100424 Federal Register / Vol. 89, No. 239 / Thursday, December 12, 2024 / Proposed Rules 

or on behalf of the transferee will be 

destroyed within 24 hours after the FFL 

receives a determination of ‘‘Proceed,’’ 

or ‘‘No Known Prohibitors: At least one 

state or local agency has not responded 

or cannot respond.’’ All other 

information, except the NTN and date, 

will be destroyed after not more than 90 

days from the date of inquiry. 

(2) * * * 

(i) In addition to denial information 

required by law to be shared with 

relevant local law enforcement 

authorities, information in the NICS 

Audit Log, including information not 

yet destroyed under § 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 

* * * * * 

(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. 

* * * * * 

■ 8. In § 25.10, revise paragraph (g) to 

read as follows: 

§ 25.10 Correction of erroneous system 

information. 

* * * * * 

(g) An individual may provide written 

consent to the FBI to maintain 

information about that individual in a 

Voluntary Appeal File to be established 

by the FBI and checked by the NICS for 

the purpose of preventing the future 

erroneous denial or extended delay by 

the NICS of a firearm transfer. Such file 

shall be used only by the NICS for this 

purpose. In accordance with 34 U.S.C. 

40901 and applicable regulations of this 

part, for persons under 21 years of age, 

entry into the Voluntary Appeal File 

may not prevent that transaction from 

being subject to additional delay as 

described in paragraph (2) of the 

‘‘Delayed’’ definition provided in § 25.2. 

The FBI shall remove all information in 

the Voluntary Appeal File pertaining to 

an individual upon receipt of a written 

request by that 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. 

* * * * * 

■ 9. In § 25.11, revise paragraph (b)(1) to 

read as follows: 

§ 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 ‘‘No Known 

Prohibitors: At least one state or local 

agency has not responded or cannot 

respond’’ response, thereby allowing a 

firearm transfer; 

* * * * * 

Dated: November 29, 2024. 

Merrick B. Garland, 

Attorney General. 

[FR Doc. 2024–28712 Filed 12–11–24; 8:45 am] 

BILLING CODE 4410–02–P 

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. 

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: 

D Federal eRulemaking Portal: 

https://www.regulations.gov. Follow the 

instructions for submitting comments. 

D 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 


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Federal Register / Vol. 89, No. 239 / Thursday, December 12, 2024 / Proposed Rules 100425 

1See National Instant Criminal Background 

Check System Regulation, 63 FR 58303, 58303 (Oct. 

30, 1998). 

2See 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’’). 

3The 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 § 28.25.2 Definitions, 

https://codes.findlaw.com/cfr/title-28-judicialadministration/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/howwe-can-help-you/more-fbi-services-andinformation/nics/about-nics#NICSParticipation%20Map (last visited Nov. 5, 2024). 

5FBI, 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. 

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

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). 

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

Relevant databases for background 

checks are the NICS Index (now called 


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8The 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. 9See FBI, 2022 NICS Operations Report 7 (2022), 

https://www.fbi.gov/file-repository/nics-2022- 

operations-report.pdf/view. 

10See id. 

11Through 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. 

12See 28 CFR 25.2 (defining ‘‘Delayed’’ and 

‘‘NTN (NICS Transaction Number)’’); see also 28 

CFR 25.6(c)(1)(iv)(B). 

13Licensed 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/doescollector%E2%80%99s-license-afford-anyprivileges-licensee-respect-acquiring-or-disposing. 

14Federal 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. 

15Section 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. 

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. 

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). 

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). 

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

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

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. 

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). 


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17This 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/rg0065/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. 

18This 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. 

19BSCA 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). 

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. 

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. 

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 


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20See 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. 

21See 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). 

22Pawnbrokers 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). 

23See id. 

24See, 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-andaccess-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). 

25This NPRM is not intended to discourage 

licensees, in accordance with applicable laws, from 

conducting other background checks relating to any 

employees. 

26Examples 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:// 

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). 

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

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 


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corporate.walmart.com/askwalmart/how-manypeople-work-at-walmart (last visited Nov. 5, 2024). 

27For some POCs, the enabling State law may 

authorize the POC only to conduct NICS 

background checks for the prospective transfer of 

firearms. 

28See Section II.C.3.a.v of this preamble for 

further discussion regarding the application of this 

rule to employees of licensed manufacturers. 

