63 FR 65223
63 FR 65223 / 11-25-98
System Name: National Instant Criminal Background Check System (NICS)
System Location: Federal Bureau of Investigation, 1000 Custer Hollow Road, Clarksburg, West Virginia 26306.
Categories of Individuals Covered by the System: The categories of individuals covered by the system include any person who:
A) Is under indictment for, or has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
B) Is a fugitive from justice;
C) Is an unlawful user of or addicted to any controlled substance;
D) Has been adjudicated as a mental defective or has been committed to a mental institution;
E) Is an alien who is illegally or unlawfully in the United States;
F) Has been discharged from the Armed Forces under dishonorable conditions;
G) Having been a citizen of the United States, has renounced such citizenship;
H) Is subject to a court order that restrains the person from harassing, stalking, or threatening an intimate partner or child of such intimate partner (issued after a hearing of which actual notice was received);
I) Has been convicted in any court of a misdemeanor crime of domestic violence (involving the use or attempted use of physical force committed by a current or former spouse, parent, or guardian of the victim or by a person with a similar relationship with the victim);
J) Is otherwise disqualified from possessing a firearm under State law;
K) Is or claims to be a Federal firearms licensee (FFL), i.e., a person licensed by the Bureau of Alcohol, Tobacco and Firearms (ATF), United States Department of Treasury, as a manufacturer, dealer, or importer of firearms; or
L) Has applied for the transfer of a firearm or a firearms-related permit or license and has had his or her name forwarded to the NICS as part of a request for a NICS background check. (Identifying information about this category of individual is maintained for system administration and security purposes only in the "NICS Audit Log," a system transaction log described below under the headings "CATEGORIES OF RECORDS IN THE SYSTEM" AND "RETENTION AND DISPOSAL." In cases where the NICS background check does not locate a disqualifying record, information about the individual will only be retained temporarily for the minimum reasonable period necessary for performing audits on the system, but in no event more than six months or such shorter period of time that the Department establishes by regulation, provided that such information may be retained for a longer period if necessary to pursue identified cases of misuse of the system. The system will not contain any details about the type of firearm which is the subject of the proposed transfer (other than the fact that it is a handgun or a long gun) or whether a sale or transfer of a firearm has actually taken place.
Categories of Records in the System: The "NICS Index" is the only database maintained by the FBI which was created specifically for the NICS. The NICS Index contains records obtained by the Attorney General from Federal agencies or States on individuals who fall into the categories of individuals listed above under the heading "CATEGORIES OF INDIVIDUALS COVERED BY THE SYSTEM," C through G. These records contain an individual's name; sex; race; other personal descriptive data (such as scars and tattoos); complete date of birth; state of residence; sometimes a unique identifying number, such as a Social Security number (but NICS does not require it to be furnished), a military number, or a number assigned by Federal, State, or local law enforcement authorities.
The "NICS Audit Log" is a chronological record of system (computer) activities that enables the reconstruction and examination of a sequence of events and/or changes in an event related to the NICS. With regard to a specific NICS transaction, the audit log will include: The name and other identifying information about the prospective transferee; the type of transaction (inquiry or response); line number; time; date of inquiry; header; message key; Originating Agency Identifier; and inquiry/response data, such as a NICS Transaction Number (a unique number assigned to each valid background request inquiry) and information found by the NICS search.
In addition, the NICS contains information on persons that are FFLs (or claim to be). This information includes the FFL name, address, phone numbers, ATF number, access code words, names of authorized representatives and contact persons, and similar information used by the NICS to identify, validate, and communicate with FFLs in the course of NICS operations.
Authority for Maintenance of the System: (1) 18 U.S.C. 922, as amended by the Brady Handgun Violence Prevention Act (the "Brady Act") (Pub. L. 103-159, Nov. 30, 1993); (2) 28 U.S.C. 534, as amended (Pub. L. 103-322, Title IV, 4060(a), Sep. 13, 1994, 105 Stat. 1950).
Purpose(s): The purpose of the NICS, which was established pursuant to the Brady Act, is to provide a means of checking available information to determine whether a person is disqualified from possessing a firearm under Federal or State law.
Prior to the transfer of a firearm, a prospective transferee, not licensed under 18 U.S.C. 923, must obtain a firearms transaction form from an FFL and provide the information required by the ATF. The firearms transaction form is returned to the FFL, who is required by the Brady Act to contact the NICS and furnish the name and certain other identifying data provided by the transferee. NICS conducts a search which compares the information about the transferee with information in or available to NICS.
State and local law enforcement agencies may serve as Points of Contact (POCs) for the NICS. Where there is no POC, the FBI's NICS Operations Center serves in its place. The POC (or the NICS Operations Center) receives inquiries from FFLs, initiates NICS background searches, may check available state and local record systems, determines whether matching records provide information demonstrating that an individual is disqualified from possessing a firearm under Federal or State law, and responds back to the FFLs.
