[Federal Register Volume 89, Number 239 (Thursday, December 12, 2024)]
[Proposed Rules]
[Pages 100424-100439]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-28711]
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DEPARTMENT OF JUSTICE
28 CFR Part 25
[Docket No. FBI-159; AG Order No. 6099-2024]
RIN 1110-AA35
Bipartisan Safer Communities Act of 2022--Criteria for National
Instant Criminal Background Check System (``NICS'') Background Checks
of Firearm Handlers
AGENCY: Federal Bureau of Investigation, Department of Justice.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The United States Department of Justice (``Department'')
proposes several amendments to regulations pertaining to the National
Instant Criminal Background Check System (``NICS'' or ``system'') of
the Federal Bureau of Investigation (``FBI''). The proposed amendments
implement parts of the Bipartisan Safer Communities Act (``BSCA''),
which, in relevant part, require the Attorney General to promulgate
regulations authorizing certain Federal Firearm Licensees (``FFLs'' or
``licensees'') to use NICS for purposes of voluntarily conducting
employment background checks relating to certain current or prospective
employees. As this Notice of Proposed Rulemaking (``NPRM'') describes
in more detail, the Department proposes allowing FFLs to use NICS for
employment background checks of their ``firearm handlers'' and other
``eligible employees.''
DATES: Written comments must be postmarked, and electronic comments
must be submitted, on or before January 13, 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-AA35 or
Docket No. FBI-159, by either of the following methods:
[ssquf] Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
[ssquf] 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-159.
Instructions: All submissions received must include the agency name
and RIN (1110-AA35) or docket number (FBI-159) for this NPRM. 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 to allow FFLs, as required by
Congress under BSCA, Public Law 117-159, 136 Stat. 1313 (2022), to use
NICS for purposes of conducting voluntary employment background checks
of the FFLs' current and prospective employees. The Department seeks
comments regarding that use in
[[Page 100425]]
general as well as regarding the proposed revisions related to the
processes surrounding that use of NICS. The Department will carefully
consider all properly submitted public comments in drafting any final
rules.
All comments must reference RIN 1110-AA35 or this document's docket
number, FBI-159, 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. 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. 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). 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
A. National Instant Criminal Background Check System
1. NICS Procedures
The Brady Handgun Violence Prevention Act of 1993 (``Brady Act''),
Public Law 103-159, 107 Stat. 1536, required the Attorney General to
establish NICS, a system that certain FFLs must contact before selling
or otherwise transferring a firearm. Brady Act sec. 103. NICS provides,
when possible, immediate information on whether receipt of a firearm by
an unlicensed person would violate 18 U.S.C. 922(g) or (n), or State,
local, or Tribal law. See 18 U.S.C. 922(t). The FBI manages and
operates NICS by delegation of the Attorney General pursuant to 28 CFR
25.3. The NICS Section of the FBI's Criminal Justice Information
Services Division processed the first NICS background check on November
30, 1998.\1\
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\1\ See National Instant Criminal Background Check System
Regulation, 63 FR 58303, 58303 (Oct. 30, 1998).
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The Brady Act provides that persons federally licensed by the
Bureau of Alcohol, Tobacco, Firearms, and Explosives (``ATF'') as
manufacturers, dealers, and importers under 18 U.S.C. 923 are required
to initiate a NICS background check before transferring firearms to
unlicensed persons. See 18 U.S.C. 922(t)(1); see also 921(a)(9)-(11).
Persons licensed under 18 U.S.C. 923 as ``collectors,'' see 18 U.S.C.
923(b),\2\ are not required to submit NICS transactions under 18 U.S.C.
922(t) because licensed collectors are not defined as ``licensees''
under the Brady Act. See 34 U.S.C. 40901(j)(1).
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\2\ See also 27 CFR 478.11 (defining ``[c]ollector'' as ``[a]ny
person who acquires, holds, or disposes of firearms as curios or
relics,'' and ``[l]icensed collector'' as ``[a] collector of curios
and relics only [who is] licensed under the provisions of this
part'').
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An FFL initiates a NICS background check by contacting the FBI NICS
Section \3\ or a State or local law enforcement agency known as a point
of contact (``POC'')--i.e., certain State or local law enforcement
agencies with express or implied authority to perform NICS inquiries
and respond to FFLs with the results. See 28 CFR 25.2, 25.6(a), (d).\4\
As of December 31, 2021, the NICS Section supported NICS background
checks for 50,588 dealer and pawnbroker licensees conducting business
in 31 States, 5 U.S. Territories, and the District of Columbia.\5\ The
NICS Section processed 11,106,931 firearm transactions from January 1,
2021, through December 31, 2021.\6\ In addition, the NICS Section
processed 138,518 explosive permit background checks for this same
timeframe.\7\
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\3\ The NICS Section was known as the ``NICS Operation Center''
until July 24, 2002. However, 28 CFR part 25 has not since been
updated to reflect that change. The Department's initial NICS
regulations included definitions for ``NICS Operations Center'' and
``NICS Operations Center's regular business hours.'' See 63 FR
58308. In 2001, ``NICS Operations Center'' was inadvertently deleted
from the Federal Register publication. See FindLaw.com, Code of
Federal Regulations Title 28. Judicial Administration Sec. 28.25.2
Definitions, https://codes.findlaw.com/cfr/title-28-judicial-administration/cfr-sect-28-25-2/ (last visited Nov. 5, 2024)
(observing that the ``official CFR appears to have inadvertently
deleted [the] definition'' of NICS Operations Center). The relevant
intent of those 2001 revisions was only to delete the definition for
and references to ``NICS Operations Center regular business hours.''
See National Instant Criminal Background Check System Regulation, 69
FR 43892, 43896, 43900 (July 23, 2004). The Department has proposed
revisions here and within RIN 1110-AA36, FBI-158, to update
references to the ``NICS Operation Center'' to the ``NICS Section.''
See proposed revisions in 28 CFR 25.2, 25.6, and 25.10.
\4\ 28 CFR 25.2 defines ``POC (Point of Contact)'' as ``[a]
state or local law enforcement agency serving as an intermediary
between an FFL and the federal databases checked by the NICS.'' That
provision further states that a POC will receive NICS background
check requests from FFLs, check State or local record systems,
perform NICS inquiries, determine whether matching records provide
information demonstrating that an individual is disqualified from
possessing a firearm, and respond to FFLs with the results of a NICS
background check. In addition, a POC must be an agency with express
or implied authority to perform POC duties pursuant to State
statute, regulation, or executive order. POCs perform NICS inquiries
on either all or only a subset of the NICS background checks that
FFLs submit in the POC's State. See NICS Participation Map, https://www.fbi.gov/how-we-can-help-you/more-fbi-services-and-information/nics/about-nics#NICS-Participation%20Map (last visited Nov. 5,
2024).
\5\ 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.
\6\ Id. at 12-13.
\7\ Id. at 13.
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Relevant databases for background checks are the NICS Index (now
called
[[Page 100426]]
the ``NICS Indices''),\8\ the National Crime Information Center
(``NCIC''), and the Interstate Identification Index (``III''). See 28
CFR 25.2, 25.4, 25.6. The NICS Indices is a database of information
provided by Federal, State, local, and Tribal agencies about persons
who are prohibited from receiving firearms under Federal or State law.
See 28 CFR 25.2. NCIC is searched for other criminal justice data, such
as active warrants and protection orders, which would also demonstrate
that a person is prohibited from receiving firearms.\9\ III is part of
the FBI's Next Generation Identification system and is used to search
for criminal justice records such as arrests, charges, or case
dispositions demonstrating the subject of the NICS transaction is
prohibited from receiving firearms.\10\ See also 28 CFR 25.6(c), (f).
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\8\ The NICS Index has become known by most NICS users as the
``NICS Indices.'' The Department has proposed revisions here and in
RIN 1110-AA36, FBI-158, to update references to the ``NICS Index''
to the ``NICS Indices.'' See proposed revisions in 28 CFR 25.2,
25.4-25.6, 25.8, and 25.9.
\9\ See FBI, 2022 NICS Operations Report 7 (2022), https://www.fbi.gov/file-repository/nics-2022-operations-report.pdf/view.
\10\ See id.
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After initiating a background check for the prospective transfer of
firearms, FFLs receive one of three responses from NICS: ``Proceed,''
``Delayed,'' or ``Denied.'' \11\ As currently defined, a ``Proceed''
response means the background check revealed no disqualifying (e.g.,
matching) records. 28 CFR 25.6(c)(1)(iv)(A). A ``Denied'' response
means that receipt of a firearm by the prospective transferee would
violate applicable law described in 18 U.S.C. 922(t). 28 CFR
25.6(c)(1)(iv)(C). For those transactions in which a search of NICS
cannot provide a definitive response of either ``Proceed'' or
``Denied'' because additional research of a possible disqualification
is required, the FFL receives a response of ``Delayed.'' 28 CFR
25.6(c)(1)(iv)(B). FFLs do not review the record sources searched
during a background check by NICS, nor does a response from NICS
provide the FFL with any of the underlying information reviewed during
the background check. 28 CFR 25.6(c)(2). Beyond one of the previously
noted responses, the only other information an FFL receives as part of
a NICS background check is the NICS transaction number (``NTN'') and,
for ``Delayed'' transactions,\12\ a prospective transfer date, which is
the day after ``3 business days . . . have elapsed since the licensee
contacted'' NICS. 18 U.S.C. 922(t)(1)(B)(ii); see also 28 CFR
25.6(c)(1).
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\11\ Through RIN 1110-AA36, FBI-158, the Department has proposed
a new status (``No Known Prohibitors: A state or local agency has
not responded or cannot respond'') and discusses new processes
applicable when FFLs submit NICS background checks for prospective
firearm transfers to persons under 21 years of age (``under-21
transactions''). However, because the provisions discussed in that
rulemaking do not apply to FHCs, this rule has generally omitted
discussion of proposed regulatory updates related to under-21
transactions.
\12\ See 28 CFR 25.2 (defining ``Delayed'' and ``NTN (NICS
Transaction Number)''); see also 28 CFR 25.6(c)(1)(iv)(B).
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Under one of several BSCA provisions, ``the Attorney General shall
promulgate regulations allowing licensees to use [NICS] for purposes of
voluntarily conducting an employment background check relating to a
current or prospective employee.'' 34 U.S.C. 40901(b)(2). Again, per 34
U.S.C. 40901(j)(1), ``licensee[s]'' include licensed importers,
licensed manufacturers, and licensed dealers as those terms are defined
under 18 U.S.C. 921(a)(9)-(11), respectively. An unlicensed person for
purposes of 18 U.S.C. 922(t) is someone ``not licensed under'' chapter
44 of title 18. 18 U.S.C. 922(t)(1); see also 18 U.S.C. 923 (providing
for licensing).\13\
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\13\ Licensed collectors are also considered unlicensed persons
during firearm transactions that involve firearms other than curios
and relics. See 18 U.S.C. 921(a)(13); see also ATF, Does a
Collector's License Afford Any Privileges to the Licensee with
Respect to Acquiring or Disposing of Firearms Other than Curios or
Relics in Interstate or Foreign Commerce? (last reviewed May 26,
2020), https://www.atf.gov/firearms/qa/does-collector%E2%80%99s-license-afford-any-privileges-licensee-respect-acquiring-or-disposing.
