Federal Law on Retention of Sales & Background Check Records

Posted on May 21, 2012

Background Check Records

Until 2004, information on approved National Instant Criminal Background Check System (“NICS”) background checks was retained by NICS for ninety days.1 This information helped ATF deter fraud and detect dealers who might be providing false information about a prohibited person, by inspecting a dealer’s records within the ninety-day period and verifying that the records matched the information submitted earlier to NICS.2 If discrepancies were found, ATF could conduct a further investigation of the dealer to determine whether the dealer submitted false information to NICS.3

In a recent review of trafficking investigations, ATF determined that corrupt dealers are a significant source of trafficked firearms.4

As of July 2004, approved purchaser information is no longer kept for ninety days but is instead destroyed within twenty-four hours of the official NICS response to the dealer. The requirement that approved purchaser information be destroyed within twenty-four hours has been included in the appropriations bills funding the Department of Justice (which includes ATF and the FBI) every year since 2004.5 Each of these acts contains additional provisions which restrict disclosure of data obtained by ATF via crime gun traces. In 2006, Congress failed to pass H.R. 5005, which would have codified and made permanent the restrictions on disclosure of crime gun trace data.

As a result of these restrictions, ATF inspectors are no longer able to compare the information on file with the dealer to the information the dealer submitted to NICS. The Department of Justice Inspector General has noted that the shortened retention time makes it much easier for corrupt firearm dealers to avoid detection.6

The FBI maintains indefinitely the records of prospective purchasers whose applications are denied.7

Sales Records

FFLs are required to maintain records of the acquisition and sale of firearms indefinitely.8 The dealer must record, “in bound form,” the purchase or other acquisition of a firearm not later than the close of the next business day following the purchase or acquisition.9 The dealer must similarly record the sale or other disposition of a firearm not later than seven days following the date of such transaction and retain Form 4473, the Firearms Transaction Record.10

If the sale is approved, NICS provides the dealer with a unique identification number. The dealer records this number and certain information about the firearm to be transferred, including the manufacturer, type, model, caliber or gauge and serial number, on Form 4473.11 The dealer is required to retain Form 4473, regardless of whether the transaction is approved or denied or whether the firearm is actually transferred.12 When a firearms business is discontinued, these records are delivered to the successor or, if none exists, to the Attorney General.13

With very limited exceptions, records of firearm sales are not maintained at the federal level. The National Firearms Act Branch of ATF does maintain a limited registry of machine guns, short-barreled shotguns or rifles, and silencers, known as the National Firearms Registration and Transfer Record.14 Machine guns were banned in 1986, and it is unlawful to possess or transfer a machine gun unless it was lawfully owned prior to May 19, 1986.15 The Act also includes, in a category defined as “any other weapon,” certain smooth-bore handguns.16 The vast majority of handguns are excluded.

Click here to view additional information about the retention of sale and background check records, including background information and state and local laws on the topic.

  1. Office of the Inspector General, U.S. Department of Justice, Inspections of Firearms Dealers by the Bureau of Alcohol, Tobacco, Firearms and Explosives, Evaluation & Inspection Report I-2004-005 x (July 2004). []
  2. Id. at 51-54. []
  3. Id. []
  4. Violence Policy Center et al., Comments On Regulations Proposed by the Federal Bureau of Investigation, Department of Justice Regarding Changes to Regulations Implementing the National Instant Criminal Background Check System 10 (Sept. 4, 2001). []
  5. See Consolidated Appropriations Act of 2004, Pub. L. No. 108-199, § 617, 118 Stat. 3 (2004); Consolidated Appropriations Act of 2005, Pub. L. No. 108-447, § 615, 118 Stat. 2809, 2915 (2005); Science, State, Justice, Commerce, and Related Appropriations Act of 2006, Pub. L. No. 109-108, § 611, 119 Stat. 2290, 2336 (2005); Revised Continuing Appropriations Resolution, 2007, Pub. L. No. 110-5, 121 Stat. 8 (2007); Commerce, Justice, Science, and Related Agencies Appropriations Act, 2008, H.R. 3093, 110th Cong. § 511 (2007). []
  6. Evaluation & Inspection Report, supra, at x-xi; 51-54. Federal law also specifically prohibits using NICS to create any system of registration of firearms or firearm owners. 28 C.F.R. § 25.9(b)(3). []
  7. Bureau of Justice Statistics, U.S. Department of Justice, Survey of State Procedures Related to Firearm Sales, 2005 17 (Nov. 2006). []
  8. 18 U.S.C. § 923(g)(1)(A). []
  9. 27 C.F.R. § 478.125(e). []
  10. Id.; 27 C.F.R. § 478.124(b). []
  11. Id., 27 C.F.R. § 478.124(c). []
  12. 27 C.F.R. § 478.102. []
  13. 18 U.S.C. § 923(g)(4). []
  14. Bureau of Alcohol, Tobacco, Firearms and Explosives, U.S. Department of Justice, Brochure of the National Firearms Act Branch (Feb. 23, 2006). []
  15. 18 U.S.C. § 922(o). []
  16. 26 U.S.C. § 5845(a), (e). []