Title of Regulation: 6VAC20-130. Regulations Governing the Privacy and Security of Criminal History Record Information Checks for Firearm Purchases (amending 6VAC20-130-20 through 6VAC20-130-100; repealing 6VAC20-130-10).

Statutory Authority: § 18.2-308.2:2 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: July 28, 2017.

Agency Contact: Barbara Peterson-Wilson, Law Enforcement Program Coordinator, Department of Criminal Justice Services, 1100 Bank Street, Richmond, VA 23219, telephone (804) 225-4503, FAX (804) 786-0410, or email barbara.peterson-wilson@dcjs.virginia.gov.

Basis: Subsection H of § 18.2-308.2:2 of the Code of Virginia requires the Department of Criminal Justice Services (DCJS) to promulgate regulations to ensure the identity, confidentiality, and security of all records and data provided by the Virginia Department of State Police (VSP) pursuant to § 18.2-308.2:2.

Purpose: The regulation protects the health, safety, and welfare of citizens by ensuring criminal history record information checks are conducted in a manner that protects the integrity of criminal history record information, guarantees individual rights to privacy, and supports the needs of the VSP and firearms dealers, while facilitating the sales of firearms to the law-abiding public.

This regulatory action is intended to update the regulation to address the current VCheck technology used by VSP. VCheck is an instant criminal background check program authorized by VSP and is available via the Internet to all firearms dealers registered with the VSP Firearms Transaction Center. The current regulation references the use of telephone calls and postal mail to obtain criminal history checks and while these are still options for firearms dealers the telephone and postal mail are rarely used. This regulatory action is also intended to clarify existing regulatory language, remove unnecessary language, remove language that conflicts with the requirements set forth in the Code of Virginia, and eliminate duplication of work by DCJS and VSP.

Substance: DCJS worked with VSP to identify necessary revisions to this regulation. The following substantive revisions have been proposed:

• Removing definitions of terms that are defined in the Code of Virginia and providing the Code citation to the definition. Revising the definition of law-enforcement officer to match the Code of Virginia. Adding a definition for the term VCheck.

• Adding language referencing the use of VCheck or other authorized communication response systems throughout the regulation in all sections referring to obtaining criminal history checks by telephone and mail. VSP rarely receives a request for a criminal history check by telephone or mail. Adding the reference to VCheck codifies the technology currently used and includes the language "or other authorized communication response system" allows VSP to use alternate systems as technology capabilities advance.

• Adding language requiring that the second form of identification must be current and show an address identical to that shown on the photo-identification form. This revision will make the regulation match the language in the Code of Virginia.

• Modifying language to match the language in the Code of Virginia related to identification and residency requirements for individuals using documents issued by the U.S. Department of Defense. The current regulatory language conflicts with the language in the Code of Virginia and cites outdated sections of the Code of Federal Regulations.

• Adding language referencing the Code of Virginia requirement that dealers not sell, rent, trade, or transfer any assault firearm to any person who is not a citizen of the United States or not lawfully admitted for permanent residence.

• Removing language requiring an after-sale check. Per VSP this language is no longer necessary as the background checks are instantaneous.

• Removing language requiring DCJS to audit dealers who use the criminal history check system improperly in a manner that jeopardizes the confidentiality and security of the system. Dealers do not receive specific criminal history record information related to criminal convictions. When a criminal history record check is conducted the dealer receives one of the following responses: "Yes, approved" and the accompanying approval number is given, or "This transaction is not approved at this time." There is no need for DCJS to conduct audits of dealers. This is a duplication of the work conducted by VSP. VSP monitors criminal history record information transactions, and if there is suspicion or evidence a dealer is inappropriately requesting criminal history records information a criminal investigation is initiated. The possibility of a criminal investigation by VSP is a far greater penalty than any administrative investigation and action that can be taken by DCJS. Additionally, language requiring DCJS to audit VSP records has been removed. The requirements for maintaining records and logs related to the firearms transactions are addressed in the Library of Virginia's State Police Schedule Number 156-050. VSP has an Internal Audit Section that reviews agency compliance with the laws, regulations, policies, and procedures and audits information technology systems and related security of data. Results of all internal audits are reported to VSP management and the Superintendent of VSP.

Issues: The primary advantages to the public and the Commonwealth  include removing unnecessary language, correcting language that conflicts with the Code of Virginia, and identifying the VCheck system as the system used by firearms dealers and VSP to determine if any barrier exists to an individual purchasing a firearm. The current regulatory language only identifies the use of calling a toll-free number and using postal mail to request criminal history record information.