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Persons who fall within any of the prohibitions noted under 18
U.S.C. 922(g) or (n) are generally prohibited by Federal law from
shipping, transporting, possessing, or receiving firearms and
ammunition.\14\ The Brady Act also prohibits the transfer of firearms
to persons prohibited from receiving firearms under sections 922(d),
(g), or (n), as appropriate, or State, local, or Tribal law. See 18
U.S.C. 922(t).\15\
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\14\ Federal law prohibits receipt of a firearm by a person
under a qualifying indictment but does not prohibit mere possession
of the firearm by the indicted individual. See 18 U.S.C. 922(n)
(making it unlawful for any person who is under indictment for a
crime punishable by imprisonment for a term exceeding 1 year to ship
or transport in interstate or foreign commerce any firearm or
ammunition or receive any firearm or ammunition which has been
shipped or transported in interstate or foreign commerce). However,
a State ``possession'' prohibition may also apply. See, e.g., Haw.
Rev. Stat. 134-7.
\15\ Section II.E of this preamble contains a brief discussion
of RIN 1110-AA36, FBI-158, another NPRM the Department has
published. That rulemaking includes discussion regarding, among
other topics, further disqualifying categories that Congress added
to 18 U.S.C. 922(t) in 2022.
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2. Current Access to NICS for Purposes Other Than Firearm Transfers
Federal statutes authorize access to NICS for certain entities for
reasons other than a prospective firearm transfer under 18 U.S.C.
922(t). See, e.g., 42 U.S.C. 2201a (authorizing use of NICS for
background checks related to security personnel of Nuclear Regulatory
Commission licensees and certificate holders). NICS regulations also
permit access to NICS ``for purposes unrelated to NICS background
checks pursuant to 18 U.S.C. 922(t)'' in three limited circumstances.
28 CFR 25.6(j). First, NICS may be used to provide information to
Federal, State, local, or Tribal criminal justice agencies in
connection with the issuance of firearm- or explosives-related
licenses. 25 CFR 25.6(j)(1). Second, NICS may be used in responding to
an inquiry from ATF in connection with a civil or criminal law
enforcement activity relating to the Gun Control Act (18 U.S.C. chapter
44) or the National Firearms Act (26 U.S.C. chapter 53). 25 CFR
25.6(j)(2). Third, Federal, State, local, and Tribal criminal justice
agencies may use NICS to dispose of firearms in their possession. 25
CFR 25.6(j)(3).
Since their issuance, the Department's NICS regulations have
expressly prohibited FFLs from initiating NICS background checks for
any purpose other than the prospective transfer of firearms as required
by the Brady Act. See 28 CFR 25.6(a). With the enactment of BSCA,
however, the Department must issue new regulations that allow FFLs to
use NICS for another specified purpose: determining whether certain
current or prospective employees are prohibited from possessing
firearms.\16\ This NPRM proposes amendments to the Department's NICS
regulations to allow licensees to voluntarily initiate NICS background
checks for this new purpose.
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\16\ In addition to BSCA, Congress in 2022 passed the
Consolidated Appropriations Act, 2022, Public Law 117-103, 136 Stat.
49, which amended 18 U.S.C. 922(t) to reference firearm prohibitions
imposed by ``local'' and ``Tribal'' governments. See 136 Stat. at
919, 921. Those provisions are accounted for where relevant in this
rule's preamble and the proposed regulatory revisions.
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B. Using NICS for Voluntary Employment Background Checks
Section 12004(h)(1)(B) of BSCA amended the Brady Act by requiring
the Attorney General to promulgate rules allowing licensees to use NICS
for purposes of voluntarily conducting an employment background check
relating to a current or prospective employee (``employee''). 34 U.S.C.
40901(b)(2)(A).
[[Page 100427]]
The Department interprets ``voluntarily'' in this context to mean
that licensees are not required to use NICS to conduct background
checks of employees; rather, licensees have discretion to submit
requests for NICS background checks. Licensees may not request a NICS
background check without first providing written notice to and
obtaining written consent of the affected employee. See 34 U.S.C.
40901(b)(2)(B). This consent requirement is discussed in Section II.E
of this preamble.
Consistent with BSCA, the Department is proposing amendments to
NICS regulations to generally allow licensees to initiate background
checks of certain employees. See 34 U.S.C. 40901(b)(2)(A). This rule
proposes to clarify that FFLs may voluntarily initiate NICS background
checks of persons who are or would be ``eligible employees'' as further
defined in proposed amendments to 28 CFR 25.2.
C. Firearm Handler Background Checks
1. Synopsis of Proposed Rule
This rule proposes allowing licensees to use NICS as part of
employment background checks of certain employees. Although other
categories of employees are discussed further in this preamble, the
core group of employees covered by this proposed rule consists of
``firearm handlers.'' Accordingly, the Department will generally refer
to these NICS background checks as ``firearm handler background
checks'' or ``FHCs.'' This rule proposes to define a ``firearm
handler'' to include, with exceptions discussed in Section II.C.3.a of
this preamble, a person who has or may have an opportunity to access
firearms or ammunition because of the person's duties as an employee of
an FFL, regardless of whether the employee's duties include or may
include the actual or constructive transfer or handling of firearms or
ammunition. This rule also proposes that licensed manufacturers may
submit FHCs for persons who do not have access to firearms or
ammunition, but whose employment duties allow or may allow them access
to the materials or tools used in firearms or ammunition manufacturing.
Further, this rule proposes that FHCs would not be available for any
employee who does not or will not have employment duties that would
allow the employee access to firearms or ammunition or any materials or
tools necessary to manufacture firearms or ammunition. This rule's
proposed approach satisfies the text of section 12004 of BSCA, fulfills
Congress's purpose in enacting section 12004 of BSCA, and addresses
important policy and operational interests of the FBI and FFL
employees.
Next, the Department notes that FHC results indicating that an FFL
is prohibited from transferring a firearm to an employee should not be
construed to prohibit the licensee from employing that individual in a
position that does not require the handling of or having access to a
firearm or ammunition or the materials or tools used in firearms or
ammunition manufacturing. Current responses to FFLs when they submit a
request for a NICS background check for a firearm transfer are limited
to ``Proceed,'' ``Delayed,'' or ``Denied,'' which could cause confusion
if they were also used in response to FHCs. Licensees may mistake a
``Proceed'' or ``Denied'' response during an FHC as a determination
that the licensee must either hire or reject the subject of the FHC.
Consequently, this NPRM proposes to amend 28 CFR 25.2 to reflect new
responses to be used during FHCs: ``Pass,'' ``Pending,'' and ``Did Not
Pass.'' \17\ These terms and their definitions are discussed more fully
in Section II.C.3.b of this preamble.
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\17\ This rule also proposes a technical amendment to 28 CFR
25.9(b)(1)(i) to reflect that ``Denied'' firearm transfer records in
the NICS Audit Log are retained for 110 years under approved records
schedules filed with the National Archives and Records
Administration. See Request for Records Disposition Authority,
National Instant Criminal Background Check System, Schedule Number
NI-065-10-005 at 4 (Nov. 18, 2009), https://www.archives.gov/files/records-mgmt/rcs/schedules/departments/department-of-justice/rg-0065/n1-065-10-005_sf115.pdf (superseding, in part, Request for
Records Disposition Authority, National Instant Criminal Background
Check System, Schedule Number NI-065-07-003 at 4 (Oct. 13, 2006),
https://www.archives.gov/files/records-mgmt/rcs/schedules/departments/department-of-justice/rg-0065/n1-065-07-003_sf115.pdf).
Because there is no statute of limitations for appealing a
``Denied'' transaction, the FBI may sometimes need to access very
old records of these transactions; retaining such records for 110
years ensures that the records are retained for a period that
exceeds the relevant person's expected life span. See Off. of Just.
Programs, Comparison of Criminal History Information Systems in the
United States and Other Countries 105 (Apr. 2, 2020), https://www.ojp.gov/pdffiles1/bjs/grants/253816.pdf.
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Section 40901(b)(2)(B) of title 34, as added by BSCA, also requires
a licensee to provide the employee written notice ``that the licensee
intends to conduct the [NICS] background check'' and to obtain the
employee's written consent to the NICS background check.\18\ Finally,
Congress mandated through amendments to section 40901(b)(2)(D) that,
when the ``employment background check'' for an individual ``indicates
that the individual is prohibited from possessing a firearm or
ammunition'' under 18 U.S.C. 922(g) or (n), the individual may appeal
the result ``in the same manner and to the same extent as if the
individual had been the subject of a background check relating to the
transfer of a firearm.'' \19\ The appeal of FHC results is discussed in
Section II.C.4 of this preamble.
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\18\ This rule proposes no specific method for licensees to
document having obtained their eligible employees' informed consent
in writing. However, ATF's proposed FHC form will include a notice
that the information on the form may be used by the FFL to conduct a
background check to determine whether the employee is prohibited
from possessing or receiving firearms by Federal, State, local, or
Tribal law, and that the employee's signature on the FHC form
constitutes consent for the FFL to conduct the voluntary background
check.
\19\ BSCA also exempted this new use of NICS from provisions of
the Fair Credit Reporting Act, 15 U.S.C. 1681 et seq. See 34 U.S.C.
40901(b)(2)(C).
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2. Purpose and Authority
This rule proposes to amend 28 CFR 25.1 to add FHCs as an
additional authorized use of NICS in the subpart of the Department's
regulations governing NICS background checks. It would add BSCA as a
source of authority for the subpart.
3. Definitions
The proposed rule would amend 28 CFR 25.2 to add several
definitions relevant to FHCs.
a. Eligible Employee and Firearm Handler
Section 103 of the Brady Act established NICS to enable licensed
manufacturers, dealers, and importers to receive information about
whether the transfer of a firearm to a non-licensee would violate
section 922 or State law. See 34 U.S.C. 40901(b)(1). Section 12004(h)
of BSCA amended section 40901(b) to require the Attorney General to
promulgate rules to allow ``licensees'' to use NICS ``for purposes of
voluntarily conducting an employment background check relating to a
current or prospective employee.'' 34 U.S.C. 40901(b)(2)(A). Neither
the text nor the legislative history provides further guidance as to
the meaning of ``current or prospective employee.''
If the language were read to cover any employee of any licensee, as
well as any potential future employee, the number of people who could
be subject to an FHC, as well as the burden on NICS, would be much
greater than what Congress likely intended. Thus, the NPRM proposes to
limit the employees for whom an FFL may seek a background check to
certain ``eligible employees.''
i. Statutory Context and Congressional Purpose
Section 12004 of BSCA, entitled the ``Stop Illegal Trafficking in
Firearms Act,'' is focused on combating the straw
[[Page 100428]]
purchasing and trafficking of firearms. Among other things, section
12004 added 18 U.S.C. 932 and 933, which criminalize straw purchasing
and firearms trafficking, respectively, with punishments up to 25 and
15 years of imprisonment, respectively, as well as forfeiture pursuant
to 18 U.S.C. 934. See BSCA sec. 12004(a)(1). Section 12004 also amended
18 U.S.C. 922(d), which prohibits selling or otherwise disposing of
firearms or ammunition to listed categories of persons, to include in
the prohibition those individuals who intend to sell or dispose of the
firearm or ammunition in furtherance of a felony, a Federal crime of
terrorism, or a drug trafficking offense or to a person in any of the
other prohibited categories. 18 U.S.C. 922(d)(10) and (11). These
measures demonstrate that, through BSCA, Congress sought to ensure that
individuals prohibited from receiving firearms would not be able to
obtain them.
Section 12004 also advances this congressional purpose by allowing
a new use of NICS. As already explained, section 12004(h) requires the
Attorney General to promulgate regulations that allow ``licensees'' to
access NICS ``for purposes of voluntarily conducting an employment
background check relating to a current or prospective employee.'' This
provision recognizes that FFLs may inadvertently employ prohibited
persons, who would then have access to firearms through their
employment duties and who may be able to use their positions to engage
in illegal trafficking of firearms or to otherwise illegally possess or
use firearms. The expanded authorization to use NICS to conduct
background checks of certain prospective and current employees is an
additional tool for FFLs to help prevent illegal firearms trafficking
and ensure prohibited persons do not obtain firearms.