In addition to a review of the NICS Index, a NICS search includes a review of the pre-existing, separately-managed FBI criminal history databases of the National Crime Information Center (NCIC)(JUSTICE/FBI- 001), including the Interstate Identification Index (III), to the extent such searches are possible with the available information. NCIC and III are cooperative Federal-State programs for the exchange of criminal history record and other information among criminal justice agencies to locate wanted and missing persons and for other identification purposes. The search conducted of the NCIC and III, in conjunction with the search of the NICS Index, attempts to locate only information indicating that an individual firearm transferee is identical to an individual in one or more of categories A through J listed above under the heading CATEGORIES OF INDIVIDUALS IN THE SYSTEM, with the search of NCIC and III specifically directed towards locating information that an individual is within categories A, B, C, D, H, and I.
Routine Uses of Records Maintained in the System, Including Categories of Users and the Purposes of Such Uses:
A) Limited information may be provided by a POC or the NICS Operations Center to an FFL who has contacted the NICS concerning a prospective firearm transferee. If a matching record found by the NICS provides information demonstrating that the prospective transferee is disqualified from possessing a firearm under Federal or State law, the FFL will be notified only that the application is "denied," with none of the underlying information provided. If additional record analysis is required by the NICS representative (e.g to confirm that a record relates to the potential transferee or to pursue supplemental information to clarify whether the potential transferee is disqualified from receiving a firearm), the response may read "delayed" and may include an estimated time for completing the analysis. If no disqualifying record is located by the NICS, the FFL will be told that it may "proceed." A unique identification number will be provided to the FFL for all responses received from the NICS, which number shall be recorded on the firearms transaction form.
B) Information in the NICS may be provided through the NCIC lines to Federal criminal justice agencies, criminal justice agencies in the fifty States, the District of Columbia, Puerto Rico, U.S. Possessions, and U.S. Territories, including POCs and contributors of information in the NICS Index, to enable them to determine whether the transfer of a firearm to any person not licensed under 18 U.S.C. 923 would be in violation of Federal or State law; whether the issuance of a license or permit for the possession or sale of a firearm or firearms, or to carry a concealed firearm, or to import, manufacture, deal in, or purchase explosives would be in violation of Federal or State law or regulation; whether appeals from denials should be granted or denied; and whether to add to, delete from, revise, or update information previously provided by the contributor. This includes responding to inquiries by the ATF in connection with enforcement of the Gun Control Act (18 U.S.C. Chapter 44), or the National Firearms Act (26 U.S.C. Chapter 53).
C) If, during the course of any activity or operation of the system authorized by the regulations governing the system (28 CFR, part 25, subpart A), any record is found by the system which indicates, either on its face or in conjunction with other information, a violation or potential violation of law (whether criminal or civil) and/or regulation, the pertinent record may be disclosed to the appropriate agency/organization/task force (whether Federal, State, local, joint, or tribal) and/or to the appropriate foreign or international agency/organization charged with the responsibility of investigating, prosecuting, and/or enforcing such law or regulation, e.g., disclosure of information from the system to the ATF, United States Department of Treasury, regarding violations or potential violations of 18 U.S.C. 922(a)(6). (This routine use does not apply to the NICS Index.)
D) System records may be disclosed to contractors, grantees, experts, consultants, volunteers, detailees, and other non-FBI employees performing or working on a contract, service, grant, cooperative agreement, or job for the Federal Government when necessary to accomplish an agency function related to this system of records and under requirements (including Privacy Act requirements) specified by the FBI.
E) System records may be disclosed to the news media or members of the general public or to a victim or potential victim in furtherance of a legitimate law enforcement or public safety function, e.g., to assist in locating fugitives; to provide notification of arrests; to provide alerts, assessments, or similar information on potential threats to life, health, or property; or to keep the public appropriately informed of other law enforcement or FBI matters of legitimate public interest. (The availability of information in pending criminal cases will be governed by the provisions of 28 CFR 50.2.) (This routine use does not apply to the NICS Index.)
F) Where the disclosure of system records has been determined by the FBI to be reasonable and necessary to resolve a matter in litigation or in anticipation thereof, such records may be disclosed to a court or adjudicative body, before which the FBI is authorized to appear, when: (a) The FBI or any FBI employee in his or her official capacity; (b) any FBI employee in his or her individual capacity where the Department of Justice has agreed to represent the employee; or (c) the United States, where the FBI determines it is likely to be affected by the litigation, is or could be a party to the litigation, or has an official interest in the litigation.
G) System records may be made available to a Member of Congress or staff acting on the Member's behalf when the Member or staff requests the information on behalf and at the written request of the individual who is the subject of the record.
