ACRONYM: NICS

ORIGINATOR:
Department/Agency Name: U.S. Department of Justice

Major Organization Subdivision: Federal Bureau of Investigation

Minor Organization Subdivision: Criminal Justice Information Services (CJIS) Division
Name of Unit:
Street Address: 1000 Custer Hollow Road
City: Clarksburg
State: West Virginia
Zip Code: 26306
Country: United States
Hours of Service: 9:00 a.m. - 5:00 p.m.
Telephone: (304) 625-2000

ABSTRACT: The National Instant Criminal background check System (NICS) provides a method of checking available information to determine whether a person is disqualified from possessing a firearm under federal or state law. The NICS contains records on individuals who are disqualified from possessing a firearm. These records include an individual’s name, sex, race, other personal descriptive data, date of birth, state of residence, and sometimes a unique identifying number. The NICS also contains criminal information which may disqualify an individual from possessing a firearm under federal or state law.

PURPOSE: The purpose of NICS, which was established pursuant to the Brady Handgun Violence Prevention Act (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.

ACCESS CONSTRAINTS: All records in NICS are protected from unauthorized access through appropriate administrative, physical, and technical safeguards. These safeguards include restricting access to those with a need-to-know to perform their official duties, and using locks, alarm devices, passwords, and/or encrypting data communications.

USE CONSTRAINTS: Users of NICS are restricted to only those privileges necessary to perform an authorized task(s).

AGENCY PROGRAM: The Brady Act requires the Attorney General to establish by November 30, 1998, a national instant criminal background check system that gun dealers must contact for information on whether receipt of a firearm by a prospective purchaser would violate federal or state law. The Attorney General has assigned responsibility for developing the NICS to the FBI. (59 Fed. Reg. 28,423 (1994)).

SOURCES OF DATA: Data contained in NICS is obtained from local, state, federal and international records.

RESPONSIBLE OFFICE FOR DISTRIBUTING INFORMATION (if different from originator):
Department/Agency Name: U.S. Department of Justice
Major Organization Subdivision: Federal Bureau of Investigation
Minor Organization Subdivision: Office of Public and Congressional Affairs
Name of Unit: Freedom of Information and Privacy Acts Section
Street Address: 935 Pennsylvania Avenue, N.W.
City: Washington, D.C.
State:
Zip Code: 20535-0001
Country: United States
Hours of Service: 9:00 a.m. - 5:00 p.m.
Telephone: (202) 324-3000

ORDER PROCESS: This system of records has been exempted from the access procedures of subsections (d) and (e)(4)(H) of the Privacy Act, 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 made in writing with the envelope and the letter clearly marked “Privacy Act Request.” Include in the request your full name, complete address, date of birth, place of birth, and notarized signature. The requester will also provide a return address for transmitting the information. Requests for access to information must be addressed to the Federal Bureau of Investigation, FOIPA Section, 935 Pennsylvania Avenue, NW, Washington, DC 20535-0001. 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 alternative procedures can be found at 28 CFR, Part 25, Subpart A. All other requests for information should be submitted in writing to the office listed below.

OFFICE OF CONTACT FOR FURTHER INFORMATION (if different from originator):
Department/Agency Name: U.S. Department of Justice
Major Organization Subdivision: Federal Bureau of Investigation
Minor Organization Subdivision: Office of Public & Congressional Affairs
Name of Unit: Freedom of Information Privacy Acts Section
Street Address: 935 Pennsylvania Avenue, N.W.
City: Washington, D.C.
State:
Zip Code: 20535-0001
Country: United States
Hours of Service: 9:00 a.m. - 5:00 p.m.
Telephone: (202) 324-3000

No gun law, however, can claim to prevent future acts of violence. A universal check would be valuable in the sense that it would restrict access by those who go to private sellers knowing they’d fail the check at a gun shop, or at a gun show — irregardless of the “gun show loophole,” discussed later. The background checks don’t keep people with clean records from becoming violent. But they keep those with criminal+records" rel="tag">criminal records from evading the NICS check system we now have in place.

What a lot of observers have come to call the “Gun show loophole” is a term coined to describe the legal sale of firearms between private individuals at gun shows in states where this is legal.

When and where these sales take place at a gun show, some perceive a “loophole” in the National Instant Criminal background check System (NICS), although these laws have never applied to individual-to-individual sales of personal firearms.

Federal law requires persons engaged in interstate firearm sales, or who are simply in the business of selling firearms, to hold a Federal Firearms License and to perform a background+check" rel="tag">background check prior to transferring a firearm, but there is an exemption for private sales by individuals who are “not engaged in the business” of selling firearms, or who only make “occasional” sales, hence the loophole.

Unlicensed private sellers are permitted by law to sell privately-owned guns at gun shows, or at private locations, in 24 states (as of 1998) [see Wikipedia].

Although gun shows remain a point of concern, a 1997 Department of Justice survey of 3,959 inmates found that only 2% stated that they had bought a gun used in a crime from a gun show. The remaining 98% were obtained from other sources, in which the criminal had no direct connection with a gun show. The most common sources (35%) were family or friends!