29BSCA 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. 

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. 

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. 

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. 

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. 

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. 


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30See ATF, Application for Federal Firearms 

License (Oct. 2020), https://www.atf.gov/file/61506/ 

download (‘‘ATF Application’’). 

31ATF requires renewed background checks of 

responsible persons every 3 years. See ATF 

Application, supra. 

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). 

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 § 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

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 


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33Such 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. 

34Actions 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-fbiservices-and-information/nics/national-instantcriminal-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. 

35Further discussion of POCs is provided in 

Section II.A.1 of this preamble. 

36For further information about the VAF and for 

the VAF application, see Appeal and VAF web 

page, supra. 

37 Id. 

38See id. 

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’’). 

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 POC35 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. 

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. 

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 


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39This 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. 

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

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 jurisdictionspecific 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 


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40The 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. 

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. 

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 onetime 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 


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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 

§ 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 

■ 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. 

■ 2. Revise § 25.1 to read as follows: 

§ 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. 

■ 3. Amend § 25.2 by: 

■ a. Revising the definitions of 

‘‘Appeal’’ and ‘‘ARI’’; 

■ b. Adding in alphabetical order the 

definitions of ‘‘Did Not Pass’’ and 

‘‘Eligible employee’’; 

■ c. Revising the definitions of ‘‘FFL’’; 

■ d. Adding in alphabetical order the 

definitions of ‘‘Firearm handler’’ and 

‘‘Firearm handler background check 

(FHC)’’; 

■ e. Revising the definitions of ‘‘NICS,’’ 

‘‘NICS Representative,’’ ‘‘NICS Section,’’ 

‘‘NRI (NICS Record Identifier)’’; and 

■ f. Adding in alphabetical order the 

definitions of ‘‘Pass,’’ ‘‘Pending,’’ 

■ g. Revising the definition of ‘‘POC 

(Point of Contact)’’; and 

■ h. Adding in alphabetical order the 

definitions of ‘‘Responding agency,’’ 

and ‘‘Responsible person.’’ 

The revisions and additions read as 

follows: 

§ 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. 


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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. 

* * * * * 

■ 4. Revise § 25.4 to read as follows: 

§ 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 


ddrumheller on DSK120RN23PROD with PROPOSALS1
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by Federal, state, local, tribal, and 

international criminal justice agencies. 

■ 5. Revise and republish § 25.5 to read 

as follows: 

§ 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. 

■ 6. Amend § 25.6 by: 

■ a. Revising paragraphs (a), (c)(1) 

introductory text, (c)(2) and (3); 

■ b. Adding paragraph (c)(4); 

■ c. Revising paragraphs (d)(2), (f) 

introductory text and (f)(2); 

■ d. Adding paragraph (g)(3); and 

■ e. Revising paragraphs (h), (i), and (j) 

introductory text; 

The revisions and additions read as 

follows: 

§ 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 


ddrumheller on DSK120RN23PROD with PROPOSALS1
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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 § 25.9(b). The NICS will 

destroy its records regarding POC 

determinations for firearm transfer 

checks in accordance with the 

procedures detailed in § 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: 

* * * * * 

■ 7. In § 25.8: 

■ a. Revise paragraphs (a), (f)(2), and 

(g)(1); 

■ b. Redesignate paragraph (g)(2) as 

(g)(2)(i); and 

■ c. Add new paragraph (g)(2)(ii). 

The addition and revisions read as 

follows: 

§ 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. 

* * * * * 

■ 8. Revise and republish § 25.9 to read 

as follows: 

§ 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 § 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 § 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. 


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(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 FBIoperated 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. 

■ 9. Revise § 25.10 to read as follows: 

§ 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 


ddrumheller on DSK120RN23PROD with PROPOSALS1
Federal Register / Vol. 89, No. 239 / Thursday, December 12, 2024 / Proposed Rules 100439 

1Electronic Payment of Royalties, 71 FR 45739 

(Aug. 10, 2006) (final rule permitting remitters to 

choose between an Automated Clearing House 

(‘‘ACH’’) credit and a Fedwire transfer). See 37 CFR 

201.11(f)(1), 201.17(k)(1), 201.28(h)(1). In 2018, the 

Office issued a rule allowing payments to be made 

with multiple EFT transfers, not just a single 

payment. Streamlining Electronic Payment of DART 

Royalty Accounts and Electronic Royalty Payment 

Processes, 83 FR 51840 (Oct. 15, 2018). 