There are no disadvantages to the public or the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Regulations Governing the Privacy and Security of Criminal History Record Information Checks for Firearm Purchases identifies the process for conducting a criminal background check. As a result of a periodic review,¹ the Criminal Justice Services Board (Board) proposes to amend this regulation to: 1) address current VCheck technology, 2) remove language that is either obsolete or conflicts with the requirements set forth in the Code of Virginia (Code), and 3) clarify existing language. VCheck is an online criminal background check program made available to firearms dealers by the Virginia State Police.

Result of Analysis. The benefits exceed the costs for all proposed changes.

Estimated Economic Impact. Currently, almost all criminal background checks associated with purchasing a firearm are conducted by using the VCheck system. The VCheck is an instant criminal background check program authorized by the Virginia State Police and is available via the Internet to all firearms dealers registered with the State Police Firearms Transaction Center. The existing regulation references the use of telephone calls and the mail to obtain criminal history checks, but does not mention VCheck. The Board proposes to add a definition of VCheck and add language referencing the use of VCheck or other authorized communication response systems in all sections of the regulation referring to obtaining criminal history checks by telephone and mail. Including VCheck in the regulation would not affect costs or options in practice, but would be beneficial in that readers of the regulation would be better informed of what occurs and is allowed in practice.

The Board's proposal to remove text that is either obsolete or conflicts with the Code would be beneficial in that it would reduce the likelihood that readers of the regulation would be misled concerning requirements in effect. The Board's proposal to amend language to improve clarity would also be beneficial to the extent that it improves comprehension by readers of the regulation.

Businesses and Entities Affected. The regulation affects the Virginia State Police, the 4,374 firearms dealers in the Commonwealth,² and individuals attempting to purchase firearms. Most of the firearms dealers are likely small businesses. For 2014, the Virginia State Police reported processing 405,838 requests for criminal history record information on perspective buyers. The proposed amendments affect anyone who may read the regulation, potentially including persons from the entities listed above.

Localities Particularly Affected. The proposed amendments do not disproportionately affect particular localities.

Projected Impact on Employment. The proposed amendments do not affect employment.

Effects on the Use and Value of Private Property. The proposed amendments do not significantly affect the use and value of private property.

Real Estate Development Costs. The proposed amendments do not affect real estate development costs.

Small Businesses:

Definition. Pursuant to § 2.2-4007.04 of the Code of Virginia, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

Costs and Other Effects. The proposed amendments do not significantly affect costs for small businesses.

Alternative Method that Minimizes Adverse Impact. The proposed amendments do not adversely affect small businesses.

Adverse Impacts: 

Businesses. The proposed amendments do not adversely affect businesses.

Localities. The proposed amendments do not adversely affect localities.

Other Entities. The proposed amendments do not adversely affect other entities.

______________________________

¹ More information about the periodic review can be found on the Virginia Regulatory Town Hall at http://townhall.virginia.gov/L/ViewPReview.cfm?PRid=1476.

² Source: Firearms Commerce in the United States Annual Statistical Update 2016, a report by the United States Bureau of Alcohol, Tobacco, Firearms, and Explosives. The report stated that in 2015 the Commonwealth of Virginia had 4,374 federal firearms licensees.

Agency's Response to Economic Impact Analysis: The Department of Criminal Justice Services concurs generally with the economic impact analysis provided by the Department of Planning and Budget.

Summary:

The proposed amendments (i) add the VCheck system, or other communication method authorized by the Department of State Police, as a method to obtain a criminal history record information check; (ii) remove language that is redundant, obsolete, or conflicts with statutory provisions; and (iii) clarify existing language.

Part I
General

6VAC20-130-10. Purpose. (Repealed.)

Pursuant to the provisions of § 18.2-308.2:2 of the Code of Virginia, criminal history record information checks are required prior to the sale, rental, trade or transfer of certain firearms. A criminal history record information check shall be requested by licensed dealers from the Department of State Police to determine the legal eligibility of a prospective purchaser to possess or transport certain firearms under state or federal law. The Department of Criminal Justice Services hereby promulgates the following regulations governing these criminal history record information checks as required under § 18.2-308.2:2 H of the Code of Virginia. The purpose of this chapter is to ensure that criminal history record information checks are conducted in a manner which ensures the integrity of criminal history record information, guarantees individual rights to privacy, and supports the needs of law-enforcement, while allowing nearly instantaneous sales of firearms to the law abiding public.

6VAC20-130-20. Definitions.

The following words and terms, when used in this chapter, shall have the following meaning unless the context clearly dictates otherwise:

"Antique firearm" means any firearm, including those with a matchlock, flintlock, percussion cap, or similar type of ignition system, manufactured in or before 1898, and any replica of such a firearm, provided such replica: (i) is not designed or redesigned for using rimfire or conventional centerfire fixed ammunition; or (ii) uses rimfire or conventional centerfire fixed ammunition which is no longer manufactured in the United States and which is not readily available in the ordinary channels of commercial trade meeting the statutory definition provided in § 18.2-308.2:2 G of the Code of Virginia.

