On December 12, 2024, a Notice of Proposed Rulemaking (NPRM) under Regulation Identifier Number 1110-AA35 was published in the Federal Register, initiating a 30-day public comment period on the use of NICS background checks on current and prospective employees. This update, mandated by the Bipartisan Safer Communities Act of 2022, will provide FFLs with additional tools to identify criteria that may deem an employee as an ATF prohibited person.
Once the comment period has elapsed, the final regulatory rule must be completed and published before this use of NICS will be authorized. Per the FBI’s NICS Section, “an estimated date as to when the final rule will be published, has not been established.” As communicated by FBI NICS and as outlined in the NPRM, “this new use of NICS will be conducted using a new purpose identification number (Purpose ID) of 57, and written consent of the current or prospective employee will be required before an FFL may use NICS for this purpose. The Bureau of Alcohol, Tobacco, Firearms and Explosives will be releasing a form that FFLs may use to accomplish those requirements. Although this service is not currently available, FBI believes the best option will be to initiate these checks utilizing NICS E-Check.”
What Does This Mean for FFLs?
FFL employers may soon have access to additional employment screening tools to:
- Screen new hires to ensure they are not Prohibited Persons.
- Review current employees to ensure ongoing adherence to legal standards.
- Proactively mitigate risks associated with prohibited individuals in the workplace.
Compliance Considerations
While this new federal resource may become available, FFLs must consider state-specific laws that govern employer use of background checks. For example:
- Some states limit employer access to criminal background checks, requiring specific permissions or restricting the type of information available.
- Ban-the-box laws in certain jurisdictions may impose additional rules on how and when background checks can be conducted in the hiring process.
Actions You Can Take Now
FFLs are encouraged to consult with Orchid’s regulatory specialists, other counsel, or a human resources specialist to navigate potential conflicts between state and federal laws. FBI NICS encourages “FFLs who are not currently a NICS E-Check user, to take this opportunity to register at: www.nicsezcheckfbi.gov. NICS E-Check customer service is available at 1-833-297-4357 if you require additional assistance in the registration process.”
Our compliance team is ready to help you integrate this new resource into your operations. Reach out for support or questions about how this impacts your business.
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