Bipartisan Safer Communities Act of 2022-Criteria for National Instant Criminal Background Check System (“NICS”) Background Checks of Firearm Handlers

DEPARTMENT OF JUSTICE <CFR>28 CFR Part 25</CFR> <DEPDOC>[Docket No. FBI-159; AG Order No. 6099-2024]</DEPDOC> <RIN>RIN 1110-AA35</RIN> <SUBJECT>Bipartisan Safer Communities Act of 2022—Criteria for National Instant Criminal Background Check System (“NICS”) Background Checks of Firearm Handlers</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Federal Bureau of Investigation, Department of Justice. <HD SOURCE="HED">ACTION:</HD> Notice of proposed rulemaking. <SUM> <HD SOURCE="HED">SUMMARY:</HD> The United States Department of Justice (“Department”) proposes several amendments to regulations pertaining to the National Instant Criminal Background Check System (“NICS” or “system”) of the Federal Bureau of Investigation (“FBI”). The proposed amendments implement parts of the Bipartisan Safer Communities Act (“BSCA”), which, in relevant part, require the Attorney General to promulgate regulations authorizing certain Federal Firearm Licensees (“FFLs” or “licensees”) to use NICS for purposes of voluntarily conducting employment background checks relating to certain current or prospective employees. As this Notice of Proposed Rulemaking (“NPRM”) describes in more detail, the Department proposes allowing FFLs to use NICS for employment background checks of their “firearm handlers” and other “eligible employees.” </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Written comments must be postmarked, and electronic comments must be submitted, on or before January 13, 2025. Commenters should be aware the electronic Federal Docket Management System will not accept comments after 11:59 p.m. Eastern Time on the last day of the comment period. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> You may submit comments, identified by RIN 1110-AA35 or Docket No. FBI-159, by either of the following methods: <E T="03">Federal eRulemaking Portal: https://www.regulations.gov.</E> Follow the instructions for submitting comments. <E T="03">Mail</E> : Charles Klebe, Assistant General Counsel, Federal Bureau of Investigation, Office of the General Counsel, Module C-3, 1000 Custer Hollow Road, Clarksburg, West Virginia 26306-0110; ATTN: Docket No. FBI-159. <E T="03">Instructions</E> : All submissions received must include the agency name and RIN (1110-AA35) or docket number (FBI-159) for this NPRM. In general, all properly completed comments received will be posted without change to the Federal eRulemaking portal, <E T="03">https://www.regulations.gov,</E> 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 <E T="02">SUPPLEMENTARY INFORMATION</E> section of this document. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> 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). </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">I. Public Participation</HD> <HD SOURCE="HD2">A. Comments Sought</HD> The Department welcomes public comments from any interested person on any aspect of the changes proposed in this rule. In particular, and as discussed in more detail in the parts of this preamble that describe specific changes, the Department seeks comments from the public on the proposed amendments to NICS regulations to allow FFLs, as required by Congress under BSCA, Public Law 117-159, 136 Stat. 1313 (2022), to use NICS for purposes of conducting voluntary employment background checks of the FFLs' current and prospective employees. The Department seeks comments regarding that use in general as well as regarding the proposed revisions related to the processes surrounding that use of NICS. The Department will carefully consider all properly submitted public comments in drafting any final rules. All comments must reference RIN 1110-AA35 or this document's docket number, FBI-159, and be legible. Please do not submit, under this proposed rule, any comments pertaining to a different rule that may be discussed in limited detail below. Public comments concerning those proposed rules should be submitted as directed within those rules. Please note that all comments received are considered part of the public record and may be made available for public inspection online at <E T="03">https://www.regulations.gov.</E> Information made available for public inspection may include personal identifying information (such as name, address, etc.) submitted by the commenter. <HD SOURCE="HD2">B. Confidentiality</HD> 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 <E T="03">https://www.regulations.gov.</E> 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. <HD SOURCE="HD2">C. Submitting Comments</HD> 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. • <E T="03">Federal eRulemaking Portal:</E> The Department recommends that you submit your comments via the Federal eRulemaking portal at <E T="03">https://www.regulations.gov</E> and follow the instructions. Please keep the comment tracking number that is provided after you have successfully uploaded your comment. • <E T="03">Mail</E> : Send written comments to the address listed in the <E T="02">ADDRESSES</E> section of this document. <HD SOURCE="HD1">II. Background and Purpose</HD> <HD SOURCE="HD2">A. National Instant Criminal Background Check System</HD> <HD SOURCE="HD3">1. NICS Procedures</HD> The Brady Handgun Violence Prevention Act of 1993 (“Brady Act”), Public Law 103-159, 107 Stat. 1536, required the Attorney General to establish NICS, a system that certain FFLs must contact before selling or otherwise transferring a firearm. Brady Act sec. 103. NICS provides, when possible, immediate information on whether receipt of a firearm by an unlicensed person would violate 18 U.S.C. 922(g) or (n), or State, local, or Tribal law. <E T="03">See</E> 18 U.S.C. 922(t). The FBI manages and operates NICS by delegation of the Attorney General pursuant to 28 CFR 25.3. The NICS Section of the FBI's Criminal Justice Information Services Division processed the first NICS background check on November 30, 1998. <SU>1</SU> <FTREF/> <FTNT> <SU>1</SU>   <E T="03">See</E> National Instant Criminal Background Check System Regulation, 63 FR 58303, 58303 (Oct. 30, 1998). </FTNT> The Brady Act provides that persons federally licensed by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) as manufacturers, dealers, and importers under 18 U.S.C. 923 are required to initiate a NICS background check before transferring firearms to unlicensed persons. <E T="03">See</E> 18 U.S.C. 922(t)(1); <E T="03">see also</E> 921(a)(9)-(11). Persons licensed under 18 U.S.C. 923 as “collectors,” <E T="03">see</E> 18 U.S.C. 923(b), <SU>2</SU> <FTREF/> are not required to submit NICS transactions under 18 U.S.C. 922(t) because licensed collectors are not defined as “licensees” under the Brady Act. <E T="03">See</E> 34 U.S.C. 40901(j)(1). <FTNT> <SU>2</SU>   <E T="03">See also</E> 27 CFR 478.11 (defining “[c]ollector” as “[a]ny person who acquires, holds, or disposes of firearms as curios or relics,” and “[l]icensed collector” as “[a] collector of curios and relics only [who is] licensed under the provisions of this part”). </FTNT> An FFL initiates a NICS background check by contacting the FBI NICS Section  <SU>3</SU> <FTREF/> or a State or local law enforcement agency known as a point of contact (“POC”)— <E T="03">i.e.,</E> certain State or local law enforcement agencies with express or implied authority to perform NICS inquiries and respond to FFLs with the results. <E T="03">See</E> 28 CFR 25.2, 25.6(a), (d). <SU>4</SU> <FTREF/> As of December 31, 2021, the NICS Section supported NICS background checks for 50,588 dealer and pawnbroker licensees conducting business in 31 States, 5 U.S. Territories, and the District of Columbia. <SU>5</SU> <FTREF/> The NICS Section processed 11,106,931 firearm transactions from January 1, 2021, through December 31, 2021. <SU>6</SU> <FTREF/> In addition, the NICS Section processed 138,518 explosive permit background checks for this same timeframe. <SU>7</SU> <FTREF/> <FTNT> <SU>3</SU>  The NICS Section was known as the “NICS Operation Center” until July 24, 2002. 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