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NRA Comments On Proposed NICS Regulations

Friday, August 31, 2001

DEADLINE TO SUBMIT: SEPTEMBER 4, 2001 August 31, 2001
Mr. Timothy Munson, Section Chief Federal Bureau of Investigation Module A-3, 1000 Custer Hollow Road Clarksburg, West Virginia 26306-0147. Re: Department of Justice, Notice of proposed rulemaking, National Instant Criminal Background Check System, 66 F.R. 35567 (July 6, 2001) Dear Mr. Munson: We submit these comments on behalf of the National Rifle Association of America, Inc. ("NRA"). The NRA`s membership of more than four million persons, has a strong interest in the proper implementation of the provisions of law concerning the acquisition of firearms by law-abiding citizens and the prevention of such acquisition by violent criminals. The following comment reviews the pertinent statutory provisions and then comments on each of the proposals.
Statutory Provisions
The Brady Handgun Violence Prevention Act, P.L. 103-159, 107 Stat. 1536 (1993), established the National Instant Criminal Background Check System ("NICS") to determine whether persons may lawfully receive firearms from federal firearms licensees ("FFL"). Section 103(b) provides:
[T]he Attorney General shall establish a national instant criminal background check system that any licensee may contact, by telephone or by other electronic means in addition to the telephone, for information, to be supplied immediately, on whether receipt of a firearm by a prospective transferee would violate section 922 of title 18, United States Code, or State law. (Emphasis added.)
Section 103(h) provides that "the Attorney General shall prescribe regulations to ensure the privacy and security of the information of the system established under this section." Such privacy and security would be guaranteed in part by Section 103(i) of the Act, which provides:
Prohibition Relating To Establishment Of Registration Systems With Respect To Firearms-- No department, agency, officer, or employee of the United States may– (1) require that any record or portion thereof generated by the system established under this section be recorded at or transferred to a facility owned, managed, or controlled by the United States or any State or political subdivision thereof; or (2) use the system established under this section to establish any system for the registration of firearms, firearm owners, or firearm transactions, except with respect to persons, prohibited by section 922(g) or (n) of title 18, United States Code or State law, from receiving a firearm.
Section 103(i) unambiguously prohibits the transfer to or recording at a government facility of "any" NICS-generated record or the establishment of "any" system of registration. "Read naturally, the word ‘any` has an expansive meaning, that is, ‘one or some indiscriminately of whatever kind.` Webster`s Third New International Dictionary 97 (1976). Congress did not add any language limiting the breadth of that word . . . ." United States v. Gonzales, 520 U.S. 1, 5 (1997). "Register" means "a record or list of names . . ., often kept by an official appointed to do so," and "registration" means "(1) a registering or being registered (2) an entry in a register." Webster`s New World Dictionary 1130 (1988). The language of § 103(i) originated in an amendment to H.R. 7 offered by Senator Stevens. ¹ 135 Cong. Rec. S8932, S9025 (June 27, 1991). Stevens explained:
My amendment will not permit the registration of either a gun or a gun owner. In fact, the amendment specifically prohibits keeping any records about lawful sales. This will eliminate the possibility of an assembly of gun registration lists by local, State, or Federal authorities.
Id. at S8934 (emphasis added). The provision reappeared in the Dole-Metzenbaum compromise bill, which provided for an interim waiting period and a permanent federal instant check. Id. at S9075 ff, 9082, 9196 (June 28, 1991). Senator Thurmond explained: "This instant check system will be used by licensed dealers to check the eligibility of purchasers of all firearms and no records of legitimate purchasers may be kept." Id. at S9080 (emphasis added). The bill as amended passed the Senate. Id. at S9086. The Brady bill was then attached to the broader crime bill which was not enacted. By the time the Brady bill was debated and passed in 1993, § 103(i) was in both House and Senate versions and, being non-controversial, was not debated. Id. at H9121 (Nov. 10, 1993), S16507 (Nov. 19, 1993). No one disputed the above explanations that no records of approved transfers could be kept. These assurances and the clear wording of § 103(i) were critical to the passage of the Act. Section 102(b) created 18 U.S.C. § 922(t)(1), under which an FFL may not transfer a firearm to a non-licensee without having contacted NICS for a background check. The FFL may transfer the firearm after NICS approves the transaction and provides a unique number, or three days pass and NICS has not notified the FFL that receipt of the firearm would be unlawful. Section 922(t)(2) commands three duties to be carried out in sequence and immediately:
If the receipt of a firearm would not violate section 922(g) or (n) or state law, the system shall– (A) assign a unique identification number to the transfer; (B) provide the licensee with the number; and (C) destroy all records of the system with respect to the call (other than the identifying number and the date the number was assigned) and all records of the system relating to the person or the transfer.