FFLs collectively submit millions of NICS background checks related
to firearm transfers each year.\20\ Moreover, FFLs employ thousands of
individuals who, through their employment, have access to firearms and
the ability to enable straw purchasing and illegal firearm trafficking.
The Department believes that, by amending 34 U.S.C. 40901(b) through
section 12004(h) of BSCA, Congress sought to provide a powerful new
tool to reduce illegal firearm trafficking by giving FFLs the ability
to use NICS to identify prohibited persons among their employees. This
purpose informs the proper understanding of the term ``employee.''
Because Congress focused on preventing prohibited persons working for
FFLs from obtaining firearms, the term ``employee'' in BSCA can be
naturally understood to refer to the subset of individuals working for
FFLs who, as a result of their employment, would be able to access
firearms or related materials or tools. Reading the term ``employee''
to cover individuals without any opportunity to access firearms or
related materials or tools would not advance the purpose of BSCA
because employment of those individuals at FFLs does not create the
same risk of prohibited persons obtaining firearms. Cf. Robinson v.
Shell Oil Co., 519 U.S. 337, 340-46 (1997) (determining the meaning of
the term ``employee'' under a different provision of law by considering
statute itself, the context in which the word ``employee'' appeared,
and the ``primary purpose'' of the law at issue).
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\20\ See FBI, NICS Firearm Background Checks: Month and Year by
State and Type (Oct. 2024), https://www.fbi.gov/file-repository/nics_firearms_checks_-_month_year_by_state_type-last-5-years.pdf/view.
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ii. Policy and Operational Considerations: Impact on Employees
In addition to the statutory language, context, and congressional
intent, the overall population of employees and several other factors
relevant to employees or licensees impact the appropriate
interpretation of the term ``current or prospective employee.'' The
Department has concluded that important policy and operational factors
support the Department's interpretation of the term ``employee.'' As
discussed in this section, permitting licensees to use NICS for
employment background checks in overly broad circumstances could have
negative impacts on both NICS and individuals whose employment duties
with licensees are or may be wholly unrelated to firearms or
ammunition. Therefore, it is important to ensure that regulations
adopted under section 12004(h) have a scope that is both consistent
with the statute and that accounts for the regulations' potential
impact on NICS and employees.
As noted previously, section 12004 of BSCA focuses on preventing
the illegal trafficking, use, and possession of firearms. One component
of that focus is a requirement that the Attorney General promulgate
regulations allowing the use of NICS for employment background checks
of current or prospective employees of licensees. See 34 U.S.C.
40901(b)(2)(A). However, not all employees of licensees will have the
ability or authority to access, handle, or transfer firearms or
ammunition--or, for licensed manufacturers, related materials or
tools--during their employment.
ATF reports that, as of May 10, 2024, there are an estimated
130,000 total licensees and, of that total, the FBI anticipates this
rule would apply to approximately 80,000 licensees throughout the
United States.\21\ This includes eight types of licenses for dealers,
pawnbrokers,\22\ manufacturers, and importers.\23\ Internal FBI subject
matter experts estimate that some large retail chains (colloquially
known as ``big box'' stores) also hold approximately 3,500 dealer
licenses across their locations throughout the United States. Many
large manufacturers, importers, or dealers have employees with duties
wholly unrelated to accessing, handling, or transferring firearms or
ammunition or related materials or tools. Examples may include certain
store administrators (accountants, purchasing managers, secretaries,
etc.), truck drivers, shipping and receiving clerks, pharmacists, deli
counter workers, bakery workers, cooks, butchers, clothing
salespersons, electronic salespersons, and cashiers. Allowing FFLs to
use NICS for background checks of those employees who do not and will
not have access to, handle, or transfer firearms or ammunition could
impose burdens on those persons by preventing them from obtaining or
maintaining any employment \24\ with that licensee.\25\
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\21\ See ATF, Report of Active Firearms Licenses--License Type
by State Statistics (May 10, 2024), https://www.atf.gov/firearms/docs/undefined/0524-ffl-list-completepdf/download. This is the sum
of subtracting Collectors of Curio and Relic licensees
(approximately 50,000) from the estimated total licensees (130,000).
\22\ Pawnbrokers are defined as dealers, but they have their own
license, Type 2. See ATF, Complete Federal Firearms Listings,
https://www.atf.gov/firearms/listing-federal-firearms-licensees/complete (last visited Nov. 5, 2024).
\23\ See id.
\24\ See, e.g., Just. Pol'y Ctr, Criminal Background Checks and
Access to Jobs 1-5 (2017), https://www.urban.org/sites/default/files/publication/91456/2001377-criminal-background-checks-and-access-to-jobs_2.pdf (discussing the obstacles to employment that
criminal background checks can create); Nat'l Emp. L. Project, 65
MILLION ``NEED NOT APPLY'': The Case for Reforming Criminal
Background Checks for Employment 1-2 (2011), https://www.nelp.org/app/uploads/2015/03/65_Million_Need_Not_Apply.pdf (similar).
\25\ This NPRM is not intended to discourage licensees, in
accordance with applicable laws, from conducting other background
checks relating to any employees.
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For example, FBI subject matter experts estimate large, big box
dealers of firearms currently employ nearly 1.7 million individuals in
the United States.\26\ The FBI estimates that, of those
[[Page 100429]]
nearly 1.7 million current employees, approximately 793,000 are
employed within retail stores that also hold dealer licenses. These
numbers do not include individuals who would annually be considered for
prospective employment at those licensed locations. These numbers, for
just some of the nation's retail chains with multiple locations
considered as licensees, may increase or decrease based on company
policy, particularly with respect to individuals who may have access to
firearms or ammunition. But regardless of this uncertainty, the fact
remains that FFLs, including big box retailers, employ and may consider
for employment a vast number of people each year. Allowing FFLs to use
NICS for background checks of all these employees (including employees
who do not have access to firearms or ammunition) could have negative
practical consequences for the affected individuals' employment with
FFLs. These potential deleterious practical effects underscore the
importance of interpreting the term ``employee'' in the specific
context in which it appears in BSCA. And these operational concerns
apply similarly to use of NICS for background checks of employees of
licensed manufacturers who have or would have no access to the tools or
materials necessary to manufacture firearms or ammunition.
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\26\ Examples of large, big box firearm dealers include Academy,
Bass Pro Shops, Big 5 Sporting Goods, Cabela's, Sportsman's
Warehouse, and Walmart. At the end of Fiscal Year 2024, Walmart
alone employed approximately 1.6 million associates in the United
States. See Walmart, How Many People Work at Walmart?, https://corporate.walmart.com/askwalmart/how-many-people-work-at-walmart
(last visited Nov. 5, 2024).
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iii. Policy and Operational Considerations: Impact on the NICS Section
In addition to the negative practical impacts on employment, an
improperly broad understanding of the term ``employee'' could
negatively impact FBI's operation of NICS. The NICS Section may require
additional support staff to process the additional FHC workload.
Additional staffing may also be required at the NICS Contracted Call
Center to address additional incoming calls for FHCs. The NICS Section
and POCs have already experienced a recent, significant increase in
record research (e.g., contacting State and local criminal justice and
mental health facilities) because of the implementation of BSCA, which,
as mentioned in Section II.E of this preamble, required enhanced
background checks of juvenile justice and mental health records of all
prospective transferees under 21 years of age. Congress allotted
funding for additional staff to the NICS Section because of the
workload increase anticipated with the passage of BSCA; however, much
of that additional staff is still being hired. Training additional
staff to process FHCs will also require adequate time. Hence, an overly
broad application of FHCs could impose significant additional burdens
on limited FBI resources.
Based upon initial feedback from POCs, FBI subject matter experts
anticipate that the majority of POCs will not perform FHCs due to
either a lack of resources or a lack of authority to conduct background
checks other than for transfers of firearms.\27\ Therefore, the
Department anticipates that the majority of those FHCs submitted by
licensees even in States in which POCs conduct some or all background
checks for prospective firearm transfers will be processed by the FBI.
Although the Department is unable to estimate the volume of requests
for FHCs that will be received, any increase in volume would impact the
NICS Section. The most likely impacts are a need for the NICS Section
to hire more staff to receive and process the increased number of
transactions this new use of NICS will likely cause, as well as an
increase in overtime worked by NICS Section staff. The FBI will also
need to devote additional staff resources to researching potentially
prohibiting records linked to ``Pending'' FHCs and to processing the
anticipated increase in appeals that will result from this new use of
NICS.
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\27\ For some POCs, the enabling State law may authorize the POC
only to conduct NICS background checks for the prospective transfer
of firearms.
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The big box companies mentioned above are estimated to have
approximately 1.7 million current employees in the United States, and
the FBI estimates that 793,000 of these individuals are employed at
company locations licensed under 18 U.S.C. 923. Conducting FHCs for
such a large number of individuals would have significant consequences
for the FBI's NICS Section. If, however, NICS access is expanded under
this rule only for those individuals whose prospective employment
duties have at least some connection to firearms or ammunition, then
the operational impact on the FBI would be greatly reduced.\28\
Moreover, limiting background checks specifically to those employees
with at least some potential to illegally traffic or aid in straw
purchases of firearms or ammunition, which are two specific activities
that BSCA attempts to suppress, is consistent with both the statutory
text and congressional intent of section 12004 of BSCA.
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\28\ See Section II.C.3.a.v of this preamble for further
discussion regarding the application of this rule to employees of
licensed manufacturers.
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iv. Policy and Operational Considerations: Economic Incentives
There could be an economic incentive for a licensee to utilize NICS
for employment checks--particularly if NICS regulations allowed FHCs to
be conducted on all employees regardless of their current or
anticipated handling, transferring, manufacturing, or accessing of
firearms or ammunition or related materials or tools. The Department
cannot charge a fee for an FHC under BSCA, see 34 U.S.C.
40901(b)(2)(A),\29\ and the FBI understands that many licensees
currently use a private background check service that does charge a
fee. The incentive for licensees to rely on the free FHC for general
employee background checks in lieu of a paid service could
substantially increase the NICS transaction volume if the NICS Section
permits licensees to submit FHCs for all employees regardless of
whether the employees have or may have access to or otherwise handle,
manufacture, or transfer firearms or ammunition or related materials or
tools. The inclusion of a no-fee provision in BSCA and the fact that
many employers currently use private background check services that
charge a fee supports the Department's proposal to limit the scope of
FHCs.
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\29\ BSCA does not prohibit POCs from charging a fee for
performing FHCs. But, as noted earlier, many POCs may not perform
FHCs because of a lack of resources or authority; the FBI would thus
be responsible for such checks, and the economic incentive to rely
on the free background checks performed by the FBI would still
arise.
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v. Proposed Definition of ``Eligible Employee''
Given section 12004's focus on preventing the illegal trafficking
of firearms; given the number of persons who could be considered
current or prospective employees of an FFL regardless of whether they
will ever have access to firearms or ammunition or, for licensed
manufacturers, related materials or tools; and given the operational
considerations discussed above, the proposed rule would permit FFLs to
use NICS for employment background checks only where the job in
question has at least some connection to firearms or ammunition. This
NPRM thus proposes to limit use of FHC background checks to ``eligible
employees.'' This term, as proposed, would not encompass every single
employee of an FFL; instead, it would appropriately encompass those
employees who have or are likely to have access to firearms or
ammunition or, for licensed manufacturers, the materials or tools to
make them.