"Criminal history record information" means records and data collected by criminal justice agencies on adult individuals, consisting of notations of arrests, detentions, indictments, informations information, or other formal charges and any disposition arising therefrom.

"Criminal history record information check," (also "criminal record check," and "record check") means mean a review of a potential purchaser's criminal history record information, to be conducted by the Department of State Police at the initiation of a dealer in order to establish a prospective purchaser's eligibility to possess or transport a firearm, as defined herein in this chapter, under state or federal law.

"Dealer" means any person licensed as a dealer pursuant to 18 U.S.C. USC § 921 et seq.

"Dealer identification number" (DIN) or "DIN" means a unique identifying number assigned by the Department of State Police to each individual dealer as defined in § 18.2-308.2:2 G of the Code of Virginia, in order to identify such dealers when they request criminal history record information to determine the eligibility of a prospective purchaser to possess or transport a firearm.

"Department" means the Virginia Department of State Police.

"Firearm" means any handgun, shotgun, or rifle which expels a projectile by action of an explosion means any firearm meeting the statutory definition provided in § 18.2-308.2:2 G of the Code of Virginia.

"Handgun" means any firearm including a pistol or revolver designed to be fired by the use of a single hand means any firearm meeting the statutory definition provided in § 18.2-308.2:2 G of the Code of Virginia.

"Law-enforcement officer" means any full-time or part-time employee of a police department or sheriff's office which is a part of or administered by the Commonwealth or any political subdivision thereof, or any full-time or part-time employee of a private police department, and who is responsible for the prevention and detection of crime and the enforcement of the penal, traffic, or highway laws of the Commonwealth, and shall include any member of the Regulatory Division (i) special agent of the Department of Alcoholic Beverage Control vested with police authority, any; (ii) police agent appointed under the provisions of § 56-353 of the Code of Virginia (provides railroad officials with the authority to appoint police agents), or any game warden; (iii) officer of the Virginia Marine Police; (iv) conservation police officer who is a full-time sworn member of the enforcement division of the Department of Game and Inland Fisheries; (v) investigator who is a full-time sworn member of the security division of the Virginia Lottery; (vi) conservation officer of the Department of Conservation and Recreation commissioned pursuant to § 10.1-115 of the Code of Virginia; (vii) full-time sworn member of the enforcement division of the Department of Motor Vehicles appointed pursuant to § 46.2-217 of the Code of Virginia; (viii) animal protection police officer employed under § 15.2-632 of the Code of Virginia; (ix) campus police officer appointed under Chapter 17 (§ 23-232 et seq.) of Title 23 of the Code of Virginia; or (x) private police officer employed by a private police department. Part-time employees are those compensated officers who are not full-time employees as defined by the employing police department or, sheriff's office, or private police department.

"Prospective purchaser" means an individual who intends to buy, rent, trade, or transfer a firearm or firearms as defined herein in this chapter, and has notified a dealer of his intent.

"Resident of Virginia" means a person who resides and has a present intent to remain within the Commonwealth, as shown by an ongoing physical presence and a residential address within Virginia. If a person does not reside in Virginia, but is on active duty as a member of the U.S. Armed Forces and Virginia is the person's permanent duty station, the person shall, for the purpose of these regulations, be considered a resident of Virginia.

"Transfer" means to sell, rent, trade, or transfer a firearm as defined herein in this chapter.

"VCheck" means Virginia's instant criminal background check program authorized by the Department of State Police and available via the Internet to all firearms dealers registered with the State Police Firearms Transaction Center.

"Virginia Firearms Transaction Record Form" or "VFTR form" means the form issued by the Department of State Police provided to dealers and required for obtaining a criminal history record check, also known as "SP-65," the "VFTR form" "SP-65" or the "VFTR."

Part II
Regulations

6VAC20-130-30. Applicability of regulations concerning criminal history record checks for firearm purchase chapter.

A. These regulations apply This chapter applies to:

1. All licensed dealers in firearms; and

2. The Department of State Police.

B. These regulations This chapter shall not apply to:

1. Transactions between persons who are licensed as firearms importers or collectors, manufacturers or dealers pursuant to 18 U.S.C. USC § 921 et seq.;

2. Purchases by or sale to any law-enforcement officer or agent of the United States, the Commonwealth, or any local government; or

3. Antique firearms; or.

4. Transactions in any county, city or town that has a local ordinance adopted prior to January 1, 1987, governing the purchase, possession, transfer, ownership, conveyance or transportation of firearms which is more stringent than § 18.2-308.2:2 of the Code of Virginia.

6VAC20-130-40. Responsibilities of dealers.