"Assign," "provide," and "destroy" are present tense, transitive verbs describing seriatim commands to be followed one after the other. Section 922(t)(2) mandates "destroy all records," and does not authorize retention of records for any length of time. The Act`s Interim Provision required the licensee to furnish a copy of the transferee`s statement to the local chief law enforcement officer ("CLEO"). § 922(s)(1)(A)(IV). The CLEO was commanded to search all available records (i.e., manual and computerized) and to ascertain the legality of the transaction within five days.² The CLEO "shall, within 20 business days after the date the transferee made the statement . . ., destroy the statement, [and] any record containing information derived from the statement . . . ."³ § 922(s)(6)(B)(i). The Permanent Provision includes no similar grace period. Section 922(t)(2) requires immediate destruction of records of a lawful transfer when the NICS supplies the unique number to the licensee. Also pertinent is Section 618, Title VI, of P.L. 106-553 (2000), the 2001 appropriations act, which provides: "None of the funds appropriated pursuant to this Act or any other provision of law may be used for . . . (2) any system to implement 18 U.S.C. 922(t) that does not require and result in the destruction of any identifying information submitted by or on behalf of any person who has been determined not to be prohibited from owning a firearm." The NRA believes the only possible reading of the above statutory provisions is that records on lawful purchasers must be destroyed when NICS informs the FFL that the transfer is lawful. In upholding the original 6-month "Audit Log," NRA v. Reno, 216 F.3d 122 (D.C. Cir. 2000), cert. denied, 121 S. Ct. 2549 (2001), held otherwise.4 The NRA nonetheless believes, in the words of the dissenting opinion, that "the Attorney General is not only making such an unauthorized power grab, but is taking action expressly forbidden by Congress." Id. at 141 (Sentelle, J., dissenting).
Existing Regulations
NICS was created as part of the FBI by AG Order No. 2186-98, Final rule: National Instant Criminal Background Check System Regulation, 63 F.R. 58303 (Oct. 30, 1998), which promulgated 28 C.F.R. Part 25. Pertinent provisions were amended by AG Order No. 2354-2001, 66 F.R. 6470 (Jan. 22, 2001), which was delayed but which was declared by the current rulemaking as effective on July 3, 2001. Section 25.7 provides that an FFL must provide the following information to NICS about a proposed transferee: name, sex, race, date of birth, and State of residence. Also requested may be the Social Security number, military number, height, weight, eye and hair color, and place of birth. NICS searches the databases and responds to the FFL with a "‘proceed` response, if no disqualifying information was found," § 25.6(c)(1), i.e., the records "did not demonstrate that transfer of the firearm would violate federal or state law." § 25.2. Other responses are "delayed," if more research is necessary, and "denied," if firearm receipt would be unlawful. Section 25.9(b) initially provided that NICS shall keep all information on each approved transferee for six months. As amended on January 22, 2001, it now provides for a three-month retention period and also authorizes the transfer of the Audit Log to ATF:
The FBI will maintain an automated NICS Audit Log of all incoming and outgoing transactions that pass through the system. (1) The Audit Log will record the following information: type of transaction (inquiry or response), line number, time, date of inquiry, header, message key, ORI, and inquiry/response data (including the name and other identifying information about the prospective transferee and the NTN [NICS Transaction Number]). In cases of allowed transfers, all information in the Audit Log related to the person or the transfer, other than the NTN assigned to the transfer and the date the number was assigned, will be destroyed after not more than 90 days after the transfer is allowed. . . . (2) The NICS Audit Log will be used to analyze system performance, assist users in resolving operational problems, support the appeals process, or support audits of the use of the system. Searches may be conducted on the Audit Log by time frame, i.e., by day or month, or by a particular state or agency. Information in the NICS Audit Log pertaining to allowed transfers may be accessed directly only by the FBI for the purpose of conducting audits of the use and performance of the NICS. Permissible uses include extracting and providing information from the NICS Audit Log to ATF in connection with ATF`s inspections of FFL records, provided that ATF destroys the information about allowed transfers within the retention period for such information set forth in paragraph (b)(1) of this section and maintains a written record certifying the destruction. . . .
"Audits" include criminal investigations, including to discover NICS use "for unauthorized purposes, such as running checks of people other than actual gun transferees"; and to "determine whether potential handgun purchasers or FFLs have stolen the identity of innocent and unsuspecting individuals or otherwise submitted false identification information, in order to thwart the name check system." 63 FR at 58303. As for the Act`s privacy provisions, the commentary asserted that "the statute does not specify a period of time within which records of approvals must be destroyed."5 Id. As the commentary to the current rulemaking observes, under the final rule of January 22, 2001, § 25.9(b)(2) permits the FBI to provide information from the Audit Log to ATF. "It does not, however, mandate any particular action. Rather, the provision states that ‘extracting and providing` information to ATF is among the ‘(p)ermissible uses` of the information in the NICS Audit Log." 66 F.R. 35567. It adds:
