility is restricted to authorized personnel who have 
identified themselves and their need for access to a system security 
officer. Additionally, access to NICS data by other duly authorized 
agencies is similarly restricted.
    The only change in this proposal to store denial records by the FBI 
is one of agency location for the storage. It should be emphasized that 
the records concerned are those of denied transactions. The Brady Act, 
Public Law 103-159, section 103(i)(2), permits the Attorney General to 
create registries of ``persons [ ] prohibited by section 922(g) or (n) 
of title 18, United States Code or State law [ ] from receiving a 
firearm''; i.e., persons who have been denied a firearm. Even if NARA 
retained Audit Log records of NICS denied transaction records older 
than 10 years as originally envisioned, those records are of denied 
transactions. The FBI would retain ownership of those records and the 
right to access them. See 28 CFR part 25. Moreover, the history of the 
FBI operation of the NICS has demonstrated its commitment to the 
privacy and security of the information housed in the NICS. See, for 
example, 28 CFR 25.8 and 25.9(b)(3).

Cost/Benefit Analysis

    Several commenters requested that the Department perform a more 
detailed cost/benefit analysis. As explained in its NPRM, the 
Department lacks sufficient information to conduct a detailed 
verifiable cost/benefit analysis. For example, the Department knows 
neither how many of the more than 18,000 state, tribal, and local law 
enforcement agencies (LEAs) will take advantage of the new provisions 
nor the specific implementation cost for each agency. The Department 
estimates that the time required for an LEA to submit its NICS query 
should not exceed two to three minutes. That span includes the time 
needed to gather the minimum identifying information (name, sex, date 
of birth, race, and state of residence), to enter it on the computer 
screen, and to press the submit key.
    Even given the foregoing information, the Department cannot 
estimate the costs that will be imposed on Federal, state, tribal, and 
local LEAs by their use of the new access authority. This inability is 
caused by the uncertainty of how many LEAs will avail themselves of 
this new use of the NICS and the unknown number of the potential 
eligible firearms in the hands of LEAs. However, a range of expense 
potentially incurred by a LEA using this access authority can be 
estimated if one begins the analysis by using the mean hourly wages for 
either a clerical/administrative assistant or a law enforcement officer 
(Police and Sheriff's Patrol Officer) conducting the checks. The 
following figures are derived from the Bureau of Labor Statistics as of 
2010 for administrative employees and 2012 for law enforcement 
officers. As noted, the FBI estimates that the entire process of 
conducting the NICS check should take no more than two to three 
minutes. The 2010 administrative mean hourly wage is $16.66. The 2012 
mean hourly wage for a law enforcement officer is $27.78. The cost for 
a clerical NICS check should be between 56 and 83 cents. If a law 
enforcement officer conducts the check, then the cost should be between 
93 cents and $1.39. The FBI was unable to estimate how often any one of 
the thousands of LEAs might choose to employ the access and which staff 
member will make the check is similarly unknown.
    Beyond the personnel costs, the Department has determined that the 
LEAs should not incur any start-up or new capital expenses in order to 
use their new authority. The LEAs already have the computer and 
communications equipment necessary for them to access and query the 
National Crime Information Center (``NCIC'') and the Interstate 
Identification Index (III) for their day-to-day law enforcement 
activities. These two FBI criminal history databases are part of the 
same information system used to conduct a NICS check. Moreover, the 
LEAs can conduct a NICS check from the same terminals that they use to 
query the NCIC and III.

General NICS Concerns

    A few commenters expressed concerns about the NICS statutory and 
regulatory scheme as a whole. One commenter expressed concern generally 
regarding the intent of this rule and specifically that it would apply 
to hunting license applicants. That is not the case. Neither the 
current NICS regulations nor the changes to the NICS regulations made 
by this final rule permit NICS records to be used to process hunting 
licenses. Because this rulemaking makes three specific changes to the 
NICS regulations, comments generally expressing favorable or 
unfavorable opinions about the NICS legal framework are outside the 
scope of this regulatory action and the Department does not address 
them herein.