It shall be the responsibility of dealers that transfer firearms in Virginia to comply with the following:

1. Register with the department and Department of State Police to obtain from the department a dealer identification number (DIN) and to access the toll-free telephone number to participate in the department's criminal history record check VCheck program by telephone or via the Internet.

2. Prior to transferring any firearm, determine if the firearm is a "firearm" as defined in these regulations this chapter and § 18.2-308.2:2 of the Code of Virginia.

3. Deny the transfer of a handgun to a non-Virginia resident in accordance with 18 U.S.C. USC § 922(b)(3).

4. Complete the VFTR form.

5. Request a criminal history record information check prior to the transfer of any such firearm.

6. Request a criminal history record check either by telephone or by, mail, VCheck, or other communication authorized by the Department of State Police prior to the sale of shotguns and rifles to non-Virginia residents.

7. Maintain required forms and records according to the procedures outlined in these regulations.

8. Deny the transfer of a firearm if advised by the Department of State Police that the prospective purchaser is ineligible to possess such a firearm and the department disapproved the transfer of a firearm to the prospective purchaser.

9. Allow the Department of Criminal Justice Services access to all forms and records required by these regulations. Notify the Department of State Police promptly upon any change in registration information (telephone number, address, federal firearms license number, etc.).

10. Provide written notice of the closing of the business to Department State Police in advance of the actual closing date.

6VAC20-130-50. Responsibilities of the Department of State Police.

A. The Department of State Police shall operate a telephone, and mail, VCheck, or other authorized communication response system systems to provide dealers in firearms (as defined herein) in this chapter) with information on the legal eligibility of prospective purchasers to possess or transport firearms covered under these regulations. This information shall be released only to authorized dealers. Prior to the release of the information, the identity of the dealer and the prospective purchaser can be reasonably established.

B. In no case shall the department release to any dealer actual criminal history record information as defined herein in this chapter. The dealer shall only receive from the department a statement of the department's approval or disapproval of the transfer, and an approval code number, if applicable, unique to the transaction. A statement of approval or disapproval shall be based on the department's review of the prospective purchaser's criminal history record information and restrictions on the transfer of firearms to felons enumerated in § 18.2-308.2 of the Code of Virginia or federal law. This statement shall take one of the following two statuses: (i) approval with an approval code number, or (ii) disapproval with no approval code number.

C. The department shall provide to dealers a supply of VFTR forms, a DIN, and a toll-free number to allow access to the telephone criminal history record check system available for approval of firearms purchases.

D. The department shall supply all dealers in the Commonwealth with VFTR forms in a manner which that allows the department to use the forms to identify dealers and monitor dealers' use of the system to avoid illegal access to criminal history records and other department information systems.

E. The department shall hire and train such personnel as are necessary to administer criminal history record information checks, ensure the security and privacy of criminal histories used in such record checks, and monitor the record check system.

F. Allow The department shall allow the Department of Criminal Justice Services access to all forms and records required by this chapter.

6VAC20-130-60. Preparing for a criminal history record check.

A. General procedures.

1. If any firearm, which a prospective purchaser intends to obtain in transfer, is a firearm as defined herein in this chapter, the dealer shall request that the Department of State Police conduct a criminal history record check on the purchaser. The dealer may obtain the required record check from the department for purchasers who are residents of Virginia by (i) telephoning the department, using the provided toll-free number, (ii) using VCheck, or (iii) using  another communication authorized by the Department of State Police and requesting the record check. For out-of-state residents who purchase rifles or shotguns, the dealer may request the record check from the department by telephone, mail, or delivery. However, Virginia residents may, if they elect, request the dealer to obtain a record check by mail. The initial required steps of completion of the VFTR, obtaining consent of the purchaser, determining residency and verifying identity are common to both telephone and, mail methods of, VCheck, or other communication authorized by the Department of State Police for obtaining the record check.

2. The dealer shall request a criminal history record check and obtain the prospective purchaser's signature on the consent portion of the form for each new transfer of a firearm or firearms to a given purchaser. One record check is sufficient for any number of firearms in a given transfer, but once a transaction has been completed, no transfer to the same purchaser shall proceed without a new record check.

3. A criminal history record check shall be conducted prior to the actual transfer of a firearm.

B. Completing section A of the Virginia Firearms Transaction Record: Obtaining consent for a criminal history record information check for firearms purchase. As a condition of any sale, the dealer shall advise the prospective purchaser to legibly complete and sign section A of a VFTR form.

1. The dealer shall require the prospective purchaser to complete section A of the VFTR form in the prospective purchaser's own handwriting, and without the dealer's assistance. The purchaser shall answer the questions listed and shall complete the items that establish residency and describe identity, including name, sex, height, weight, race, date of birth and place of birth.

