Justice Department finalizes rule letting gun dealers run FBI background checks on employees

The Justice Department has issued a final rule allowing federal firearms licensees to run the FBI's National Instant Criminal Background Check System on current and prospective workers, according to the 57-page document placed on Federal Register public inspection at 8:45 a.m. Monday, Oct. 26. It is scheduled to publish Tuesday, Oct. 27, and takes effect 30 days after publication, which would be Nov. 26 if it publishes as scheduled.¹²

The rule, docket No. FBI-159 (RIN 1110-AA35), amends 28 CFR part 25 and was signed Oct. 22 by Todd Blanche, identified in the document as attorney general.¹

What the rule does

Until now, department regulations barred licensees from starting a NICS check for anything other than a prospective gun transfer. The rule creates a separate “firearm handler background check” that licensees may choose to run on “eligible employees.” The checks are voluntary under federal law, and a licensee must give the worker notice and obtain the worker's written consent first.¹

Instead of the “Proceed,” “Delayed” or “Denied” answers used for gun sales, licensees will receive “Pass,” “Pending” or “Did Not Pass.” They will not see the underlying records. A licensee may generally run one check per eligible employee every 12 months, with an exception when it has “reasonable cause to believe” the person has become subject to a potentially prohibiting event, such as a new charge, conviction or protection order. A worker who receives “Did Not Pass” may appeal in the same ways available to a denied gun buyer. The FBI will charge no fee; state agencies that process the checks as points of contact may, the rule says.¹

Who it covers

Eligible employees are people who are not listed as responsible persons on the license and who may have access to firearms or ammunition through their jobs, or, for licensed manufacturers, to raw materials, tools or equipment used to make them. The department said in the preamble the rule could reduce chances for prohibited people to use workplace access for trafficking or straw purchases.¹

Legal basis

The department cites Section 12004 of the Bipartisan Safer Communities Act of 2022, codified at 34 U.S.C. 40901(b)(2), which directed the attorney general to write regulations allowing the voluntary checks and prohibited charging licensees a fee.¹

Changes from the proposal

The department proposed the rule Dec. 12, 2024, and the comment period closed Jan. 13, 2025.³ The final rule says it received 25 comments, about 80 percent of them neutral or supportive; one unrelated comment was not posted. Supporters named in the rule include the National Shooting Sports Foundation, Giffords and Everytown for Gun Safety Support Fund. The foundation said it “strongly support[s]” the checks but argued that limiting them to eligible employees was “ultra vires.” The department kept the limit.¹

Describing the change as acknowledging the foundation's point “to some extent,” the department added independent contractors and agents who work or seek to work at a licensee's premises and can access firearms, ammunition or their components. It also dropped a planned ATF Form 5300.47; ATF has instead proposed using Form 4473 for the checks, with a 90-day retention period. Other changes include the “reasonable cause to believe” wording and a reworded appeal provision.¹

What the records do not show

• SignalData found no Justice Department, FBI or ATF press release on the final rule as of Monday afternoon.
• The rule does not estimate how many of the roughly 80,000 licensees the proposal said it covers will run the checks, or list which state agencies will process them; it says New Jersey is not expected to.¹
• ATF's Form 4473 changes and 90-day retention period are still proposals, and the rule says ATF will issue interim guidance if they are not final when it takes effect.¹
• The effective date in the public-inspection copy is a placeholder to be filled in on publication.¹