Brady Act Requirements
Mandated by the Brady Handgun Violence Prevention Act (Brady Act) of 1993, Public Law 103-159, the National Instant Criminal Background Check System (NICS) was established for Federal Firearms Licensees (FFLs) to contact by telephone, or other electronic means, for information to be supplied immediately on whether the transfer of a firearm would be in violation of Section 922 (g) or (n) of Title 18, United States Code, or state law. The Brady Act is a public record and is available from many sources, including the Internet at www.atf.gov.
The NICS is a national system that checks available records on persons who may be disqualified from receiving firearms. The FBI developed the system through a cooperative effort with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and local and state law enforcement agencies. The NICS is a computerized background check system designed to respond instantly on most background check inquiries so the FFLs receive an almost immediate response. In calendar year 2015, the NICS Contracted Call Centers (NCCC) handled calls an average of 141 seconds. After transferring the calls to the NICS Section, the wait and processing time averaged 446.3 seconds. When firearm background checks were conducted via the NICS E-Check, the wait and processing time averaged 107.5 seconds. Depending on the willingness of state governments to act as a liaison for the NICS, the FFLs contact either the FBI or a designated state point of contact (POC) to initiate background checks on individuals possessing or receiving firearms. The background check process, as performed by the FBI and by state POCs, is described below.
The NICS Section
Located at the FBI’s Criminal Justice Information Services Division in Clarksburg, West Virginia, the NICS Section processes background checks for the FFLs in those states that have declined to serve as POCs for the NICS. The FFLs conducting business in these states will contact the NICS either by telephone via the NCCC, or electronically by the NICS E-Check via the Internet. The FFLs will provide the descriptive information requested on the ATF Form 4473, which is required by law to be completed and signed by every prospective firearm transferee. The FFL will receive a response that the transfer may proceed or is delayed.
After initiating a firearm background check via the NCCC, if no matching records are returned by any of the databases, the transaction is automatically proceeded. If the NICS returns a match of the prospective firearm transferee’s descriptive information to that of record information located in any of the databases, the FFL is advised that the transaction is delayed. While the FFL is still on the telephone, the call is placed on hold and transferred to the NICS Section in Clarksburg, West Virginia, for a quick review and evaluation by a NICS legal instruments examiner (NICS examiner). If the record information returned by the NICS presents a valid match to the descriptive information of the prospective firearm transferee, the NICS examiners, who have access to protected information (as opposed to NCCC personnel who do not have such access) review the information to determine if state and/or federal firearm prohibitive criteria exists. If the information matched by the NICS is not a valid match or no prohibitive criteria exists, the NICS examiner will advise the FFL they may PROCEED with the firearm transaction. The FFL must record the NICS Transaction Number (NTN) on line 21b of the ATF Form 4473 and retain the form for auditing purposes.
If it is determined that prohibitive criteria exists, the NICS examiner will advise the FFL to DENY the firearm transaction. If potentially prohibitive criteria exists and more information is required in order to make the determination, the NICS examiner will advise the FFL to DELAY the firearm transaction and the FFL will receive the following instructions:
“. . .NTN ___ will be delayed while the NICS continues its research. If you do not receive a final response from us, the Brady Law does not prohibit the transfer of the firearm on day/date.”
The NICS examiner will provide the FFL with the date of the third business day after the firearm check was initiated. Business days do not include the day the check was initiated, Saturdays, Sundays, and any day state offices in the state of purchase are closed. If the FFL has not received from the NICS a final determination after three business days have elapsed since the delay response, it is within the FFL’s discretion whether or not to transfer the firearm (if state law permits the transfer). If the FFL transfers the firearm, the FFL must mark “No resolution was provided within three business days” on line 21d of the ATF Form 4473. It is recommended the FFL record the date provided in the delay response on which the firearm may be lawfully transferred under federal law if a final determination of proceed or denied is not received from the NICS.
When a transaction is DELAYED, the NICS examiner begins extensive research on the potential prohibitor. Upon completion of the research when a definitive status is determined, the FFL is contacted and given a PROCEED or DENY decision on the firearm transaction.
In states that agree to serve as POCs for the NICS, the functions performed by the NICS Section are performed by a local or state law enforcement agency which services the FFLs. The FFLs call these local or state agencies, which perform the check, make the decision whether the check indicates an individual is disqualified or not from possessing a firearm, and notify the FFL of the results of the check.
NICS Background Checks
The FFLs have the following three methods of performing background checks depending upon the state in which the FFL is conducting business:
1. In states where the state government has agreed to serve as the POC for the system, the FFLs contact the NICS through the state POC for all firearm transfers. The state POC conducts the NICS check and determines whether or not the transfer would violate state or federal law.