2. If the prospective purchaser cannot read or write, section A of the VFTR form may be completed by any person other than the dealer or any employee of the dealer according to the procedures specified on the reverse side of the VFTR form.

3. The dealer shall also obtain the prospective purchaser's signature or, if he cannot read or write, his mark, following the consent paragraph at the bottom of section A, which shall certify that the information supplied by the purchaser in section A is true and correct.

C. Completing section B of the Virginia Firearms Transaction Record: Establishing purchaser identity and residency and dealer identity. Prior to making a request for a criminal history record information check, the dealer shall complete all of section B of the VFTR form for which the dealer is responsible. Information recorded on the VFTR form shall be sufficient to: (i) reasonably establish a prospective purchaser's identity and determine the residency of the prospective purchaser; and (ii) identify the dealer.

1. Identify prospective purchaser and determine residency. The dealer shall determine residency and verify the prospective purchaser's identity as required in section B of the VFTR, by requiring at least two forms of identification that denote the address of the prospective purchaser. Only the forms of identification listed in this subsection shall be acceptable to establish identity and residency.

a. For Virginia residents, the primary form of identification shall consist of a valid photo-identification form issued by a governmental agency of the Commonwealth or by the United States Department of Defense. Except where the photo identification was issued by the Department of Defense, the prospective purchaser shall furnish a secondary form of identification that includes an address identical to that shown on the primary identification and corroborates the purchaser's identification and residence in Virginia. A Department of Defense photo identification plus one secondary form of identification showing the purchaser's residence in Virginia meets the requirements of the exception. The following are acceptable forms of secondary identification: a dealer shall require any prospective purchaser to present one photo-identification form issued by a governmental agency of the Commonwealth or by the U.S. Department of Defense.

(1) Valid Virginia driver's license or photo-identification card issued by the Virginia Department of Motor Vehicles;

(2) Passport;

(3) Voter registration card;

(4) Evidence of paid personal property tax or real estate taxes;

(5) Automobile registration;

(6) Hunting or fishing license;

(7) Lease;

(8) Utility or telephone bill;

(9) Bank check; or

(10) Other identification allowed as evidence of residency by Part 178.124 of Title 27, Code of Federal Regulations, and ATF Ruling 79-7.

If, for purposes of this chapter, a prospective purchaser's Virginia residency is based upon active duty status with the Armed Forces of the United States with a permanent duty station in Virginia, including the Pentagon, and the primary form of identification consists of a photo identification issued by the United States U.S. Department of Defense, the purchaser may use as a secondary identification proof of permanent duty station within Virginia signed by the station commander or duly designated representative. If such primary and secondary documentation are presented, the prospective purchaser shall not be required to present any other form of secondary identification listed in subdivisions C 1 a (1) through (10). For the purpose of establishing residency for a firearm purchase, residency of a member of the armed forces shall include both the state in which the member's permanent duty post is located and any nearby state in which the member resides and from which he commutes to the permanent duty post.

b. For non-Virginia residents purchasing shotguns or rifles, the dealer shall require the prospective purchaser to furnish one photo-identification form issued by a governmental agency of the person's state of residence and one other form of identification as provided in subdivision C 1 a, which corroborates the identity and residency shown on the photo-identification form.

c. The dealer will ensure that the form(s) forms of identification support the listing of the identifying characteristics and the resident's address as supplied by the prospective purchaser in section A of the VFTR.

d. If the dealer discovers any unexplained discrepancy between the two forms of identification (different addresses, birth dates, names), the dealer shall not request a criminal history record check until the prospective purchaser can be adequately identified with two acceptable forms of identification as required.

e. The dealer shall name and identify on the VFTR form the document(s) documents used to verify the prospective purchaser's identity and residence, and shall record all pertinent identifying numbers on the VFTR form.

f. While the dealer is required to collect sufficient information to establish the prospective purchaser's identity and residency from the form(s) forms of identification listed above, in no case is the dealer authorized to collect more information on the prospective purchaser than is reasonably required to establish identity and, state of residence, and citizenship.

2. Identify dealer. The dealer or his employee shall note on section B of the VFTR form:

a. The dealer's or employee's signature;

b. His position title (owner, employee);

c. The trade or corporate name and business address; and

d. The dealer's federal firearms license number.

D. No dealer shall sell, rent, trade, or transfer from his inventory any assault firearm to any person who is not a citizen of the United States or who is not a person lawfully admitted for permanent residence. To establish citizenship or lawful admission for a permanent residence for purposes of purchasing an assault firearm, a dealer shall require a prospective purchaser to present a certified birth certificate or a certificate of birth abroad issued by the U.S. State Department, a certificate of citizenship or a certificate of naturalization issued by the U.S. Citizenship and Immigration Services, an unexpired United States passport, a U.S. citizen identification card, a current voter registration card, a current selective service registration card, or an immigrant visa or other documentation of status as a person lawfully admitted for permanent residence issued by the U.S. Citizenship and Immigration Services.