[[Page 100430]]
The ``eligible employee'' definition, if finalized, would include
``firearm handler[s].'' A ``firearm handler,'' in turn, would be
defined as ``a person whose current or prospective employment duties
for an FFL include or will include the opportunity to access firearms
or ammunition, regardless of whether the person's employment duties
include or will include the actual or constructive transfer or handling
in any way of firearms or ammunition.'' The term also includes
``persons whose employment duties allow them entry to any device, room,
or facility where firearms or ammunition of the licensee are stored.''
The FBI estimates that only 57,000 of the roughly 793,000 individuals
employed within retail stores that also hold dealer licenses at this
time would be considered ``firearm handlers'' under the definition
proposed in this rule.
If finalized, the ``eligible employee'' definition would also
include certain other employees of licensed manufacturers. Employees of
licensed manufacturers may, for example, never have access to or
otherwise handle a weapon that meets the Federal definitions of
``firearm'' or ``ammunition'' under 18 U.S.C. 921 and 27 CFR 478.11.
Employees of licensed manufacturers may have access to or handle only
the raw, unfinished materials or the tools or other equipment used to
manufacture firearms or ammunition. However, access to the materials
and tools used during the manufacturing of firearms or ammunition can
also facilitate illegal firearms trafficking. Based on the Department's
experience, when those materials or tools fall into the hands of
prohibited persons, they can be used to illegally manufacture firearms
or ammunition. Consequently, this rule proposes that licensed
manufacturers may submit FHCs for persons whose employment duties
include or will include access to any forging, casting, printing,
extrusion, unmachined body, or similar article that has not yet reached
a stage of manufacture where it is clearly identifiable as an
unfinished component part of a firearm or ammunition (e.g., unformed
block of metal, liquid polymer, or other raw material); or any tool or
other equipment used to manufacture a firearm or ammunition or
otherwise finish a component part of a firearm or ammunition.
The Department also intends to exclude from the definition of
``eligible employee'' ``responsible persons''--i.e., those individuals
of an FFL with the power to direct the management, policies, and
practices of the business or activity as it pertains to firearms. See
proposed Sec. 25.2 (excluding ``responsible person[s]'' from the
proposed definition of ``Eligible Employee''). ATF already requires
responsible persons to submit fingerprints, a photograph, and specific
forms so that a background check can be conducted as part of the
prospective FFL's licensing requirements.\30\ See 27 CFR 478.44. As
part of ATF's background check for a potential responsible person, NICS
already responds if available information demonstrates that the
individual is prohibited from receiving or being transferred a firearm
as described in 18 U.S.C. 922(t), and conducting a separate FHC for
responsible persons would accordingly be duplicative.\31\
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\30\ See ATF, Application for Federal Firearms License (Oct.
2020), https://www.atf.gov/file/61506/download (``ATF
Application'').
\31\ ATF requires renewed background checks of responsible
persons every 3 years. See ATF Application, supra.
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The proposed rule thus proposes excluding any ``responsible
person'' from the definition of ``eligible employee.'' In turn, this
NPRM defines ``Responsible Person'' as ``a sole proprietor or, in the
case of a corporation, partnership, or association, any individual
possessing, directly or indirectly, the power to direct or cause the
direction of the management, policies, and practices of the
corporation, partnership, or association, insofar as they pertain to
any FFL.''
b. New NICS Status Responses for FHCs
As noted in Section II.C.1 of this preamble, after receiving an
FFL's request for a NICS background check for a prospective firearm
transfer, NICS responses are currently limited to ``Proceed,''
``Delayed,'' or ``Denied.'' The Department believes using these same
responses during FHCs could confuse FFLs. In particular, the Department
notes that FHC responses should not be construed to prohibit a licensee
from employing an individual in a position that does not require the
handling of or access to a firearm or ammunition or, as applicable,
related materials or tools. Licensees may mistake a ``Denied'' response
during an FHC as a determination that the licensee must deny all
employment to the subject of that FHC. Consequently, this rule proposes
new responses to be used during FHCs: ``Pass,'' ``Pending,'' and ``Did
Not Pass.'' As a general matter, a ``Pass'' response would convey that
available information revealed no firearm prohibitions for the eligible
employee; a ``Pending'' response would convey that further research is
needed; and a ``Did Not Pass'' response would convey that available
information revealed a firearms prohibition applicable to that eligible
employee.
A response from the system (or a POC) that the person ``Did Not
Pass'' the FHC should not be construed to indicate that the FFL cannot
employ the person. Rather, a ``Did Not Pass'' response indicates only
that, based on information available to NICS, the person is not
eligible to ship, transport, possess, or receive firearms. Thus,
circumstances in which that person handles a firearm during the
person's employment could lead to criminal liability for the person
(and potentially the licensee) under applicable Federal, State, local
or Tribal law. This response, whether ``Pass'' or ``Did Not Pass,''
will allow the licensee to make an informed decision of whether to hire
the person.
4. Appeals
When information available to NICS ``indicates [the employee] is
prohibited from possessing a firearm or ammunition pursuant to'' 18
U.S.C. 922(g) or (n), the FHC will result in a ``Did Not Pass''
response. In such circumstances, BSCA requires that the employee be
permitted to appeal that response ``in the same manner and to the same
extent as if the individual had been the subject of a background check
relating to the transfer of a firearm.'' 34 U.S.C. 40901(b)(2)(D).
Under the Brady Act and its implementing regulations, when NICS has
determined that a prospective firearm transferee is ineligible to
receive a firearm, the FBI provides the FFL with a ``Denied'' response.
See 18 U.S.C. 922(t); 28 CFR 25.2 (defining ``Denied''); see also 28
CFR 25.6(c)(1) and (g) (further describing responses to FFLs). A denied
transferee can then request the reasons for a denial and challenge the
denial if the denied transferee believes it was erroneous. See 34
U.S.C. 40901(f) and (g); \32\ 28 CFR 25.10(a) through (c) (further
describing administrative
[[Page 100431]]
appeals of denied firearm transfers). Federal law also allows any
person denied a firearm due to erroneous information from a NICS
background check to bring a limited civil action against the State or
political subdivision responsible for providing the erroneous
information, against the denying State or political subdivision, or
against the United States. 18 U.S.C. 925A.\33\ These provisions,
however, do not apply where NICS has only ``Delayed'' the prospective
firearm transfer.\34\ See 28 CFR 25.2 (defining ``Delayed'').
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\32\ 34 U.S.C. 40901(f) allows individuals to request the
reasons for a ``determination'' when NICS ``determines that [the]
individual is ineligible to receive a firearm.'' Reasons are to be
provided ``in writing, within 5 business days after the date of the
request.'' Id. Similarly, 34 U.S.C. 40901(g) allows prospective
transferees to request the reasons why NICS informed an FFL ``that
receipt of a firearm by a prospective transferee would violate
subsection (g) or (n)'' of 18 U.S.C. 922 or State law. That person
may also ``submit to the Attorney General information to correct,
clarify, or supplement records of the system with respect to the
prospective transferee.'' Id. If such a request is made, the FBI
(under authority delegated by the Attorney General) has 60 days to
determine if that denial was erroneous. Id.; see also 28 CFR 25.3
(establishing NICS within the FBI). If the denial is determined to
have been erroneous, the FBI must correct any erroneous records. See
34 U.S.C. 40901(g).
\33\ Such actions may only seek an order directing that the
erroneous information be corrected or that the transfer be approved,
except that prevailing parties may also seek to recover costs,
including a reasonable attorney's fee. 18 U.S.C. 925A.
\34\ Actions under 18 U.S.C. 925A are limited to persons who
were ``denied.'' Similarly, the FBI's website pertaining to
administrative appeals provides, ``[i]f you believe you have been
wrongfully denied a firearm, you can request a firearm-related
challenge (appeal). You may only challenge a denied firearm
transaction, not a delayed one.'' FBI, Firearm-Related Challenge
(Appeal) and Voluntary Appeal File (VAF), https://www.fbi.gov/how-we-can-help-you/more-fbi-services-and-information/nics/national-instant-criminal-background-check-system-nics-appeals-vaf (last
visited Nov. 5, 2024) (``Appeal and VAF web page'') (emphasis
omitted). The website also notes how persons can submit a ``Summary
Request'' to the FBI to obtain copies of their identification
records.
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Because BSCA provides for appeals of FHCs ``in the same manner and
to the same extent'' as appeals of firearm transfer background checks,
the Department interprets the term ``appeal'' for FHCs to include the
same administrative and civil action procedures as those for firearm
transfer background checks. And because appeals for firearm transfer
background checks are limited to appeals from ``Denied'' responses, the
Department interprets the phrase ``in the same manner and to the same
extent'' to limit FHC appeals to the question whether a ``Did Not
Pass'' response provided by the FBI or the POC \35\ was correctly
issued. Just as ``Delayed'' responses for prospective firearm transfers
cannot be appealed, the FHC appeal processes will not be available to
challenge ``Pending'' responses from the system. Consistent with this
limitation, the NPRM proposes to amend 28 CFR 25.10 to make these
procedures available to individuals whose FHC led to a ``Did Not Pass''
response. Finally, the FHC appeal process will also not be used to
reconsider or overturn a licensee's decision to not hire (or not
retain) an employee, regardless of the employment position sought or
held.
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\35\ Further discussion of POCs is provided in Section II.A.1 of
this preamble.
---------------------------------------------------------------------------
When prospective firearm transfers are ``Delayed'' for further
research, prospective transferees sometimes pursue improper
administrative challenges or civil actions regarding those responses.
Accordingly, the NPRM also proposes some provisions to reduce
operational burdens on the FBI related to processing administrative
appeals (or defending actions brought under 18 U.S.C. 925A) with
respect to FHCs, including meritless appeals filed by persons who were
not seeking a position that included access to firearms or ammunition
but were nevertheless denied employment by a licensee.
Similar to what sometimes occurs during NICS transactions involving
the prospective transfer of a firearm, the Department anticipates
improper attempts to appeal NICS-related decisions. First, some
individuals might attempt to appeal while a decision is still
``Pending;'' such an appeal is premature. Second, some individuals
might attempt to appeal the decision of an FFL not to hire the
individual. Appeals, however, are available only to challenge the
response of NICS itself. Whether to hire or retain someone on account
of any response NICS provides is a decision belonging to the FFL; it is
not a result required by BSCA or this rule, and hence FFL employment
decisions cannot be appealed.
In situations involving these inappropriate appeals, the FBI will
have to expend resources defending administrative challenges or civil
actions that do not meet the criteria of 34 U.S.C. 40901(b)(2)(D).
Thus, to further aid in reducing the time it takes NICS to respond to
some FHCs, as well as to limit unnecessary and inappropriate appeals of
``Pending'' responses, this NPRM proposes to clarify that eligible
employees of FFLs may use the Voluntary Appeal File (``VAF'') as
described in 28 CFR 25.10(g) for FHC purposes. Any individual may
provide written consent to the FBI to maintain information about the
individual in the VAF.\36\ Those individuals approved for the VAF are
issued a Unique Personal Identification Number (``UPIN'') to use during
future NICS transactions.\37\ When provided during future transactions,
a valid UPIN is placed on the ATF Form 4473 and transmitted to NICS to
query the VAF.\38\ NICS currently uses UPINs to compare records, if
any, at the time the UPIN was issued with any current records. NICS
conducts this comparison to prevent erroneous ``Denied'' or extended
``Delayed'' responses during prospective firearm transfers. See 28 CFR
25.10(g). Consistent with use of the VAF and UPINs with respect to
firearm transfers, this NPRM proposes that the VAF and UPINs may be
used by eligible employees of FFLs to prevent future erroneous ``Did
Not Pass'' or extended ``Pending'' responses during FHCs.
