`[Federal Register Volume 89, Number 239 (Thursday, December 12, 2024)]
[Proposed Rules]
[Pages 100404-100424]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-28712]


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DEPARTMENT OF JUSTICE

28 CFR Part 25

[Docket No. FBI-158; AG Order No. 6100-2024]
RIN 1110-AA36


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

AGENCY: Federal Bureau of Investigation, Department of Justice.

ACTION: Notice of proposed rulemaking; request for comment.

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

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

ADDRESSES: You may submit comments, identified by RIN 1110-AA36 or 
Docket No. FBI-158, by either of the following methods:
    [ssquf] Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
    [ssquf] Mail: Charles Klebe, Assistant General Counsel, Federal 
Bureau of Investigation, Office of the General Counsel, Module C-3, 
1000 Custer Hollow Road, Clarksburg, West Virginia 26306-0110; ATTN: 
Docket No. FBI-158.
    Instructions: All submissions received must include the agency name 
and RIN (1110-AA36) or docket number (FBI-158) for this notice of 
proposed rulemaking. In general, all properly completed comments 
received will be posted without change to the Federal eRulemaking 
portal, https://www.regulations.gov, including any personal information 
provided. For detailed instructions on submitting comments and 
additional information on the rulemaking process, see the ``Public 
Participation'' heading of the SUPPLEMENTARY INFORMATION section of 
this document.

FOR FURTHER INFORMATION CONTACT: Jill A. Montgomery, NICS Business and 
Liaison Unit Chief, Federal Bureau of Investigation, Criminal Justice 
Information Services Division, NICS Section. Telephone: (304) 625-0606 
(this is not a toll-free number).

SUPPLEMENTARY INFORMATION: 

I. Public Participation

A. Comments Sought

    The Department welcomes public comments from any interested person 
on any aspect of the changes proposed in this rule. In particular, and 
as discussed in more detail in the parts of this preamble that describe 
specific changes, the Department seeks comments from the public on the 
proposed amendments to NICS regulations regarding: (1) identifying 
firearms prohibitions imposed by local

[[Page 100405]]

and Tribal governments; (2) providing denial notifications to local law 
enforcement; (3) conducting enhanced background checks of under-21 
transactions; (4) collecting, using, and purging, where applicable, 
residential address information to comply with the statutory 
requirements of the CAA and BSCA; and (5) implementing a delay of up to 
10 business days for under-21 transactions where NICS has notified the 
FFLs that additional research is required to determine if the 
prospective transferees have prohibiting juvenile records as described 
in 18 U.S.C. 922(d). The Department also seeks comments on a potential 
attestation process to facilitate interactions with State and local 
agencies, as described more fully in Section II.D of this preamble. The 
Department will carefully consider all properly submitted public 
comments in drafting any final rules.
    All comments must reference RIN 1110-AA36 or this document's docket 
number, FBI-158, and be legible. Please do not submit, under this 
proposed rule, any comments pertaining to a different rule that may be 
discussed in limited detail below. After those other proposed rules are 
published, public comments concerning those proposed rules should be 
submitted as directed within those rules.
    Please note that all comments received are considered part of the 
public record and may be made available for public inspection online at 
https://www.regulations.gov. Information made available for public 
inspection may include personal identifying information (such as name, 
address, etc.) submitted by the commenter.

B. 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

    The Brady Handgun Violence Prevention Act of 1993 (``Brady Act''), 
Public Law 103-159, 107 Stat. 1536, required the Attorney General to 
establish a national system for FFLs, more specifically, federally 
licensed manufacturers, dealers, and importers of firearms under 18 
U.S.C. 923, to request immediate information as to whether the transfer 
of a firearm to any given unlicensed person could proceed. To implement 
that requirement, the Department created NICS and delegated management 
of NICS to the FBI. See 28 CFR 25.3. NICS is managed by the NICS 
Section of the FBI's Criminal Justice Information Services (``CJIS'') 
Division. The NICS Section processed the first NICS background check on 
November 30, 1998. Background events that prohibited persons from being 
able, under the Brady Act, to receive a firearm were those specified in 
18 U.S.C. 922(g) and (n) \1\ and applicable State law(s).\2\
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    \1\ Examples of prohibitions under 18 U.S.C. 922(g) and (n) 
include, but are not limited to, having sustained a conviction for, 
or being under indictment or information for, a ``crime punishable 
by imprisonment for a term exceeding one year'' (including State 
offenses denominated as misdemeanors but punishable by more than 2 
years of imprisonment, see 18 U.S.C. 921(a)(20)); being a fugitive 
from justice; being addicted to or being an unlawful user of a 
controlled substance; being adjudicated as a mental defective or 
being committed to a mental institution; being subject to certain 
protection orders; and having sustained a conviction for a 
misdemeanor crime of domestic violence.
    \2\ Applicable State law prohibitions are those imposed by the 
State where the prospective transfer is occurring and the State 
where the transferee resides (if the State of residence is different 
than the State of transfer). Additionally, other State laws may be 
relevant to determining if a Federal firearms prohibition (under 18 
U.S.C. 922(d), (g), or (n), as applicable) applies to the 
prospective transferee. Suppose, for instance, a resident of South 
Dakota is attempting to receive a rifle or shotgun (``long gun'') 
from an FFL in Iowa. That prospective transferee, however, has a 
prior felony-level conviction from a State court in Washington. The 
State laws of South Dakota, Iowa, and Washington would all be 
considered during that transaction to assess that person's ability 
to receive a firearm under State and Federal law.
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    Since that first NICS background check in 1998, FFLs have initiated 
NICS background checks by contacting the FBI or a designated ``point of 
contact'' (``POC'').\3\ FFLs contacted the FBI by phone or 
electronically.\4\ FFLs in each State are advised if they are required 
to contact the FBI's NICS Section or a POC to conduct a background 
check pursuant to 18 U.S.C. 922(t). See 28 CFR 25.6(a).
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    \3\ A POC is ``a state or local law enforcement agency serving 
as an intermediary between an FFL and the federal databases checked 
by the NICS.'' 28 CFR 25.2. POCs are agencies with express or 
implied authority to perform POC duties pursuant to State law. Id.
    \4\ The FBI's NICS electronic check system, known as E-Check, 
began in 2002. FBI, NICS E-Check, https://www.fbi.gov/video-repository/nics-e-check.mp4/view (last visited Oct. 4, 2024).
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    Prior to the implementation of BSCA, when an FFL contacted the FBI 
to initiate a NICS background check, NICS searched three electronic 
systems--the National Crime Information Center (``NCIC''),\5\ the 
Interstate Identification Index (``III''),\6\ and the NICS Indices 
\7\--

[[Page 100406]]

for the existence of a relevant record demonstrating that the 
individual is prohibited from receiving or possessing firearms under 
Federal or applicable State law(s). FFLs provided NICS the prospective 
transferee's name, sex, race, complete date of birth, State of 
residence, height, weight, eye and hair color, place of birth, and, if 
provided, any unique identification number(s) such as a Social Security 
number or military number. See 28 CFR 25.7. It has typically taken NICS 
a matter of seconds to collect the prospective transferee's identifying 
information and identify matching or potentially matching records in 
NCIC, III, or the NICS Indices.
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    \5\ NCIC is searched for records such as active warrants and 
protection orders. See, e.g., FBI, National Instant Criminal 
Background Check System Posts NICS Index Data (Mar. 18, 2016), 
https://www.fbi.gov/news/press-releases/national-instant-criminal-background-check-system-posts-nics-index-data (``NICS Data'').
    \6\ III is part of the FBI's Next Generation Identification 
system and is used to search for available Federal, State, local, 
and Tribal criminal history records such as arrests, charges, or 
case dispositions. See NICS Data, supra; see also Privacy Act of 
1974; System of Records, 84 FR 54182, 54184 (Oct. 9, 2019).
    \7\ The NICS Index consists of entries from Federal, State, 
local, and Tribal agencies of persons who are prohibited from 
receiving or possessing firearms under Federal or State law. See 28 
CFR 25.2. When referencing the NICS Index, the remainder of this 
rule will refer to the ``NICS Indices'' as it is more commonly known 
today among NICS users. The changes made by this rule include 
updates to the FBI's regulations to use the term ``NICS Indices'' 
rather than ``NICS Index.'' The Department is also updating the 
regulations to use ``NICS Section'' instead of ``NICS Operations 
Center.''
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    If the search of those three systems resulted in no matching (i.e., 
disqualifying) record, a ``Proceed'' response was provided to the FFL. 
If the search of those three systems resulted in at least one record 
demonstrating that the individual was prohibited from receiving a 
firearm, a ``Denied'' response was provided to the FFL. For those 
transactions in which the NICS Section could not provide a definitive 
response of either ``Proceed'' or ``Denied'' because additional 
research of a possible Federal or State disqualification was required, 
the transaction was placed in a ``Delayed'' status. Upon issuance of a 
``Delayed'' response, NICS would continue to research the possible 
prohibitions, even after the initial 3 business days had elapsed. If 
the NICS Section was unable to determine whether a delayed transaction 
should receive a ``Proceed'' or ``Denied'' response within 3 business 
days of the initiation of the NICS check, the FFL was not federally 
prohibited from transferring the firearm beginning on the day after the 
third business day, which was and still is referred to as the Brady 
transfer date. See 18 U.S.C. 922(t)(1).
    In instances where a POC had been designated to process NICS 
background checks, upon being contacted by an FFL, the POC would 
``check state or local record systems [and] perform NICS inquiries.'' 
28 CFR 25.2. In addition to using the NICS Transaction Number (``NTN'') 
that NICS assigns to submitted transactions, POCs may also assign their 
own unique ``State-Assigned Transaction Number'' (``STN'') to a valid 
background check inquiry. Id. When NICS received an inquiry from a POC 
for a NICS background check, it searched NCIC, III, and the NICS 
Indices for any matching records and provided an electronic response to 
the POC. See 28 CFR 25.6(f).\8\ When contacted by a POC, NICS provided 
one of four types of responses to the POC: (1) ``No record'' response 
if NICS determined that no matching records existed in the databases 
searched; (2) ``partial'' response if NICS had not completed the search 
of all of its records (this response provided the POC with the 
information found in any database in which the search was completed and 
sent a follow-up response when NICS completed the search in all 
databases); (3) ``single matching record'' response when one matching 
record was found; and (4) ``multiple matching record'' response if more 
than one matching record was found. See id. It has been and remains the 
responsibility of the POCs to review the responses that are provided by 
NICS, conduct any further research, render a final determination, and 
provide FFLs with the results. See 28 CFR 25.6(g).\9\
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    \8\ State laws may require or allow POCs to collect further 
identifying information from a prospective transferee.
    \9\ Further discussion of POCs can be found below within the 
discussion of denial notifications in Section II.B of this preamble 
and the discussion of under-21 transactions in Section II.C of this 
preamble.
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    The CAA, Public Law 117-103, 136 Stat. 49 (2022), and BSCA, Public 
Law 117-159, 136 Stat. 1313 (2022), mandated certain changes to the 
NICS process. In particular, as described below, the CAA and BSCA added 
new disqualifying events for consideration during NICS transactions. 
The CAA and BSCA added local and Tribal prohibitions to the Federal and 
State prohibitions already listed under 18 U.S.C. 922(t). The CAA 
includes the NICS Denial Notification Act of 2022 (``NDNA''), 136 Stat. 
at 919, which requires the FBI to send denial notification reports 
(``denial notifications'') to local law enforcement authorities 
following the FBI's denial of a NICS transaction involving a 
prospective transfer of a firearm. BSCA sets forth new requirements for 
under-21 transactions, including enhanced contacts to State and local 
entities and, if needed, additional delay to further investigate 
possibly disqualifying juvenile records. 136 Stat. at 1322-24. As 
described below, the Department proposes to amend the regulations 
outlining the NICS process to conform with these requirements of the 
CAA and BSCA. The Department is publishing this notice of proposed 
rulemaking to propose amendments to 28 CFR 25.1, 25.2, 25.6, 25.7, 
25.8, 25.9, 25.10, and 25.11 to implement parts of the CAA and BSCA as 
codified at 18 U.S.C. 922(d) and (t), 18 U.S.C. 925B, 18 U.S.C. 925C, 
and 34 U.S.C. 40901(l).

A. Updated Prohibitions

    As amended by the CAA and BSCA, 18 U.S.C. 922(t) now precludes 
approval of a firearm transfer to a nonlicensee if the transfer or 
receipt of a firearm would violate local or Tribal law. 136 Stat. at 
921-22; 136 Stat. at 1323. The FBI now is required to review NICS 
results for any applicable firearm prohibitions imposed by local or 
Tribal authorities, in addition to reviewing NICS results for any 
events that meet firearm prohibitions imposed by Federal law under 18 
U.S.C. 922(d), (g), or (n), or applicable State law(s). See 18 U.S.C. 
922(t)(1)(B)(ii), (t)(1)(C)(iii). Where a local or Tribal firearm 
prohibition may be applicable to the prospective transferee, the FBI 
must consider that prohibition in the same manner as Federal and State 
prohibitions that may be applicable based upon the prospective 
transferee's background-check results. To reduce the risk of under-
enforcement of local and Tribal prohibitions, this rule seeks public 
comments to identify which local and Tribal governments may, or may 
not, have enacted their own firearm prohibitions that are not already 
reflected in applicable State or Federal laws. What background record 
or event would prohibit a person from possessing firearms in the 
future? To whom do those local or Tribal prohibitions apply?
    The Department proposes amending 28 CFR 25.1, 25.2, 25.6, and 25.9 
to reflect the fact that 18 U.S.C. 922(t) now includes firearm 
prohibitions imposed by local and Tribal law. The Department also 
proposes amendments to 28 CFR 25.7(a) and 25.8(f) to require an FFL, 
after initially providing NICS a prospective transferee's State of 
residence and State of purchase, to subsequently provide the address 
and city limits information listed by a prospective transferee on the 
Bureau of Alcohol, Tobacco, Firearms, and Explosives (``ATF'') Form 
4473 (``Form 4473''), Firearms Transaction Record, when the FBI 
determines based on the State of residence and State of purchase that a 
local or Tribal firearms prohibition may apply. In such situations, and 
in the circumstances described further below, FFLs will be required to 
provide the FBI with the additional address information before the FBI 
provides the FFL with a transaction's status and an NTN. Providing 
further residence information in such instances may prevent NICS from 
unnecessarily delaying a transaction if the residence information

[[Page 100407]]

excludes the possibility of local or Tribal laws applying to that 
transfer or receipt of firearms. For example, for a prospective 
transferee with a criminal history who resides in a State that also has 
potentially applicable local or Tribal firearm prohibitions, the 
individual's full residential address, as reported on the revised Form 
4473,\10\ can help quickly determine if the prospective transferee is 
subject to the local or Tribal firearm prohibitions.
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    \10\ A full residential address, as reflected on the revised 
Form 4473, includes the number and full street address; city, State, 
and ZIP Code; county, parish, or borough of residence; and whether 
the subject resides within the city (to include town or other 
municipal boundary) limits.
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    The full street address is needed to determine whether a local or 
Tribal prohibition should be considered in making the determination. 
Because there are multiple jurisdictional boundaries that may fall 
within a ZIP Code, county, or city, more granular information for the 
address may be needed to make an accurate determination. For example, 
different parts of one street could be subject to different local 
jurisdictions. The FBI anticipates utilizing the same city, State, 
county, and ZIP Code mapping as described in Section II.B of this 
preamble to determine if a local or Tribal prohibition is applicable.
    Under 18 U.S.C. 922(d), it is unlawful for any person to sell or 
otherwise dispose of a firearm or ammunition knowing, or having 
reasonable cause to believe, that the prospective transferee is subject 
to any of the described disqualifying events in that subsection.\11\ As 
amended by section 12001(a) of BSCA, 18 U.S.C. 922(d) now prohibits 
such sales or dispositions to a person the transferor knows or has 
reasonable cause to believe is subject to one of the described 
disqualifying events, ``including as a juvenile.'' 136 Stat. at 
1322.\12\ This proposed rule would incorporate conforming changes into 
NICS regulations to reflect these statutory amendments expanding the 
Brady Act prohibitions as now described in 18 U.S.C. 922(t).
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    \11\ Historically, 18 U.S.C. 922(d) has encompassed the same 
prohibitions as referenced in 18 U.S.C. 922(g) and (n).
    \12\ In addition to the other amendments relevant to NICS, title 
II, section 12004 of BSCA added two new prohibitions related to 
preventing illegal firearms trafficking. See 18 U.S.C. 922(d)(10) 
and (d)(11).
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    The Department notes that, through various amendments to NICS 
regulations over the years, current NICS regulations contain 
inconsistent references to the Brady Act prohibitions, particularly the 
Federal prohibitions. The Department proposes amending NICS regulations 
found at 28 CFR 25.1, 25.2, 25.6, and 25.9 to ensure consistency with 
respect to how firearms prohibitions are described. To the extent 
necessary, the Department intends to reconcile these various references 
to Brady Act prohibitions in the Department's NICS regulations through 
this proposed rule as well as through RIN 1110-AA35 and through other 
technical updates to the Department's NICS regulations in a future 
rulemaking, RIN 1110-AA37.