Licensed gun dealers who sell at gun shows must, by federal law, strictly check backgrounds through the National Instant Criminal background check System. Additionally, some states and parts of states have laws requiring a purchaser to observe a waiting period before taking possession of a firearm from even private sellers, unless a CCW license is held by the buyer. These waiting periods typically range from 3 to 10 days depending on the state where the firearm is purchased. These waiting periods may not apply to firearms that fall under the “curio & relic” laws (firearms that are over 50 years old), depending on jurisdiction.

Another concern sometimes voiced is the possibility that a gun dealer, who might otherwise be required to be licensed, could pose as a private seller to circumvent federal law requiring dealer licensing and mandating background checks of firearms purchasers at a gun show. However, the criteria that would differentiate a person “in the business of firearms dealing” from a “private seller” has not been clearly defined under U.S. law.

Furthermore, such cases have yet to be tested in U.S. courts. Tom Mangan, of the Bureau of Alcohol, Tobacco and Firearms (ATF), has stated, “There is no limit to the amount of guns that a private collector can have. Some have 10; some have 1,000, if I go to a gun show and state that this is my private collection, I am not required by law to ask you for identification, ask you to fill out any paperwork or conduct a background check. It is simply cash and carry.”

The ATF has reported that between 50% and 75% of the vendors at these venues possess a Federal Firearms License. Remaining vendors may sell books, parts, collectibles, or food and drink. Individuals who are not in the business of selling firearms, and who are not required to possess Federal Firearms Licenses, may make legal private firearm sales to residents of their own states, subject to state law. Federal law does not require a background check on such sales.

Private sales between attendees or between attendees and non-dealer vendors are not uncommon at gun shows, though they make up a small fraction of the guns sold. Groups opposed to these legal private sales at gun shows contend that allowing them makes gun shows an attractive venue to persons prohibited by Federal law from possessing firearms (convicted felons, domestic abusers, drug addicts, fugitives from justice, individuals adjudicated as mentally ill, illegal immigrants, and others) who would be stopped by a background check.

Others question the point of laws that would make private sales at gun shows illegal, while the same private sales would be legal in the parking lot.

In November 1993, the Brady Handgun Violence Prevention Act of 1993 (Brady Act), Public Law 103-159, was signed into law requiring Federal Firearms Licensees (FFLs) to request background checks on individuals attempting to purchase a firearm. The permanent provisions of the Brady Act, which went into effect on November 30, 1998, required the Attorney General to establish the National Instant Criminal background check System (NICS) that any FFL may contact by telephone or by other electronic means for information, to be supplied immediately, on whether receipt of a firearm by a prospective transferee would violate section 922 (g) or (n) of title 18, United States Code, or state law.

The NICS is a national system that checks available records in the National Crime Information Center (NCIC), Interstate Identification Index (III), and the NICS Index to determine if prospective purchasers are disqualified from receiving firearms.

The FBI developed the NICS through a cooperative effort with the Bureau of Alcohol, Tobacco and Firearms (ATF) and local and state law enforcement agencies. The NICS is designed to respond within 30 seconds to check background to provide FFLs with an immediate answer as to whether the transfer of a firearm would violate state or federal law.

Definitions of Prohibiting Categories

The NICS Index contains records provided by state and federal agencies about persons prohibited from receiving firearms under federal law. All records in the NICS Index are dis-qualifying records and will prohibit the sale of a firearm. Most records in the NICS Index are obtained from federal agencies. However, authorized local and state law enforcement agencies may voluntarily contribute records to the NICS Index. The information in the NCIC and III systems searched during a background check has been or will be contributed voluntarily by local, state, federal, and international criminal justice agencies in accordance with the entry criteria and policies associated with those systems and records. The following definitions from the Federal Register, Vol. 62, No. 124, outline categories of persons prohibited from receiving firearms included in the NICS Index:

1) Persons who are aliens and are illegally or unlawfully in the United States

Criteria for Entry

The United States Immigration Naturalization Services (USINS) and state law enforcement have the authority to enter and update records for individuals who are aliens and are unlawfully and illegally in the United States.

2) Persons who have renounced their U.S. Citizenship

Criteria for Entry

The Department of State alone has the authority to enter and update records on persons who have renounced their United States citizenship.

3) Persons who have been adjudicated as a mental defective or have been committed to a mental institution.

Criteria for Entry

The Department of Veteran Affairs, the Depart-ment of Defense, and state law enforcement have the authority to enter and update records on persons who have been adjudicated as mental defectives or have been committed to mental institutions.

4) Persons who have been discharged from the armed forces under dishonorable discharge conditions

Criteria for Entry

The Department of Defense and the U.S. Coast Guard have the authority to enter and update records on persons who have been discharged from the U.S. Armed Forces.

5) Persons who are unlawful users of/ or addicted to any controlled substance

Criteria for Entry

The Department of Defense, the U.S. Coast Guard, and state law enforcement have the authority to enter and update records on persons who have been unlawful users of or addicted to any controlled substance.

6) Persons who are federally disqualified when a record is not already included in NCIC, III, or the NICS Index

Criteria for Entry

State law enforcement has the authority to enter and update a record on persons who are federally disqualified when records are not already included in the NCIC, III, or the NICS Index.