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\36\ For further information about the VAF and for the VAF
application, see Appeal and VAF web page, supra.
\37\ Id.
\38\ See id.
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The parameters this rule proposes regarding FHCs, such as applying
FHCs only to ``eligible employee[s]'' of licensees and resolving
appeals only when NICS responds that the person ``Did Not Pass'' the
person's FHC, will mitigate the appellate-related operational impacts
highlighted previously. Such parameters will help prevent the FBI and
courts from expending resources defending or overseeing voluminous
appeals submitted by persons seeking to appeal an employment decision
of an FFL or seeking to appeal even when NICS did not provide a ``Did
Not Pass'' result for that FHC.
5. Frequency of FHCs
The earlier-referenced statistics regarding big box stores show
that, if licensees submit FHCs on the same employee daily, weekly, or
even monthly (even if only submitting for eligible employees), then
FHCs could add millions of NICS background checks to current yearly
totals. That volume of submissions could negatively impact transactions
involving prospective transfers of firearms. With millions of NICS
background checks being conducted, NICS staff would have to work
overtime or be moved from another position to assist in working on FHCs
during busier times of the year.
To address this concern, the proposed regulations would allow
employers to ask for an FHC for a particular eligible employee only
once every 12 months. This limit would not apply if the licensee
believes it has received information demonstrating the employee has
become subject to a potentially prohibiting event. For example, suppose
that in June 2025 a licensee submits an initial FHC for an eligible
employee who is expected to handle firearms, and the licensee then
receives a ``Pass'' response from NICS. However, in February 2026, the
licensee sees the employee's picture on a local news segment stating
that a grand jury indicted the employee for several felony-level
offenses. Because that felony indictment results in a firearm
restriction under 18 U.S.C. 922(n), the licensee would be authorized
under this rule to submit another FHC of the eligible employee so long
as the FFL had previously provided written notice
[[Page 100432]]
to the employee that it intends to conduct the background check and had
obtained written consent to conduct the background check from the
employee. See 34 U.S.C. 40901(b)(2)(B). This rule does not provide for
a licensee to initiate an FHC without the eligible employee's prior
written consent and does not address what, if any, recourse might be
available to an employee or licensee where the licensee has not
obtained that consent.\39\
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\39\ This rule is not intended to address any and all
employment-related matters that may arise and does not take a
position on whether notice and consent are required to be obtained
prior to each FHC or whether the employee can consent to subsequent
FHCs when the employee consents to the initial FHC. This rule does
not address whether, for example, an eligible employee can provide
written consent once, with that consent then being used for future
FHCs; or if the employee must provide written consent for each FHC.
This rule also does not provide any guidance on whether it would be
proper for a licensee to require an eligible employee to submit to
an FHC as a (pre)condition of obtaining or maintaining employment
with the licensee. System misuse is discussed at 28 CFR 25.11, where
a non-exhaustive list of examples of system misuse is provided.
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6. Conforming Amendments
To account for the proposed revision of the regulations to permit
use of NICS for FHCs, some definitions in the current regulations will
need small changes. This NPRM proposes amendments to the definitions
for ``Appeal,'' ``FFL,'' NICS,'' ``NICS Section,'' ``NICS
Representative,'' and ``POC,'' consistent with the addition of FHCs to
these regulations.
In addition, the Department proposes to amend 28 CFR 25.1, 25.2,
25.6, 25.8, 25.10, and 25.11 to establish procedures for FHCs that are
separate from those concerning prospective firearm transfers. Proposed
amendments to 28 CFR 25.6 provide the process for how an FFL or POC
will submit a request for an FHC and the requirements of the
submission. This amendment also describes the responses the NICS
Section or POC can provide to licensees. Further, FBI proposes
amendments to 28 CFR 25.8 that parallel existing safeguards for
background checks for prospective firearm transfers. Lastly, when a
person or entity purposefully provides false information to NICS in
order to obtain a ``Proceed'' response, the person or entity is subject
to a fine of up to $10,000.00 and to potential loss of access to NICS.
See 28 CFR 25.11. This NPRM proposes that 28 CFR 25.11 be amended to
also apply monetary or access penalties to those persons who purposely
provide misinformation to NICS to obtain a ``Pass'' response for an
FHC.
D. Severability
BSCA addresses critical but distinct components of the NICS
background check process. The Department believes that its proposals to
allow FFLs to conduct FHCs 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 or unenforceable by a court, 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. As described previously, BSCA mandated
that the Attorney General ``promulgate regulations allowing licensees
to use [NICS] for purposes of voluntarily conducting an employment
background check relating to a current or prospective employee.'' 34
U.S.C. 40901(b)(2)(A). Each of the policy and operational
considerations described in Section II of this preamble is
independently significant to the functioning of this rule. If a court
were to invalidate one or more of the provisions of the final rule
resulting from this NPRM, the Department intends that the remaining
provisions of the rule be severed from any invalidated provision and
that all remaining provisions stand.
To obviate any doubt as to the Department's intent, even if a
provision were deemed invalid (which, again, the Department does not
believe is supported), the Department would still have proposed each of
the other provisions in this NPRM. Cf. American Fuel & Petrochemical
Manufacturers v. E.P.A., 3 F.4th 373, 384 (D.C. Cir. 2021) (severing
one section of a rule that the court found invalid where the agency had
stated that it intended that relevant section to be ``severable from''
another section that ``operate[d] independently''). 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, to provide for the implementation of FHCs, or to
account for the potential application of existing regulations (such as
appellate procedures and penalty provisions) to FHCs. Consequently, the
Department is also proposing an amendment of 28 CFR 25.1 to include a
general statement about the severability of the provisions within 28
CFR, part 25, subpart A.
E. Related Issues
As noted several times in Sections II.B and II.C of this preamble,
BSCA requires licensees to provide an employee notice of the background
check and obtain the employee's written consent prior to conducting the
check. BSCA does not address particular requirements related to
recordkeeping (e.g., form or retention period) or reporting to the
Department with respect to FHCs. See 34 U.S.C. 40901(b)(2)(B)(i)-(ii).
This rule also does not propose to impose a specific requirement on
licensees to maintain records showing that the FFL provided notice of
the FHC to the eligible employee or that the eligible employee provided
written consent to conduct the FHC. ATF has drafted a new form that,
when available, may be used by licensees for purposes of submitting
FHCs. The Department anticipates that ATF will have acquired approval
for the new form in time to facilitate FHCs conducted under the final
rule resulting from this rulemaking. ATF's FHC Form (5300.47) currently
proposes to include places to document NICS responses (``Pass,'' ``Did
Not Pass,'' or ``Pending'') and a statement indicating that the
eligible employee's signature on the form constitutes the required
written consent. The information provided by a licensee about an
eligible employee for the purpose of conducting an FHC will be the same
information provided by a licensee to NICS about a transferee for
purposes of a prospective firearm transfer through the current ATF Form
4473. See 28 CFR 25.7.
The purpose of this rule is solely to propose updates to relevant
NICS regulations to provide for the new use of NICS for FHCs, as
mandated by Congress. This rule is not meant or intended to address
matters that may or may not be impacted by jurisdiction-specific
employment laws.
In addition to this proposed rule, the Department has issued two
other rulemakings to address relevant provisions in the Consolidated
Appropriations Act, 2022, Public Law 117-103, 136 Stat. 49 (2022), and
other provisions of BSCA. See RIN 1110-AA36, FBI-158 (proposing
regulations related to mandated NICS denial notifications, collection
of additional residence address information for a prospective firearm
transferee during some NICS transactions, expansion of the existing
prohibiting categories to include firearm prohibitions Congress added
to 18 U.S.C. 922(t) concerning restrictions imposed by applicable
Tribal and local laws and 18 U.S.C. 922(d), and expanded background
checks and additional delays during under-21 transactions); and RIN
1110 AA34, FBI-157 (allowing FFLs to receive information from NCIC's
Gun File to check whether a firearm offered
[[Page 100433]]
to the FFL has been reported as stolen).\40\ Please consult those
rulemakings for further substantive information about the regulatory
amendments the Department is proposing on to those subjects.
---------------------------------------------------------------------------
\40\ The Department's interim final rule found at RIN 1110-AA34,
FBI-157, was signed by the Attorney General on June 24, 2024, and
published in the Federal Register on July 1, 2024. See Bipartisan
Safer Communities Act--Access to Records of Stolen Firearms in the
National Crime Information Center, 89 FR 54344.
---------------------------------------------------------------------------
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, section 1(b), The Principles of Regulation;
Executive Order 13563, section 1(b), General Principles of Regulation;
and Executive Order 14094. 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 using
the best available methods to quantify both costs and benefits, and of
reducing costs, harmonizing rules, and promoting flexibility. Executive
Order 14094, among other things, amends section 3(f) of Executive Order
12866.
The Office of Management and Budget (``OMB'') has determined that
this rule is a ``significant regulatory action'' under Executive Order
12866, section 3(f), as amended, and accordingly this rule has been
reviewed by OMB.
The Department has, to the extent possible, assessed the costs and
benefits of this proposed rule and believes that the proposed
regulatory approach selected maximizes net benefits. This proposed rule
will benefit public safety and interested populations. First, this
proposed rule benefits interested populations by further clarifying for
the public how NICS may be used for FHCs. Next, this proposed rule
benefits licensees, as specifically authorized by Congress, by allowing
NICS to be used to submit requests for FHCs with respect to consenting
eligible employees. This use of NICS, although voluntary, will benefit
licensees and promote public safety by identifying eligible employees
of the licensee who are subject to firearm prohibitions as described in
18 U.S.C. 922(t).
The anticipated costs to the public of this rule are likely to be
small. There is no charge for this use of NICS. Although licensees will
incur costs in terms of time necessary to notate system responses
(``Pass,'' ``Did Not Pass,'' or ``Pending'') or obtain an eligible
employee's written consent, this rule does not propose mandating that
licensees submit FHCs. There will be no costs for licensees to modify
or upgrade their current means of accessing NICS. POCs may incur costs
to conduct FHCs, including, for example, a minimal one-time cost to
upgrade their existing systems, but POCs will incur these costs only if
the POCs voluntarily choose to add FHC-related duties to their current
duties as POCs. It is anticipated that FHCs could result in some costs
to State, local, and Tribal government entities such as courts,
prosecuting offices, and law enforcement agencies if those entities
choose to respond to requests for records when contacted during further
research of a ``Pending'' response. But those governmental agencies are
not required by this rule to respond to the NICS Section. Hence, any
costs incurred would be voluntary.
The exact cost of the proposed regulations cannot be calculated.
The full impact on the NICS Section due to the increase in NICS
background checks resulting from the addition of FHCs cannot be
projected due to uncertainty about the number of licensees that will
choose to use NICS for this purpose. And the FBI cannot determine
whether State, local, and Tribal governments will voluntarily choose to
respond to record requests stemming from FHCs. Moreover, the FBI does
not have historical information to use to estimate the number of
eligible employees whose backgrounds would require the NICS Section or
participating POCs to contact Federal, State, local or Tribal
governmental entities, such as courts and law enforcement agencies, to
request those agencies provide further information about (potentially)
prohibiting records. In addition, the FBI can neither predict the
frequency nor the volume of checks each licensee will initiate, and the
FBI cannot determine the number of eligible employees who will provide
written consent for an FHC. As a result, a quantitative impact analysis
cannot be provided.