B. Local Law Enforcement Notification

    The NDNA, which was enacted as part of the CAA, requires that the 
Attorney General send a denial notification to a ``local law 
enforcement authority'' upon denial of a NICS transaction involving the 
prospective transfer of a firearm by an FFL. See CAA, Public Law 117-
103, div. W, title XI, sec. 1101, 136 Stat. 49, 919-20. Since the 
NDNA's effective date, October 1, 2022, the FBI has been submitting 
denial notifications.
    When the FBI denies a NICS transaction, as described in 18 U.S.C. 
925B(a) related to the prospective transfer of a firearm, it sends a 
denial notification to the ``local law enforcement authority'' of the 
State or Tribe within whose jurisdiction the person sought the firearm 
transfer and, if different, to the ``local law enforcement authority'' 
of the State or Tribe within whose jurisdiction the person resides.\13\ 
This ensures that local law enforcement authorities in both 
jurisdictions are made aware of the denial.\14\ As proposed by this 
rule in 28 CFR 25.2, `` `local law enforcement authority' means a 
bureau, office, department, or other authority of a State or local 
government or Tribe that has jurisdiction to investigate a violation or 
potential violation of, or enforce, a State, local, or Tribal law.'' 
See also 18 U.S.C. 921(a)(36). The Department's proposed amendments to 
28 CFR 25.2, 25.7(a), and 25.8(f) reflect the FBI's current process for 
collection of information for carrying out the NDNA's requirements and, 
if finalized, would generally not alter the current denial notification 
process as described herein.
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    \13\ Federal law allows an FFL to transfer a long gun to a 
resident of another State so long as, among other considerations, 
the sale, delivery, and receipt otherwise satisfy the State laws and 
published ordinances of both jurisdictions. See 18 U.S.C. 922(b).
    \14\ For example, if a resident of Fort Wayne, Indiana, attempts 
to receive a firearm from an FFL in Indianapolis, Indiana, and the 
transaction is ``Denied,'' then the FBI would send a denial 
notification to the local law enforcement authorities in Fort Wayne 
(where the denied transferee resides) and Indianapolis (where the 
firearm was sought).
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    To reflect how the Department has implemented the NDNA, the 
Department proposes to amend 28 CFR 25.7(a) and 25.8(f) to require FFLs 
to provide additional residence address information for prospective 
transferees whose prospective firearm transfers will be ``Delayed'' or 
``Denied.'' Again, after an FFL has initiated the transaction, NICS 
determines within seconds if NCIC, III, or the NICS Indices include 
records that require the transaction to be ``Delayed'' for further 
research or ``Denied.'' After NICS has identified that a transaction 
will be ``Delayed'' or ``Denied,'' the FFL must provide NICS with the 
subject's full residential address before the FFL will be provided with 
the NTN and status. This information will be requested over the phone 
or collected electronically, depending on how the FFL initiated the 
transaction. Once the system has received the subject's full residence 
address, the FBI will then, over the phone or electronically, provide 
the FFL with that transaction's NTN and initial status.
    A ``Delayed'' transaction can change quickly to a ``Denied'' 
transaction. Consequently, by also collecting full address information 
before a ``Delayed'' status is provided to an FFL, the FBI will have 
that address information readily available should that transaction 
result in a denial. Collecting address information in such a manner 
avoids scenarios where the FFL is unavailable to receive a second 
contact from the FBI, which avoids delaying the address collection and 
denial notification. Thus, the amendments proposed in this rule and the 
process currently implemented by the FBI allow NICS to provide more 
timely denial notifications to local law enforcement authorities where 
the individual attempts to obtain the firearm and, if different, where 
the person resides. As discussed elsewhere in this rule, POCs will see 
similar results when they begin implementing the NDNA provisions (to 
the extent their State laws do not already require implementation of 
all or some aspects of the NDNA).
    Local law enforcement authorities are not required by the NDNA to 
take any action upon receiving the denial notification.\15\ However, to 
avoid potential conflict with ongoing Federal investigations, the 
denial notification effectively encourages local law

[[Page 100408]]

enforcement authorities to coordinate with their local ATF office prior 
to taking any anticipated action. The city in which the local ATF 
office is located and the office's contact information are provided in 
the denial notification. The denial notification is transmitted through 
NCIC and contains the NDNA-required information that NICS ``Denied'' 
the firearm transaction; the Federal, State, local, or Tribal 
prohibition that was the basis for the denial; the prospective 
transferee's identifying information (i.e., the transferee's name, sex, 
height, date of birth, place of birth, and residence address); the date 
and time the transaction was denied; and the location and contact 
information for the FFL where the denied transfer occurred.\16\ See 18 
U.S.C. 925B(a)(1). The denial notification also contains a general 
reminder explaining why the denial notification is being provided and 
contact information for any other law enforcement entities to which 
NICS sent the denial notification.
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    \15\ In fact, some local law enforcement authorities will not 
have a State, local, or Tribal violation of law to enforce if, for 
example, the denial was due to a Federal violation.
    \16\ Additional information on this topic and a copy of a draft 
notification can be found at FBI, NICS Denial Notifications for Law 
Enforcement, https://le.fbi.gov/informational-tools/nics-denial-notifications-for-law-enforcement (last visited June 18, 2024).
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    The NDNA provides that, where practicable, a denial notification 
will be provided to State, local, or Tribal prosecutors in the 
jurisdiction where the firearm transfer was sought to assist with 
enforcing State, local, or Tribal laws (when applicable). See 18 U.S.C. 
925B(a)(2). Should a ``Denied'' transaction be later overturned, the 
NDNA requires that any law enforcement authority and prosecutor 
previously provided with a denial notification for that transaction be 
provided an updated notification of the overturned denial. See 18 
U.S.C. 925B(c). Such updated notifications are also provided via NCIC 
to all agencies that received a denial notification for that 
transaction.
    Currently, FFLs obtain the prospective transferee's residence 
address on the Form 4473. See 27 CFR 478.124. This residence 
information is collected in box 10 of the Form 4473 and includes number 
and street address, city, whether the residence is within city limits, 
State, ZIP Code, and county or parish or borough. Under 28 CFR 25.7, 
the only address information that must be provided for the initial NICS 
check is the prospective transferee's State of residence; the 
regulations have not required FFLs to submit further information to 
NICS about a prospective transferee's residence address even though the 
FFL must collect such information on the Form 4473.\17\
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    \17\ In addition to the prospective transferee's State of 
residence, an FFL must submit the prospective transferee's name, 
sex, race, and complete date of birth to initiate a NICS check. See 
28 CFR 25.7.
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    The full street address of a prospective transferee is needed to 
determine which local jurisdiction(s) would be appropriate for 
notification of a denial determination. There are multiple agencies 
that may fall within a ZIP Code, county, or city. To notify the correct 
agency, specific information for the address is needed. For example, 
one street within a city could be within the jurisdiction of one police 
department while the adjacent street could be under a different police 
department's jurisdiction. When an FFL initially submits a prospective 
firearm transfer to the FBI and the initial NICS check of NCIC, III, 
and the NICS Indices finds information indicating the transaction will 
be ``Delayed'' or ``Denied,'' the FBI, during that same, initial 
contact with NICS, requests (by phone or electronically \18\) the full 
residence address of the prospective transferee while the FFL waits for 
NICS to provide them with the initial status and the NTN. Once NICS has 
been provided with the full residence address, the FFL is provided with 
the NTN and the transaction's status.
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    \18\ For some transactions using NICS E-Check to submit 
information to NICS, NICS is able to systematically capture the 
residence without aid of the FFL.
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    Through each State, local, and Tribal law enforcement agency's 
Originating Agency Identifier (``ORI''), the FBI has mapped those law 
enforcement agencies to the city, State, county, and ZIP Code(s) for 
which they have jurisdiction to enforce laws.\19\ Each State (including 
Territories and the District of Columbia) has validated the mapping 
accuracy via an NCIC unsolicited message. NCIC unsolicited messages are 
automated communications that normally inform law enforcement and other 
criminal justice agencies about activity on an NCIC record, such as 
important details about a specific subject or property item or system 
status information. NICS now also uses this communication line to send 
denial notifications to applicable local law enforcement authorities. 
For transactions that are ``Denied,'' NICS systematically compares the 
full address information of the FFL and the prospective transferee with 
the address information of the mapped law enforcement agencies. NICS 
then submits, via NCIC unsolicited messages, the denial notifications 
to the State, local, and Tribal law enforcement agencies that fall 
within the jurisdiction of the FFL's address where the transfer was 
sought and, if different, the State, local, and Tribal law enforcement 
agencies with jurisdiction over the denied transferee's residence 
address.
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    \19\ An ORI is ``a nine-character identifier assigned by the FBI 
to an agency that has met the established qualifying criteria for 
ORI assignment to identify the agency in transactions on the NCIC 
System.'' 28 CFR 25.2.
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    ATF also revised the Form 4473 to request full residence 
information for prospective transferees. In addition to assisting with 
the implementation of the CAA and BSCA provisions describing use of 
local and Tribal firearm prohibitions, the revised Form 4473 ensures 
the information is available to FFLs when the FBI seeks such 
information to support the continued implementation of the NDNA. The 
denial notifications provide timely assistance to State, local, and 
Tribal governments that wish to enforce existing laws in their 
jurisdictions against individuals attempting to illegally purchase, 
possess, or receive firearms (whether through fraudulent background 
checks or otherwise).
    In the 19 States \20\ in which partial or full POCs conduct NICS 
checks, POCs serve as intermediaries between FFLs and the Federal 
databases checked by NICS, with POCs acting on behalf of the FBI to 
perform the NICS transactions from those jurisdictions. See 28 CFR 25.2 
and 25.6. Partial POCs elect to process background checks for handguns, 
long guns, or both, and the FBI processes all other checks for FFLs in 
the State. Currently, all four partial POCs process their own NICS 
checks for handguns.\21\ The FBI has verified, based on discussions 
with POCs, that 14 of the 19 POCs that responded in time for this rule 
already have some type of denial notification process established 
within their State. The FBI does not render denial decisions for POCs. 
See 28 CFR 25.6(g). Therefore, this rule proposes revisions to 28 CFR 
25.2 and 25.6 to reflect that POCs must, at a minimum, report denial 
notifications in accordance with the NDNA when the POC denies a 
prospective firearm transfer.\22\ If these

[[Page 100409]]

revisions are finalized, POCs will also be required to provide the NICS 
Section with applicable statistics necessary for the FBI to comply with 
the provisions of 18 U.S.C. 925C.
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    \20\ See FBI, NICS Participation Map, https://www.fbi.gov/file-repository/nics-participation-map.pdf/view (last visited Oct. 4, 
2024).
    \21\ See id.
    \22\ The Department notes that the statutory obligation to issue 
denial notifications does not include the issuance of denial 
notifications to the same entity that denied the transaction. See 18 
U.S.C. 925B(d) (denial notification to State authorities not 
required if the same State authorities made the original denial 
determination with respect to the transfer of the firearm). For 
example, if a resident of Fort Wayne, Indiana, attempts to receive a 
firearm from an FFL in Illinois, and the transaction is denied by 
the Illinois POC (the Illinois State Police), then the Illinois POC 
would issue denial notifications to the ``local law enforcement 
authorities'' in Indiana (where the denied transferee resides) but 
would not need to issue a denial notification to the Illinois State 
Police.
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C. Enhanced Background Checks for Individuals Under 21 Years of Age

    As described earlier in this rule, prior to BSCA's enactment of new 
enhanced background checks during under-21 transactions, when an FFL 
initiated a NICS transaction--regardless of the prospective 
transferee's age--NICS searched three primary systems to determine if 
the person was disqualified from possessing or receiving firearms.\23\ 
If the traditional search resulted in no disqualifying or potentially 
disqualifying records, NICS provided a ``Proceed'' status to the FFL. 
If a juvenile or adult record was located that disqualified the person 
under Federal or State law, NICS provided a ``Denied'' status to the 
FFL. If a possibly disqualifying record (whether having occurred as a 
juvenile or adult) resulted from the initial search, NICS provided a 
``Delayed'' status and advised the FFL that, if the FFL did not receive 
a ``Proceed'' or ``Denied'' response from NICS on or before the end of 
the third business day after initiation of the check, the FFL was not 
federally prohibited from transferring the firearm on the day after the 
third business day.\24\ Cf. 18 U.S.C. 922(b), (d).\25\
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    \23\ Currently, BSCA's provisions related to under-21 
transactions are to sunset September 30, 2032. 136 Stat. at 1324.
    \24\ Currently, ``Delayed'' and ``Open'' are defined as follows: 
``Delayed means the response given to the FFL indicating that the 
transaction is in an `Open' status and that more research is 
required prior to a NICS `Proceed' or `Denied' response. A `Delayed' 
response to the FFL indicates that it would be unlawful to transfer 
the firearm until receipt of a follow-up `Proceed' response from the 
NICS or the expiration of three business days, whichever occurs 
first.'' 28 CFR 25.2 ``Open means those non-canceled transactions 
where the FFL has not been notified of the final determination. In 
cases of `open' responses, the NICS continues researching 
potentially prohibiting records regarding the transferee and, if 
definitive information is obtained, communicates to the FFL the 
final determination that the check resulted in a proceed or a deny. 
An `open' response does not prohibit an FFL from transferring a 
firearm after three business days have elapsed since the FFL 
provided to the system the identifying information about the 
prospective transferee.'' Id.
    \25\ The Department notes that, after receiving a ``Proceed'' or 
``Open'' response from NICS, Federal law would not prohibit the FFL 
from transferring the firearm. Receipt of such a response, however, 
``[d]oes] not relieve'' the FFL from complying with other provisions 
of law, such as 18 U.S.C. 922(d), that may be applicable to that 
transfer. 28 CFR 25.2 (defining ``Proceed''). A similar caveat for 
the definition of ``Open'' has been proposed as part of this rule. 
When, throughout this rule, the Department observes that, in certain 
situations, receipt of a response from NICS indicates that Federal 
law would not prohibit an FFL from transferring a firearm, it should 
be understood that the FFL must still comply with other laws, such 
as 18 U.S.C. 922(d).
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    In addition to the searches of NCIC, III, and the NICS Indices, 
BSCA now requires enhanced NICS background checks for prospective 
transferees under 21 years of age. See 34 U.S.C. 40901(l).\26\ With 
respect to these enhanced background checks conducted for under-21 
transactions, Congress imposed two overarching requirements on NICS. 
First, in addition to the traditional NICS check of relevant FBI 
systems, NICS is required to make three enhanced requests to specified 
types of State and local entities to determine whether the prospective 
transferee has a ``possibly disqualifying juvenile record'' under 18 
U.S.C. 922(d). The enhanced requests to State and local entities where 
the prospective transferee resides are to be made to (1) the State 
criminal history repository or juvenile justice information system, as 
appropriate; (2) the State custodian of mental health adjudication 
records; and (3) the local law enforcement agency. See 34 U.S.C. 
40901(l)(1).
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    \26\ Under Federal law, persons who are at least 18 years of age 
are of lawful age to purchase long guns; however, some States set a 
higher minimum age to purchase long guns. See 18 U.S.C. 922(b).
---------------------------------------------------------------------------