Because the Department today proposes new changes to the maintenance and use of the NICS Audit Log, the FBI will not exercise this discretionary authority to "extract and provide" NICS Audit Log information to ATF except as specifically authorized by the Attorney General. Such restraint will maintain the status quo while the public provides comments on today`s proposals and the Department considers those comments. This approach in no way alters or limits the FBI`s legal authority under the NICS regulations as amended; it is instead a prudent and permissible exercise of discretion, during the pendency of this rulemaking, to preserve the current practices relating to the use of information in the NICS Audit Log.
While maintenance of the status quo in this respect may be prudent, the statutory provisions set forth above make clear that the FBI is prohibited by law from retaining any information on approved transfers (other than the date and unique identification number), whether in the form of an "Audit Log" or otherwise, and is equally prohibited by law from transferring such records to ATF or any other agency. The NRA set forth the reasons for this in its comments filed regarding the proposed rulemaking which resulting in the final rule of January 22, 2001. The commentary to the current proposed rule states: "The proposed changes balance the legitimate privacy interests of law-abiding firearms purchasers and the Department`s obligation to enforce the Brady Act and the Gun Control Act to prevent prohibited persons from purchasing firearms." 66 F.R. 35568. NRA offers the following comments on the proposals.
The Proposals
1. Proposal #1: Prompt Destruction of Records of Allowed Transactions (§ 25.9(b)(1), (2) and (3)). Section 25.9(b) would be revised in part to read: The FBI will maintain an automated NICS Audit Log of all incoming and outgoing transactions that pass through the system. (1) Contents. The NICS Audit Log will record the following information: Type of transaction (inquiry or response), line number, time, date of inquiry, header, message key, ORI or FFL identifier, and inquiry/response data (including the name and other identifying information about the prospective transferee and the NTN). (i) The NICS Audit Log will contain all records of denied transfers, and unresolved transfers. NICS Audit Log records relating to denials will be retained for 10 years, after which time they will be transferred to a Federal Records Center for storage. NICS Audit Log records relating to NICS checks where an "Unresolved" response is indicated will be destroyed after not more than 90 days from the date of inquiry. (ii) Except as provided in § 25.10(g), in cases of allowed transfers, all information in the NICS Audit Log related to the person or the transfer, other than the NTN assigned to the transfer and the date the number was assigned, will be destroyed prior to the beginning of the next NICS business day following the date on which an FFL receives communication of the determination that the transfer may proceed. (2) Use of information in the NICS Audit Log. The NICS Audit Log will be used to analyze system performance, assist users in resolving operational problems, support the appeals process, or support audits of the use of the system. Searches may be conducted on the Audit Log by time frame, i.e., by day or month, or by a particular state or agency. Information in the NICS Audit Log pertaining to allowed transfers may be accessed directly only by the FBI for the purpose of conducting audits of the use and performance of the NICS. Such information, however, may be retained and used by the FBI as long as needed to pursue cases of identified misuse of the system, and as provided in § 25.9(b)(4). (3) Limitation on use. The NICS, including the NICS Audit Log, will not be used by any Department, agency, officer, or employee of the United States to establish any system for the registration of firearms, firearm owners, or firearm transactions or dispositions, except with respect to persons prohibited from receiving a firearm by 18 U.S.C. 922(g) or (n) or by state law. The NICS Audit Log will be monitored and reviewed on a regular basis to detect any possible misuse of the NICS data. Immediate vs. next business day. This proposal dramatically improves the legal integrity of the regulations by shortening the retention of information in the Audit Log on approved transfers from 90 days to "the beginning of the next NICS business day following the date on which an FFL receives communication of the determination that the transfer may proceed." However, 18 U.S.C. § 922(t)(2) makes clear that the records must be destroyed when the NICS communicates approval to the FFL, not the business day after:
If the receipt of a firearm would not violate section 922(g) or (n) or state law, the system shall– (A) assign a unique identification number to the transfer; (B) provide the licensee with the number; and (C) destroy all records of the system with respect to the call (other than the identifying number and the date the number was assigned) and all records of the system relating to the person or the transfer.
The records must be destroyed immediately after the above communication. Once the licensee is provided with the number, the NICS has no authority over the records other than to "destroy" them. Further, requiring record retention until the next business day violates § 103(i), which provides that "no department . . . of the United States may – (1) require that any record or portion thereof generated by the system established under this section be recorded at or transferred to a facility owned, managed, or controlled by the United States . . . ." The commentary states: "This proposal balances the privacy interests of law-abiding citizens and the law enforcement interests of the Department in ensuring that the Brady Act and Gun Control Act are enforced to prevent prohibited persons from purchasing firearms. The FBI and ATF need to enforce the law to prevent misuse of the NICS system by FFLs and POCs . . . ." Of course, the law must be enforced, but within the confines of the procedures and privacy rights established by law. The commentary adds:
