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Privacy Act

[Federal Register: June 4, 1998 (Volume 63, Number 107)]
[Page 30514-30517]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



[AAG/A Order No. 151-98]
Privacy Act of 1974; Notice of New System of Records

Pursuant to the provisions of the Privacy Act of 1974 (5 U.S.C.
552a), notice is hereby given that the Department of Justice proposes
to establish a new system of records to be

[[Page 30515]]

maintained by the Federal Bureau of Investigation (FBI).
The National Instant Criminal Background Check System (NICS)
JUSTICE/FBI-018, is a new system of records for which no public notice
consistent with the provision of 5 U.S.C. 552a(e)(4) and (11) has been
In the rules section of today’s Federal Register, the Department of
Justice provides a proposed rule exempting the NICS from certain
provisions of the Privacy Act, as well as proposed rules to establish
policies and procedures for operating the system, ensuring the privacy
and security of the NICS, and implementing its alternative access and
appeal provisions.
In accordance with 5 U.S.C. 552a(e)(4) and (11), the public is
given a 30-day period in which to comment on the new routine uses; the
Office of Management and Budget (OMB), which has oversight
responsibility under the Act, requires a 40-day period in which to
conclude its review of the system. Therefore, please submit any
comments by July 6, 1998. The public, OMB, and the Congress are invited
to submit any comments to Patricia E. Neely, Program Analyst,
Information Management and Security Staff, Justice Management Division,
Department of Justice, Washington, DC 20530 (Room 850, WCTR Building).
In accordance with 5 U.S.C. 552a(r), the Department has provided a
report to OMB and the Congress.

Dated: May 7, 1998.
Stephen R. Colgate,
Assistant Attorney General for Administration.

National Instant Criminal Background Check System (NICS).

Federal Bureau of Investigation, 1000 Custer Hollow Road,
Clarksburg, West Virginia 26306.

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
G. Having been a citizen of the United States, has renounced such
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
K. Is 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, and authorized by the FBI to request NICS background checks;
L. Has applied for the purchase 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
where the NICS background check does not locate a disqualifying record,
information about the individual will only be retained temporarily for
audit purposes and will be destroyed after eighteen months. 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.)

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
C through G. These records contain an individual’s name; sex; race;
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
purchaser; 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.

(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).

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 there is reasonable cause to believe that a person is
disqualified from possessing a firearm under Federal or State law.
Prior to the transfer of a firearm, a prospective purchaser, 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 purchaser. NICS conducts a
search which compares the information about the purchaser with
information in or available to NICS.
State and local law enforcement agencies 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 reason to believe that an individual is
disqualified from possessing a firearm under Federal or

[[Page 30516]]

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) portion of
NCIC, 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 purchaser
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, H, and I.

A. Limited information may be provided by a Point of Contact or the
NICS Operations Center to an FFL who has contacted the NICS concerning
a prospective firearm purchaser. If a matching record found by the NICS
provides reasonable cause to believe that the prospective purchaser 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, the response may read
“delayed.” If no disqualifying record is located by the NICS, the FFL
will be told to “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 Points of Contact 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
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.
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, or a violation or potential violation of a contract, 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, regulation, or contract, 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).
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
in accordance with 28 CFR 50.2. System records may also be disclosed to
the news media or general public in other situations of legitimate
public interest where disclosure would not constitute a clearly
unwarranted invasion of personal privacy.
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

Policies and Practices for Storing, Retrieving, Accessing, Retaining,
and Disposing of Records in the System:
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.

Records are retrieved by name, sex, race, date of birth, state of
residence, 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.)

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 passwords.
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.

[[Page 30517]]

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 eighteen months.
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
Achives 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.

This system of records has been exempted from the notification
procedures of subsections (d) and (e)(4)(G), to the extend 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

This system of records has been exempted from the access procedures
of subsections (d) and (e)(4)(H) to the extend 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 purchase of, or permit for, a firearm 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.

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 purchase of, or permit for, a firearm
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.

Information contained in the NICS is obtained from local, State,
Federal, and international records.

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.

[FR Doc. 98-14797 Filed 6-3-98; 8:45 am]