    In October of 2022, the FBI began a phased, manual implementation 
of the enhanced background checks BSCA requires for under-21 
transactions coming from the State of Maine. For the remaining States 
\27\ for which the FBI processes NICS checks for prospective firearm 
transfers, since January 4, 2023, NICS has been automatically 
submitting all three enhanced requests via email. To begin implementing 
BSCA's requirements of contacting the criminal history repository or 
juvenile justice information system and the appropriate State custodian 
of mental health records in the State in which the person resides for 
possibly disqualifying juvenile records pursuant to 18 U.S.C. 922(d), 
the NICS Section met with representatives from all States and 
Territories to establish contacts for those requests; this was because 
the NICS Section did not have such contacts required by BSCA at the 
time of enactment.
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    \27\ ``State'' is federally defined to include the District of 
Columbia, the Commonwealth of Puerto Rico, and most possessions 
(``Territories'') of the United States. See 18 U.S.C. 921(a)(2). 
United States Territories that submit background checks to NICS 
include Guam, Northern Mariana Islands, American Samoa, and the 
Virgin Islands. See FBI, NICS Participation Map, https://www.fbi.gov/file-repository/nics-participation-map-020124/view (last 
visited Oct. 4, 2024).
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    Some States informed the NICS Section they do not have a 
centralized contact for some of the juvenile records BSCA requires NICS 
to request. Those States directed the NICS Section to contact courts 
that handle juvenile criminal history or mental health information. The 
FBI has shared all identified contacts (centralized or otherwise) with 
POCs so that POCs can utilize the same contacts as the NICS Section for 
enhanced background checks. Both the NICS Section and POCs utilize 
their own existing contact methods for contacting local law enforcement 
agencies during under-21 transactions. The amendments proposed by this 
rule, unless noted otherwise, will not alter how the enhanced 
background checks related to under-21 transactions are being conducted.
    Second, if NICS determines that cause exists to further investigate 
whether the prospective transferee has a disqualifying juvenile record 
under 18 U.S.C. 922(d), BSCA provides for an additional period of time 
for NICS to process that under-21 transaction before the FFL may 
transfer the firearm. See 18 U.S.C. 922(t)(1)(C); 34 U.S.C. 
40901(l)(2). BSCA requires NICS to notify the FFL ``as soon as 
possible, but in no case more than 3 business days'' after the 
initiation of the check if such cause exists. 34 U.S.C. 40901(l)(2).
    If NICS determines such cause exists, NICS notifies the FFL of that 
determination, and it is then unlawful for the FFL to transfer a 
firearm to the prospective transferee without receiving a follow-up 
``Proceed'' response or waiting for the expiration of 10 business days 
from initial contact with NICS, whichever occurs first. See id. 
Accordingly, the Brady transfer date for an under-21 transaction where 
NICS has determined that cause exists for further investigation is the 
day after the tenth business day from the date the FFL contacted NICS. 
As NICS has begun submitting enhanced background checks for under-21 
transactions, FFLs have also been notified by the FBI when cause for 
further investigation has been established and, consequently, that the 
Brady transfer date has changed to the day after the tenth business 
day.\28\
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    \28\ The FFL is updated in the same manner as when the FFL 
initially contacted NICS, either electronically or by telephone.
---------------------------------------------------------------------------

    To reflect BSCA's requirements during under-21 transactions, 
technical enhancements have been made to NICS to have NICS use the 
subject's complete date of birth to immediately calculate whether the 
prospective transferee is

[[Page 100410]]

under 21 years of age on the day the transaction was submitted to NICS. 
Systematically, this age calculation is occurring at the same time NICS 
is searching NCIC, III, and the NICS Indices. Once NICS determines the 
subject is under 21 years of age, NICS will request the transferee's 
full residence address, and, generally, will notify the FFL that the 
transaction will be placed into a ``Delayed'' status. NICS collects the 
full residence address of subjects who are under 21 years of age in the 
same manner as NICS collects a full residence address for purposes of 
the NDNA. For an under-21 transaction, the FBI uses the full residence 
address of the subject to determine which ``local law enforcement 
agency [has] jurisdiction where the person [under 21 years of age] 
resides'' and, therefore, must be contacted by NICS. 34 U.S.C. 
40901(l)(1)(C). The prospective transferee's State of residence is used 
to identify which State-level agencies the FBI also needs to contact 
during enhanced background checks.
    After collecting the full residence address of the subject, NICS 
systematically sends the enhanced background check requests to the 
agencies corresponding to the subject's full residence address.\29\ 
Generally, the FBI sends these enhanced requests by email 
communications to the designated agencies. Some States that are not 
centralized have designated that certain courts should be contacted for 
the requested juvenile records. The FBI also conducts some enhanced 
outreach to State agencies by manually accessing State databases that 
were established during the FBI's outreach to States, the District of 
Columbia, and Territories.
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    \29\ During an under-21 transaction, a Tribal law enforcement 
authority may also receive a request for potentially prohibiting 
juvenile records if the Tribe shares the same ZIP Code as the 
prospective transferee.
---------------------------------------------------------------------------

    Unless the under-21 transaction can be denied sooner based on 
available information, NICS now has up to 3 business days to determine 
if BSCA's enhanced background checks, or any responses from the initial 
searches of NCIC or III, provide cause for further delay of the under-
21 transaction due to a potentially prohibiting juvenile record. During 
this time, NICS is also investigating those same sources for any adult 
records that are prohibiting or potentially prohibiting. Some under-21 
transactions will be denied in a matter of seconds due to, for example, 
the NICS Indices responding with a prohibiting record that matches the 
subject's biographic information. Even if the under-21 transaction is 
immediately ``Denied,'' the Department reads BSCA to still require NICS 
to submit the enhanced background checks.
    BSCA's enhanced background check requirements result in under-21 
transactions being significantly more complex than NICS background 
checks conducted before BSCA. Unlike the pre-BSCA background check 
process (described above in the beginning of Section II of this 
preamble), BSCA mandates enhanced background checks that include 
requiring NICS to also contact, in 56 different jurisdictions, the 
State and local agencies identified under 34 U.S.C. 40901(l)(1). The 
results of those queries will then depend on the ability and 
capabilities of those State and local agencies.
    Based on the FBI's experience in conducting BSCA's enhanced 
background checks, the FBI estimates the majority of State and local 
agencies that are contacted and that respond during the enhanced 
background checks of under-21 transactions do so within 3 business 
days. The Department does not consider an agency to have provided 
``cause for further investigation'' within the first 3 business days if 
the agency contacted provides a substantive response that it has no 
potentially prohibiting juvenile record(s); if the agency responds to 
each enhanced background check request submitted to that agency that 
State law prohibits providing the type of juvenile records sought; or 
if the agency responds to each enhanced background check request 
submitted to that agency that the juvenile records sought are already 
provided to the relevant Federal system (NCIC, III, or the NICS 
Indices).
    If an agency informs the Department within 3 business days of the 
check being initiated that the agency requires more time to investigate 
whether a prospective transferee has potentially prohibiting juvenile 
records, or the agency has not responded at all within 3 business days, 
the Department interprets these circumstances as ``cause for further 
investigation,'' and the agency will be afforded up to 7 additional 
business days to respond to the request. See 34 U.S.C. 40901(l)(2). The 
Department believes Congress's imposition of additional checks for 
disqualifying State and local juvenile records during under-21 
transactions would be frustrated by practical administrative delays 
inherent in conducting these enhanced checks if a State or local 
agency's failure to respond within the 3-business-day period could not 
be understood to constitute ``cause for further investigation.'' While 
this interpretation could result in a relatively short additional delay 
(up to 7 additional business days at most) before Federal law would 
allow the FFL to complete the firearm transfer for the prospective 
transferee, the alternative interpretation might result in subjecting 
the public to a risk that BSCA was intended to address.
    As soon as all required checks are cleared of any possible 
disqualifications, the FBI will place the under-21 transaction in a 
``Proceed'' status. See 34 U.S.C. 40901(l)(3). BSCA did not institute a 
mandatory 3- or 10-day waiting period for all under-21 transactions. 
Instead, BSCA requires that NICS conduct the enhanced outreach 
described above, and it provides NICS up to 3 business days to 
determine if cause exists to further investigate whether the 
prospective under-21 transferee has a disqualifying juvenile record 
under 18 U.S.C. 922(d).
    Another technical enhancement made for under-21 transactions is 
that NICS automatically calculates and populates, to the NICS Audit 
Log,\30\ the 10-business-day transfer date in case that date becomes 
applicable. If that date is applied to the transaction, NICS provides 
the FFL with the 10-business-day transfer date during a follow-up 
communication. The FBI has also added to the NICS Audit Log fields for 
each under-21 transaction noting which State and local agencies were 
contacted during the enhanced background checks for a transaction and a 
general notation of whether and how those agencies responded (e.g., no 
records, records, or cannot respond by law). NICS must contact these 
State and local agencies according to BSCA, but the FBI understands 
that currently not all States have one or both State-level systems 
described above and, further, some States' laws prohibit the sharing of 
juvenile justice records or mental health records.\31\ Notwithstanding 
such limitations, the FBI has continued to submit the enhanced 
background check requests to relevant State and local agencies during 
every under-21 transaction since January 3, 2023.
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    \30\ For NICS purposes, ``[a]udit log means a chronological 
record of system (computer) activities that enables the 
reconstruction and examination of the sequence of events and/or 
changes in an event.'' 28 CFR 25.2.
    \31\ FBI subject matter experts estimate that, currently, more 
than half of all States, including the District of Columbia and the 
Territories, have laws in place that prohibit the sharing of 
juvenile justice records, juvenile mental health records, or both. 
Many agencies in those States do not currently respond to each NICS 
request with substantive records or a notification that the records 
sought are protected from dissemination by State law.
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    The Department proposes the following amendments to conform NICS 
regulations with the above-described provisions of BSCA for under-21

[[Page 100411]]

transactions. First, the Department proposes amending 28 CFR 25.7(a) 
and 25.8(f) to require submission of the full residential address \32\ 
for NICS checks of prospective transferees who are less than 21 years 
old, in addition to the information already required to be submitted as 
described above. Second, the Department proposes amending 28 CFR 
25.6(c) to reflect that, upon initiation of an under-21 transaction 
from an FFL, the FBI will immediately conduct a NICS check of NCIC, 
III, and the NICS Indices and make the enhanced outreach to the 
following agencies where the person resides: (1) the State criminal 
history repository or juvenile justice information system, as 
appropriate; (2) the State custodian of mental health adjudication 
records; and (3) the local law enforcement agency. The FBI has 
identified all necessary agencies to contact during this enhanced 
outreach to determine if cause exists for additional delay of the 
transaction to further investigate whether the person has a 
disqualifying juvenile record under 18 U.S.C. 922(d). The amendments 
proposed by the Department in this rule would not modify how the FBI is 
conducting the enhanced background checks of under-21 transactions.
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    \32\ As noted earlier, see supra note 10, a full residential 
address, as reflected on the amended Form 4473, includes the number 
and full street address; city, State, and ZIP Code; county, parish, 
or borough of residence; and whether the subject resides within the 
city (to include town or other municipal boundary) limits.
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    Next, the Department proposes a new transaction status of ``No 
Known Prohibitors: At least one state or local agency has not responded 
or cannot respond,'' which is not a part of the current under-21 
transaction process. A definition for this new status is proposed under 
28 CFR 25.2. Also, the FBI proposes revisions to 28 CFR 25.6(c)(iv), 28 
CFR 25.8(g)(2), 28 CFR 25.9(b), and 28 CFR 25.11(b)(1) to reflect the 
status of ``No Known Prohibitors: At least one state or local agency 
has not responded or cannot respond.'' The Department proposes that an 
FFL be provided the status of ``No Known Prohibitors: At least one 
state or local agency has not responded or cannot respond'' generally 
in circumstances where NICS has either not received one or more 
responses to the enhanced background checks or the relevant State is 
barred from sharing juvenile information by a governing State law. This 
status would be provided under the following circumstances:
     Barred from Responding. If at least one agency 
affirmatively responds that it is barred by State law from sharing 
relevant information with NICS, any other agencies have responded, and 
the available information does not demonstrate a (potentially) 
prohibiting record exists for the subject.
     Non-Response. At the end of the tenth business day if at 
least one of the agencies contacted during the enhanced background 
checks for that under-21 transaction has not responded and available 
information does not demonstrate a (potentially) prohibiting record 
exists for the subject.
    A ``Proceed'' status to an FFL signifies that all systems have been 
checked, requests for records have received responses, and available 
information reveals no (potentially) prohibiting record exists.\33\ 
Accordingly, where State or local agencies either do not or cannot 
share information on a prospective transferee, providing an FFL with 
the status of ``Proceed'' would be inaccurate. Similarly, an ``Open'' 
response signifies to an FFL that NICS is still researching a potential 
firearm prohibition. See 28 CFR 25.2. Accordingly, it would also be 
inaccurate for an ``Open'' response to be provided in any of the above 
circumstances because NICS would not be conducting further research at 
that point. The Department believes providing this new status of ``No 
Known Prohibitors: At least one state or local agency has not responded 
or cannot respond'' to FFLs in these circumstances would more 
accurately inform the FFL of the fact that the State or local agencies 
at issue either did not or could not respond to the enhanced requests 
for juvenile records. However, unless NICS has provided an FFL with a 
status of ``Denied,'' the FFL retains the ultimate discretion to 
transfer a firearm, or not, to the subject.
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    \33\ As part of this rulemaking, the FBI is proposing an 
amendment to the definition of ``Proceed'' to clarify that the 
response indicates that all relevant systems have in fact been 
checked and all requests for records have in fact received 
responses.
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    Do commenters believe the new status would have unforeseen impacts? 
What further information would the public find useful or necessary 
before approving or rejecting the new, proposed status? Should a 
different status be proposed, and if so, why?
    A prospective transferee who is under 21 years of age could have a 
possibly disqualifying juvenile record under 18 U.S.C. 922(d) or a 
possibly disqualifying record (incurred as an adult or juvenile) under 
18 U.S.C. 922(g) or (n), or State, local, or Tribal law.\34\
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    \34\ For instance, suppose a person who is now 20 years old 
attempts to receive a firearm from an FFL. The NICS check reveals 
that, at 17 years old, this person was adjudicated as a ``juvenile 
delinquent'' under State law for an offense that would have been a 
felony had the person been an adult. Within the next day, all three 
agencies contacted under the enhanced contacts for the under-21 
transaction respond and provide no other potential juvenile 
prohibitions. Further suppose that, under the law of the State where 
the adjudication occurred, that adjudication is not considered a 
``conviction.'' As a result, Federal law cannot consider that 
adjudication for purposes of 18 U.S.C. 922(d) or (g). See 18 U.S.C. 
921(a)(20). Further, because that juvenile disposition would not 
fall within the reach of 18 U.S.C. 922(d), it would not qualify for 
consideration under 34 U.S.C. 40901(l) for application of further 
delay of an under-21 transaction. However, suppose the law of the 
State where the adjudication occurred imposes a 10-year firearm 
prohibition for persons adjudicated as a juvenile delinquent for an 
offense that would have been a felony. The adjudication would not 
qualify for purposes of 18 U.S.C. 922(d), but it would prohibit that 
person from receiving or being transferred a firearm in accordance 
with 18 U.S.C. 922(t).
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    The following examples clarify the types of records that NICS may 
receive during an under-21 transaction and how the Department proposes 
to have NICS process the different scenarios.
    Scenario 1: No adult or juvenile disqualifying records are found in 
NCIC, III, or the NICS Indices, and the under-21 enhanced background 
checks rule out cause for additional delay before the end of the third 
business day. The transaction is placed in a ``Proceed'' status.
    Scenario 2: Only a possibly disqualifying adult record is located, 
but cause for additional delay, related to a possibly disqualifying 
juvenile record, is ruled out before the end of the third business day. 
Although cause for additional delay of the transaction was ruled out, 
the transaction will remain ``Delayed'' (in an ``Open'' status) due to 
the possibly disqualifying adult record being found. The FFL may 
transfer the firearm after the third business day if the FFL has not 
first received a ``Denied'' status update. NICS will continue to 
research to establish or rule out the possible adult prohibition until 
the transaction is proceeded, denied, or purged in compliance with 28 
CFR 25.9.
    Scenario 3: No possibly disqualifying adult record is located, but 
cause for additional delay is established based on a possibly 
disqualifying juvenile record. NICS will notify the FFL of the 
additional delay being applied up through the tenth business day (if 
necessary) to further research whether there is a disqualifying 
juvenile record. If cause for the additional delay of the transaction 
is ruled out, the transaction will be updated to ``Proceed'' status. If 
cause for additional delay cannot be ruled out by the end of the tenth 
business day, the transaction will remain ``Delayed'' (in an ``Open'' 
status), and under Federal law, the FFL