By keeping all records until the start of the next business day, the NICS Operations Center would be able to compile statistics on the operation of the system, such as the number of calls per state per day, the percentage of checks run on long guns versus handguns, and other statistical information that does not include personally identifiable information on lawful purchasers. . . . By destroying personally identifiable information on allowed transfers before the start of the next business day, the NICS Operations Center would have the hours between the close of one business day and the start of the next business day to run internal audits, amass statistical data, accomplish destruction of the necessary records, and carry out other system maintenance with minimal disturbance to the system.
While such statistical information may be interesting, the law does not sanction record retention in order to obtain such data. Indeed, nothing in the NICS procedures enquires into the type of firearm ("long guns versus handguns"), and no legal authority exists to require such information. No technological limitation exists as to why NICS personnel cannot, as § 922(t)(2) requires, communicate an approved transfer to the FFL and then simply commence a function and destroy all records regarding the call, the person, and the transfer other than the identifying number and the date. Retention of FFL identity. As specified under "(1) Contents" above, the Audit Log includes the FFL identifier. The commentary makes the following inconsistent statements: "Under this proposal, the FBI would retain only that information on allowed transfers specified in 18 U.S.C. 922(t)(2)(C) -- namely, the NTN and the date the NTN was assigned. In addition, as discussed more fully below, this proposal would authorize the FBI to retain . . . the FFL identifier issued by the Bureau of Alcohol, Tobacco and Firearms, when requested to do so, in writing, by ATF for inspection purposes." Retention of the FFL identifier violates § 103(i) of the Act because it "(1) require[s] that any record or portion thereof generated by the system established under this section be recorded at" a government facility and "(2) use[s] the system established under this section to establish any system for the registration of . . . firearm transactions." (Emphasis added.) In balancing privacy and law enforcement interests, Congress devised a unique scheme. If during a criminal investigation an FFL is suspected of not causing a NICS check or of making up the unique number and date, the information in the FFL`s records may be cross-checked with the NICS records. A match would indicate that the NICS check was conducted, for it would be impossible for an FFL to guess a true unique number and corresponding date. Such a match would be feasible without the NICS also retaining the FFL identifier with the unique number and date. Retention of "Unresolved" response for 90 days. It is proposed that the Audit Log will retain records concerning an "unresolved" response for not more than 90 days from the date of inquiry. This runs afoul of the proscription of § 103(i) by requiring that records generated by the system shall be recorded at a government facility. Section 103(i) ends with the provision, "except with respect to persons, prohibited by section 922(g) or (n) of title 18, United States Code or State law, from receiving a firearm." Thus, records may be retained on a person who is in fact prohibited from receipt of a firearm, but not on a person in the "unresolved" category.6 Section 922(t)(1)(B) provides that an FFL shall not transfer a firearm unless the FFL has contacted the NICS and "(i) the system provides the licensee with a unique identification number; or (ii) 3 business days . . . have elapsed since the licensee contacted the system, and the system has not notified the licensee that the receipt of a firearm by such other person would violate subsection (g) or (n) of this section . . . ."7 The clear meaning of the statute is that NICS has three days to resolve the status of a person in the "unresolved" category, after which the record should be destroyed. 2. Proposal #2: Individual FFL Audit Logs (§ 25.9(b)(4)). The proposal would adopt § 25.9(b)(4) as follows:
Creation and Use of Individual FFL Audit Logs: Upon written request from ATF containing the name and license number of the FFL, the proposed date of inspection of the named FFL by ATF, and the requested start date for record retention, the FBI may extract information from the NICS Audit Log and create an Individual FFL Audit Log for transactions originating at the named FFL for a limited period of time. An Individual FFL Audit Log shall contain all information on unresolved transactions and denied transactions, and, with respect to allowed transfers, only the NTN and date of inquiry. In no instance shall an Individual FFL Audit Log contain more than 30 days worth of allowed transfer records originating at the FFL. The ATF shall destroy all records of allowed transfers within 90 days of the date on which the Individual Audit Log was created. The ATF shall maintain a written record certifying the destruction. Such information, however, may be retained as long as needed to pursue cases of identified misuse of the system.