2. In states where the state government has declined to serve as a POC, the FFLs initiate a NICS background check by contacting the NCCC for all firearm transfers. The FBI conducts the NICS check and determines whether or not the transfer would violate state or federal law.
3. Finally, in states where the state government has agreed to serve as a POC for handgun purchases but not for long gun purchases, the FFLs contact the NICS through the designated state POC for handgun transfers and the NICS Section for long gun transfers.
Each state decides whether the FFLs in its state call a state POC or the FBI to initiate firearm background checks.
This function enables FFLs to initiate an unassisted NICS background check for firearm transfers via the Internet. The NICS Section ensured that security was a priority during the development and implementation of the NICS E-Check. The NICS E-Check is monitored 24 hours a day, 7 days per week, for misuse and unauthorized access. In addition, the NICS E-Check denies access to any individual whose identification is not known to the system.
When a firearm background check is initiated via the NICS E-Check if no matching records are returned by any of the databases, the transaction is automatically proceeded. If it is determined that prohibitive criteria exists, the NICS examiner will deny the firearm transaction. If the NICS returns a match of the prospective firearm transferee’s descriptive information to that of record information located in any of the databases that is potentially disqualifying, the NICS examiner delays the transaction. When the initial processing of the NICS E-Check transactions is completed, the NICS E-Check generates the status to be relayed electronically to the requestor. If the transaction is determined to be a delay, the pre-calculated date the requestor may transfer the firearm if no resolution is provided within three business days is also relayed. The NICS Examiner begins extensive research on the potential prohibitors located on firearm background checks delayed via the NICS E-Check. Upon completion of the research when a definitive status is determined, an electronic message is generated to the requestor for a PROCEED or DENY decision. When transactions are denied after the third business day, the requestor is contacted via telephone with the final status.
Privacy and Security of NICS Information
The privacy and security of the information in the NICS is of great importance. In October 1998, the Attorney General published regulations on the privacy and security of NICS information, including the proper and official use of this information. These regulations are available on the NICS website. Data stored in the NICS is documented federal data and access to that information is restricted to agencies authorized by the FBI. Extensive measures are taken to ensure the security and integrity of the system information and agency use. The NICS is not to be used to establish a federal firearm registry; information about an inquiry resulting in an allowed transfer is destroyed in accordance with NICS regulations. Current destruction of NICS records became effective when a final rule was published by the Department of Justice in The Federal Register, outlining the following changes. Per Title 28, Code of Federal Regulations, Part 25.9(b)(1), (2), and (3), the NICS Section must destroy all identifying information on allowed transactions prior to the start of the next NICS operational day. If a potential purchaser is delayed or denied a firearm and successfully appeals the decision, the NICS Section cannot retain a record of the overturned appeal. If the record is not able to be updated, the purchaser continues to be denied or delayed, and if that individual appeals the decision, the documentation must be resubmitted on every subsequent purchase. For this reason, the Voluntary Appeal File (VAF) has been established. This process permits applicants to request that the NICS maintain information about themselves in the VAF to prevent future denials or extended delays of a firearm transfer. (See VAF Section below.)
Individuals who are denied the purchase of a firearm may request that the NICS or the state which processed their transaction provide the reasons for the denial. The regulations address the process for filing an appeal. Appellants must include the NTN or State Transaction Number assigned to their transaction. To ensure all necessary information is received for the appeal request, the NICS Section encourages appellants to apply for the reason for their denial via the NICS Appeal website. Appellants without Internet access may submit their appeal via the NICS Appeal facsimile at (304) 625-0535, or by mail to the FBI, Criminal Justice Information Services Division, NICS Section, Appeal Services Team, Module A-1, Post Office Box 4278, Clarksburg, WV 26302-4278.
Voluntary Appeal File (VAF)
Potential purchasers experiencing extended delays or erroneous denials may apply to be considered for entry into the VAF by signing an applicant statement that authorizes the NICS Section to retain information that would otherwise be destroyed upon the approval of the firearm transaction. This retained information includes, but is not limited to: a fingerprint card, court documentation, correspondence, and information contained in the applicant’s appeal file if one exists. A complete NICS check is still required for future purchases and will result in a denial if additional prohibitive information is discovered. The NICS Section is required to destroy any records submitted to the VAF upon written request of the individual. A VAF application can be obtained via the NICS Appeals website. Applicants without the ability to print the application from the Internet may contact the NICS Customer Service at 1-877-FBI-NICS (324-6427).