[[Page 100412]]

may transfer the firearm after the tenth business day if the FFL has 
not first received a ``Denied'' status update. NICS will continue 
research to establish or rule out the relevant possible juvenile 
prohibition until the transaction is proceeded, denied, or purged in 
compliance with 28 CFR 25.9.
    Scenario 4: A possibly disqualifying adult record is found and 
cause for additional delay is established based on a possibly 
disqualifying juvenile record on or before the third business day. 
Because cause for additional delay has been found to exist, the FFL is 
notified of additional delay being applied, up through the tenth 
business day (if necessary), to further research whether there is a 
disqualifying juvenile record. In accordance with Federal law, the FFL 
may transfer the firearm after the tenth business day if the FFL has 
not first received a ``Denied'' status update. NICS will continue 
researching any possible prohibition until the transaction is 
proceeded, denied, or purged in compliance with 28 CFR 25.9.
    Scenario 5: No potentially prohibiting adult or juvenile records 
return from NCIC, III, or the NICS Indices, but, after 10 business days 
have elapsed, one of the agencies contacted during the enhanced 
background check still has not responded in substance or by telling 
NICS that the laws of the jurisdiction prohibit the agency from 
disclosing the juvenile records sought. The Department proposes that 
the transaction's status be updated to ``No Known Prohibitors: At least 
one state or local agency has not responded or cannot respond.'' 
Federal law would then allow the FFL to transfer the firearm.
    Scenario 6: After the transaction has been ``Delayed,'' and prior 
to the firearm being transferred, a firearm disqualification (as 
described in 18 U.S.C. 922(t)) is established. The transaction is 
placed into a ``Denied'' status and the FFL is notified of the status. 
The FFL is prohibited from transferring the firearm to the prospective 
transferee.
    In any under-21 transaction, as soon as all possible 
disqualifications are ruled out, the transaction will be placed into 
``Proceed'' status. If a transaction has been placed into ``Proceed'' 
status, or when Federal law otherwise allows the firearm to be 
transferred, the FFL is permitted to transfer the firearm to the 
prospective transferee if the person returns to the FFL to receive the 
firearm within 30 days from when the FFL first contacted NICS. See 27 
CFR 478.102(c). POCs are currently required to complete any research 
for possible prohibiting records outside of system responses from NCIC, 
III, and the NICS Indices. This proposed rule would amend the 
definition of ``POC (Point of Contact)'' in 28 CFR 25.2 to reflect 
that, similarly, POCs that receive and process under-21 transactions 
\35\ will also be required to conduct the enhanced background checks 
for under-21 transactions now required under 34 U.S.C. 40901. To the 
extent POCs process under-21 transactions, those POCs have begun 
conducting the enhanced background checks. To account for BSCA's 
requirement to conduct the enhanced background checks, if finalized, 
and in contrast to current practice under 28 CFR 25.6(h), NICS will not 
presume that a POC proceeded a ``newly created'' under-21 transaction 
if the applicable POC has not provided NICS with a ``Delayed'' or 
``Denied'' determination message by ``the end of the operational day on 
which the transaction was initiated.'' The FBI proposes that 28 CFR 
25.6(h) be amended to reflect that change. As indicated previously, the 
FBI has shared any identified contacts, centralized or otherwise, with 
POCs so that POCs have the same contacts as the NICS Section. Both the 
NICS Section and POCs will utilize their own existing contact methods 
for contacting local law enforcement agencies during under-21 
transactions.
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    \35\ Again, persons under 21 are federally prohibited from 
receiving a handgun through an FFL, and the NICS Section currently 
processes only long gun transactions for all partial POCs.
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D. Attestation Process for Enhanced Background Checks

    The Department seeks public comments about a potential attestation 
process that is not a part of the current under-21 transaction process. 
The Department envisions that this attestation process would allow 
State agencies to voluntarily provide the FBI with an attestation that 
State law prohibits sharing juvenile mental health or juvenile justice 
records (or both). The attestation could be completed by a government 
official in the jurisdiction (State, District of Columbia, or 
Territory). For example, the head of the chief law enforcement agency 
for the jurisdiction, or that person's designee, whether that be the 
jurisdiction's Attorney General or the head of another agency, could 
submit this attestation. In addition to noting that State law prohibits 
the sharing of juvenile mental health or juvenile records (or both), 
such an attestation could include additional information regarding the 
law in the jurisdiction, including, for example, whether the State's 
laws also prohibit local law enforcement agencies from sharing juvenile 
records.
    This potential attestation process also could be applicable to 
State agencies that have informed NICS that they already send the 
requested juvenile mental health or juvenile justice records to NCIC, 
III, or the NICS Indices, as applicable. An option would be to make the 
attestation renewable at some defined interval (for example every 6 
months or annually), unless rescinded due to a change in State law. If 
an attestation process were implemented, the submission of an 
attestation would be discretionary; States could choose, for example, 
to decline to submit an attestation and to instruct their agencies to 
continue responding individually to NICS inquiries even if State law 
generally prohibits the sharing of relevant records. Also, reliance on 
an attestation would similarly be voluntary. Thus, even in States that 
have executed attestations, agencies could still reply to individual 
requests that they receive from the FBI or POCs. Finally, an agency 
would remain free to reply to individual requests in circumstances in 
which a State prohibition on disclosing the records has been lifted or 
when the agency has potentially responsive adult records for a subject. 
This potential attestation process may therefore afford the Department, 
the States, and local jurisdictions more flexibility in deciding how to 
process under-21 transactions.
    Under this potential attestation process, the FBI and POCs would 
continue to submit the requests for juvenile records as described in 
the enhanced background check provisions of 34 U.S.C. 40901(l)(1). With 
respect to a request involving a State jurisdiction that has submitted 
an attestation that conveys that the State agency is prohibited by 
State law from sharing the pertinent records, if the agency does not 
individually respond by the end of the third business day, then the 
attestation would prevent enhanced delay from being applied due to that 
agency's non-response. The FBI in such circumstances would provide the 
status ``No Known Prohibitors: At least one state or local agency has 
not responded or cannot respond.'' In addition, where the State has 
already verified by attestation that the requested juvenile records are 
already shared, as applicable, with NCIC, III, or the NICS Indices, the 
NICS Section would ``Proceed'' that transaction no later than the 
expiration of the third business day if no other potential prohibition 
exists needing further research, any other enhanced background check 
requests have responses or are covered by an

[[Page 100413]]

attestation similarly indicating that the relevant records are already 
shared, and the State has not individually responded to that enhanced 
background check request.
    For example, this potential attestation process could be used in 
the following scenario: NICS receives an under-21 transaction from an 
FFL in a State that is unable to share juvenile justice records or 
juvenile mental health records pursuant to existing State law. No other 
(potentially) prohibiting records are returned from NCIC, III, or the 
NICS Indices. NICS collects the subject's full residence address to 
complete the enhanced background checks. Using the full residence 
address, NICS immediately sends the enhanced background check requests 
as required by BSCA. These requests are sent to the State's established 
contacts for juvenile justice and mental health records, as well as to 
the relevant local law enforcement agency. The State has provided an 
attestation conveying that State law prohibits sharing both types of 
requested juvenile records. At the end of the third business day, all 
responses to which the attestation applies will be considered received 
and the transaction status will be updated to ``No Known Prohibitors: 
At least one state or local agency has not responded or cannot 
respond,'' provided there are no further prohibiting or potentially 
prohibiting records returned during the enhanced background checks. 
Federal law would then allow the FFL to transfer the firearm. If, under 
the same facts but, before the end of the third business day, the State 
and local agencies provide individual responses that the attestation no 
longer applies (because, for example, State law has changed to allow 
sharing of the relevant records) but that the agencies have found no 
potentially disqualifying records to share with NICS, the transaction 
will be updated to ``Proceed'' status. Federal law would then allow the 
FFL to transfer the firearm.
    If an attestation process is adopted, the FBI anticipates that the 
FBI would continue working with State entities to encourage discrete 
responses for each individual transaction where possible, even if a 
response notes that State law prohibits the agency from providing the 
juvenile records sought and would likewise prohibit the agency from 
providing similar records for other transactions. However, the 
attestation process may benefit the Department, prospective 
transferees, and the agencies contacted during enhanced background 
checks of under-21 transactions, as it could reduce, if not end, 
problematic results that Congress likely did not intend during the 
enhanced background check process.
    During the FBI's current implementation of enhanced background 
checks for under-21 transactions, it has found that agencies have grown 
frustrated with NICS's continued requests for juvenile records that 
cannot be shared. Consequently, some agencies have stopped responding 
at all to NICS, even if they had just been responding that they were 
prohibited from providing any records. The Department does not believe 
Congress intended to require State and local partners to carry out a 
potentially inconvenient process of repetitively providing responses to 
requests for juvenile records even in circumstances where the State and 
local partners know (and have already advised the FBI) that State law 
prohibits the sharing of the records. Currently, the Department is 
aware of 22 States and Territories that have laws that prohibit the 
sharing of both juvenile mental health and juvenile criminal history 
records,\36\ 6 States that have laws prohibiting the sharing of 
juvenile mental health records,\37\ and 8 States (and the District of 
Columbia) that have laws prohibiting the sharing of juvenile criminal 
history records.\38\ Four States have changed their laws to allow for 
sharing juvenile criminal history records, and one State has changed 
its laws to allow for sharing juvenile mental health records since the 
passage of BSCA.\39\
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    \36\ Based on the FBI's experience in conducting background 
checks for under-21 transactions, States and Territories with laws 
that prohibit sharing of both juvenile mental health and juvenile 
criminal history records are Arkansas, Alaska, Arizona, Colorado, 
Georgia, Hawaii, Indiana, Iowa, Louisiana, Montana, Nebraska, New 
Hampshire, North Dakota, Northern Mariana Islands, Puerto Rico, 
Rhode Island, South Dakota, Tennessee, the U.S. Virgin Islands, West 
Virginia, Wisconsin, and Wyoming.
    \37\ Based on the FBI's experience in conducting background 
checks for under-21 transactions, the States with laws that 
currently prohibit sharing of juvenile mental health records are 
Connecticut, Florida, Idaho, Massachusetts, New Mexico, and 
Oklahoma.
    \38\ Based on the FBI's experience in conducting background 
checks for under-21 transactions, the States with laws that 
currently prohibit sharing of juvenile criminal history records are 
Mississippi, Missouri, New York, North Carolina, Oregon, 
Pennsylvania, South Carolina, and Virginia. The District of Columbia 
also prohibits such sharing.
    \39\ Through correspondence with State agencies, the FBI learned 
that Connecticut, Kentucky, Nevada, and Vermont have changed their 
State laws to allow for sharing juvenile criminal history records. 
Texas has changed its State law to allow for sharing juvenile mental 
health records.
---------------------------------------------------------------------------

    Accordingly, the Department seeks comments as to whether a 
potential attestation process could foster strong relationships with 
State and local agencies while benefiting the Department and subjects 
of under-21 transactions by more promptly resolving many under-21 
transactions. The Department also seeks public comments as to any 
potential benefits or costs of an attestation process. What further 
information would the public find useful or necessary before the 
attestation process proceeds? If an attestation process is adopted, who 
do commenters believe should provide the attestation for the agencies? 
Are commenters aware of any State with laws that would allow local law 
enforcement agencies in that State to share juvenile justice or 
juvenile mental health records where State-level agencies would be 
limited or prohibited from sharing the same juvenile records? Are 
commenters aware of any local government passing a law or laws that 
limit or prohibit sharing juvenile records in circumstances where the 
laws of the State in which the local government is located do not 
similarly limit or prohibit such sharing? How frequently should 
attestations be renewed? Would attesting agencies prefer to craft their 
own attestations or use a template supplied by the FBI?

E. Severability

    The CAA and BSCA address critical but distinct components of the 
NICS background-check process. The Department believes that its 
proposals to implement these statutes are well-supported in law, 
reflect sound policy, and, once finalized, should be upheld against any 
legal challenge. However, if any portion of the proposed rule, once 
finalized, is declared invalid, the Department intends that the 
proposals contained herein, once finalized, be viewed as independent, 
necessary, and severable from each other to the maximum extent 
possible. Further, the Department intends that the provisions contained 
herein and in any resulting final rule be viewed as independent, 
necessary, and severable from the current NICS regulations under 28 CFR 
part 25. Accordingly, the Department proposes adding a severability 
provision in 28 CFR 25.1.
    As further described above, the CAA enacted the NDNA and added 
consideration of relevant firearm prohibitions imposed by local and 
Tribal governments during NICS checks under 18 U.S.C. 922(t). Further, 
as relevant to this rule, BSCA mandated enhanced background checks 
during each under-21 transaction and allowed for an extended delay 
(potentially up through the tenth business day) of some under-21 
transactions before an FFL may lawfully transfer the firearm(s) under 
Federal law. Each of those statutory mandates is independently

[[Page 100414]]

significant to the functioning of the NICS background-check process and 
thus independently requires updates to the Department's NICS 
regulations. While certain features of the FBI's implementation efforts 
overlap between proposals, these amendments remain severable proposals 
necessary to accomplish each of the statutory mandates. For example, 
residential address collection is necessary both to effectuate denial 
notifications in satisfaction of the NDNA and, separately, to conduct 
the enhanced State and local outreach required in connection with 
under-21 transactions pursuant to BSCA. If a court were to invalidate 
one or more of the provisions of the final rule resulting from the 
FBI's proposals pertaining to (1) local and Tribal prohibitions, (2) 
under-21 transactions, or (3) denial notifications, the Department 
intends that the remaining provisions of the final rule be severed from 
the invalidated provision(s) and that all remaining provisions stand.
    To obviate any doubt as to the Department's intent, even if some 
provision(s), once finalized, were deemed invalid (which, again, the 
FBI does not believe is supported), the Department would still have 
proposed each of the other provisions in this rule. Cf. American Fuel & 
Petrochemical Manufacturers v. E.P.A., 3 F.4th 373, 384 (D.C. Cir. 
2021) (EPA expressly stating the severability of sections of its rule 
in issue eliminated the potential for substantial doubt of the agency's 
intent). Each proposed amendment in this rule stands on its own with no 
reliance on another proposed amendment. Each proposed amendment is 
necessary, for example, to notify the public, update relevant NICS 
regulations, or to implement the provisions of the CAA or BSCA.