The law permits the FBI to transfer information on denied transactions to ATF. But it does not permit the transfer of any information on allowed transfers to ATF.8 Section 922(t)(2) provides that, "if the receipt of a firearm would not violate section 922(g) or (n) or state law, the system shall" provide a unique identification number to the FFL and "destroy all records of the system with respect to the call (other than the identifying number and the date the number was assigned) and all records of the system relating to the person or the transfer." This authorizes the FBI to retain any records on persons who may not legally receive a firearm. It also authorizes the FBI to keep a record of identifying numbers and dates of approved transfers, but it does not authorize the FBI to transfer such records to ATF. Requiring transfer of the unique numbers and dates to ATF violates § 103(i), because it "require[s] that any record or portion thereof generated by the system established under this section be . . . transferred to a facility owned, managed, or controlled by the United States . . . ." Transfer of records on denied transactions to ATF does not violate § 103(i), since it ends with the clause, "except with respect to persons, prohibited by section 922(g) or (n) of title 18, United States Code or State law, from receiving a firearm." However, persons who are the subject of "unresolved transactions" have not been found to be persons who are so prohibited, and hence information on such persons generated by NICS may not be transferred to ATF. The commentary to this proposed regulation makes policy arguments about how such transfer of information to ATF might ferret out some previously-unknown violation. However, no legal basis is cited for the procedure. The commentary states that this procedure will allow an ATF inspector to match transactions on the Audit Log and the Forms 4473, indicating that "a potential purchase is linked to each check and that each potential purchase received the NICS check." The commentary implies that an Audit Log entry without a matching Form 4473 indicates that the FFL may have run a check on a person who is not a potential firearm purchaser, while a Form 4473 without a matching Audit Log entry indicates that no NICS check may have been done. However, the law does not grant the FBI and ATF blanket authority to record and transfer information back and forth in fishing expeditions (euphemistically called "audits") where there is no reasonable cause to believe that a crime has been committed. The law deters FFLs from running checks on persons who are not potential purchasers by imposing felony penalties for making false statements to government officials, 18 U.S.C. § 1001, and by revoking NICS privileges, 28 C.F.R. § 25.11. The law deters failure to do a check by authorizing the suspension or revocation of the FFL, 18 U.S.C. § 922(t)(5), and by imposing felony penalties where the purpose is to transfer a firearm to a prohibited person, §§ 922(d), 924(a)(2). Violators may be discovered through traditional law enforcement methods such as are used at present. The NICS should transfer to ATF routinely, all information on denied transfers for that day. ATF should expend its resources on investigating such persons, to determine which ones violated the Gun Control Act by making false statements on the Form 4473, such as by denying convicted felon status. Instead of focusing on this likely pool of suspects, the proposal places emphasis on bureaucratic auditing of FFLs based on the highly unlikely chance that some FFL, somewhere, might have run a check on a person other than a proposed firearm transferee. ATF should be investigating likely or known criminals, not conducting paper-shuffling where no suspected crime or criminal is in sight. In sum, the statute balances privacy and law enforcement interests. The FBI keeps the unique number and the date, and the dealer records this information with the other paperwork on the transfer. While the FBI has no authority routinely to transfer this information to ATF, the information would be available in bona fide criminal investigations.9 3. Proposal #3: New Definition of "Unresolved" Transaction (§ 25.2). It is proposed to amend § 25.2 to add the following definition:
Unresolved means that information available to the system required further inquiry that could not be resolved before the end of three business days and resulted in no determination by the system that the receipt of a firearm by the prospective transferee would not violate Federal or state law. In cases of "unresolved" responses, the NICS continues research to discover definitive information regarding the transferee and, if definitive information is obtained, communicates to the FFL the final determination that the check resulted in a proceed or a denied. An "unresolved" response does not prohibit an FFL from transferring a firearm after three business days have elapsed since the FFL provided to the system the identifying information about the prospective transferee.