B. Executive Order 13132 (Federalism)
This proposed rule may have effects on the States to the extent
State entities respond to NICS inquiries during research of a
``Pending'' transaction. Any such effects, however, will be only an
indirect result of this rule because State entities may freely choose
whether to respond to such NICS inquiries. In addition, such effects
will not be substantial, nor will such effects concern the relationship
between the Federal Government and the States, or the distribution of
power and responsibilities among the various levels of government.
Therefore, in accordance with section 6 of Executive Order 13132, the
Attorney General has determined that the proposed rule does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.
C. Executive Order 12988 (Civil Justice Reform)
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988.
D. Regulatory Flexibility Act
This proposed rule amends the Department's regulations to
incorporate changes made by some provisions of BSCA. These changes are
proposed to provide FFLs the ability to use NICS to voluntarily request
background checks for eligible employees. The Regulatory Flexibility
Act (``RFA''), 5 U.S.C. 601 et seq., generally requires that when an
agency issues a proposed rule or a final rule pursuant to section
553(b) of the Administrative Procedure Act or another law, the agency
must prepare a regulatory flexibility analysis that meets the
requirements of the RFA and publish such analysis in the Federal
Register. See 5 U.S.C. 603, 604. An initial regulatory flexibility
analysis is not required if the head of the agency certifies that the
rule would not, if promulgated, have a significant economic impact on a
substantial number of small entities. See 5 U.S.C. 605(b).
``[T]he term small entity shall have the same meaning as the terms
`small business', `small organization' and `small governmental
jurisdiction' defined in paragraphs (3), (4) and (5) of this
section[.]'' 5 U.S.C. 601(6). The term ``small entities,'' therefore,
comprises small businesses, not-for-profit organizations that are
independently owned and operated and are not dominant in their fields,
and governmental jurisdictions with populations of fewer than 50,000
people. See 5 U.S.C. 601(3)-(6). The Department anticipates that a
majority of the licensees that will request FHCs under this rule would
be considered small entities for purposes of the RFA.
The FBI anticipates that costs for FFLs that voluntarily undertake
FHCs would
[[Page 100434]]
be insignificant, consisting only of the minimal time it would take for
the FFL to collect the employee's consent and any information necessary
to complete the ATF Form 5300.47, submit the FHC, and receive the
response. Further, whether to take part in FHCs of any eligible
employees is the voluntary choice of each FFL. See 34 U.S.C.
40901(b)(2)(A). Therefore, the rule has no impact, economic or
otherwise, on any licensee, including small entity licensees, unless
the licensee voluntarily chooses to request FHCs through NICS. Again,
neither the FBI, nor this rule, imposes any fee upon any licensee to
conduct a NICS background check. See 34 U.S.C. 40901(b)(2)(A).
As is the case with respect to further research during a
``Delayed'' NICS background check for purposes of a prospective firearm
transfer, when the NICS Section (or a POC) contacts a State, local, or
Tribal governmental unit (such as a police department or municipal
court) for further information when researching a ``Pending'' response
for an FHC, that governmental unit will not necessarily be burdened.
This is because this rule does not require the governmental unit to
take any specific action upon being contacted by NICS. This remains
true regardless of whether that governmental unit would be considered a
small entity.
An FFL will initiate an FHC and receive a response in the same
manner the FFL uses to submit a NICS background check for the
prospective transfer of a firearm. The FBI will not charge a fee for
this service, and there are no mandatory maintenance or compliance
costs imposed by this proposed rule. Because an FHC is a voluntary
check; because there is no mandatory requirement that POCs process
these checks, see proposed Sec. 25.2 (requiring that POCs process
checks only for prospective firearm ``transfers,'' not FHCs); and
because State, local, and Tribal agencies contacted for supplemental
records are not required to respond to NICS contacts, the FBI certifies
there will not be a significant economic impact on a substantial number
of small entities. Accordingly, an initial regulatory flexibility
analysis is not necessary for this rule.
The FBI welcomes any public comments concerning potential impacts
or burdens that this rule may or will have on current or future NICS
users and entities that may be contacted during research of NICS
transactions.
E. Unfunded Mandates Reform Act of 1995
This proposed rule will not result in the expenditure by State,
local, or Tribal governments, in the aggregate, or by the private
sector, of $100 million or more (adjusted for inflation) in any 1 year,
and it will not significantly or uniquely affect small governments.
Therefore, no actions are necessary under the provisions of the
Unfunded Mandates Reform Act of 1995, Public Law 104-4, 109 Stat. 48.
See 2 U.S.C. 1532.
F. Paperwork Reduction Act
This rule does not impose any new reporting or recordkeeping
requirements under the Paperwork Reduction Act of 1995, Public Law 104-
13, 109 Stat. 163. See 44 U.S.C. 3501-3521.
G. Executive Order 13175 (Consultation and Coordination With Indian
Tribal Governments)
The Department has determined that formal Tribal consultation under
Executive Order 13175 is not required because this proposed rule is
provided as part of a public collaboration that includes Tribes and is
being issued in order to implement Congress's mandate that the Attorney
General promulgate regulations that allow licensees under 18 U.S.C. 923
to use NICS for purposes of FHCs as described in this proposed rule.
Implementation of these regulations will not have any substantial
direct effects on federally recognized Tribes.
List of Subjects
Administrative practice and procedure, Arms and munitions, Computer
technology, Privacy, Security measures, Telecommunications.
Authority and Issuance
Accordingly, for the reasons set forth in the preamble, 28 CFR part
25, subpart A, is proposed to be amended as follows:
PART 25
Subpart A--the National Instant Criminal Background Check System
0
1. The authority citation for 28 CFR part 25 is revised to read as
follows:
Authority: Public Law 103-159, 107 Stat. 1536, 49 U.S.C. 30501-
30505; Public Law 101-410, 104 Stat. 890, as amended by Public Law
104-134, 110 Stat. 1321; Public Law 117-159, 136 Stat. 1313; 34
U.S.C. 40901; 18 U.S.C. 921, 922.
0
2. Revise Sec. 25.1 to read as follows:
Sec. 25.1 Purpose and authority.
The purpose of this subpart is to establish policies and procedures
implementing the Brady Handgun Violence Prevention Act (Brady Act),
Public Law 103-159, 107 Stat. 1536. The Brady Act requires the Attorney
General to establish a National Instant Criminal Background Check
System (NICS) to be contacted by any licensed importer, licensed
manufacturer, or licensed dealer of firearms for information as to
whether the transfer of a firearm to any person who is not licensed
under 18 U.S.C. 923 would be in violation of subsection (t) of 18
U.S.C. 922. The NICS may also be contacted, pursuant to the Bipartisan
Safer Communities Act, Public Law 117-159, 136 Stat. 1313, by any
Federal Firearms Licensee (FFL) for purposes of a firearm handler
background check (FHC). The regulations in this subpart A are issued
pursuant to section 103(h) of the Brady Act, 107 Stat. 1542 (18 U.S.C.
922 note) and section 12004(h)(1) of the Bipartisan Safer Communities
Act, 136 Stat. 1330-31 (34 U.S.C. 40901(b)(2)(A)), and include
requirements to ensure the privacy and security of the NICS and appeals
procedures for persons who have been determined not to have the right
to receive a firearm as a result of a NICS background check, including
an FHC, performed by the Federal Bureau of Investigation (FBI) or a
state or local law enforcement agency. The provisions of this subpart A
shall be construed as being severable from one another and any
remaining upheld or unchallenged provisions shall be treated
independently of any invalidated provision.
0
3. Amend Sec. 25.2 by:
0
a. Revising the definitions of ``Appeal'' and ``ARI'';
0
b. Adding in alphabetical order the definitions of ``Did Not Pass'' and
``Eligible employee'';
0
c. Revising the definitions of ``FFL'';
0
d. Adding in alphabetical order the definitions of ``Firearm handler''
and ``Firearm handler background check (FHC)'';
0
e. Revising the definitions of ``NICS,'' ``NICS Representative,''
``NICS Section,'' ``NRI (NICS Record Identifier)''; and
0
f. Adding in alphabetical order the definitions of ``Pass,''
``Pending,''
0
g. Revising the definition of ``POC (Point of Contact)''; and
0
h. Adding in alphabetical order the definitions of ``Responding
agency,'' and ``Responsible person.''
The revisions and additions read as follows:
Sec. 25.2 Definitions
Appeal means a formal procedure to challenge the denial of a
firearm transfer or a ``Did Not Pass'' response for an FHC.
[[Page 100435]]
ARI means a unique Agency Record Identifier assigned by the agency
submitting records for inclusion in the NICS Indices.
* * * * *
Did Not Pass means the response given by the NICS, in the case of
an FHC, to indicate that at least one matching record was found that
demonstrates the eligible employee is prohibited from receiving or
being transferred a firearm as described in 18 U.S.C. 922(t). The
receipt of a ``Did Not Pass'' response should not be construed to
indicate the person is not eligible for any employment with the FFL,
but rather is solely a determination, based on information available to
the NICS, that the person is not eligible to receive or be transferred
firearms under 18 U.S.C. 922(t). Circumstances in which that person
handles a firearm during the person's employment could lead to criminal
liability for the person (and potentially the FFL) under applicable
Federal, State, local or Tribal law.
Eligible employee: (1) For purposes of conducting FHCs, eligible
employee means a person who is not listed as a responsible person of
the FFL and is a
(i) Firearm handler; or a
(ii) Person whose current or prospective employment duties for a
licensed manufacturer include, or will include, access to, or the
handling of, any
(A) Forging, casting, printing, extrusion, unmachined body, or
similar article that has not yet reached a stage of manufacture where
it is clearly identifiable as an unfinished component part of a firearm
or ammunition (e.g., unformed block of metal, liquid polymer, or other
raw material); or
(B) Tool or other equipment used to manufacture a firearm or
ammunition, or to otherwise finish a component part of a firearm or
ammunition.
(2) Persons who have or will have access to tools or other
equipment as described in paragraph (1)(B)(ii) of this definition
include, but are not limited to, persons whose employment duties allow
them entry to any device, room, or facility where such tools or other
equipment of the manufacturer are used or stored.
FFL (Federal firearms licensee) means:
(1) For purposes of a prospective firearm transfer under 18 U.S.C.
922(t), a person licensed by ATF as a manufacturer, dealer, or importer
of firearms; and
(2) For purposes of an FHC, any licensee as defined under 34 U.S.C.
40901.
Firearm handler means a person whose current or prospective
employment duties for an FFL include or will include the opportunity to
access firearms or ammunition, regardless of whether the person's
employment duties include or will include the actual or constructive
transfer or handling in any way of firearms or ammunition. Persons who
have or will have access to firearms or ammunition include, but are not
limited to, persons whose employment duties allow them entry to any
device, room, or facility where firearms or ammunition of the licensee
are stored.
Firearm handler background check (FHC) means a NICS background
check voluntarily initiated by an FFL pursuant to 34 U.S.C. 40901(b)
for an eligible employee after that eligible employee has provided the
FFL with the employee's written consent to the FHC.
* * * * *
NICS means the National Instant Criminal Background Check System,
which an FFL must, with limited exceptions, contact for information on
whether receipt of a firearm by a person who is not licensed under 18
U.S.C. 923 would be prohibited as described in 18 U.S.C. 922(t). An FFL
also may voluntarily contact the NICS for the purpose of conducting
FHCs.
* * * * *
NICS Representative means a person who receives telephone or
electronic inquiries to the NICS Section from FFLs requesting
background checks and provides a response as to whether the receipt or
transfer of a firearm may proceed or is delayed or, for FHCs, whether
an eligible employee ``Passed'' or ``Did Not Pass'' a NICS background
check or whether the FHC is ``Pending.''