Federal Categories of Persons Prohibited from Receiving
A delay response from the NICS Section indicates the subject of the background check has been matched with either a state or federal potentially prohibiting record containing a similar name and/or similar descriptive features (name, sex, race, date of birth, state of residence, social security number, height, weight, or place of birth). The federally prohibiting criteria are as follows:
- A person who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year or any state offense classified by the state as a misdemeanor and is punishable by a term of imprisonment of more than two years.
- Persons who are fugitives from justice.
- An unlawful user and/or an addict of any controlled substance; for example, a person convicted for the use or possession of a controlled substance within the past year; or a person with multiple arrests for the use or possession of a controlled substance within the past five years with the most recent arrest occurring within the past year; or a person found through a drug test to use a controlled substance unlawfully, provided the test was administered within the past year.
- A person adjudicated mental defective or involuntarily committed to a mental institution or incompetent to handle own affairs, including dispositions to criminal charges of found not guilty by reason of insanity or found incompetent to stand trial.
- A person who, being an alien, is illegally or unlawfully in the United States.
- A person who, being an alien except as provided in subsection (y) (2), has been admitted to the United States under a non-immigrant visa.
- A person dishonorably discharged from the United States Armed Forces.
- A person who has renounced his/her United States citizenship.
- The subject of a protective order issued after a hearing in which the respondent had notice that restrains them from harassing, stalking, or threatening an intimate partner or child of such partner. This does not include ex parte orders.
- A person convicted in any court of a misdemeanor crime which includes the use or attempted use of physical force or threatened use of a deadly weapon and the defendant was the spouse, former spouse, parent, guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited in the past with the victim as a spouse, parent, guardian or similar situation to a spouse, parent or guardian of the victim.
- A person who is under indictment or information for a crime punishable by imprisonment for a term exceeding one year.
A delay response indicates that information you supplied on the ATF Form 4473 has been matched with information contained in the National Crime Information Center, the Interstate Identification Index, and/or the NICS Indices. Complete disposition information is not always available and a further review of these records is necessary. The NICS Section exhausts all efforts to retrieve current record information by contacting all applicable law enforcement agencies, i.e., local, state, and federal courts, etc. The Brady Act allows three business days to obtain this information before an FFL can transfer a firearm. The FFL is not prohibited from transferring the firearm after three business days have passed; however, the FFL is not required to transfer the firearm.
The Privacy Act of 1974 restricts the dissemination of specific information to you via the telephone. Under the provisions of Title 28, United States Code, Sections 16.30 through 16.34, you can obtain a copy (for a fee) of any identification record the FBI may maintain on you by contacting the following unit at the address and telephone number provided:
Federal Bureau of Investigation
Criminal Justice Information Services Division
Attention: Summary Request
1000 Custer Hollow Road
Clarksburg, WV 26306
Telephone Number: (304) 625-5590
- For the FFL to initiate background checks with the NICS Section, the FFL MUST BE ENROLLED WITH THE FBI. Enrollment information may be obtained by accessing Resources for Federal Firearms Licensees website; via e-mail at NICS@fbi.gov; or via telephone at 1-877-FBI-NICS (324-6427).
- Persons holding firearm permits which qualify as alternatives, per the ATF, under the permanent provision of the Brady Act may not be required to undergo a NICS check.
- The former pawnshop exemption for background checks on individuals who are redeeming firearms ceased to exist on November 30, 1998. NICS background checks are required for the transfer of redeemed firearms, including both handguns and long guns.
- The NICS Section attends FFL and ATF regional firearms seminars in selected states around the country to provide a NICS overview, answer questions, and provide updates on new developments in NICS operations.
- More information may be obtained by accessing the Resources for Federal Firearms Licensees website.
- As of January 20, 2015, Title 28, Code of Federal Regulations, Part 25, allows local, state, tribal, and federal law enforcement agencies to access the NICS to conduct background checks for the purpose of returning firearms in their possession to an individual (e.g., at the conclusion of a case). Law enforcement agencies are not required by law to access the NICS for this purpose. However, if they desire to do so, authorized law enforcement agencies should conduct disposition (return) of firearm background checks in the same manner as the firearm and firearm-related permit and purchase checks are currently conducted through their state-designated agency (if applicable), or directly through the FBI. More information may be obtained by submitting an e-mail to NICSLiaison@fbi.gov.
The NICS Indices contains information provided by local, state, tribal, and federal agencies of persons prohibited from receiving firearms under federal or state law that may not be found in the National Crime Information Center of the Interstate Identification Index.
National Instant Criminal Background Check System (NICS) brochure intended for those involved with the investigation and prosecution of domestic violence offenses.