This definition pertains to the Audit Log provision that records on such persons in the "unresolved category" shall be retained for 90 days. As explained above, the policy set by Congress is that the NICS has three days to research a transferee, after which the licensee may make the transfer if NICS has not notified such licensee that receipt would violate the law. § 922(t)(1)(B). As further explained above, this 90-day retention runs afoul of the proscription of § 103(i) by requiring that records generated by the system shall be recorded at a government facility. Section 103(i) ends with the provision, "except with respect to persons, prohibited by section 922(g) or (n) of title 18, United States Code or State law, from receiving a firearm." Thus, records may be retained on a person who is in fact prohibited from receipt of a firearm, but not on a person in the "unresolved" category. It also bears repeating, as provided by § 103(b), that the Attorney General was directed to "establish a national instant criminal background check system that any licensee may contact, by telephone or by other electronic means in addition to the telephone, for information, to be supplied immediately, on whether receipt of a firearm by a prospective transferee would violate section 922 of title 18, United States Code, or State law." (Emphasis added.) Retention of records on "unresolved" persons is a far cry from the directive that information be supplied "immediately." Shortcomings of the system`s data infrastructure should be addressed through corrective action, not accommodated through extralegal proposals for record retention. 4. Proposal #4: Require POC States To Transmit State Determinations to the NICS System (§ 25.6(h)). It is proposed to revise § 25.6(h) as follows:
POC Determination Notification. POCs shall provide notification to the NICS of their determinations that a firearm transfer may proceed, is denied, or that the check is unresolved. These notifications will include all information relating to the transaction, including the identifying information provided for the background check, the FFL number, the records that were returned by the check, the NTN, the date of the determination, and, in the case of denials, the category of denial. The information provided in the POC determination notification will be maintained in the NICS Audit Log described in § 25.9(b). These notifications shall be provided by electronic message to the NICS immediately upon communication of the determination to the FFL or the expiration of any applicable state waiting period. Until the POC determination notification is received by the NICS, the NICS will assume that the check is unresolved.
Failure to destroy information on approved transactions when the POC notifies the FFL of the unique number violates § 922(t)(2), which requires destruction of all records of the call, the person, and the transfer, other than the unique number and date. Indeed, this proposal would be difficult or impossible to implement consistently with the proposal that records of approved transfers be destroyed in one business day. No purpose exists for this provision other than as applied to POC determinations of prohibited persons. The commentary itself cites no other purpose:
Under current § 25.6(h), POC states are encouraged, but not required, to transmit to the NICS system determinations that a background check indicates a firearm transfer is denied. Unfortunately, most POC states currently do not transmit this information to the NICS system. This proposal would condition participation as a POC state on transmission of state determination information to the NICS system as soon as it is available, so that the NICS system will have accurate records of all prohibited persons. (Emphasis added.)
The FBI may wish to obtain information on prohibited persons who attempted to purchase a firearm for referral to ATF. However, the FBI has no legitimate interest in obtaining identifying information on firearm purchasers cleared through POCs. In its analysis under the Paperwork Reduction Act of 1995, the commentary states that this regulation will require the 21 POC States to make programming changes and then will impose the following permanent burden on POCs:
It is estimated it will take one (1) minute for each POC state to send the information relating to each check to the NICS. Collectively, the POCs conduct approximately 4.4 million NICS checks per year. Thus, it is estimated that the total public burden (in hours) associated with the collection from the estimated 21 respondents is 73,333 hours in the first year.
The overwhelming amount of the above information will be on approved transfers, for which NICS has no need whatsoever. Limiting the reports to denials would dramatically reduce the burden on POCs while at the same time providing NICS with the only information of any value. 5. Proposal #5: Voluntary Appeals File (§ 25.10(g)). A new § 25.10(g) would state:
An individual may provide written consent to the FBI to maintain information about himself or herself in a voluntary appeal file checked by the NICS for the purpose of preventing the future erroneous delay or denial of a firearm transfer. Such file shall only be used by the NICS for this purpose. The FBI shall remove all information in the voluntary appeal file upon receipt of a written request by the individual. However, the FBI shall not be prohibited from retaining such information contained in the Voluntary Audit Log as long as needed to pursue cases of identified misuse of the system.
The commentary notes that, under existing regulations, information on an approved (albeit delayed) transfer may only be retained for 90 days. "Under this proposal, potential firearms transferees experiencing erroneous delays or denials by the system will have the option to supply the FBI with information such as name, date of birth, social security number, any other identifying numbers, and any documents that may clarify their records or prove their identity." Generally speaking, a person may waive a statutory privacy right. However we must note that his proposal highlights the need for the NICS and the criminal records systems on which it relies to be improved and corrected in order to diminish any need for this regulation. We believe FBI`s efforts should be focused on preventing situations where NICS may erroneously deny a person the right to obtain a firearm and then to tell such person that his or her privacy rights must be forfeited to prevent erroneous repetition of the erroneous denial.