NICS Section means the section of the FBI that receives telephone
or electronic inquiries from FFLs, performs NICS background checks,
including FHCs, makes determinations based upon available information
as to whether the receipt or transfer of a firearm would be prohibited
as described in 18 U.S.C. 922(t), researches criminal history records,
tracks and finalizes appeals, and conducts audits of system use. For
purposes of this subpart, the term NICS Operations Center shall be
understood to refer to the NICS Section.
NRI (NICS Record Identifier) means the system-generated unique
number associated with each record in the NICS Indices.
* * * * *
Pass means, in the case of an FHC, the response given by the NICS
to indicate that, at the time of the response, no information was
available to the NICS demonstrating that the eligible employee is
prohibited from receiving or being transferred a firearm as described
in 18 U.S.C. 922(t).
Pending means, in the case of an FHC, the response given by the
NICS to indicate that more research is required prior to the NICS being
able to provide a ``Pass'' or ``Did Not Pass'' response.
POC (Point of Contact) means a state or local law enforcement
agency serving as an intermediary between an FFL and the Federal
databases checked by the NICS. A POC will receive NICS background check
requests from FFLs for prospective firearm transfers, check state or
local record systems, perform NICS inquiries, determine whether
matching records provide information demonstrating that an individual
is disqualified from receiving or being transferred a firearm as
described in 18 U.S.C. 922(t), and respond to FFLs with the results of
a NICS background check. A POC may also, if its state law allows,
receive FHC requests from FFLs, check state or local record systems,
perform NICS inquiries, determine whether matching records provide
information demonstrating that an eligible employee is disqualified
from receiving or being transferred a firearm as described in 18 U.S.C.
922(t), and respond to FFLs with the results of an FHC. A POC will be
an agency with express or implied authority to perform POC duties
pursuant to state statute, regulation, or executive order.
* * * * *
Responding agency means, in the case of an FHC, a POC or the NICS
Section, whichever provides the response that information available to
the NICS demonstrates that the eligible employee is prohibited from
receiving or being transferred a firearm as described in 18 U.S.C.
922(t).
Responsible person means a sole proprietor or, in the case of a
corporation, partnership, or association, any individual possessing,
directly or indirectly, the power to direct or cause the direction of
the management, policies, and practices of the corporation,
partnership, or association, insofar as they pertain to any FFL.
* * * * *
0
4. Revise Sec. 25.4 to read as follows:
Sec. 25.4 Record source categories.
It is anticipated that most records in the NICS Indices will be
obtained from Federal agencies. It is also anticipated that a limited
number of authorized state, local, and tribal law enforcement agencies
will voluntarily contribute records to the NICS Indices. Information in
the NCIC and III systems that will be searched during a background
check has been or will be contributed voluntarily
[[Page 100436]]
by Federal, state, local, tribal, and international criminal justice
agencies.
0
5. Revise and republish Sec. 25.5 to read as follows:
Sec. 25.5 Validation and data integrity of records in the system.
(a) The FBI will be responsible for maintaining data integrity
during all NICS operations that are managed and carried out by the FBI.
This responsibility includes:
(1) Ensuring the accurate adding, canceling, or modifying of NICS
Indices records supplied by Federal agencies;
(2) Automatically rejecting any attempted entry of records into the
NICS Indices that contain detectable invalid data elements;
(3) Automatically purging records in the NICS Indices after they
have been on file for a prescribed period of time; and
(4) Performing quality control checks in the form of periodic
internal audits by FBI personnel to verify that the information
provided to the NICS Indices remains valid and correct.
(b) Each data source will be responsible for ensuring the accuracy
and validity of the data it provides to the NICS Indices and will
immediately correct any record determined to be invalid or incorrect.
0
6. Amend Sec. 25.6 by:
0
a. Revising paragraphs (a), (c)(1) introductory text, (c)(2) and (3);
0
b. Adding paragraph (c)(4);
0
c. Revising paragraphs (d)(2), (f) introductory text and (f)(2);
0
d. Adding paragraph (g)(3); and
0
e. Revising paragraphs (h), (i), and (j) introductory text;
The revisions and additions read as follows:
Sec. 25.6 Accessing records in the system.
(a) FFLs shall initiate a NICS background check in connection with
a proposed firearm transfer as required by the Brady Act and may
initiate a NICS background check in connection with an FHC. FFLs are
strictly prohibited from initiating a NICS background check for any
other purpose. The process of accessing the NICS for the purpose of
conducting a NICS background check is initiated by an FFL's contacting
the FBI NICS Section (by telephone or electronic dial-up access) or a
POC. FFLs in each state will be advised by ATF whether they are
required to initiate NICS background checks with the NICS Section or a
POC and how they are to do so.
* * * * *
(c)(1) The FBI NICS Section, upon receiving an FFL's request for a
background check for the transfer of a firearm, will:
* * * * *
(2) The FBI NICS Section, upon receiving an FFL telephone or
electronic dial-up request for a background check for an FHC, will:
(i) Verify the FFL Number and code word;
(ii) Assign a NICS Transaction Number (NTN) to a valid inquiry and
provide the NTN to the FFL;
(iii) Search the relevant databases (i.e., NICS Indices, NCIC, III)
for any matching records; and
(iv) Provide the following NICS responses based upon the
consolidated NICS search results to the FFL that requested the
background check:
(A) ``Pass'' response, if no disqualifying information is found
demonstrating the eligible employee is prohibited from receiving or
being transferred a firearm as described in 18 U.S.C. 922(t).
(B) ``Pending'' response, if a NICS search requires more research
to determine whether the eligible employee is prohibited from receiving
or being transferred a firearm as described in 18 U.S.C. 922(t).
(C) ``Did Not Pass'' response, when at least one matching record is
found that provides information demonstrating that the eligible
employee is prohibited from receiving or being transferred a firearm as
described in 18 U.S.C. 922(t).
(3) None of the responses provided to the FFL under paragraph
(c)(1) or (c)(2) of this section will contain any of the underlying
information in the records checked by the system.
(4) Except where an FFL believes it has received sufficient
information demonstrating the eligible employee has become subject to a
potentially prohibiting event (for example, a new criminal charge,
conviction, or protection order), an FFL may conduct only one FHC for
each eligible employee every 12 months.
(d) * * *
(2) Enter a purpose code indicating that the query of the system is
for the purpose of performing a NICS background check in connection
with the transfer of a firearm or an FHC; and
* * * * *
(f) When the NICS receives an inquiry from a POC, it will search
the relevant databases (i.e., NICS Indices, NCIC, III) for any matching
record(s) and will provide an electronic response to the POC. This
response will consolidate the search results of the relevant databases
and will include the NTN. The following types of responses may be
provided by the NICS to a state or local agency conducting a background
check:
* * * * *
(2) Partial response, if the NICS has not completed the search of
all of its records. This response will indicate the databases (i.e.,
NICS Indices, NCIC, and III) that have been searched and the databases
that have not been searched. It will also provide any potentially
disqualifying information found in any of the databases searched. A
follow-up response will be sent as soon as all the relevant databases
have been searched. The follow-up response will provide the complete
search results.
* * * * *
(g) * * *
(2) In the case of a prospective firearm transfer, notify the FFL
that the transfer may ``Proceed,'' is ``Delayed'' pending further
record analysis, or is ``Denied.'' ``Proceed'' notifications made
within 3 business days will be accompanied by the NTN or STN traceable
to the NTN. The POC may or may not provide a transaction number (NTN or
STN) when notifying the FFL of a ``Denied'' response.
(3) In the case of an FHC, notify the FFL of a ``Pass'' or ``Did
Not Pass'' result for the FHC, or that the FHC is ``Pending.'' The POC
may or may not provide a transaction number (NTN or STN) when notifying
the FFL of a ``Did Not Pass'' result.
(h)(1) POCs shall transmit electronic NICS transaction
determination messages to the FBI for the following transactions:
(i) In the case of a prospective firearm transfer, ``Delayed''
transactions that are not resolved before the end of the operational
day on which the check is requested; ``Denied'' transactions;
transactions reported to the NICS as ``Delayed'' or ``Open'' and later
changed to ``Proceed;'' and ``Denied'' transactions that have been
overturned.
(ii) In the case of FHCs that a POC conducts, transactions
resulting in a ``Pass'' or ``Did Not Pass'' response; and transactions
that have been overturned.
(2) The FBI shall provide POCs with an electronic capability to
transmit the information identified in paragraphs (h)(i) and (h)(ii) of
this section. These electronic messages shall be provided to the NICS
immediately upon communicating the POC determination to the FFL. For
firearm transfer checks where a determination has not been communicated
to the FFL, the electronic messages shall be communicated no later than
the end of the operational day on which the check was initiated. With
the exception of permit checks and FHCs, newly created POC NICS firearm
transfer checks that are not followed by a determination message
(``Denied'' or ``Delayed'') before the end of the operational day on
which they were initiated will be assumed to have
[[Page 100437]]
resulted in a ``Proceed'' notification to the FFL. The information
provided in the POC determination messages for firearm transfer checks
will be maintained in the NICS Audit Log described in Sec. 25.9(b).
The NICS will destroy its records regarding POC determinations for
firearm transfer checks in accordance with the procedures detailed in
Sec. 25.9(b).
(i)(1) In the case of a background check for the transfer of a
firearm, FFLs are required to record the system response, whether
provided by the FBI NICS Section or a POC, on the appropriate ATF form
for audit and inspection purposes, under 27 CFR part 478 recordkeeping
requirements. The FBI NICS Section response will always include an NTN
and associated ``Proceed,'' ``Delayed,'' or ``Denied'' determination.
POC responses may vary as discussed in paragraph (g) of this section.
In these instances, FFLs will record the POC response, including any
transaction number or determination.
(2) In the case of a background check for an FHC, FFLs may record
the system response, whether provided by the FBI NICS Section or a POC,
on the appropriate form for FHC checks. The FBI NICS Section response
will always include an NTN and associated response of ``Pass,''
``Pending,'' or ``Did Not Pass.'' POC responses may vary as discussed
in paragraph (g) of this section. In these instances, FFLs may record
the POC response, including any transaction number or determination.
FFLs should follow the instructions on the applicable FHC form when
recording responses.
(j) Access to the NICS Indices for purposes unrelated to NICS
background checks required by the Brady Act or an FHC. Access to the
NICS Indices for purposes unrelated to NICS background checks pursuant
to 18 U.S.C. 922(t) or an FHC shall be limited to uses for the purposes
of:
* * * * *
0
7. In Sec. 25.8:
0
a. Revise paragraphs (a), (f)(2), and (g)(1);
0
b. Redesignate paragraph (g)(2) as (g)(2)(i); and
0
c. Add new paragraph (g)(2)(ii).
The addition and revisions read as follows:
Sec. 25.8 System safeguards.
(a) Information maintained in the NICS Indices is stored
electronically for use in an FBI computer environment. The NICS central
computer will reside inside a locked room within a secure facility.
Access to the facility will be restricted to authorized personnel who
have identified themselves and their need for access to a system
security officer.
* * * * *
(f) * * *
(2) FFLs will provide the NICS Representative with their FFL Number
and code word, the type of sale or whether the background check is an
FHC, and the name, sex, race, date of birth, and state of residence of
the prospective buyer or eligible employee.
* * * * *
(g) * * *
(1) Access will be restricted to the initiation of a NICS
background check in connection with the proposed transfer of a firearm
or an FHC.