Regulatory Certifications

Executive Order 12866 and 13563--Regulatory Review

    This regulation has been drafted and reviewed in accordance with 
Executive Order 12866, ``Regulatory Planning and Review,'' section 
1(b), The Principles of Regulation, and in accordance with Executive 
Order 13563, ``Improving Regulation and Regulatory Review,'' section 
1(b), General Principles of Regulation.
    The Department of Justice has determined that this rule is a 
``significant regulatory action'' under Executive Order 12866, section 
3(f), and accordingly, this rule has been reviewed by the Office of 
Management and Budget (OMB).
    Further, both Executive Orders 12866 and 13563 direct agencies to 
assess all costs and benefits of available regulatory alternatives and, 
if regulation is necessary, to select regulatory approaches that 
maximize net benefits (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 Department of Justice believes that this rule has substantial 
operational benefits. One benefit of this rule is enhanced access to 
the NICS for tribal criminal justice agencies that issue firearm-
related licenses or permits. This access, while discretionary, will 
assist the tribes in evaluating any legal prohibitions or public safety 
risks associated with issuing a particular firearm permit or license. 
Another benefit of this rule is that state, tribal, and local criminal 
justice agencies in the possession of firearms will be able to ensure 
that persons to whom they transfer recovered, seized, or confiscated 
firearms are legally permitted to receive and possess those firearms. 
In both cases, such actions by criminal justice agencies will help to 
improve public safety by reducing the risk that firearms will be 
obtained and used by persons who are prohibited by law from doing so. 
Finally, the retention of denied transaction information at CJIS will 
enhance the efficiency and operational capability of the NICS Section.
    The costs of this rule stem from staffing and funding required by 
state, tribal, and local agencies and the NICS Section to conduct 
additional background checks for the disposition of firearms in the 
possession of law enforcement or criminal justice

[[Page 69050]]

agencies, or in connection with the issuance of firearm-related 
licenses or permits by tribal criminal justice agencies. The full 
impact of the increase in background checks resulting from these 
changes cannot be reliably projected due to uncertainty about the 
number of firearms that currently are in, or regularly come into, the 
possession of law enforcement, and the number of such firearms that 
ultimately are appropriate for transfer to an unlicensed recipient. 
Similarly, the FBI cannot predict how often tribal criminal justice 
agencies are likely to access the NICS in connection with firearms 
license or permit decisions. Because these uses of the NICS are 
discretionary with state, tribal, and local criminal justice agencies, 
the FBI is unable to estimate the extent to which the states will use 
these capabilities and, therefore, cannot provide reliable monetized 
estimates of the cost of this rule.

Executive Order 13132--Federalism

    This regulation will not have a substantial, direct effect on the 
states, on the relationship between the national government and the 
states, or on the distribution of power and responsibilities among the 
various levels of government. While it provides that LEAs that are 
authorized users of the NICS with access to the NCIC will be authorized 
to conduct Disposition of Firearm background checks of the NICS Index, 
such background checks are not mandatory.
    In drafting this rule, the FBI consulted the FBI's CJIS Division 
Advisory Policy Board (APB). The APB is an advisory committee 
established pursuant to the Federal Advisory Committee Act, 5 U.S.C. 
App. 2. It consists of representatives from numerous Federal, state, 
tribal, and local criminal justice agencies across the United States. 
It provides general policy recommendations to the FBI Director 
regarding the philosophy, concept, and operational principles of the 
FBI's Integrated Automated Fingerprint Identification System, Law 
Enforcement Online, the NCIC, the NICS, Uniform Crime Reporting, and 
other systems and programs administered by the FBI's CJIS Division. In 
accordance with Executive Order 13132, this rule does not have 
sufficient federalism implications to warrant the preparation of a 
Federalism Assessment.

Regulatory Flexibility Analysis

    The Department, in accordance with the Regulatory Flexibility Act, 
5 U.S.C. 605(b), has reviewed this regulation and, by approving it, 
certifies that this regulation will not have a significant economic 
impact on a substantial number of small entities. This rule imposes no 
costs on businesses, organizations, or governmental jurisdictions 
(whether large or small).

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by state, tribal, and 
local governments, in the aggregate, or by the private sector, of $100 
million or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no action was deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 251 of the 
Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 
804). This rule will not result in an annual effect on the economy of 
$100 million or more, a major increase in costs or prices, or have 
significant adverse effects on competition, employment, investment, 
productivity, innovation, or on the ability of United States-based 
enterprises to compete with foreign-based enterprises in domestic and 
export markets.