F. Separate Rulemakings

    BSCA also contained two provisions pertaining to FFLs for which the 
Department is conducting separate rulemakings, as discussed below.
    In RIN 1110-AA34, the Department has published an interim final 
rule to address the new provision allowing FFLs to receive information 
from the FBI's NCIC system relating to stolen firearms (specifically, 
for the purpose of determining whether a firearm offered to the FFL has 
been reported stolen). See Bipartisan Safer Communities Act--Access to 
Records of Stolen Firearms in the National Crime Information Center, 89 
FR 54344 (July 1, 2024). The amendments made by RIN 1110-AA34 do not 
impact NICS regulations; please consult RIN 1110-AA34 for further 
information about the regulatory amendments made therein. The 
Department requests that any public comments concerning FFLs receiving 
stolen gun information from NCIC be provided within and as directed by 
RIN 1110-AA34.
    Additionally, in RIN 1110-AA35, the Department is planning to issue 
a proposed rule amending the NICS regulations in compliance with a 
congressional mandate to promulgate regulations that will help limit 
firearms trafficking by allowing FFLs to voluntarily conduct NICS 
background checks with respect to current or prospective employees of 
the FFL if the person does, or will, transfer or otherwise handle 
firearms or ammunition for the FFL and has provided written consent for 
the NICS check. The Department proposes to describe those FFL employee 
checks as ``firearm handler background checks'' (also referred to as 
``FHCs'').
    The Department anticipates that RIN 1110-AA35 will be published as 
a proposed rule prior to finalizing the present rulemaking. Several 
regulations in 28 CFR part 25 contain provisions for which this notice 
of proposed rulemaking proposes amendments and which may also be the 
subject of proposed amendments in the forthcoming proposed rule in RIN 
1110-AA35. The Department will coordinate the final rules resulting 
from these rulemakings to ensure clarity and consistency.

III. Statutory and Executive Order Reviews

A. Executive Orders 12866 (Regulatory Planning and Review), 13563 
(Improving Regulation and Regulatory Review), and 14094 (Modernizing 
Regulatory Review)

    This proposed rule has been drafted and reviewed in accordance with 
Executive Order 12866, Executive Order 13563, and Executive Order 
14094. Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility.
    The Office of Management and Budget (``OMB'') has determined that 
this proposed rule is a ``significant regulatory action'' under 
Executive Order 12866, as amended by Executive Order 14094, and 
accordingly, this proposed rule has been reviewed by OMB.
1. Need for Federal Regulatory Action
    The Department is publishing this proposed rule to amend NICS 
regulations to implement various parts of the CAA, Public Law 117-103, 
and BSCA, Public Law 117-159.
2. Population
    Although manufacturers and importers may also initiate NICS checks 
when transferring firearms to non-licensees, dealers and pawnbrokers 
initiate most of the background checks on non-licensees. As of December 
of 2021, there were an estimated 50,588 FFLs that the FBI served across 
31 States and 5 Territories that will be impacted by this rule.\40\ 
There are also an estimated 10 or fewer computer software vendors that 
may be affected by this proposed rule. As further set out below, the 
FBI estimates, based on FBI subject matter experts' further internal 
analysis of 2021 annual transaction numbers,\41\ this proposed rule 
will impact approximately 2 million NICS transactions per calendar 
year.\42\
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    \40\ See FBI, National Instant Criminal Background Check System 
Operational Report 2020-2021 7 (Apr. 2022), https://www.fbi.gov/file-repository/nics-2020-2021-operations-report.pdf/view 
(``Operational Report'').
    \41\ See Operational Report at 13.
    \42\ This number is based upon the transactions about which full 
addresses are collected from FFLs for denial notifications 
(approximately 1.428 million transactions) and under-21 transactions 
(approximately 340,000 transactions), for a total of approximately 
1.7 million transactions. That total would be increased by the 
number of transactions that are impacted by local or Tribal firearm 
prohibitions, but that number of transactions cannot be estimated at 
this time. As described below, some FFLs will also be impacted by 
needing to update additional delays of some under-21 transactions; 
however, those under-21 transactions have already been included due 
to the need to collect address information.
---------------------------------------------------------------------------

3. Benefits
    This proposed rule benefits the public, public safety, and 
interested populations in several ways. First, this proposed rule 
benefits the public and interested populations by further clarifying 
how NICS procedures and regulations comply with the relevant mandates 
imposed by the CAA and BSCA. As discussed above and below, public 
safety will benefit from this proposed rule in several ways. Rather 
than only a single State-level entity receiving a denial notification, 
State and local law enforcement in multiple jurisdictions will, under 
the proposed rule, each receive a timely notification

[[Page 100415]]

containing (1) the name of a prohibited person who has been denied the 
receipt of a firearm during a NICS transaction, (2) information on 
where that prohibited person claims to reside, and (3) information 
about the FFL where that transaction took place. Authorities in the 
jurisdiction in which the attempted transaction occurred will be able 
to take more timely action(s) when prohibited persons attempt to obtain 
firearms through FFLs in their jurisdiction. If the attempt is made 
outside of the prohibited person's jurisdiction of residence, the State 
and local law enforcement in the jurisdiction of residence will also 
have timely awareness and be able to take any actions necessary. This 
information will allow for potential retrievals of firearms, 
apprehensions of prohibited persons, interviews of witnesses, and 
collection of other potentially relevant evidence.
    There are also public safety benefits in applying the NDNA to 
delayed transactions. When a NICS transaction is denied after the third 
business day, such circumstances are known as ``delayed denials.'' 
Delayed denials impact public safety because those transactions may 
have resulted in an FFL transferring at least one firearm to a 
prohibited person before the transaction could be denied. When a 
delayed denial occurs, the FFL is contacted to determine whether the 
transfer of one or more firearms occurred. If a transfer did occur, ATF 
is notified by the NICS Section of the need to retrieve any firearms. 
Providing address information up front in delayed transactions will 
benefit public safety because prohibited persons' residential addresses 
will be readily available to immediately provide to applicable local 
law enforcement authorities, who can then take any applicable action. 
Critical time will not be lost waiting for another contact with the FFL 
to collect the address at that point in time (or perhaps await 
confirmation as to whether the firearm was in fact transferred). If, 
for example, the FFL happens to be closed and NICS cannot connect with 
the FFL in a timely manner (to update the denial or collect the full 
address), particularly after the third business day, at which time the 
firearm may have already transferred, the resulting delays jeopardize 
public safety by potentially increasing the time that a prohibited 
person has a firearm.
    This proposed rule also would benefit interested populations by 
minimizing impacts to prospective transferees and FFLs by requiring 
further residential address information only if the prospective 
transferee has been denied by NICS, has had a prospective firearm 
transfer delayed, may be subject to an applicable local or Tribal 
firearm prohibition, or is under 21 years of age. The Department does 
not propose that all prospective firearm transferees have their full 
residential address information submitted to NICS simply because that 
information is now required for some NICS transactions. Limiting the 
scope of the proposed rule in this way benefits prospective transferees 
because most will not need to have further address information provided 
to NICS. Similarly, limiting the scope of the rule in this fashion 
benefits FFLs as well by not requiring FFLs to spend time providing 
NICS with unnecessary additional address information in every 
transaction they submit. Further, by requiring the information be 
provided upon the initial contact (where an instantaneous review of 
available information about the person reveals that the transaction 
must be delayed or denied, the person is under 21, or to determine if 
the person is potentially subject to an applicable local or Tribal 
firearm prohibition), this rule reduces the need to contact the FFL at 
a later time to obtain this information.
4. Costs
    This proposed rule will affect NICS transactions that: (1) may be 
impacted by local or Tribal prohibitions; (2) have been delayed or 
denied; or (3) involve persons under 21 years of age wishing to receive 
or be transferred a firearm from an FFL. Because the scope of 
applicable local or Tribal prohibitions is still being researched, it 
is unknown how many such prohibitions exist, but the FBI does not 
anticipate many will be identified. Notably, FBI research currently 
reveals that 43 States have preempted local jurisdictions from imposing 
firearms prohibitions that exceed the firearms prohibitions imposed by 
State law.\43\ States cannot preempt Tribal laws, however, so the FBI 
is continuing its research for applicable Tribal firearm prohibitions. 
There are 574 federally recognized Tribes, see Indian Entities 
Recognized by and Eligible To Receive Services From the United States 
Bureau of Indian Affairs, 88 FR 54654, 54654 (Aug. 11, 2023), 
exercising jurisdiction in Indian country, 18 U.S.C. 1151. More than 
300 of these Tribes are currently located within the States of Alaska, 
California, and Oklahoma.\44\ An initial review of publicly available 
resources revealed that a number of these federally recognized Tribes 
may have enacted laws regulating the possession or use of firearms 
within their respective jurisdictions.\45\ Review of Tribal codes is 
ongoing to determine to what extent the use of Tribal firearm 
possession prohibitions will arise during NICS background checks and 
will, therefore, impact FFLs, prospective transferees, or Tribes. More 
specifically, to reasonably assess any applicable impact such 
prohibitions may have, the FBI will review active Tribal codes for 
firearm prohibitions that differ from existing Federal (or applicable 
State) prohibitions. The Department welcomes comments from the public 
that, for example, may assist the FBI in effectively and accurately 
identifying the federally recognized Tribes that have imposed their own 
firearm prohibitions. Many Tribes already contribute relevant orders to 
FBI CJIS systems to help determine possible Federal firearm 
prohibitions in individual cases, and the FBI encourages Tribes to 
continue to do so. Given the number of Tribes and the diverse nature of 
Tribal firearms laws, the FBI is unable, at this time, to reasonably 
estimate the impact the additional Tribal firearm possession 
prohibitions will have during NICS background checks. The FBI will be 
conducting outreach with representatives of federally recognized Tribes 
and seeking comment from the public generally as the FBI moves to 
incorporate additional Tribal firearm prohibitions into the analysis of 
prospective firearm transfers. Consequently, the fiscal impact analysis 
of this proposed rule will focus upon the other impacts that denial 
notifications and research associated with enhanced outreach during 
under-21 transactions may have upon firearm transfers submitted by 
FFLs.
---------------------------------------------------------------------------

    \43\ See Nat'l League of Cities, City Rights in an Era of 
Preemption: A State-by-State Analysis 23 (2018), https://www.nlc.org/resource/city-rights-in-an-era-of-preemption-a-state-by-state-analysis/; see also Giffords Law Ctr., Preemption of Local 
Laws, https://giffords.org/lawcenter/gun-laws/policy-areas/other-laws-policies/preemption-of-local-laws/ (last visited Oct 4, 2024) 
(reporting that there are five States with ``no state laws expressly 
preempting local authority to regulate firearms or ammunition'' and 
two additional States that ``allow local governments to retain 
substantial authority to regulate firearms and ammunition,'' but 
where ``the state legislature has expressly removed this authority 
in certain areas'').
    \44\ See, e.g., U.S. Dep't of the Interior, Indian Affairs, 
Tribal Leaders Directory, https://www.bia.gov/service/tribal-leaders-directory (last visited Oct. 4, 2024); Nat'l Cong. of Am. 
Indians, Tribal Nations & the United States: An Introduction (Feb. 
2020), https://www.ncai.org/about-tribes/demographics.
    \45\ See, e.g., Nat'l Indian Law Library, Tribal Law Gateway: 
Find Tribal Law Material by Tribe, https://narf.org/nill/triballaw/index.html (last visited Oct. 4, 2024).
---------------------------------------------------------------------------

    As described above, under the NDNA, the FBI is required to send 
denial notifications to the local law

[[Page 100416]]

enforcement authority of the State or Tribe in whose jurisdiction a 
firearm was sought and, if different, where the denied person resides 
when the FBI denies a NICS transaction that would violate 18 U.S.C. 
922(g) or (n) or State, local, or Tribal law. The FBI needs to collect 
more specific residency information during a subset of NICS 
transactions to comply with the NDNA.
    For under-21 transactions, as set out above, an enhanced NICS 
background check entails contacting State and local entities to 
determine if the prospective transferee has a possibly disqualifying 
juvenile record as described in 18 U.S.C. 922(d). Some enhanced 
outreach during under-21 transactions may show that cause exists to 
further investigate a possibly disqualifying juvenile record under 18 
U.S.C. 922(d). If such cause exists, the under-21 transaction will be 
placed into an additional delay period not to exceed the tenth business 
day from when the licensee contacted NICS.
    For all of these described transactions, FFLs must, using 
information the prospective transferee places on the revised Form 4473, 
provide to the FBI the prospective transferee's complete residential 
address so that NICS can determine whether a local or Tribal 
prohibition should be considered and for investigation and reporting 
when a NICS transaction has otherwise been delayed or denied. Further, 
where cause exists for additional delay of an under-21 transaction, and 
the FFL has been so notified before expiration of the third business 
day, the FFL will be prohibited from transferring the firearm until 
after the tenth business day, unless the FFL first receives a 
``Proceed'' response. In such instances, conveying the additional delay 
period to an FFL will likely require an additional contact--
telephonically or electronically--beyond what was previously necessary, 
as well as an obligation by an FFL to record the additional delay on 
the revised Form 4473.
i. Costs: Updated Prohibitions
    In order to determine whether a local or Tribal prohibition would 
be applicable to a prospective transfer, the Department proposes 
requiring FFLs to provide the residential addresses (and city limits 
information) of a prospective firearm transferee for certain 
transactions. Address information would be based upon the State of 
residence of the prospective transferee, State of purchase, and initial 
results from the three primary databases NICS searches during each 
transaction. As noted previously, State law preempts many local firearm 
prohibitions, and initial research has not revealed a substantial 
number of existing local firearm prohibitions.
    As noted above, review of Tribal codes is ongoing to determine to 
what extent the use of Tribal firearm possession prohibitions will 
arise during NICS background checks and will, therefore, impact 
prospective transferees or Tribes. The FBI is, however, unable at this 
time to reasonably estimate the costs, if any, that the added 
consideration of Tribal firearm possession prohibitions will have 
during NICS background checks.
    Ultimately, the FBI does not anticipate that a large number of NICS 
transactions will involve local or Tribal prohibitions that would 
preclude transfers permitted by applicable Federal or State law. 
Further, the FBI believes that most instances would fall under the 
broader delayed or denied circumstances noted below and would impose 
nominal to no financial impact upon FFLs. The Department requests 
public comments regarding potential costs that may impact Tribes, 
prospective transferees, and FFLs.
ii. Costs: Under-21 Transactions
    Federal law authorizes FFLs to transfer only long guns to 
individuals under the age of 21. See 18 U.S.C. 922(b). In 2021, 
internal FBI subject matter experts estimated there were approximately 
6.5 million total transactions involving the prospective transfer of a 
long gun.\46\ Subject matter experts within the FBI also anticipate 5 
percent, or lower, of annual long gun transactions constitute under-21 
transactions. That percentage equates to approximately 325,000 under-21 
transactions.\47\ For the purposes of this analysis, the FBI estimates 
that it would take 30 seconds (0.0083 hours) per under-21 transaction 
to provide address information from the Form 4473 to NICS 
(telephonically or electronically). That process is therefore estimated 
to result in an additional 2,698 work hours from FFLs per year.\48\
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    \46\ FBI, NICS Firearm Checks: Year by State/Type, https://www.fbi.gov/file-repository/nics_firearm_checks_-_year_by_state_type.pdf/view (last visited Oct. 4, 2024).
    \47\ 325,000 transactions = 6.5 million NICS checks * 5 percent 
of transactions involving individuals under the age of 21.
    \48\ 2,698 aggregate hourly burden = 325,000 transactions * 30 
seconds (.0083 hours) per transaction.
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    The FBI uses some possible wage rates from the Bureau of Labor 
Statistics (``BLS'') and uses the average wage rate as the wage rate 
for FFLs. The FBI uses a loaded wage rate to account for fringe 
benefits such as insurance. The ``load rate'' used for this proposed 
rule is 1.42.\49\ Table 1.0 shows the estimated wage rates and loaded 
wage rates.
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    \49\ BLS Series ID CMU2010000000000D,CMU2010000000000P (average 
of 2021 quarterly Private Industry Compensation = $37.15)/BLS Series 
ID CMU2020000000000D,CMU2020000000000P (average of 2021 quarterly 
Private Industry Wages and Salaries = $26.23) = load rate of 1.42 
(rounded up). See BLS, BLS Data Finder 1.1, https://beta.bls.gov/dataQuery/find?fq=survey:[cm]&s=popularity:D (last Oct. 4, 2024). 
The ``load rate'' takes into account additional compensation for 
fringe benefits such as insurance.