* * * * *
(ii) The NICS Representative will only provide a response of
``Pass,'' ``Pending,'' or ``Did Not Pass'' (with regard to an FHC) and
will not provide the details of any record information about the
subject of the FHC. In cases where potentially disqualifying
information is found in response to an FFL query, the NICS
Representative will provide a ``Pending'' response to the FFL. Follow-
up ``Pass'' or ``Did Not Pass'' responses will be provided by the NICS
Section during its regular business hours.
* * * * *
0
8. Revise and republish Sec. 25.9 to read as follows:
Sec. 25.9 Retention and destruction of records in the system.
(a) The NICS will retain NICS Indices records that indicate that
receipt of a firearm by the individuals to whom the records pertain
would be prohibited as described in 18 U.S.C. 922(t). The NICS will
retain such records indefinitely unless they are canceled by the
originating agency. In cases where a firearms disability is not
permanent (e.g., a disqualifying restraining order), the NICS will
automatically purge the pertinent record when it is no longer
disqualifying. Unless otherwise removed, records contained in the NCIC
and III files that are accessed during a background check will remain
in those files in accordance with established policy.
(b) The FBI will maintain an automated NICS Audit Log of all
incoming and outgoing transactions that pass through the system.
(1) Contents. The NICS Audit Log will record the following
information: Type of transaction (inquiry or response), line number,
time, date of inquiry, header, message key, ORI or FFL identifier, and
inquiry/response data (including the name and other identifying
information about the prospective transferee or, with respect to FHCs,
employee and the NTN).
(i) NICS ``Denied'' and ``Did Not Pass'' transaction records
obtained or created in the course of the operation of the system will
be retained in the Audit Log for 110 years.
(ii) NICS Audit Log records relating to transactions remaining in
an ``Open'' or ``Pending'' status, except the NTN and the NTN's
creation date, will be destroyed after not more than 90 days from the
date of inquiry; and
(iii) In cases of NICS Audit Log records relating to allowed
transactions, all identifying information submitted by or on behalf of
the transferee will be destroyed within 24 hours after the FFL receives
a ``Pass'' or ``Proceed'' response, as applicable. All other
information, except the NTN and the NTN's creation date, will be
destroyed after not more than 90 days from the date of inquiry.
(2) Use of information in the NICS Audit Log. The NICS Audit Log
will be used to analyze system performance, assist users in resolving
operational problems, support the appeals process, and support audits
of the use and performance of the system. Searches may be conducted on
the Audit Log by timeframe, e.g., by day or month, or by a particular
state or agency. Information in the NICS Audit Log pertaining to
allowed transactions may be accessed directly only by the FBI and only
for the purpose of conducting audits of the use and performance of the
NICS, except that:
(i) Information in the NICS Audit Log, including information not
yet destroyed under Sec. 25.9(b)(1)(iii), that indicates, either on
its face or in conjunction with other information, a violation or
potential violation of law or regulation, may be shared with
appropriate authorities responsible for investigating, prosecuting, or
enforcing such law or regulation; and
(ii) The NTNs and their creation dates for allowed transactions may
be shared with ATF in Individual FFL Audit Logs as specified in Sec.
25.9(b)(4).
(3) Limitation on use. The NICS, including the NICS Audit Log, may
not be used by any department, agency, officer, or employee of the
United States to establish any system for the registration of firearms,
firearm owners, or firearm transactions or dispositions, except with
respect to persons prohibited from receiving or being transferred a
firearm as described in 18 U.S.C. 922(t). The NICS Audit Log will be
monitored and reviewed on a regular basis to detect any possible misuse
of NICS data.
[[Page 100438]]
(4) Creation and Use of Individual FFL Audit Logs. Upon written
request from ATF containing the name and license number of the FFL and
the proposed date of inspection of the named FFL by ATF, the FBI may
extract information from the NICS Audit Log and create an Individual
FFL Audit Log for transactions originating at the named FFL for a
limited period of time. An Individual FFL Audit Log shall contain all
information on denied transactions, and, with respect to all other
transactions, only non-identifying information from the transactions.
In no instance shall an Individual FFL Audit Log contain more than 60
days' worth of transaction records with a status of ``Delayed,''
``Open,'' ``Pass,'' ``Pending,'' or ``Proceed'' originating at the FFL.
The FBI will provide POC states the means to provide to the FBI
information that will allow the FBI to generate Individual FFL Audit
Logs in connection with ATF inspections of FFLs in POC states. POC
states that elect not to have the FBI generate Individual FFL Audit
Logs for FFLs in their states must develop a means by which the POC
will provide such logs to ATF.
(c) The following records in the FBI-operated terminals of the NICS
will be subject to the Brady Act's requirements for destruction:
(1) All inquiry and response messages (regardless of media)
relating to a background check that results in an allowed transfer or
``Pass'' status for an FHC; and
(2) All information (regardless of media) contained in the NICS
Audit Log relating to a background check that results in an allowed
transfer or ``Pass'' status for an FHC.
(d) The following records of state and local law enforcement units
serving as POCs will be subject to the Brady Act's requirements for
destruction:
(1) All inquiry and response messages (regardless of media)
relating to the initiation and result of a check of the NICS that
results in an allowed transfer or ``Pass'' status for an FHC that are
not part of a record system created and maintained pursuant to
independent state law regarding firearms transactions; and
(2) All other records relating to the subject and result of a NICS
check that are not part of a record system created and maintained
pursuant to independent state law regarding firearms transactions.
0
9. Revise Sec. 25.10 to read as follows:
Sec. 25.10 Correction of erroneous system information.
(a) An individual may request the reasons for the denial of a
firearm transfer from the agency that conducted the check of the NICS
(the ``denying agency,'' which will be either the FBI or the state or
local law enforcement agency serving as a POC). The FFL will provide to
the denied individual the name and address of the denying agency and
the unique transaction number (NTN or STN) associated with the NICS
background check. In the case of an FHC, an individual may request the
reasons for the ``Did Not Pass'' response from the agency that
conducted the check of the NICS (the ``responding agency,'' which will
be either the FBI or the state or local law enforcement agency serving
as a POC). The FFL will provide the individual the name and address of
the responding agency and the unique NTN or STN associated with the
FHC. A request for the reasons for the ``Denied'' or ``Did Not Pass''
response must be made in writing to the denying or responding agency,
as applicable. (POCs at their discretion may waive the requirement for
a written request.)
(b) The denying or responding agency will respond to the individual
with the reasons for the ``Denied'' or ``Did Not Pass'' response within
five business days of its receipt of the individual's request. The
response should indicate whether additional information or documents
are required to support an appeal, such as fingerprints in appeals
involving questions of identity (i.e., a claim that the record in
question does not pertain to the individual making the request).
(c) If the individual wishes to challenge the accuracy of the
record upon which a ``Denied'' or ``Did Not Pass'' response is based,
or if the individual wishes to assert that the individual's right to
possess a firearm has been restored, the individual may make
application first to the denying or responding agency, i.e., either the
FBI or the POC. If the denying or responding agency is unable to
resolve the appeal, the agency will so notify the individual and shall
provide the name and address of the agency that originated the document
containing the information upon which ``Denied'' or ``Did Not Pass''
response was based. The individual may then apply for correction of the
record directly to the agency from which it originated. If the record
is corrected as a result of the appeal to the originating agency, the
individual may so notify the agency that issued a ``Denied'' or ``Did
Not Pass'' response, which will, in turn, verify the record correction
with the originating agency (assuming the originating agency has not
already notified the denying or responding agency of the correction)
and take all necessary steps to correct the record in the NICS.
(d) As an alternative to the procedure as described in paragraphs
(a) through (c) of this section, where a POC was the denying or
responding agency, the individual may elect to direct the individual's
challenge to the accuracy of the record, in writing, to the FBI, NICS
Section, Criminal Justice Information Services Division, 1000 Custer
Hollow Road, Module C-1, Clarksburg, West Virginia 26306-0147. Upon
receipt of the information, the FBI will investigate the matter either
by contacting the POC that provided the ``Denied'' or ``Did Not Pass''
response or by contacting the source of the data on which the
``Denied'' or ``Did Not Pass'' response was based. The FBI will request
that the POC or the data source verify that the record in question
pertains to the individual who was the subject of the ``Denied'' or
``Did Not Pass'' response or verify or correct the challenged record.
The FBI will consider the information it receives from the individual
and the response it receives from the POC or the data source. If the
record is corrected as a result of the challenge, the FBI shall so
notify the individual, correct the erroneous information in the NICS,
and give notice of the error to any Federal department or agency, or
any state, local, or tribal agency, that was the data source of such
erroneous records.
(e) Upon receipt of notice of the correction of a contested record
from the originating agency, the FBI or the agency that contributed the
record shall correct the data in the NICS, and the denying or
responding agency shall provide a written confirmation of the
correction of the erroneous data to the individual for presentation to
the FFL. In cases where multiple disqualifying or potentially
disqualifying records are the basis for the ``Denied'' or ``Did Not
Pass'' response, or where further disqualifying or potentially
disqualifying records otherwise exist in the subject's background, the
individual must pursue a correction for each record before a
``Proceed'' or ``Pass'' response can be provided to the FFL. In the
case of a prospective firearm transfer, if the appeal of a contested
record is successful and 30 or fewer days have transpired since the
initial check, and there are no other disqualifying or potentially
disqualifying records upon which to continue the denial, the NICS will
communicate a ``Proceed'' response to the FFL. If the appeal of a
prospective firearm transfer is successful and more than 30 days have
transpired since the initial check, the FFL must recheck the NICS
before allowing the transfer to continue. In the case of an FHC, if the
[[Page 100439]]
appeal of a contested record is successful and there are no other
disqualifying or potentially disqualifying records upon which to
continue the ``Did Not Pass'' status, the NICS will communicate a
``Pass'' response to the FFL.
(f) An individual who is the subject of a denied transfer may also
contest the accuracy or validity of a disqualifying record by bringing
an action against the state or political subdivision responsible for
providing the contested information, or responsible for denying the
transfer, or against the United States, as the case may be, for an
order directing that the contested information be corrected or that the
firearm transfer be approved. Similarly, an individual who is the
subject of a ``Did Not Pass'' response during an FHC may bring an
action against the state or political subdivision responsible for
providing the contested information, or responsible for providing the
``Did Not Pass'' response, or against the United States, as the case
may be, for an order directing that the contested information be
corrected or that the FHC be passed.
(g) An individual may provide written consent to the FBI to
maintain information about the individual in a Voluntary Appeal File to
be established by the FBI and checked by the NICS for the purpose of
preventing future erroneous ``Denied'' or ``Did Not Pass'' responses or
extended responses of ``Delayed'' or ``Pending'' by the NICS. Such file
shall be used only by the NICS for prospective firearm transfers and
FHCs. The FBI shall remove all information in the Voluntary Appeal File
pertaining to an individual upon receipt of a written request by the
individual. However, the FBI may retain such information contained in
the Voluntary Appeal File as long as needed to pursue cases of
identified misuse of the system. If the FBI finds a disqualifying
record on the individual after the individual's entry into the
Voluntary Appeal File, the FBI may remove the individual's information
from the file.
0
10. In Sec. 25.11, revise paragraph (b)(1) to read as follows:
Sec. 25.11 Prohibited Activities and Penalties
* * * * *
(b) * * *
(1) State or local agencies', FFLs', or individuals' purposefully
furnishing incorrect information to the system to obtain a ``Proceed''
or ``Pass'' response.
* * * * *
Dated: November 29, 2024.
Merrick B. Garland,
Attorney General.
[FR Doc. 2024-28711 Filed 12-11-24; 8:45 am]
BILLING CODE 4410-02-P