Paperwork Reduction Act of 1995

    Information collection associated with this regulation has been 
approved by the OMB for review under the provisions of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3507(d)). The OMB control number for 
this collection is 1110-0055.
    In the NPRM, the Department solicited comments regarding the 
Paperwork Reduction Act. Specifically, it requested assistance to help 
it--

     evaluate whether the proposed collection of information 
is necessary for the proper performance of the functions of the 
agency, including whether the information will have practical 
utility;
     evaluate the accuracy of the agency's estimate of the 
burden of the proposed collection of information, including the 
validity of the methodology and assumptions used;
     enhance the quality, utility, and clarity of the 
information to be collected; and minimize the burden of the 
collection of information on those who are to respond, including 
through the use of appropriate automated, electronic, mechanical, or 
other technological collection techniques or other forms of 
information technology, e.g., permitting electronic submission of 
responses.

78 FR 5760 (Jan. 28, 2013).

    Commenters offered several suggestions on modifying the proposed 
information collection by the Disposition of Firearms Form. Some 
commenters suggested eliminating the hard copy version of the form in 
favor of one electronically submitted. One commenter suggested keeping 
the hard copy and expanding its function by increasing the amount of 
information required to be entered on it including details also found 
on the ATF Form 4473 and the circumstances of how the firearm was 
acquired by the LEA.
    The modifications suggested for the proposed creation and use of a 
form are not necessary. The FBI decided not to create the form proposed 
because it would serve no function that could not be otherwise 
accomplished more efficiently. The form was intended to fulfill two 
functions. First, the form was intended to establish an audit trail the 
NICS Section could periodically review to ensure the system was not 
being misused. After some research, the FBI determined that there were 
alternate methods it could use to detect misuse and that the form was 
not necessary to accomplish compliance reviews. Second, the form was 
intended to ensure that law enforcement officers gathered and entered 
the minimum amount of data necessary to successfully initiate a firearm 
disposition check with the NICS. The FBI has determined this purpose 
can also be accomplished without publishing a form. The alternative is 
to post instructions on the FBI NICS Web site, complete with a list of 
the minimum data required to successfully initiate a NICS check.
    Finally, there is no regulatory or statutory mandate for the form. 
In an effort to minimize the fiscal impact of this change on state, 
tribal, and local law enforcement, the Department has determined a new 
form is not necessary and will abandon the publication of the form 
originally proposed.

List of Subjects in 28 CFR Part 25

    Administrative practice and procedure, Computer technology, Courts, 
Firearms, Law enforcement officers, Penalties, Privacy, Reporting and 
recordkeeping requirements, Security measures, Telecommunications.

Authority and Issuance

    Accordingly, part 25 of title 28 of the Code of Federal Regulations 
is amended as follows:

PART 25--DEPARTMENT OF JUSTICE INFORMATION SYSTEMS

0
1. The authority citation for part 25 continues to read as follows:

    Authority: Pub. L. 103-159, 107 Stat. 1536.


[[Page 69051]]



0
2. In Sec.  25.2, revise the definition of ``ATF'' to read as follows:


Sec.  25.2  Definitions.

* * * * *
    ATF means the Bureau of Alcohol, Tobacco, Firearms and Explosives.
* * * * *

0
3. In Sec.  25.6, revise paragraph (j) to read as follows:


Sec.  25.6  Accessing records in the system.

* * * * *
    (j) Access to the NICS Index for purposes unrelated to NICS 
background checks required by the Brady Act. Access to the NICS Index 
for purposes unrelated to NICS background checks pursuant to 18 U.S.C. 
922(t) shall be limited to uses for the purposes of:
    (1) Providing information to Federal, state, tribal, or local 
criminal justice agencies in connection with the issuance of a firearm-
related or explosives-related permit or license, including permits or 
licenses to possess, acquire, or transfer a firearm, or to carry a 
concealed firearm, or to import, manufacture, deal in, or purchase 
explosives;
    (2) Responding to an inquiry from the Bureau of Alcohol, Tobacco, 
Firearms, and Explosives in connection with a civil or criminal law 
enforcement activity relating to the Gun Control Act (18 U.S.C. Chapter 
44) or the National Firearms Act (26 U.S.C. Chapter 53); or,
    (3) Disposing of firearms in the possession of a Federal, state, 
tribal, or local criminal justice agency.
* * * * *

0
4. In Sec.  25.9, revise paragraph (b)(1)(i) to read as follows:


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

* * * * *
    (b) * * *
    (1) * * *
    (i) NICS denied transaction records obtained or created in the 
course of the operation of the system will be retained in the Audit Log 
for 10 years, after which time they will be transferred to an 
appropriate FBI-maintained electronic database.
* * * * *

    Dated: November 13, 2014.
Eric H. Holder, Jr.,
Attorney General.
[FR Doc. 2014-27386 Filed 11-19-14; 8:45 am]
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