ILA Research & Information Division
Guide to the National Instant Check System
The National Instant Check
System (NICS) for firearms transactions takes effect Nov. 30,
1998, replacing the Brady Act's five-day waiting period. The
following provides answers to some of the most common questions
What exactly is NICS?
According to the FBI, NICS "will be a national database containing records of persons who are disqualified from receiving firearms." The NICS computer and analysis center is located in West Virginia, and the FBI is in charge of its operation. The NICS computerized system is designed to handle most checks in less than 2_ minutes and roughly 150 transactions per minute. It will be open from 9:00 a.m. to 2:00 a.m. Eastern Time, seven days a week, closed only on Thanksgiving and Christmas. (FBI regulations for the NICS system can be found at http://www.fbi.gov/programs/nics/index.htm).
How is NICS set up?
There will be three methods of accessing checks, depending on the state in which a federal firearms license (FFL) holder does business. In some states, FFLs will contact NICS through a designated state point of contact (POC) for all transfers. In some states, FFLs will perform checks by contacting the NICS Operation Center for all transfers. In other states, FFLs will contact their state POC for handgun transfers, and the NICS Operation Center for long gun transfers.
How will FFLs contact NICS?
FFLs will be informed how to contact NICS by BATF, which is also responsible for establishing regulations pertaining to Brady Act implementation and for clarifying permit exemption questions. FFLs will contact NICS either directly by a toll-free call or computer, or through their local POC.
Will there be a fee for the background checks?
The FBI will not charge the FFL or the state agency a fee to check the NICS computer.
What are the major differences between the current law and NICS?
Originally, Brady waiting period requirements applied only to handguns. Under the permanent Brady provision, both handgun and long gun purchasers must be checked. Individuals with right-to-carry permits or permits-to-purchase that comply with BATF regulations and the permanent Brady law won't have to undergo a NICS check at the time of transfer in most states. Another key change will be the elimination of the pawn shop exemption. Under the new system, a background check will be required for claiming a pawned firearm. A NICS check must be done when pawned guns returned to their owners after Nov. 30, 1998. Basically, any transaction requiring a form 4473 to be filled out will be subject to a NICS check. NICS checks don't nullify state laws. If your state has a waiting period or other requirement as a condition of owning a firearm, the NICS check won't exempt you from those obligations.
How will NICS actually work?
Once a dealer and buyer are prepared to conclude a transfer, a retailer who does NICS checks by contacting the FBI system directly by phone will do the following: 1) Call a NICS operator by toll-free number and confirm his identity with his FFL number and dealer-selected password. 2) Provide the operator with the name, date-of-birth, sex and race of the potential buyer and the type of transfer--handgun or long gun. A buyer with a common name may, at his option, provide his Social Security number to help speed the check. 3) The system will check the data against its database of prohibited persons. If there is no "hit," the sale will be approved. The system will assign a NICS Transaction Number (NTN) to the approval. The dealer will log the NTN on the form 4473, and the transfer will proceed. 4) Partially completed forms 4473, where a proposed sale has been denied, will be required to be retained by the FFL per BATF regulations. 5) When a "hit" occurs, the dealer will receive instruction to delay the transaction. A "delay" response indicates that the check turned up information that requires further review by an analyst, who will contact the dealer by return call "within a couple of hours," the FBI says.
While the law provides three business days for the FBI to respond, the FBI anticipates that virtually every delay will be handled within a day. If records require further investigation, the FBI may take up to three days to issue either a proceed or a denial. There will be an appeals process for purchasers who feel they were denied in error, and dealers will be furnished with forms for this process.
My state has agreed to be a POC state for all firearms transfers. We don't have a permit-to-purchase or a carry permit. If I go to a gun store to buy a shotgun, what will happen?
You will fill out the BATF form 4473, and the dealer will call a contact phone number provided him by the state. The state office will then contact NICS and check your name against its database of disqualified persons. The state officer will receive a NICS transfer number (NTN) which will be given to the dealer, who will record that number on the form 4473. The transfer of the firearm will be allowed if no matching record is found. Upon completing Part B of the 4473, the transfer is considered complete, and you take title to, and possession of, your shotgun. The state may require additional forms and may also assign a state transaction number (STN) to the transaction.
My state has a permit-to-purchase system. What can I expect under the NICS system?