       Table 1.0--Wage Categories Used for the FFL Community \50\
------------------------------------------------------------------------
                                                            Loaded wage
              Job category                   Wage rate         rate
------------------------------------------------------------------------
11-2022 Sales Managers..................          $68.46          $97.22
41-2011 Cashiers........................           12.87           18.28
41-2031 Retail Salespersons.............           15.35           21.80
                                         -------------------------------
    Average.............................           32.23           45.77
------------------------------------------------------------------------

    Using an average, loaded wage rate for staff of BLS job categories 
that the FBI anticipates may be involved in prospective firearm 
transfers for FFLs, which is $46.00 per hour (rounded up), providing 
address information to NICS

[[Page 100417]]

for under-21 transactions would result in an estimated annual cost to 
the FFL community of $125,000.\51\ Even if the FBI's address collection 
time from an FFL is estimated at 1 minute (.0167 hours) per 
transaction, this would only be an anticipated yearly cost of 
approximately $250,000.
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    \50\ Chart sources for Wage Categories used for the FFL 
community from BLS:
    BLS, Occupational Employment and Wages, May 2021: 11-2022 Sales 
Managers (Mar. 31, 2022), https://www.bls.gov/oes/2021/may/oes112022.htm.
    BLS, Occupational Employment and Wages, May 2021: 41-2011 
Cashiers (Mar. 31, 2022) https://www.bls.gov/oes/2021/may/oes412011.htm.
    BLS, Occupational Employment and Wages, May 2021: 41-2031 Retail 
Salespersons (Mar. 31, 2022), https://www.bls.gov/oes/2021/may/oes412031.htm.
    \51\ 2,698 work hours * $46 loaded hourly wage rate = $124,108 
($125,000, rounded up).
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    For a subset of these under-21 transactions, there may be an 
additional delay notification. For the purposes of this analysis, the 
Department assumes 50 percent (162,500) of all under-21 transactions 
will have cause established and require that the FFL be notified of 
additional delay being applied to the transaction (which includes 
providing the FFL with the amended Brady transfer date \52\). 
Estimating an average of 3 minutes (.05 hours) per additional delay 
notification, this may require an additional 8,125 work hours per year 
for all FFLs in total.\53\ Multiplying 8,125 hours by the estimated BLS 
average loaded wage rate of $46.00 (rounded up), this additional delay 
notification will impose an estimated yearly combined cost to FFLs of 
approximately $374,000. The aggregate estimated impact to all FFLs in 
total for under-21 transactions is therefore anticipated to be $499,000 
per year.\54\
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    \52\ The amended Brady transfer date would be the day after the 
tenth business day.
    \53\ FBI internal subject matter experts have noted that almost 
all POCs have some form of State-implemented processes that, even 
before BSCA, already required FFLs in those States to collect and 
report the full residence addresses of some subjects. Further, FFLs 
in some POC States will not be impacted by enhanced delay for some 
subjects of under-21 transactions because those States have 
mandatory waiting periods that meet or exceed 10 business days. 
Additionally, many POC States currently have laws that, generally, 
do not allow even long guns to be transferred to persons who are 
under 21 years of age. See, e.g., Giffords Law Ctr., Minimum Age to 
Purchase & Possess, https://giffords.org/lawcenter/gun-laws/policy-areas/who-can-have-a-gun/minimum-age/ (last visited Oct. 4, 2024).
    \54\ $499,000 = $374,000 (50 percent additional delay of under-
21 transactions total of 162,500) + $125,000 (aggregate cost to 
provide under-21 address information at 30 seconds (.0083 hours) per 
transaction). The aggregate cost impact to the FFL community for 
under-21 transactions is approximately $635,000 ($374,000 + 
$261,000) if estimating 1 minute (.0167 hours) average for FFLs to 
provide address information during each under-21 transaction.
---------------------------------------------------------------------------

    In conjunction with the impacts to FFLs, there are a limited number 
of vendors that will also incur cost to provide software programming 
updates to some FFLs' electronic systems used to communicate with NICS. 
These updates will be required for the FFL to receive the amended Brady 
transfer date during an under-21 transaction when cause for additional 
delay exists. This cost will only impact those FFLs who submit their 
background checks by E-Check and are eXtensible Markup Language 
(``XML'') users.\55\ There are approximately 10 total vendors serving 
all XML users. XML users predominantly are within the larger, corporate 
FFLs (some of which have in-house personnel that would perform these 
system updates), but the FBI estimates 95 FFLs that would be considered 
small entities also utilize XML to communicate with NICS and are served 
by these vendors. Using the same load rate (1.42) used in Table 1.0 
above for calculating costs to FFLs, the FBI calculates below the 
average loaded wage rate for anticipated job categories of vendors 
providing XML software updates for the FFLs. The Department has 
identified BLS job categories within these 10 vendors that are 
anticipated to be involved with these software updates. Table 2.0 
provides the wage rates and loaded wage rates for such vendor employees 
as well as their averages.
---------------------------------------------------------------------------

    \55\ XML provides FFLs an additional, electronic secure server-
to-server method (in addition to E-Check) of submitting a NICS 
background check to the FBI. Operational Report at 10.

      Table 2.0--Wage Categories Used for the Software Updates \56\
------------------------------------------------------------------------
                                                                  Loaded
                     Job category                         Wage     wage
                                                          rate     rate
------------------------------------------------------------------------
15-1251 Computer Programmers..........................   $46.46   $65.97
15-1252 Software Developers...........................    58.17    82.60
                                                       -----------------
    Average...........................................    52.32    74.29
------------------------------------------------------------------------

    Assuming that it would take 100 hours to update their software, 
multiplied by an estimated average loaded wage rate (rounded up) of 
$75.00, the FBI anticipates a one-time cost to each vendor of $7,500 or 
less to make these updates. The FBI anticipates this would not be a 
significant financial impact to the vendors because the costs would 
likely be passed onto the particular FFLs that would require the 
updates or the costs would be covered by existing contracts or 
agreements between the vendors and FFLs.
---------------------------------------------------------------------------

    \56\ Chart sources for Wage Categories used for the FFL 
community from BLS:
    BLS, Occupational Employment and Wages, May 2021: 15-1251 
Computer Programmers (Mar. 31, 2022), https://www.bls.gov/oes/2021/may/oes151251.htm.
    BLS, Occupational Employment and Wages, May 2021: 15-1252 
Software Developers (Mar. 31, 2022), https://www.bls.gov/oes/2021/may/oes151252.htm.
---------------------------------------------------------------------------

iii. Costs: Notifications Required by the NDNA
    In addition to requiring that FFLs provide address information for 
under-21 transactions and where needed to determine whether a local or 
Tribal prohibition may apply, the proposed rule will require FFLs to 
provide the residential addresses of prospective firearm transferees 
for all delayed and denied transactions to allow the FBI and POCs to 
implement the NDNA's requirement of sending denial notifications as 
described above. In 2021, internal FBI subject matter experts estimated 
that 1,428,000 \57\ firearm background checks processed by the FBI \58\ 
were either delayed or denied.\59\

[[Page 100418]]

As above for under-21 transactions, if it takes 30 seconds (0.0083 
hours) per transaction for the FFL to provide the NICS Section with the 
applicant's address as required, then providing this information will 
require an additional 11,853 (rounded up) working hours per year for 
the FFL community. The average loaded wage rate used for the FFL 
community (see Table 1.0) is estimated at $46.00 per hour (rounded up). 
This address collection for delayed and denied transactions will impose 
an estimated yearly cost of $545,238 \60\ to the FFL community.\61\
---------------------------------------------------------------------------

    \57\ According to internal FBI subject matter experts' estimate 
of transactions the NICS Section performed in 2021, 1,388,000 were 
delayed and approximately 40,000 more were immediately denied 
without being placed into delay. An example of an immediate denial 
would be a transaction denied based upon a biographic match to a 
NICS Indices entry. The NICS Section reported performing a total of 
11,106,931 NICS background checks in 2021. See Operational Report at 
13.
    \58\ The NDNA will impact POCs but, due to a variety of factors, 
the Department anticipates the address collection necessary to 
implement the NDNA will have little to no economic impact (let alone 
a significant economic impact) on small entity FFLs in POC States. 
FBI internal subject matter experts estimate there are 10,300 FFLs 
in POC States that would be considered small entities. In addition 
to the Form 4473 needing to be completed by prospective firearm 
transferees, some POC States have laws that also require separate 
State paperwork to be completed and provided to the POC. Those State 
forms will often require FFLs in those States to collect and provide 
the POC with the subject's full residence address. See, e.g., 
California Dep't of Just., Bureau of Firearms, Dealer's Record of 
Sale (DROS) Worksheet (May 2023), https://des.doj.ca.gov/forms/DROS_Worksheet_BOF-929.pdf. Also, as discussed in Section II.B of 
this preamble, before the NDNA was enacted, most POC States already 
had their own denial notification procedures in place, and those 
procedures would require the FFLs to produce the subject's residence 
information at some point. Some POCs may collect full residence 
address information through means other than the FFL, such as by 
completing a driver's license check on the subject. Some POC States 
have laws that require that permits to purchase be obtained before 
any firearms can be purchased in those States; as a result, some of 
those permit applicants may never be approved for a permit that 
would allow them to attempt a firearm transfer through FFLs in that 
State. These State processes mean there are a variety of ways in 
which FFLs in POC States are already required to collect and report 
residence address information of subjects or where State laws 
reduced the pool of (potentially) prohibited persons that could be 
subject to the NDNA because they are ineligible to attempt firearm 
purchases in those POC States.
    \59\ The NICS Section reported denying 153,565 transactions in 
2021. See Operational Report at 18-19. FBI subject matter experts 
note that this total includes an estimated 3,000 denials of non-
Brady NICS background checks, which would not be denied transactions 
where the NDNA mandates notification to local law enforcement 
authorities. These other checks include checks for the Disposition 
of Firearms and for the Nuclear Regulatory Commission, see id. at 
25, as well as those conducted for ATF under their National Firearms 
Act and Gun Control Act responsibilities, see, e.g., id. at 21. 
Further, also not subject to this rule, the totals for explosives 
checks, see id. at 14, would be in addition to the totals provided 
in this footnote and footnote 57 above.
    \60\ Even if the address collection time were estimated at 1 
minute (.0167 hours) per transaction, this would be an anticipated 
yearly cost of $1.1 million.
    \61\ The FBI notes that there were 7,711,803 total, non-permit 
NICS checks conducted by all POCs in 2021. See Operational Report at 
13.
---------------------------------------------------------------------------

    Between anticipated yearly under-21 transaction costs and other 
costs anticipated from yearly delay or denial address collections 
stemming from the NDNA, the FBI anticipates an aggregate economic 
impact of approximately $1.04 to $1.18 million for all FFLs in States 
in which the FBI processes NICS background checks and an estimated cost 
of $75,000 for the vendor community, which is expected to be passed 
onto the FFLs.\62\ The total impact to the FFL community is estimated 
to be $1.12 to $1.26 million. This amount includes the requirement to 
produce to NICS further address information during under-21 
transactions and for purposes of the NDNA; some FFLs receiving 
subsequent notification for (and recording on the revised Form 4473) 
the amended Brady transfer date during under-21 transactions as 
required by BSCA; and the estimated vendor costs that are anticipated 
to be passed on to the FFLs.\63\
---------------------------------------------------------------------------

    \62\ Not taken into account is the fact that use of the 2021 
total of delayed and denied transactions will include some persons 
who also fall into the under-21 transaction category, resulting in 
some duplication of FFL costs related to address collection needs 
described in this preamble.
    \63\ The total estimated cost incurred by FFLs for under-21 
transactions is $499,000 ($635,000 if estimating 1 minute per 
address collection) + $545,238 (FFL total costs incurred by the NDNA 
address collection) + $75,000 (estimated vender costs passed on to 
FFLs), for a total of between $1.12 million and $1.26 million.
---------------------------------------------------------------------------

iv. Costs: Government
    State, local, and Tribal agencies that enforce juvenile criminal 
justice and mental health laws, as well as any State repositories of 
such records, may receive requests for juvenile record information from 
NICS that they have not received in years past; however, those entities 
are under no obligation to respond, and some government entities are 
prohibited under State laws from providing juvenile records to NICS. 
The Department seeks comments from State, local, and Tribal entities on 
costs of processing a contact for juvenile records for an under-21 
transaction. In addition to the State, local, and Tribal agencies 
described in 34 U.S.C. 40901(l) receiving the FBI's requests for 
juvenile justice and mental health records, any records those agencies 
provide to the FBI may lead to the FBI requesting further records from 
additional State, local, or Tribal agencies (such as courts or 
prosecuting authorities). Again, Federal law does not require State, 
local, or Tribal agencies to respond to the FBI's requests for records 
(and, in some instances, State, local, or Tribal laws may prohibit 
those agencies from disseminating records concerning a juvenile's 
mental health or juvenile justice history).
    Should the Department ultimately decide to use the enhanced under-
21 outreach or denial notifications during other authorized uses of 
NICS, there would be some additional contacts of some State and local 
entities. That additional number of contacts cannot be currently 
estimated because there are unknown numbers of persons determined to be 
prohibited or under 21 years of age who may be checked through NICS. 
While some statistics are available concerning denials recommended 
through use of NICS, those numbers also cannot be reasonably estimated 
after enactment of BSCA.\64\
---------------------------------------------------------------------------

