National Instant Criminal Background Check

[Federal Register: June 1, 1994]


Office of the Attorney General

[AG Order No. 1882-94]

National Instant Criminal Background Check System

AGENCY: Department of Justice.

ACTION: Notice.

SUMMARY: Under section 103(b) of the Brady Handgun Violence Prevention Act (Brady Act), Public Law 103-159, Title I, 107 Stat. 1536 (to be codified at 18 U.S.C. 922), the Attorney General is required by November 30, 1998, to establish a national instant criminal background check system (NICS). The NICS must be able to supply information immediately regarding whether receipt of a firearm by a prospective transferee would violate section 922 of Title 18, United States Code, or state law. Under section 103(a)(1) of the Brady Act, the Attorney General is required by June 1, 1994, to determine the type of computer hardware and software that will be used to operate the NICS and the means by which state criminal records systems and the telephone or electronic device of licensees will communicate with the national system. Under section 103(a)(3) of the Brady Act, the Attorney General is also required by June 1, 1994, to notify each state of these determinations.

This notice by the Attorney General provides the required information concerning the NICS to each state. It explains how the NICS will operate, how states will interface with the federal segment of the NICS, and how licensees will communicate with the NICS. Technological advances can be expected in the course of NICS development. Therefore, additional detailed information may be published regarding hardware and software for the NICS before its establishment. Final functional specifications for the NICS will be developed and published to enable the system to be operational by November 30, 1998. Regulations detailing the duties and obligations of the federal, state, and local agencies responsible for NICS development and operation, including security and privacy of the information contained in the system, will be published in the future.

EFFECTIVE DATE: This determination is effective on June 1, 1994.

FOR FURTHER INFORMATION CONTACT: Virgil L. Young, Jr., Chief, Programs Development Section, Criminal Justice Information Services Division, Federal Bureau of Investigation, room 11854, 10th Street and Pennsylvania Avenue, NW., Washington, DC 20537-9700, (202) 324-5084.

Notice of Determination

As required of me as Attorney General under section 103(a)(1) of the Brady Handgun Violence Prevention Act, I hereby determine that the NICS will include information from all of the states and the federal government, concerning whether receipt of a firearm by a prospective transferee would violate section 922 of Title 18, United States Code, or state law. A ``state segment'' of the NICS will consist of information provided at the state and local levels, and a ``federal segment'' will contain information from federal agencies. All background checks initiated by federal firearms licensees will go through the appropriate state or local law enforcement information system, as determined by the state, to reach the federal segment of the NICS.

The NICS will build upon existing information systems. One of these systems is the National Crime Information Center (NCIC) Interstate Identification Index, which includes state as well as federal criminal history records. Another is the future Integrated Automated Fingerprint Identification System of the Federal Bureau of Investigation (FBI), which when completed will provide the foundation for remote positive identification capabilities to state and local agencies. Records on wanted persons are currently available through NCIC. Other possible federal data files include Department of Defense records on persons who have been dishonorably discharged, Veterans Affairs Department records on mental commitments, Immigration and Naturalization Service records on illegal aliens, and Department of State records on individuals who have renounced their U.S. citizenship. The Department of Justice intends to secure such information directly from those agencies for inclusion in the federal segment of the NICS pursuant to section 103(e)(1) of the Brady Act.

All criminal records provided through the NICS will be supported by fingerprints. Some means of identification also will be associated with any other information included in the NICS. Fingerprints will be included with this information whenever possible.

The NICS itself will not approve or deny the transfer of a firearm. The NICS cannot by itself resolve important questions of fact and interpretation. Rather, a representative of a state or local criminal justice agency in the state where the firearm transaction is proposed to occur will make this decision.

There are several reasons why the state or local agency should make this determination. First, many individuals have the same names, and some individuals use several names. Before denial of a firearm transaction, there must be a determination that the prospective transferee is the same individual associated by the NICS with disqualifying information. The system cannot decide such questions of identity on its own. Second, information provided by the NICS may require interpretation. For instance, some information could represent a violation of the laws of one state but not another. Third, state and local agencies have disqualifying information that does not lend itself to storage or indexing at the federal level. An example is the observed use of illegal drugs in the absence of an arrest. Finally, because of state confidentiality laws and other restrictions, in some states, only state officials may review some of the records needed to make disqualification determinations. These restrictions apply, for example, to information about commitments to mental institutions. States and localities will use any relevant disqualifying information that they have in their files when making decisions concerning approval or denial of a firearm transaction.

Background checks from federal firearms licensees will go first to the state segment, possibly through local agencies, at the discretion of the state. States and localities may deny a firearm transaction without contacting the federal segment of the NICS if they find information in their own data files that disqualifies the prospective transferee. If no disqualifying information is found in state or local data files, the state will transmit the background check to the federal segment.

State information systems will communicate with the federal segment directly via their NCIC interface. Each state will determine the specific electronic means and procedures needed by the licensees in that state to access the state segment and the federal segment through the state. States will offer telephonic access at a minimum, and may offer other electronic means of access in addition to the telephone. If the state system allows automated access, then training for licensees will be provided by the state.

As part of the notification that the NICS is operational (by November 30, 1998), the Attorney General will inform licensees of any access options and interface requirements for the NICS that are available within their states. Licensees will not be required to use expensive equipment to access the federal segment.

The FBI will supervise the development and use of information in the federal segment for background checks with the full cooperation and support of other federal agencies having data files with potentially disqualifying information. The FBI will develop one consolidated federal response to a request for a background check. The response will be either (1) a notification that no information was found about the prospective transferee in the federal segment, or (2) a list that summarizes any potentially disqualifying information found in the federal segment, with a brief description of the person to whom the information relates. The FBI will provide this response to the state that requested the background check within 30 seconds of receiving that state's request. If a part of the federal response is unavailable within that time, then the consolidated response will identify the specific file information that is not yet available. The FBI will thereafter send the missing information to the state as soon as it is available.

A state of local agency representative where the firearm transaction is to occur will determine whether the transaction is (1) approved, (2) denied, or (3) ``not approved at this time because part of the background check has not been completed.'' The state or local agency will communicate only this determination to the licensee, and not the information leading to the determination.

The use of any state or federal information in the NICS will be supervised and administered exclusively by criminal justice agencies. State will use security measures to ensure the integrity of the NICS, such as licensee terminal restrictions, telephone call-back, and caller ID. States will assign a unique transaction number for each approval and denial of a firearm transaction.

The Attorney General intends to provide access to appropriate information in the NICS for purposes of carrying out the Brady Act, and does not intend to charge for such access provided that there are sufficient appropriations. State and local agencies may, however, in accordance with their statutes, charge discretionary fees to recover their costs for background checks.

Dated: May 26, 1994.

Janet Reno,

Attorney General.

[FR Doc. 94-13328 Filed 5-31-94; 8:45 am]


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