If you have just been denied by a federally licensed firearms dealer from receiving a gun because of a record in the FBI’s National Instant Criminal background check System (NICS), you may appeal as provided in this NICS Regulations, Correction of Erroneous of Information (28 CFR Part 25.10) and Subsection 103(f) and (g) and Section 104 of the permanent provision of the Brady Handgun Violence Prevention Act of the Brady Law.

This brochure is designed for appealing denials made by the FBI NICS Operations Center. (Procedures for appealing denials by the states acting as Points of Contact will be provided separately by those states.) The following procedures are steps you need to follow for a NICS appeal.

REQUESTING REASONS FOR YOUR DENIAL

STEP 1

1. You may request the reason(s) for your denial by writing to:

Federal Bureau of Investigation,
NICS Operations Center,
Research and Analysis,
P.O. Box 4278,
Clarksburg, West Virginia, 26302-4278.

You must include your complete mailing address in the request. If you do not include your mailing address, the NICS Operations Center will be unable to process your appeal.

The NICS Transaction Number (NTN) is a tracking number that is directly linked to your denial. You must include the NTN with your request. You should obtain the NTN from the dealer where you are purchasing the firearm.

2. The NICS Operations Center will respond to your request by providing the reason(s) for your denial within five business days after receiving your request. This response will indicate whether you must provide additional information to support any appeal.

TO BE PROVIDED BY THE FFL:
NTN #____________________________

APPEALING YOUR DENIAL

STEP 2

The following outlines the steps you must take to either challenge your record or make a claim that the record pertains to someone other than you.

Questions of Identity

You may have your fingerprints recorded at your local law enforcement department. Submit your fingerprints and other requested information to the NICS Operations Center. In some cases involving criminal records, you may be asked to submit your fingerprints to establish if you are the person who was actually arrested/convicted.

Record Challenges

1. After receiving the reason for your denial, you may write to the NICS Operations Center to challenge the accuracy of the record or declare that your rights to obtain a firearm have been restored. If you have additional information to assist the NICS Operations Center in correcting the record, attach the information to your written response. The NICS Operations Center will correct the record and provide you with written approval to proceed with the transfer of your firearm.

2. If the NICS Operations Center is unable to resolve the appeal, you will be provided information to contact the agency which created the record. You may then apply for correction of the record directly with that agency. In this case, you must follow procedures established by the state or federal agency that maintains the original record. If your record is determined to be invalid or incorrect, the originating agency will correct your record and notify you. You must notify the NICS Operations Center of the record correction. The NICS Operations Center will verify the correction and provide you with written approval for the transfer of your firearm.

a. You may submit any information to the originating agency which would assist the agency in correcting, clarifying, or verifying your record.

b. If you have “multiple” disqualifying records you wish to challenge, you may submit an appeal to each originating agency.

SUCCESSFUL APPEAL

You must present your written approval to the firearms dealer who performed your initial background check. If less than 30 days have passed since the initial NICS check, and if there are no other disqualifying records on which the denial was based, the NICS Operations Center will notify the firearms dealer that the transfer may proceed. If more than 30 days have passed since the initial NICS check, the firearms dealer must recheck the NICS, without charging a fee, before allowing the sale to continue.

APPEAL ALTERNATIVE

You may contest the accuracy or validity of a disqualifying record by bringing an action against the state or political subdivision responsible for providing the information used to create a record or to add to an existing record, or responsible for denying the transfer, or against the United States, as the case may be, for an order directing that erroneous information be corrected or the transfer be approved.

Submitting Batch Files

The states have two modes to add, modify or cancel records from the NICS Index.

The first mode is an electronic connection between the NICS and the states using an application layer and the NCIC-Front End. The states use the interface to electronically add, modify, supplement, cancel or display a denied persons record in the NICS Index.

The second mode is batch data transfer on tape for the NICS Index record additions, modifications, supplements, and cancellations. Since the contributing states or agencies are responsible for the accuracy and validity of the NICS Index records, it is imperative to supplement or cancel records as needed.

* Additions, updates, and cancellations may be submitted to the NICS in batch mode as a series of records on an IBM standard 3480 magnetic cartridge tape, CD-ROM, or 3.5″ diskette.

Voluntary Submissions

In addition to local and state law enforcement agencies voluntarily contributing records to the NICS Index, the FBI/NICS Program, Customer Service receives telephone calls from state mental institutions, psychiatrists, police departments and family members inquiring about placing individuals in the NICS Index. Frequently, these are emergency mental health issues. These situations require immediate action. Validation of the records is conducted prior to submission into the NICS Index.

* Since the data stored in the NICS are documented federal data, access is restricted to agencies authorized by the FBI.

NICS Information:
Customer Service
1-877-444-NICS (6427)
Facsimile
1-888-550-6427

Telecommunications Device for
the Deaf (TDD)
1-877-NICS-TTY

NICS Web Site
www.fbi.gov/hq/cjisd/nics/index.htm

NICS E-Mail Address a_nics@leo.gov