2See Electronic Payment of Royalties, 71 FR 

24829, 24829–30 (Apr. 27, 2006) (proposed rule). 

3As part of this effort, the Office is reviewing its 

regulations and updating them where necessary to 

reflect current and anticipated practices. Among the 

regulations recently revised are those requiring the 

use of Pay.gov for non-royalty payments and those 

pertaining to statements of account for cable 

operators, satellilte carriers, and DART remitters. 

See 37 CFR 201.6, 201.11, 201.17, 201.28; Statutory 

Cable, Satellite, and DART License Reporting 

Practices (published elsewhere in this issue of the 

Federal Register). 

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. 

■ 10. In § 25.11, revise paragraph (b)(1) 

to read as follows: 

§ 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 

LIBRARY OF CONGRESS 

U.S. Copyright Office 

37 CFR Part 201 

[Docket No. 2024–7] 

Electronic Payment of Royalties Using 

Pay.gov 

AGENCY: U.S. Copyright Office, Library 

of Congress. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Copyright Office is 

proposing to amend its regulations 

regarding the submission of royalty fees 

to the Copyright Office to require that 

all such fees be paid using Pay.gov. 

DATES: Written comments are due by 

January 13, 2025. 

ADDRESSES: For reasons of government 

efficiency, the Copyright Office is using 

the regulations.gov system for the 

submission and posting of public 

comments in this proceeding. All 

comments are therefore to be submitted 

electronically through regulations.gov. 

Specific instructions for submitting 

comments are available on the 

Copyright Office website at http://

copyright.gov/rulemaking/ 

royaltypayments. If electronic 

submission of comments is not feasible 

due to lack of access to a computer and/ 

or the internet, please contact the Office 

using the contact information below for 

special instructions. 

FOR FURTHER INFORMATION CONTACT: 

Rhea Efthimiadis, Assistant to the 

General Counsel, by email at meft@

copyright.gov, or by telephone at 202– 

707–8350. 

SUPPLEMENTARY INFORMATION: Section 

111 of the Copyright Act (‘‘Act’’), title 

17 of the United States Code, provides 

cable operators with a statutory license 

to retransmit a performance or display 

of a work embodied in a ‘‘primary 

transmission’’ made by a television 

station licensed by the Federal 

Communications Commission (‘‘FCC’’). 

Cable operators that retransmit 

broadcast signals in accordance with 

this provision are required to pay 

royalty fees to the Copyright Office 

(‘‘Office’’), among other requirements. 

Similarly, section 119 of the Act 

provides satellite carriers with a 

statutory license to retransmit certain 

primary transmissions if they satisfy 

certain criteria, for which they also must 

pay royalty fees to the Office. In 

addition, sections 1003 and 1004 of the 

Act require manufacturers and 

importers of digital audio recording 

devices and digital audio recording 

media (‘‘DART’’) to pay royalty fees to 

the Office. 

In 2006, the Office issued a rule 

requiring those royalty payments to be 

made using electronic funds transfer 

(‘‘EFT’’).1 As noted when the rule was 

proposed, the use of EFT is beneficial to 

both the remitter and the Office for four 

reasons.2 First, with Fedwire 

transactions, remitters gain more time to 

transfer funds without fear of incurring 

interest assessments for late payments. 

Second, electronic payments avoid the 

problems associated with lost checks or 

delays in processing mail. Third, 

copyright owners, the ultimate 

recipients of the funds, accrue more 

interest because the monies go directly 

to the Department of the Treasury 

instead of being diverted to the 

Copyright Office for processing first. 

And finally, the Office benefits from the 

use of the electronic payment option 

because it lessens its workload by 

reducing paperwork and related 

administrative costs. 

Now, as part of broader efforts to 

make its services digitized, 

interconnected, searchable, and easier to 

navigate,3 the Office seeks to further 

simplify the royalty payment process by 

requiring remitters to use the U.S. 

Treasury Department’s Pay.gov system 

to submit EFT payments for all royalty 

and filing fees. In addition to the 

advantages noted above, mandating the 

use of Pay.gov benefits both remitters 

and the Office by (1) ensuring that the 

Office can receive, reconcile, and post 

payments in the same transaction; (2) 

providing remitters with the 

convenience of using a variety of 

methods, including credit or debit 


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