[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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