6VAC20-130-70. Procedures for requesting a criminal history record information check by telephone or other communication authorized by the Department of State Police.

A. Once the prospective purchaser has completed section A of the VFTR form and the dealer has completed the necessary portions of the VFTR form and determined that the prospective purchaser is a resident of Virginia, the dealer shall call contact the Department of State Police and request a criminal history record information check by telephone, through VCheck, or through other authorized communication for the firearm transfer. For non-Virginia residents purchasing rifles or shotguns, the dealer may also request a criminal history record check by telephone. The dealer shall use the toll-free number provided by the Department of State Police. However, no provision of these regulations shall prohibit a Virginia resident from obtaining a written record check through the dealer for any firearm transfer.

B. The dealer shall identify himself to the department by providing his DIN and the printed number on the upper right-hand corner of the VFTR form prepared by the prospective purchaser.

C. The dealer shall allow the department to verify this identifying information. The Department of State Police may shall disapprove a firearm purchase if the department determines that the identifying information supplied by the dealer is incomplete, incomprehensible or in error, raises a reasonable doubt as to the origin of the call request, or is otherwise unusable.

D. The dealer shall then supply to the department over the telephone, through VCheck, or through another authorized communication all identifying data on the prospective purchaser which that is recorded on section A of the VFTR, in the order requested by the department. This information shall be transmitted to the department in a discreet and confidential manner, assuring to the extent possible that the identifying data is not overheard or viewed by other persons in the dealer's place of business. If the dealer cannot provide sufficient information to allow the department to conduct a criminal history record check, the department will not accept the request on the basis of insufficient information to conduct a check. The department may adopt procedures to appropriately address such occurrences.

E. The Department of State Police will respond to the dealer's request for a criminal history record check by consulting the criminal history record information indexes and files, during the dealer's call or VCheck submission. In the event of electronic failure or other difficulties, the department shall immediately advise the dealer of the reason for such delay and provide to the dealer an estimate of the length of such delay.

F. If no evidence of a criminal record or other information is found that would preclude the purchaser from possessing or transporting a firearm under state or federal law, the department will immediately notify the dealer that the transfer may proceed, and will provide the dealer with a unique approval code number, which the dealer shall enter in a clear, visible, and convenient manner on the original of the VFTR form.

G. If the initial search discloses that the prospective purchaser may not be eligible to possess a firearm, the department will notify the dealer that a further check must be completed before the end of the dealer's next business day, to determine if the prospective purchaser has a criminal record that makes him ineligible to possess or transport a firearm under state or federal law. This statement of ineligibility shall then be communicated by the dealer to the prospective purchaser in a discrete and confidential manner, recognizing the individual's rights to the privacy of this information.

H. In any circumstance in which the department must return the dealer's telephone call, whether due to electronic or other failure or in order to allow a further search, the dealer shall await the department's call and make no transfer of a firearm to the individual whose record is being checked until:

1. The dealer receives notification of approval of the transfer by telephone or other authorized communication from the department; or

2. The department fails to disapprove the transaction of the prospective purchaser before the end of the next business day.

3. Exception: If the department knows at the time of the dealer's telephone call or VCheck submission that it will not be able to respond to the request by the end of the dealer's next business day, it will so notify the dealer. Upon receiving notification, the dealer shall note in a clear and visible manner on the VFTR that the department was unable to respond. The dealer may in such cases complete the transfer immediately after his telephone call or receipt of an authorized communication.

I. In the event that the department is unable to immediately respond to the dealer's request for a criminal history record check and the prospective purchaser is also unable to await the department's response to the dealer's request and the department ultimately approves of the transfer, the dealer may transfer any firearm or firearms, as listed on the VFTR form that initiated the request for a record check, to the prospective purchaser, after the receipt of the approval of the transfer from the department. The actual transfer of the firearm shall be accomplished in a timely manner. A second record check shall not be required provided that the actual transfer of the firearm occurs within a time period specified by the department.

J. If the dealer is notified by the department that the prospective purchaser is not eligible to possess or transport a firearm or firearms under state or federal law, and the transfer is disapproved, and if he is so notified before the end of the next business day after his accepted telephone request or VCheck confirmation, the dealer shall not complete the transfer.

K. On the last day of the week following transfer of a firearm covered by these regulations on the basis of a telephone inquiry, the dealer shall send by mail or shall deliver to the department the appropriate copies of the VFTR other than the original, with sections A and B properly completed. No information on the type, caliber, serial number, or characteristics of the firearms transferred shall be noted on the copies of the VFTR submitted to the department, but the forms shall otherwise be complete. The dealer shall note the date of mailing on the form, or shall have the form date stamped or receive a dated receipt if the dealer delivers the form.