Permits that meet the criteria established by BATF will exempt purchasers from a NICS check at the point-of-sale, and handgun permits that meet the criteria will be accepted for long gun purchases. New buyers who do not have a permit will have to undergo a NICS check, but all "permit states" are expected to incorporate a NICS check into the permit application process by Nov. 30, 1998. Also, anyone renewing his permit will undergo a NICS check at that time. Note, however, that the exemption for permit holders only applies if the permit was issued within the past five years, and the permit process has verified that possession of a firearm by the applicant would not violate any federal or state law. BATF's position is that "as of Nov. 30, 1998, the 'information available to' state officials will include the NICS database. Accordingly . . . permits issued on or after Nov. 30, 1998, will be valid alternatives under the permanent provisions of the Brady law only if the state officials conduct a NICS check on all permit applicants." So, a permit holder with a permit issued more than five years prior will need to undergo a NICS check, as will new permit applicants. Permit renewal applicants will undergo a NICS check at the appropriate time as well. The state agency responsible for issuing permits can answer any questions about how these changes will be implemented.
Will "instant check" and "point-of-sale check" systems qualify as NICS alternatives?
BATF says existing state "instant check" and "point-of-sale" checks, as currently configured, will not qualify as alternatives to NICS. The key word is "currently." As of this writing, all states with existing "instant check" systems are expected to include a NICS check by Nov. 30, 1998, thus meeting the requirement. The change should be unnoticeable to buyers and dealers.
What does the NICS system contain that a state background check system doesn't?
NICS will provide a more extensive background check of the purchaser than systems that contain only criminal records. NICS will include records from the Department of Defense concerning dishonorable discharges, records from the State Department regarding people who have renounced their citizenship and other information not available in criminal records.
My qualifying state permit exempts me from NICS checks, but are there other exemptions?
Purchases of firearms that are subject to the National Firearms Act (i.e. machine guns, destructive devices, etc.) and that have been approved for transfer under 27 CFR Part 179 are not subject to a NICS check. Purchases of firearms, for which the Secretary of the Treasury determines compliance with NICS to be impractical because of the ratio of law enforcement officers to land area of the state (less than 25 officers per 10,000 square miles) and the absence of telecommunications facilities, are also exempt.
How will state waiting periods and multiple purchases work relative to a NICS check?
Considered valid for 30 days, NICS checks may be applied to more than one firearm, provided the additional firearms are transferred as part of one transaction. A transaction is only considered complete when Part B of the 4473 is executed, and the customer takes possession of the firearm. Here are some different scenarios: Someone buys a firearm on December 15, undergoes a NICS check, and the dealer receives permission to transfer the firearm. However, the state requires a seven-day wait. The customer doesn't return to pick up the gun until January 20. At that time, since more than 30 days has elapsed, the customer must undergo another NICS check. Another person fills out a 4473, undergoes a NICS check, and decides to purchase a firearm. Before completing section B of the 4473, he decides to purchase a second firearm. That second firearm can be transferred to the customer without requiring a second NICS check. A third purchaser buys a firearm, fills out the 4473, and undergoes a NICS check. Five days later, he returns to buy a second firearm. He must undergo another NICS check because filling out section B of the 4473 and taking possession of the first gun concluded the transaction.
Do either a gunsmith or a manufacturer need to do a NICS check before returning a firearm to its owner after performing repair work or other modification?
No. In neither case does a NICS check need to be performed.
How are gun show sales affected by NICS?
Private sales of firearms will require a NICS check in states that require secondary sales be handled through an FFL dealer. The FBI is developing special provisions for handling NICS checks at gun shows, and, in the interim, they can be conducted by phone in states where dealers contact NICS directly. Gun show sales will be subject to applicable state and local laws. The circumstances requiring a NICS check for firearm transfers from dealers will apply regardless of whether the sale is conducted from the dealer's premises.
I understand antiques will not require a NICS check, but curios and relics will. Why?
Under federal law, firearms meeting the antique definition are not considered "firearms," and no NICS check is required. If a collector of curios and relics sells firearms from his private collection, BATF says no NICS check is required. Holders of BATF collector licenses, as a category, are exempt from NICS checks on the transfer of curio and relic firearms. However, if a licensed dealer sells a curio or relic to John Q. Public, a NICS check is required.
If the NICS computer "crashes," are there any back-up provisions in place?
In the event of a "crash," if a dealer is not notified that the transfer should be denied in three business days, the transfer may proceed. However, if a state POC network goes down, a dealer may not contact NICS directly.
My right-to-carry state won't be a POC state for long guns. What happens when a permit holder comes in to buy a rifle or shotgun?
If your state's permit meets the criteria as an alternative under the NICS system, the permit holder is exempt from a NICS check to buy a long gun. A non-permit holder buying a long gun will need a NICS check.