    \64\ For example, 2021 saw ATF run about 138,500 NICS checks for 
explosives licensing, see 18 U.S.C. chapter 40, with 1656 being 
recommended for denial; there were 133 total backgrounds of security 
personnel under 42 U.S.C. 2201a in 2021; and there were 121,961 
Disposition of Firearms checks through NICS, with 2150 denied. 
Operational Report at 14, 25. The FBI routinely publishes such 
statistics.
---------------------------------------------------------------------------

B. Executive Order 13132 (Federalism)

    This proposed rule may have direct effects on the States; however, 
such effects will not be substantial, nor will such impact 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 proposed 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 statutory provisions enacted as part of the 
CAA and BSCA. The FBI is developing systematic solutions for 
collections, notifications, and contacts required by the CAA and BSCA. 
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 (``IRFA'') 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). While the statistics below support a conclusion 
that this proposed rule, if promulgated, would not result in a 
significant economic impact on a substantial number of small entities, 
the FBI has, in an abundance of caution, nonetheless prepared an IRFA.
    In accordance with the RFA, the FBI prepared an IRFA that examines 
the impacts of the proposed rule on small entities. The term ``small 
entities'' 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. The FBI performed an IRFA of the impacts on small 
businesses and other entities of this proposed rule. The FBI performed 
this IRFA using the known or estimated statistical and cost information 
discussed below.
    Based on the information from this analysis, the FBI found:
    [cir] The FBI's internal subject matter experts estimate that in 
States in which the FBI processes NICS background checks, the FBI 
served 47,100 FFLs (rounded up) in 2021 that would have been considered 
small businesses under

[[Page 100419]]

Small Business Administration sizing standards.\65\
---------------------------------------------------------------------------

    \65\ There are an estimated 3,500 FFLs in States where the FBI 
processes NICS background checks and that the FBI anticipates would 
not be considered small entities because they are larger, retail, or 
corporate stores that have chains of locations throughout the United 
States. As noted in footnotes 53 and 58 of this preamble, for a 
variety of reasons, internal FBI subject matter experts anticipate 
that, because of State processes required in many POC States before 
the NDNA or BSCA were effective, the processes this rule reflects or 
proposes to implement for denial notifications and under-21 
transactions will not result in a significant economic impact to 
most of the 10,300 small entity FFLs in POC States. For those same 
reasons, however, the Department cannot reasonably estimate a more 
precise economic impact that those FFLs in POC States may experience 
due to denial notifications or under-21 transactions; again, 
however, it is anticipated that most FFLs in POC States will 
experience little to no economic impact due to this rule.
---------------------------------------------------------------------------

    [cir] The FBI estimates that this proposed rule would potentially 
affect most FFLs that use NICS to determine whether a potential firearm 
transfer may ``Proceed,'' is ``Denied,'' or is ``Delayed.''
    [cir] The highest anticipated cost will be for under-21 
transactions, where personnel for a small entity FFL, within the third 
business day, would need to take time to locate the prospective 
transferee's Form 4473 and indicate that additional delay of that 
transaction has been established and that there is a new Brady transfer 
date (the day after the tenth business day). The Brady transfer date 
reflects when Federal law would allow that firearm to be transferred if 
the FFL is not first provided with a ``Proceed'' or ``Denied'' response 
from the FBI or a POC. The FBI anticipates these scenarios will average 
3 minutes (.05 hours) of time for the FFL to complete this new process.
    [cir] FFLs would need to make $2,200 or less in revenue in order to 
incur an impact of 1 percent or more. This estimate is based upon the 
following analysis: The FBI estimates a $2.65 cost per small-entity FFL 
to provide address information for under-21 transactions ($125,000 
aggregate cost to FFL community/47,100 estimated small entity FFLs) + a 
$7.82 cost per FFL for additional delay notifications ($373,000 
aggregate/47,100) + a $11.58 cost per FFL for the NDNA address 
collection ($545,238/47,100) = estimated $22 (rounded down) per small 
entity FFL, per year to implement these new provisions.\66\
---------------------------------------------------------------------------

    \66\ The total impact to each FFL using the larger estimates 
provided earlier is $37.00 (rounded up) cost per small entity FFL 
($5.54 (for under-21 address collection of $261,000/47,100 FFLs) + 
$23.36 (for NDNA address collection at $1.1 million/47,100) + $7.94 
(for additional delay notifications $374,000/47,100)). This results 
in an FFL needing to earn $3,700 or less in revenue to incur an 
impact of one percent or more. Again, not taken into account is the 
fact that the use of the 2021 total delayed and denied transactions 
will include some persons who also fall into the under-21 
transaction category, resulting in some duplication of FFL costs 
related to address collection needs described in the preamble. Also 
not included here are FFLs located in POC States because there are 
variety of factors that may exclude many of those FFLs from the 
equations noted above. For example, not all FFLs in POC States will 
conduct under-21 transactions because several of those States, like 
Florida and Hawaii, have laws that do not (or with limited 
exceptions, do not) allow persons under 21 years of age to purchase 
firearms. See footnotes 53, 58, and 65.
---------------------------------------------------------------------------

    [cir] The FBI estimates that 10 or fewer software vendors that 
serve a limited portion (estimated to be 100 or fewer) of these 47,100 
small entity FFLs may indirectly have a one-time significant impact as 
a result of the mandates from Congress reflected in this proposed rule, 
but that they may redistribute the overall costs in small fees to the 
FFLs they serve.
    [cir] There will be an impact on government entities, but that 
impact will not be significant, and those government entities are not 
obligated to take any particular actions based upon the notifications 
or requests that are submitted to them by the FBI.
Preliminary Initial Regulatory Flexibility Analysis
    The RFA establishes that agencies must try to fit regulatory and 
informational requirements to the scale of the businesses, 
organizations, and governmental jurisdictions subject to regulation. To 
achieve this goal, agencies must solicit and consider flexible 
regulatory proposals and explain the rationale for their actions to 
assure that such proposals are given serious consideration.
    Under the RFA, agencies are required to consider what, if any, 
impact a proposed rule would have on small entities. Although the FBI 
anticipates that this proposed rule will not have a significant 
economic impact upon a substantial number of small entities, the FBI 
has prepared an IRFA. Under 5 U.S.C. 603(b), the regulatory flexibility 
analysis must provide or address:
    (1) A description of the reasons why action by the agency is being 
considered;
    (2) A succinct statement of the objectives of, and legal basis for, 
the proposed rule;
    (3) A description of and, where feasible, an estimate of the number 
of small entities to which the proposed rule will apply;
    (4) A description of the projected reporting, recordkeeping, and 
other compliance requirements of the proposed rule, including an 
estimate of the classes of small entities that will be subject to the 
requirement and the type of professional skills necessary for 
preparation of the report or record; and
    (5) An identification, to the extent practicable, of all relevant 
Federal rules that may duplicate, overlap, or conflict with the 
proposed rule.
    In addition, under 5 U.S.C. 603(c), the IRFA must also contain a 
description of any significant alternatives to the proposed rule that 
accomplish the stated objectives of applicable statutes and that 
minimize any significant economic impact of the proposed rule on small 
entities.
    Following is an analysis of each of these factors:
    A description of the reasons why action by the agency is being 
considered.
    The Department is publishing this proposed rule to amend NICS 
regulations to implement various parts of the CAA and BSCA.
    A succinct statement of the objectives of, and legal basis for, the 
proposed rule.
    The objective of this proposed rule is to comply with procedures 
mandated by Congress to prevent prohibited persons from obtaining 
firearms from FFLs. The Department is publishing this proposed rule to 
amend NICS regulations to implement various parts of the CAA and BSCA.
    A description of and, where feasible, an estimate of the number of 
small entities to which the proposed rule will apply.
    Based on the FBI's statistics reported from 2021,\67\ there are an 
estimated 50,855 FFLs that may be impacted by this rule, the majority 
of which would be considered as small entities. The FBI's internal 
subject matter experts note that, indirectly, an estimated 10 or fewer 
computer software vendors may be affected by this proposed rule. The 
FBI's internal subject matter experts also estimate the majority of 
these FFLs and vendors would be considered small.
---------------------------------------------------------------------------

    \67\ See Operational Report at 7.
---------------------------------------------------------------------------

    A description of the projected reporting, recordkeeping, and other 
compliance requirements of the proposed rule, including an estimate of 
the classes of small entities that will be subject to the requirement 
and the type of professional skills necessary for preparation of the 
report or record.
    As described previously, FFLs currently collect the information 
about prospective transferees necessary for NICS to implement the 
congressional mandates of the CAA and BSCA as relevant to this proposed 
rule. This rule proposes that FFLs would now be

[[Page 100420]]

required to provide this information to NICS for (1) under-21 
transactions subject to an enhanced background check under BSCA; (2) 
individuals who may be subject to a firearm prohibition under 
applicable local or Tribal law; and (3) individuals whose background 
has led to their NICS transaction being delayed for further research of 
a possible disqualification or denied due to a disqualification as 
described in 18 U.S.C. 922(t). Each FFL will also, on an annual basis, 
likely have to record the additional delay of a limited number of 
under-21 transactions that the FFL processes (moving the allowed Brady 
transfer date from the day after the third business day to the day 
after the tenth business day) after the FBI has notified the FFL the 
transaction has been placed into additional delay. Where an FFL 
utilizes electronic recordkeeping, the FBI anticipates updates to those 
computer systems by software vendors necessary to capture the 
additional delay information.
    An identification, to the extent practicable, of all relevant 
Federal rules that may duplicate, overlap, or conflict with the 
proposed rule.
    There are no duplicate or overlapping rules. While there may be 
similar rulemakings from ATF associated with BSCA, these rulemakings 
are coordinated with each other and do not overlap.
    A description of any significant alternatives to the proposed rule 
that accomplish the stated objectives of applicable statutes and that 
minimize any significant economic impact of the proposed rule on small 
entities.
    There are no significant alternatives to the proposed rule. This 
proposed rule puts in place the minimum changes to NICS regulations 
needed to accomplish the mandates of the CAA or BSCA and avoid any 
significant impact on small entities.

E. Congressional Review Act

    This rule, when finalized, is not expected to be a major rule as 
defined for purposes of the legislation commonly known as the 
Congressional Review Act, Public Law 104-121, sec. 251, 110 Stat. 847, 
868 (1996). See 5 U.S.C. 804(2).

F. Unfunded Mandates Reform Act of 1995

    This proposed rule will not result in the expenditure by State, 
local, and 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 were deemed 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.

G. Paperwork Reduction Act

    The Department believes any collections of information needed to 
implement the above requirements, such as further residential address 
information, are or will be generally covered under the collection of 
information through ATF Form 4473. All address information sought by 
these amendments, except for whether an individual resides within city 
or municipal limits, is currently collected by the FFL on the Form 
4473. To further implement any ``local'' firearm prohibitions added by 
the CAA, the Department is proposing to require the FFL to inquire and 
collect whether the prospective transferee lives within city or 
municipal limits if that information is known by the transferee. A 
revised Form 4473 received approval by OMB on August 30, 2023, and was 
renewed for another 3-year period. Use of the new form by the industry 
becomes mandatory on February 1, 2024, and will continue through August 
31, 2026.\68\ The revisions add this question and make other 
modifications relevant to carrying out the new requirements imposed by 
the NDNA and BSCA. ATF has published the revised Form 4473.\69\ The 
Department is amending relevant NICS regulations through this proposed 
rule to reflect that, for some transactions as noted herein, the FBI 
will require the FFL to provide all address information already 
collected on the revised Form 4473 to NICS regarding a prospective 
transferee.
---------------------------------------------------------------------------

    \68\ ATF, Updated ATF Form 4473--Firearms Transaction Record 
(August 2023 Revisions) (last reviewed Feb. 12, 2024), https://www.atf.gov/firearms/updated-atf-form-4473-firearms-transaction-record-august-2023-revisions.
    \69\ See id.
---------------------------------------------------------------------------

H. 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 to implement congressional mandates regarding Tribal law 
prohibitors, enhanced background checks for transferees under the age 
of 21 years, and NICS denial notifications. Further, implementation of 
these provisions is not discretionary, nor do there appear to be any 
policy decisions in this proposed rule that would affect federally 
recognized Tribes.

List of Subjects

    Administrative practice and procedure, Arms and munitions, Computer 
technology, Crime, Firearms, Juvenile delinquency, Law Enforcement, 
Penalties, Privacy, Reporting and recordkeeping requirements.

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--DEPARTMENT OF JUSTICE INFORMATION SYSTEMS

0
1. The authority citation for 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 117-103, 136 Stat. 49; Public 
Law 117-159, 136 Stat. 1313; 34 U.S.C. 40901; 18 U.S.C. 921; 18 
U.S.C. 922; 18 U.S.C. 925B; 18 U.S.C. 925C.

Subpart A--the National Instant Criminal Background Check System

0
2. Revise Sec.  25.1 to read as follows:


Sec.  25.1  Purpose and authority.

    The purpose of this subpart is to establish policies and procedures 
implementing the Brady Handgun Violence Prevention Act (Brady Act), 
Public Law 103-159, 107 Stat. 1536. The Brady Act requires the Attorney 
General to establish a National Instant Criminal Background Check 
System (NICS) to be contacted by any licensed importer, licensed 
manufacturer, or licensed dealer of firearms for information as to 
whether the transfer of a firearm to any person who is not licensed 
under 18 U.S.C. 923 would be in violation of law as described in 
subsection (t) of 18 U.S.C. 922. 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 include requirements to ensure the privacy and 
security of the NICS and appeals procedures for persons who have been 
denied the right to obtain a firearm as a result of a NICS background 
check performed by the Federal Bureau of Investigation (FBI) or a state 
or local law enforcement agency. The regulations in this subpart A are 
also issued pursuant to Public Law 117-103 (18 U.S.C. 925B, 925C), and 
Public Law 117-159 (34 U.S.C. 40901) to reflect the need to contact 
local law enforcement for purposes of providing denial

[[Page 100421]]

notification reports in accordance with 18 U.S.C. 925B and reporting 
certain data in accordance with 18 U.S.C. 925C; and with respect to 
enhanced background checks of prospective transferees who are under 21 
years of age. The provisions of this subpart A shall be construed as 
being severable from one another and any remaining upheld or 
unchallenged provisions shall be treated independently of any 
invalidated provision.
0
3. Amend Sec.  25.2 by:
0
a. Revising the definitions of ``Delayed'', ``Denied'', and ``Denying 
agency'';
0
b. Adding the definition of ``Local Law Enforcement Authority,''
0
c. Revising the definition of ``NICS'';
0
d. Adding the definition of ``NICS Indices'';
0
e. Removing the definitions of ``NICS Index'' and ``NICS Operations 
Center'';
0
f. Revising the definition of ``NICS Representative'';
0
g. Adding the definitions of ``NICS Section,'' and ``No Known 
Prohibitors: At least one state or local agency has not responded or 
cannot respond;'' and
0
h. Revising the definitions ``Open,'' ``POC (Point of Contact),'' and 
``Proceed;''
    The revisions and additions read as follows:


Sec.  25.2  Definitions.