Conclusion
Congress intended that the NICS instantly conduct background checks based on accurate records, approve all eligible persons, and destroy all records on eligible persons other than the unique number and date. It also intended that the NICS identify ineligible persons and cooperate with ATF to prosecute ineligible persons. Instead, the regulations promulgated in 1998 focused on creating and retaining records on law-abiding citizens, and the 2001 regulations would have transferred those records to ATF, all in defiance of statutory guarantees of privacy. The proposed regulations, subject to the above problem areas, are a step in the right direction. We hope and trust that FBI and DOJ will continue their assessment and overhaul of NICS infrastructure and procedures to address these remaining issues and we appreciate your consideration of our comments. Sincerely, James Jay Baker Executive Director NRA Institute for Legislative Action ----------------------------------- Notes 1. Section 103(i) tracked the language of 18 U.S.C. § 926(a)(3), which was enacted by the Firearms Owners` Protection Act of 1986 and which provides in part:
No such rule or regulation prescribed after the date of the enactment of the Firearms Owners` Protection Act may require that records required to be maintained under this chapter or any portion of the contents of such records, be recorded at or transferred to a facility owned, managed, or controlled by the United States or any State or any political subdivision thereof, nor that any system of registration of firearms, firearms owners, or firearms transactions or dispositions be established.
Senator McClure explained: "The central compromise of the Gun Control Act of 1968--the sine qua non for the entry of the Federal Government into any form of firearms regulation was this: Records concerning gun ownership would be maintained by dealers, not by the Federal Government and not by State and local governments." 131 Cong. Rec. S9163-64 (July 9, 1985). 2. 18 U.S.C. § 922(s)(2). Printz v. United States, 521 U.S. 98 (1997) declared that provision unconstitutional. 3. "The Brady bill in no way provides for a system of national gun registration--quite the opposite. In every instance where a handgun sale is approved under Brady, law enforcement officers must destroy the information they`ve been provided within 20 days." 139 Cong.Rec. H9106 (Nov. 10, 1993) (statement of Rep. Roukema). "To help protect the privacy of legal purchasers, it [the Brady bill] requires that a copy of the statement and other records of the transaction be destroyed within 20 days." Id. at H9117 (statement of Rep. Hughes). 4. The majority opinion claimed that § 103(i)`s "prohibition against ‘record[ing]` a ‘record` is inherently ambiguous. What is a ‘record,` when has it been ‘recorded,` and what kind of ‘record` cannot be ‘recorded?`" Id. at 129. This is "verbal know-nothingism that would render government by legislation quite impossible." Deal v. United States, 508 U.S. 129, 135 (1993). It is doubtful that any court would decide that the Gun Control Act`s provisions about "records" which FFLs must keep are "ambiguous." 5. Some States have consented to perform the background check in lieu of the FBI. "POC (Point of Contact) means a state or local law enforcement agency serving as an intermediary between an FFL and the federal databases checked by the NICS." § 25.2. Section 25.9(d) exempts POCs from the destruction-requirement if the NICS-generated records "are not part of a record system created and maintained pursuant to independent state law regarding firearms transactions." However, the Act neither recognizes POCs nor exempts them from the privacy provisions. 6. Since an "unresolved" response is not a denial, appeal provisions and their timetables (which require retention of records) have no pertinence. See § 103(f)(if NICS "determines that an individual is ineligible," NICS must respond to request for reason why within 5 business days); §103(g) (if NICS informs a person that receipt would violate the law, on request the Attorney General must explain why, and requester may submit information to correct record); 18 U.S.C. § 925A (judicial action to correct record by "any person denied a firearm"). 7. See § 922(t)(5) (authorizing suspension or revocation of FFL for failure to conduct check and NICS "was operating and information was available to the system demonstrating that receipt of a firearm by such other person would violate subsection (g) or (n) of this section or State law"). 8. Further, nothing in the Act authorizes the FBI to transfer information on unresolved transactions to ATF. 9. If ATF suspects that a licensee has avoided doing a check to sell a firearm to a prohibited person, ATF can transfer pertinent records to the FBI to determine whether a unique number and date on a Form 4473 are genuine. This would be authorized by 18 U.S.C. § 923(g)(1)(D), which provides in part:
The Secretary may make available to any Federal, State, or local law enforcement agency any information which he may obtain by reason of this chapter with respect to the identification of persons prohibited from purchasing or receiving firearms or ammunition who have purchased or received firearms or ammunition, together with a description of such firearms or ammunition, and he may provide information to the extent such information may be contained in the records required to be maintained by this chapter, when so requested by any Federal, State, or local law enforcement agency.
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California: Bullet Button Guns Must be Purchased and Received by Dec 31st