L. After sale check.

1. Following the receipt of the required copies of a completed VFTR form recording a transfer, the department shall immediately initiate a search of all data bases in order to verify that the purchaser was eligible to possess or transport the firearm(s) under state or federal law.

2. If the search discloses that the purchaser is ineligible to possess or transport a firearm, the department shall inform the chief law-enforcement officer in the jurisdiction where the transfer occurred and the dealer of the purchaser's ineligibility without delay. The department shall mark "disapproved" on a copy of the VFTR submitted by the dealer after the transfer and return the form by mail to the dealer.

6VAC20-130-80. Procedures for requesting a criminal history record check by mail.

A. At the request of a Virginia resident or a non-Virginia resident, a dealer may request a record check by mail for a firearm transfer. In either case, the dealer shall follow the procedures as set forth below in this chapter. In addition, the dealer shall follow the provisions for establishing identity and residency as set forth in 6VAC20-130-60 C 1 a and C 1 b of this chapter, and, if applicable, 6VAC20-130-60 D.

B. The dealer shall mail or deliver to the department the appropriate copies of the completed VFTR form according to procedures established by the department (which (that shall not describe, list, or note the actual firearms to be transferred) within 24 hours of the prospective purchaser's signing and dating of the consent paragraph in section A of the VFTR form. This shall be evidenced by the dealer's notation of the mailing date on the VFTR, if mailed, or the date stamp of the department on the VFTR form or a receipt provided to the deliverer, if delivered. The original of the completed VFTR form shall be retained at the dealer's place of business.

C. The department will initiate a search only upon receipt of the appropriate copies of the VFTR form at department headquarters. The department may challenge and refuse to accept any VFTR form if there is an unreasonable, extended time period between the date of the mailing and the date of receipt of the copies of the form at the department.

D. Following its search of Virginia and national criminal history record indexes and files, the department will return to the dealer a copy of the VFTR form, marked "approved," or "not approved." When a dealer receives approval, he may transfer any firearm or firearms, as listed on the VFTR form that initiated the request for a record check, to the prospective purchaser, after his receipt of the approval. The actual transfer of the firearm shall be accomplished in a timely manner. A second record check shall not be required provided that the actual transfer of the firearm occurs within a time period specified by the department. If the transfer is disapproved, he is not authorized to transfer any firearm to the prospective purchaser.

E. In the case of written requests for criminal history record check, initiated by the submission of VFTR forms, the dealer shall wait up to 10 days after the mailing date (noted on the form) or delivery date stamp (if not mailed) of the request for written approval from the department, prior to transferring a firearm as defined herein in this chapter.

F. However, if 10 days elapse from the date the VFTR form was mailed (as noted on the VFTR form) or delivered to the Department of State Police (as indicated by the date stamped by the department), and the department has not responded to the request initiated by the form by approving or disapproving the transaction proposed, the dealer may complete the transfer to the prospective purchaser on his next business day, after the tenth 10th day, or thereafter, and not be in violation of the law or these regulations this chapter. After completion of the transfer in this case, as in all cases, any new or further transfer of firearms not listed on the VFTR form that initiated the request for a record check to the same purchaser will require a new criminal history record check.

6VAC20-130-90. Proper use of the components of the criminal history record check system: Forms, records, toll-free telephone number, VCheck passwords, and DIN.

A. The VFTR forms will be provided to the dealer by the department. VFTR forms shall not be transferred from one dealer to another. All VFTR forms partially completed, torn, defaced or otherwise rendered unusable shall be marked "VOID" and disposed of in a manner which that will not allow their reuse. All unused forms shall remain the property of the Department of State Police and shall be returned to the department in the event that a dealer ceases to engage in the transfer of firearms in a manner which is regulated by the Department of Criminal Justice Services.

B. The dealer will retain the original of the VFTR form for his own files.

C. The dealer shall keep all blank and completed VFTR originals, and all returned copies in a secure area, which will restrict access to the information contained on the VFTR forms to authorized employees only.

D. The department shall retain a copy of all VFTR forms received from dealers according to the procedures outlined below in this subsection.

1. Approved transfers. Thirty days after the department has notified the dealer of an approved transfer, the department shall destroy the VFTR form still in its possession and all identifiable information collected pertaining to a prospective purchaser.

2. Disapproved transfers. VFTR forms recording a transfer that was not approved shall be maintained by the department in a separate file, maintained by name of prospective purchaser.

a. The information contained in these forms shall be used by the department for legitimate law-enforcement purposes only, and shall be governed by existing regulations concerning the privacy and security of criminal history record information.

b. The department may maintain any other printouts or reports with these copies of the VFTR form, provided they are treated as criminal history record information.