* * * * *
    Delayed means the response given to the FFL indicating that the 
transaction is in an ``Open'' status and that more research is required 
prior to a NICS ``Proceed'' or ``Denied'' response.
    (1) Except as provided in paragraph (2) of this definition, a 
``Delayed'' response to the FFL indicates that it would be unlawful to 
transfer the firearm until receipt of a follow-up ``Proceed'' response 
from the NICS or the expiration of three business days without 
notification of a ``Denied'' response, whichever occurs first.
    (2) For a prospective transferee under 21 years of age, if the NICS 
has notified the FFL before three business days have elapsed from 
initial contact that additional delay is required to determine whether 
the prospective transferee has a prohibiting record under 18 U.S.C. 
922(d), a ``Delayed'' response to the FFL indicates it would be 
unlawful to transfer the firearm until receipt of a follow-up 
``Proceed'' or ``No Known Prohibitors: At least one state or local 
agency has not responded or cannot respond'' response from the NICS or 
the expiration of 10 business days from initial contact without 
notification of a ``Denied'' response, whichever occurs first.
    Denied means denial of a firearm transfer based on a NICS response, 
or through the enhanced background check of a person under 21 years of 
age as provided in 34 U.S.C. 40901, indicating one or more matching 
records were found providing information demonstrating that a 
prospective transferee is prohibited from receiving or being 
transferred a firearm as described in 18 U.S.C. 922(t).
    Denying agency means a POC or the NICS Section, whichever 
determines that the subject is prohibited from receiving or being 
transferred a firearm as described in 18 U.S.C. 922(t).
* * * * *
    Local Law Enforcement Authority means a bureau, office, department, 
or other authority of a state or local government or tribe that has 
jurisdiction to investigate a violation or potential violation of, or 
enforce, a state, tribal, or local law.
* * * * *
    NICS means the National Instant Criminal Background Check System, 
which an FFL must, with limited exceptions, contact for information on 
whether a person who is not licensed under 18 U.S.C. 923 can lawfully 
receive, or be transferred, a firearm as described in 18 U.S.C. 922(t).
* * * * *
    NICS Indices means the database, to be managed by the FBI, 
containing information provided by Federal, state, tribal and local 
agencies about persons prohibited from receiving or being transferred a 
firearm as described in 18 U.S.C. 922(t). The NICS Indices is separate 
and apart from the NCIC and the Interstate Identification Index (III). 
For purposes of this subpart, the term NICS Index shall be understood 
to refer to the NICS Indices.
* * * * *
    NICS Representative means a person who receives telephone or 
electronic inquiries to the NICS Section from FFLs requesting 
background checks and provides a response of ``Proceed,'' ``No Known 
Prohibitors: At least one state or local agency has not responded or 
cannot respond,'' ``Delayed,'' or ``Denied.''
    NICS Section means the section of the FBI that receives telephone 
or electronic inquiries from FFLs to perform background checks, makes a 
determination 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.
    No Known Prohibitors: At least one state or local agency has not 
responded or cannot respond means, for a prospective transferee under 
21 years of age, a NICS response indicating that the information 
available to the system at the time of the response did not demonstrate 
that the prospective transferee would be prohibited from receiving or 
being transferred a firearm as described in 18 U.S.C. 922(t), and: (1) 
all agencies contacted during the enhanced background checks required 
by 34 U.S.C. 40901(l) have responded and at least one of those 
responses is that state law prohibits juvenile justice records, 
juvenile mental health records, or both from being shared; or (2) at 
the end of the tenth business day if at least one of the state or local 
agencies contacted during the enhanced background checks required by 34 
U.S.C. 40901(l) has not responded to the request for records. A ``No 
Known Prohibitors: At least one state or local agency has not responded 
or cannot respond'' response to the FFL indicates that Federal law does 
not prohibit the licensee from transferring the firearm.
* * * * *
    Open means those non-canceled transactions related to the 
prospective transfer of a firearm where the FFL has not been notified 
of a final determination. In cases of ``Open'' responses, the NICS 
continues researching potentially prohibiting records regarding the 
prospective transferee and, if definitive information is obtained, 
communicates to the FFL the final determination that the check resulted 
in a ``Proceed'' or a ``Denied'' response.
    (1) Except as provided in paragraph (2) of this definition, an 
``Open'' response does not prohibit an FFL from transferring a firearm 
after three business days have elapsed since the FFL provided to the 
system the identifying information about the prospective transferee.
    (2) For an individual under 21 years of age, if the NICS has 
notified the FFL within three business days that additional research is 
required, an ``Open'' response does not prohibit an FFL from 
transferring a firearm after 10 business days have elapsed since the 
FFL provided to the system the identifying information about the 
prospective transferee.
    (3) An ``Open'' response, whether under paragraph (1) or (2) of 
this definition, does not relieve an FFL from compliance with other 
provisions of Federal, state, local, or tribal law that

[[Page 100422]]

may be applicable to firearms transfers. For example, under 18 U.S.C. 
922(d), an FFL may not lawfully transfer a firearm if the FFL knows or 
has reasonable cause to believe that the prospective transferee is 
prohibited by law from receiving or possessing a firearm for certain 
reasons.
* * * * *
    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, check available state, local, or tribal record 
systems, perform NICS inquiries, determine whether matching records 
provide information demonstrating that the prospective transferee is 
prohibited 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. For an individual under 21 years of age, the POC will 
contact state and local agencies, in accordance with 34 U.S.C. 40901(l) 
and as further described in Sec.  25.6, to determine if the individual 
has a possibly disqualifying juvenile record under 18 U.S.C. 922(d). 
When a POC processes a NICS transaction and notifies the FFL of a 
denial determination, the POC shall report that denial notification to 
local law enforcement authorities in accordance with 18 U.S.C. 925B. A 
POC shall also provide applicable statistics necessary for the FBI to 
comply with the requirements of 18 U.S.C. 925C. A POC will be an agency 
with express or implied authority to perform POC duties pursuant to 
state statute, regulation, or executive order.
    Proceed means a NICS response indicating that all relevant systems 
have been checked, all requests for records have received responses, 
and the information available to the system at the time of the response 
did not demonstrate that the prospective transferee would be prohibited 
from receiving or being transferred a firearm as described in 18 U.S.C. 
922(t). A ``Proceed'' response does not relieve an FFL from compliance 
with other provisions of Federal, state, local, or tribal law that may 
be applicable to firearms transfers. For example, under 18 U.S.C. 
922(d), an FFL may not lawfully transfer a firearm if the FFL knows or 
has reasonable cause to believe that the prospective transferee is 
prohibited by law from receiving or possessing a firearm for certain 
reasons.
* * * * *


Sec.  25.6  [Amended]

0
4. Amend Sec.  25.6 by revising paragraphs (c)(1)(iii), (c)(1)(iv), 
(f)(1), (g), (h) and (i) to read as follows:


Sec.  25.6  Accessing records in the system.

* * * * *
    (c) * * *
    (iii) Search the relevant databases (i.e., NICS Indices, NCIC, III) 
for any matching records and, for a prospective transferee under 21 
years of age, perform the contacts required by 34 U.S.C. 40901(l), 
specifically: the criminal history repository or juvenile justice 
information system, as appropriate, of the state in which the person 
resides; the appropriate state custodian of mental health adjudication 
records in the state in which the person resides; and a local law 
enforcement agency of the jurisdiction in which the person resides. 
These contacts are made for the purpose of determining whether the 
prospective transferee has a disqualifying juvenile record under 18 
U.S.C. 922(d). If a state has identified to the NICS Section that it 
does not have a criminal history repository, juvenile justice 
information system, or state custodian of mental health adjudication 
records, a contact to an alternative agency (if one is identified by 
the state) shall be made; and
    (iv) Provide the following NICS responses based upon the 
consolidated NICS search results to the FFL that requested the 
background check:
    (A) ``Proceed'' response, if no disqualifying information was 
found:
    (1) As a result of searching the NICS Indices, NCIC, or III; and
    (2) During the enhanced background check required by 34 U.S.C. 
40901 for transactions involving a person under 21 years of age.
    (B)(1) ``Delayed'' response, except as provided in paragraph 
(c)(1)(iv)(B)(2) of this section, if the NICS search finds a record 
that requires more research to determine whether the prospective 
transferee is disqualified from receiving or being transferred a 
firearm as described in 18 U.S.C. 922(t). A ``Delayed'' response to the 
FFL indicates that the firearm transfer should not proceed until the 
receipt of a follow-up ``Proceed'' response from the NICS or the 
expiration of three business days (exclusive of the day on which the 
query is made), whichever occurs first. (Example: An FFL requests a 
NICS check on a prospective firearm transferee at 9:00 a.m. on Friday 
and shortly thereafter receives a ``Delayed'' response from the NICS. 
If state offices in the state in which the FFL is located are closed on 
Saturday and Sunday and open the following Monday, Tuesday, and 
Wednesday, and the NICS has not yet responded with a ``Proceed'' or 
``Denied'' response, the FFL may transfer the firearm at 12:01 a.m. 
Thursday.)
    (2) In the case of a prospective transferee under 21 years of age 
at the time of the NICS check, if NICS notifies the FFL that additional 
delay is needed to further investigate whether the prospective 
transferee has a disqualifying juvenile record under 18 U.S.C. 922(d), 
the firearm transfer shall not proceed until receipt of a follow-up 
``Proceed'' or ``No Known Prohibitors: At least one state or local 
agency has not responded or cannot respond'' response from the NICS, or 
the expiration of 10 business days (exclusive of the day on which the 
query is made) without a ``Denied'' response, whichever occurs first.
    (C) ``Denied'' response, when at least one matching record is found 
as a result of searching the NICS Indices, NCIC, III, or through the 
enhanced background checks described in 34 U.S.C. 40901 for persons 
under 21 years of age, that provides information demonstrating that the 
prospective transferee would be prohibited from receiving or being 
transferred a firearm as described in 18 U.S.C. 922(t). The ``Denied'' 
response will be provided to the requesting FFL by the NICS Section 
during its regular business hours.
    (D) ``No Known Prohibitors: At least one state or local agency has 
not responded or cannot respond'' response, when available information 
does not demonstrate the subject would be (potentially) prohibited from 
receiving or being transferred a firearm as described in 18 U.S.C. 
922(t) and: (1) all agencies contacted during the enhanced background 
checks required by 34 U.S.C. 40901(l) have responded and at least one 
of those responses is that state law prohibits juvenile justice 
records, juvenile mental health records, or both from being shared; or 
(2) at the end of the tenth business day if at least one of the state 
or local agencies contacted during the enhanced background checks 
required by 34 U.S.C. 40901(l) has not responded to the request for 
records. A ``No Known Prohibitors: At least one state or local agency 
has not responded or cannot respond'' response to the FFL indicates 
that Federal law does not prohibit the licensee from transferring the 
firearm.
* * * * *
    (f) * * *
    (1) ``No record'' response, if the NICS determines, through a 
complete search, that no matching record exists. A ``no record'' 
response does not relieve a POC

[[Page 100423]]

from its obligation under Sec.  25.6 to perform an enhanced background 
check described in 34 U.S.C. 40901 for persons under 21 years of age.
* * * * *
    (g) Generally, based on the response(s) provided by the NICS, and 
other information available in the state and local record systems, a 
POC will:
    (1) Confirm any matching records;
    (2) Notify the FFL with a response of ``Proceed,'' ``No Known 
Prohibitors: At least one state or local agency has not responded or 
cannot respond,'' ``Delayed,'' or ``Denied.'' ``Proceed,'' ``Delayed,'' 
and ``No Known Prohibitors: At least one state or local agency has not 
responded or cannot respond'' notifications 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; and
    (3)(i) Report denial notifications to local law enforcement 
authorities in accordance with 18 U.S.C. 925B (NICS Denial Notification 
Act) when a POC provides denial determination to FFLs; and
    (ii) Provide the NICS Section with applicable statistics necessary 
for the FBI to comply with the requirements of 18 U.S.C. 925C.
    (h) POC Determination Messages. POCs shall transmit electronic NICS 
transaction determination messages to the FBI for the following 
transactions: ``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'' or ``No Known Prohibitors: At 
least one state or local agency has not responded or cannot respond;'' 
and ``Denied'' transactions that have been overturned. The FBI shall 
provide POCs with an electronic capability to transmit this 
information. These electronic messages shall be provided to the NICS 
immediately upon communicating the POC determination to the FFL. For 
transactions 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 NICS transactions of persons under 21 
years of age, newly created POC NICS transactions 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 resulted in a ``Proceed'' notification to the FFL. The information 
provided in the POC determination messages will be maintained in the 
NICS Audit Log described in Sec.  25.9(b). The NICS will destroy its 
records regarding POC determinations in accordance with the procedures 
detailed in Sec.  25.9(b).
    (i) Response recording. 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,'' ``No Known 
Prohibitors: At least one state or local agency has not responded or 
cannot respond,'' ``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.
* * * * *
0
5. Revise Sec.  25.7(a) to read as follows:


Sec.  25.7  Querying records in the system.

    (a)(1) The following search descriptors will be required in all 
queries of the system for purposes of a background check:
    (i) Name;
    (ii) Sex;
    (iii) Race;
    (iv) Complete date of birth;
    (v) State of residence;
    (2) For a transaction that involves a subject under 21 years of 
age, or where initial background check results of the subject reveal 
the transaction will be delayed or denied, or may be subject to a local 
or tribal prohibition preventing the transfer or receipt of a firearm, 
the following information will also be required prior to the FFL being 
provided with the NTN (or applicable STN) and initial status:
    (i) Residence address of the subject of the NICS check, to include 
the number and full street address, city, state, and ZIP Code;
    (ii) County, parish, or borough of residence; and
    (iii) Whether the individual resides within the city (to include 
town or other municipal boundary) limits.
* * * * *
0
6. In Sec.  25.8, revise paragraphs (f)(2) and (g)(2) to read as 
follows:


Sec.  25.8  System safeguards.

* * * * *
    (f) * * *
    (2) FFLs will provide the NICS Representative with their FFL Number 
and code word, the type of sale, and the name, sex, race, date of 
birth, and state of residence of the prospective buyer. For those 
transactions that are delayed or denied, may be subject to a local or 
tribal prohibition on the transfer or receipt of a firearm (based on 
initial background check results), or involve a prospective transferee 
under 21 years of age, the FFL must provide additional residence 
address information, to include the number and street address, city, 
state, and ZIP Code; county, borough, or parish of residence; and 
whether the residence is within the city (to include town or other 
municipal boundary) limits.
* * * * *
    (g) * * *
    (2) The NICS Representative will provide only a response of 
``Proceed'' or ``Delayed'' (with regard to the prospective firearms 
transfer) and will not provide the details of any record information 
about the transferee. In cases in which potentially disqualifying 
information is found in response to an FFL query, the NICS 
Representative will provide a ``Delayed'' response to the FFL. Follow-
up ``Proceed,'' ``No Known Prohibitors: At least one state or local 
agency has not responded or cannot respond,'' or ``Denied'' responses 
will be provided by the NICS Section during its regular business hours.
* * * * *
0
7. In Sec.  25.9, revise paragraphs (a), (b)(1)(ii) and (iii), 
(b)(2)(i), and (b)(3), to read as follows:


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

    (a) The NICS will retain NICS Indices records indicating that the 
individuals to whom the records pertain would be prohibited from 
receiving or being transferred firearms 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) * * *
    (1) * * *
    (ii) NICS Audit Log records relating to transactions in an ``Open 
status, except the NTN and 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

[[Page 100424]]

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 Sec.  
25.9(b)(1)(iii), that indicates, either on its face or in conjunction 
with other information, a violation or potential violation of law or 
regulation, may be shared with appropriate authorities responsible for 
investigating, prosecuting, or enforcing such law or regulation; and
* * * * *
    (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.
* * * * *
0
8. In Sec.  25.10, revise paragraph (g) to read as follows:


Sec.  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 Sec.  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.
* * * * *
0
9. In Sec.  25.11, revise paragraph (b)(1) to read as follows:


Sec.  25.11  Prohibited activities and penalties.

* * * * *
    (b) * * *
    (1) State or local agencies', FFLs', or individuals' purposefully 
furnishing incorrect information to the system to obtain a ``Proceed'' 
or ``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`