H) System records may be disclosed to the National Archives and Records Administration for records management inspections and such other purposes conducted under the authority of 44 U.S.C. 2904 and 2906.
Policies and Practices for Storing, Retrieving, Accessing, Retaining, and Disposing of Records in the System:
Storage: Records are stored electronically for use in a computer environment in areas safe from access by unauthorized persons or exposure to environmental hazards. In general, the security policy for the NCIC (JUSTICE/FBI-001) is followed.
Retrievability: Records are retrieved by name, sex, race, date of birth, state of residence, other personal descriptive data, the NICS Transaction Number, FFL number, and, in some instances, unique numeric identifier, e.g., a Social Security number or a military identification number. (A Social Security number is not required by the NICS.)
Safeguards: Records searched by the NICS are located in secure government buildings with limited physical access. Access to the results of a NICS record search is further restricted to authorized employees of Federal, State, and local law enforcement agencies who make inquiries by use of identification numbers and code words.
When a Federal, State, or local agency places information in the NICS Index, it uses its agency identifier and a unique agency record identifier for each record provided to the NICS. Federal, State, or local agencies can modify or cancel only the data that they have provided to NICS Index.
Retention and Disposal: Information provided by other Federal agencies or State or local governments will be maintained in the NICS Index unless updated or deleted by the agency/government which contributed the data.
The FBI will maintain an Audit Log of all NICS transactions. Firearms transaction approvals will be maintained for the minimum reasonable period necessary for performing audits on the system, but in no event more than six months or such shorter period of time that the Department establishes by regulation (except that such information may be retained for a longer period if necessary to pursue identified cases of misuse of the system). The NICS Transaction Number (the unique number assigned to the NICS transaction) and the date on which it was assigned will be maintained indefinitely. Information related to firearms transfer denials will be retained for 10 years and then disposed of as directed by the National Archives and Record Administration.
System Manager(s) and Address: Director, Federal Bureau of Investigation, J. Edgar Hoover FBI Building, 935 Pennsylvania Avenue, NW, Washington, DC 20535-0001.
Notification Procedures: This system of records has been exempted from the notification procedures of subsections (d) and (e)(4)(G), to the extent permitted by subsections (j)(2), (k)(2), and (k)(3) of the Privacy Act. Requests for notification should be addressed to the Systems Manager. Requirements for a request are the same as set forth below under the heading "RECORD ACCESS PROCEDURES."
Record Access Procedures: This system of records has been exempted from the access procedures of subsections (d) and (e)(4)(H) to the extent permitted by subsections (j)(2), (k)(2), and (k)(3) of the Privacy Act. A request for access to a non-exempt record from the system should be addressed to the System Manager, shall be made in writing, and should have the envelope and the letter marked "Privacy Act Request." The request must include the full name, complete address, date of birth, and place of birth of the requester. The requester must sign the request; and, to verify it, the signature must be notarized or submitted under 28 U.S.C. 1746, a law that permits statements to be made under penalty of perjury as a substitute for notarization.
Alternative procedures are available to a person who has been denied the transfer of, or permit for, a firearm or explosives because of information in the NICS. The procedures provide for an appeal of a denial and a method to seek the correction of erroneous data searched by or maintained in the system. The alternative procedures can be found at 28 CFR, part 25, subpart A.
Contesting Record Procedures: This system of records has been exempted from the contest and amendment procedures of subsections (d) and (e)(4)(H) to the extent permitted by subsections (j)(2),(k)(2), and (k)(3) of the Privacy Act. Requests should be addressed to the System Manager and should clearly and concisely describe the precise information being contested, the reasons for contesting it, and the proposed amendment or correction proposed to the information. In addition, as described above under "RECORD ACCESS PROCEDURES," an alternative procedure is available to a person who has been denied the transfer of, or permit for, a firearm or explosives because of information in the NICS, by which the individual may seek the correction of erroneous data in the system. The procedures are further described at 28 CFR, part 25, subpart A.
Record Source Categories: Information contained in the NICS is obtained from local, State, Federal, and international records.
System Exempted from Certain Provisions of the Act: The Attorney General has exempted this system from subsections (c)(3) and (4); (d); (e)(1); (2), and (3) (e)(4)(G) and (H); (e)(5) and (8); and (g) of the Privacy Act, pursuant to 5 U.S.C. 552a(j)(2). In addition, the Attorney General has exempted his system from subsections (c)(3), (d), (e)(1), and (e)(4)(G) and (H) of the Privacy Act, pursuant to 5 U.S.C. 552a (k)(2) and (k)(3). Rules have been promulgated in accordance with the requirements of 5 U.S.C. 553 (b), (c), and (e), and have been published in the Federal Register.
Dated: November 19, 1998