Bipartisan Safer Communities Act
In June 2022, U.S. Congress passed the Bipartisan Safer Communities Act (BSCA) of 2022, which, in relevant part, expands use of the National Instant Criminal Background Check System (NICS) related to prospective firearms transferees between ages 18 and 20. Because of this, the FBI may request that state and local law enforcement agencies provide NICS any information pertaining to juvenile criminal behavior or delinquency, mental health adjudications, or commitments that may disqualify an individual under age 21 in their jurisdiction from actively seeking to purchase a firearm from a federal firearm licensee (FFL) or from receiving or possessing one.
When an agency receives such a request, the FBI asks for a response within three business days. Timely responses are crucial to ensure the safety of the community as well as the individual seeking the firearm.
Firearm Background Checks
When an individual attempts to purchase a firearm, the prospective transferee fills out a Bureau of Alcohol, Tobacco, Firearms and Explosives Form 4473, and the FFL submits some of the person’s biographic information to NICS. Then, NICS searches three national databases for possible descriptive matches:
- National Crime Information Center (NCIC).
- Interstate Identification Index (III).
- NICS Indices.
In addition, for all non-U.S. citizens, a NICS background check includes a search of applicable databases of the U.S. Immigration and Customs Enforcement. Based on the return of information in the databases, NICS staff conduct research to determine if an individual is prohibited from possessing or receiving a firearm.
Title 18, U.S.C., Sections 922(g) and (n) define who is federally prohibited from shipping, transporting, possessing, or receiving a firearm. Federal prohibitors pertain to any person who:
- Has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year.
- Is a fugitive from justice.
- Is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substance Act, codified at 21 U.S.C. § 802).
- Has been adjudicated as a “mental defective” or committed to a mental institution.
- Is an undocumented immigrant.
- Has been discharged from the U.S. Armed Forces under dishonorable conditions.
- Having been a citizen of the United States, has renounced U.S. citizenship.
- Is subject to a court order that restrains the person from harassing, stalking, or threatening an intimate partner or child of such intimate partner.
- Has been convicted in any court of a misdemeanor crime of domestic violence.
- Is under indictment for a crime punishable by imprisonment for a term exceeding one year.
However, due to the passage of the BSCA, NICS must conduct expanded juvenile background checks of prospective transferees under age 21. The legislation states that NICS will contact the following agencies with jurisdiction over the prospective transferee’s residential address as provided to the FFL:
- Local law enforcement agencies.
- State criminal history repositories or juvenile justice information systems.
- State custodians of mental health adjudication records.
These contacts are to determine if a prospective firearm transferee has a possibly disqualifying juvenile record as described under 18 U.S.C. § 922(d) that is or is not already available to NICS in NCIC, III, or the NICS Indices. When agencies receive a request about a prospective transferee under age 21, the NICS staff asks that they search their internal and state databases for any juvenile criminal records, delinquent acts, and mental health adjudications or commitments and provide a response to NICS within three business days.
Because of the BSCA, the NICS staff is permitted to extend the delay of firearms transactions for up to 10 days to conduct additional research on the potential transferee if they receive cause of possibly disqualifying information within three business days. Therefore, it is critical for agencies to respond within that time frame to requests for information about prospective transferees under age 21, regardless of whether those responses indicate relevant information or none is available.
Agencies will receive NICS requests for additional juvenile information in one of two ways. For those that have not provided NICS with an email address, the request will come via NCIC through a $.H.U21 unsolicited message. For agencies that provide NICS with an email address, the request will be emailed and contain a secure link-and-pin connection. To reply to a $.H.U21 unsolicited NCIC message, NICS asks agencies to email their responses and any applicable documentation through a web browser to NICS_U21@fbi.gov. Any necessary documentation can be attached to the email.
The secure link-and-pin connection allows agencies to connect to a secure FBI portal to access the request. This protects prospective transferees’ personally identifiable information provided within the request. Through this portal, agencies can indicate if they have information to share and provide comments or attachments as needed. Agencies that have been using the secure link-and-pin connection to respond to NICS requests have said the method is faster and easier than responding to $.H.U21 NCIC messages.
If an agency is not permitted to share juvenile information for firearm eligibility determinations because of state laws, that information should be conveyed as quickly as possible by responding to the secure link-and-pin connection, if an email was received, or by sending an email to NICS_U21@fbi.gov, as furnished in the $.H.U21 message.
In addition, the privacy rule of the Health Insurance Portability and Accountability Act (HIPAA), Title 45, C.F.R, § 164.512(k)(7), was amended in 2016 to allow covered entities to disclose protected health information to NICS without requiring the individual’s consent to report the identities of individuals who are prohibited from shipping, transporting, possessing, or receiving a firearm based on the federal mental health prohibitor furnished in 18 U.S.C. § 922(g)(4).
To provide an email address or to obtain additional information about background checks for individuals under age 21, agencies can contact the NICS staff at 844-265-6716 or NICSLiaison@fbi.gov.
“When agencies receive a request about a prospective transferee under age 21, the NICS staff asks that they search their internal and state databases for any juvenile criminal records, delinquent acts, and mental health adjudications or commitments. …”
Submitted by Janine T. Arnold, writer-editor in the FBI’s Criminal Justice Information Services Division.