E. The Department of State Police shall maintain a running log of all requests for criminal history record information checks for firearms transfer, which shall include the following:

1. DIN and name of requester;

2. Dealer's transaction number;

3. Approval code number, if sale is approved;

4. Date of telephone request or, mailing, VCheck, or delivery date of mail request;

5. Notation of type of record request - either: telephone or, mail, or VCheck request;

6. Approved or not approved status; and

7. Date of clearance from department file through mailing of VFTR form to the dealer or other final action.

F. A log shall be retained at the department on each request which that leads to approvals of firearm transfers for 12 months from the date of each request.

G. Requests which that lead to disapprovals shall be maintained by the department on a log for a period of two years from the date the request was accepted by the department for processing.

H. The department shall monitor and distribute all VFTR forms in an appropriate manner to ensure their proper control and use. This includes designing, redesigning, numbering, distributing, tracking, and processing all VFTR forms.

I. No dealer shall provide his DIN or the toll-free number VCheck password to another party for any reason.

J. The DIN's and the toll-free number VCheck password may be changed periodically to ensure that these numbers are not improperly used by unauthorized dealers or unauthorized parties.

6VAC20-130-100. Audits Monitor.

A. The Department of State Police shall continuously observe compliance with requirements regarding VFTR form completion, notification of the Department of State Police following firearm transfers, form management and storage, and confidentiality and proper use of the DIN and the toll-free telephone number VCheck password information for Virginia resident telephone and VCheck record checks.

B. The Department of State Police shall notify the Department of Criminal Justice Services if a dealer has used or may have used the criminal history record information check system improperly in a manner that may jeopardize the confidentiality and security of criminal history record information systems.

C. Upon such notification, the Department of Criminal Justice Services shall audit the dealership in question and recommend corrective action without delay.

1. Pending the outcome of an audit, the The department may invalidate a particular DIN to ensure the continuous integrity of the criminal history record information. Prior to such invalidation, the department shall notify the dealer orally, telephonically by telephone, or in writing of the reasons for such invalidation and allow the dealer the opportunity to respond. The department shall also notify the Department of Criminal Justice Services when a DIN has been invalidated.

2. Should the results of an audit reveal that the provisions of these regulations have not been violated, the Department of Criminal Justice Services shall advise the department to immediately reinstate the invalidated DIN.

3. 2. Should the department identify results of an audit reveal minor violations of the provisions of these regulations this chapter, the Department of Criminal Justice Services may notify the department to may monitor all future requests of the dealer for criminal history record checks for a period not to exceed 90 days. In the event that the DIN of the dealer has been invalidated, the Department of Criminal Justice Services shall also notify the department to reinstate the invalidated DIN. Any additional violations that may occur during this time period shall be reported to the Department of Criminal Justice Services as needed. Occurrences of additional violations shall invoke the provisions of these regulations for the handling of or major or repeated violations, as outlined below, and may result in a subsequent audit monitoring or a criminal investigation of the dealer.

4. Should the results of an audit reveal major or repeated violations of the provisions of these regulations, the Department of Criminal Justice Services shall advise the department to invalidate the DIN if not invalidated previously and that the invalidated DIN should not be reinstated until the dealer submits a written request to the Department of Criminal Justice Services for reinstatement of the DIN. The request shall demonstrate to the reasonable satisfaction of the Department of Criminal Justice Services that corrective action has been taken by the dealer to comply with the provisions of these regulations.

5. Should the results of an audit reveal that the privacy and security of criminal history record information have been compromised, the Department of Criminal Justice Services shall send written notification to the dealer, the office of the local commonwealth's attorney and the department.

D. The Department of Criminal Justice Services shall annually audit the Department of State Police to ensure the following:

1. That records, VFTR's and other materials, except for the maintenance of the log as outlined above, on purchasers found to be eligible to possess or transport firearms (approved) are being routinely destroyed 30 days from the notification, mailing or delivery date of the accepted request for a record check; and

2. That VFTR's and other materials gathered on persons found to be ineligible to purchase a firearm (disapproved) are governed by the regulations for criminal history record information; and

3. That logs recording the approvals and disapprovals of firearm transfers are being correctly maintained according to the provisions of these regulations.

FORMS (6VAC20-130)

Criminal History Record Request, Form SP-167, eff. 7/1/94.

Virginia Firearms Transaction Record, Form SP-65, eff. 7/1/94. (eff. 7/2015) (Form SP-65 is obtained directly from the Virginia State Police, Firearms Transaction Center Help Desk, (804) 674-2292 or (804) 674-2788, or email firearms@vsp.virginia.gov.)