Wednesday, November 30, 2016

California: Bullet Button Guns Must be Purchased and Received by Dec 31st

Recently the California Department of Justice Bureau of Firearms sent out a notice to California firearms dealers with information regarding the recently passed “assault weapon” legislation, SB880 and AB 1135.

New Jersey:  Urgent! Legislation Puts Shooting Ranges in Crosshairs

Wednesday, November 30, 2016

New Jersey: Urgent! Legislation Puts Shooting Ranges in Crosshairs

Shooting ranges as we know them may be a thing of the past if anti-gun politicians have their way in the Garden State.  A pair of dangerous bills are scheduled in the Assembly Law & ...

Illinois: Suppressor Legalization Legislation Passes out of Senate Committee - But your Senator Still Needs to Hear from You!

Hunting  

Tuesday, November 29, 2016

Illinois: Suppressor Legalization Legislation Passes out of Senate Committee - But your Senator Still Needs to Hear from You!

Thanks to your emails and calls, Senate Bill 206, legislation which would legalize the possession and use of suppressors in Illinois, was passed out of committee and has been sent to the Senate floor for consideration.

Eleventh Hour Changes to Federal Firearm Form

News  

Friday, November 18, 2016

Eleventh Hour Changes to Federal Firearm Form

In what will hopefully be one of the final acts of the Obama Administration on firearms, the ATF on Monday announced that its proposed changes to the Form 4473 would go into effect on January ...

News  

Friday, July 1, 2016

California Governor Signs Draconian Gun Control Package into Law

Fairfax, Va.— California Gov. Jerry Brown signed into law on Friday a package of gun bills that were rushed through the state legislature with no regard for proper process. The National Rifle Association Institute for ...

Illinois: Suppressor Legalization Legislation on the Move in the Senate – Contact Your Senator in Support Immediately!

Hunting  

Tuesday, November 29, 2016

Illinois: Suppressor Legalization Legislation on the Move in the Senate – Contact Your Senator in Support Immediately!

At 4:00pm today, the Senate Judiciary Committee will hear Senate Bill 206, legislation which would legalize the possession and use of suppressors in Illinois.

NRA Applauds the Pre-Filing of Texas Senate Bill 16

Wednesday, November 30, 2016

NRA Applauds the Pre-Filing of Texas Senate Bill 16

Your NRA-ILA applauds Texas Lieutenant Governor Dan Patrick and state Senator Robert Nichols (R-Jacksonville) for prioritizing and pre-filing legislation for the 85th regular session to address License To Carry (LTC) fees in Texas.

Peruta Case is Supreme Court Bound -- Help Bring Shall Issue to California

Tuesday, November 29, 2016

Peruta Case is Supreme Court Bound -- Help Bring Shall Issue to California

Now that we have secured a big win in the presidential election, NRA is working with the California Rifle and Pistol Association (CRPA) to take the Peruta case to the U.S. Supreme Court and bring ...

Guide To The Interstate Transportation Of Firearms

Gun Laws  

Thursday, January 1, 2015

Guide To The Interstate Transportation Of Firearms

CAUTION: Federal and state firearms laws are subject to frequent change. This summary is not to be considered as legal advice or a restatement of law.

Gun Control Supporters Race to Embarrass Themselves Following OSU Stabbing Attack

News  

Thursday, December 1, 2016

Gun Control Supporters Race to Embarrass Themselves Following OSU Stabbing Attack

Guinness World Records may refuse to acknowledge feats pertaining to the lawful exercise of right to keep and bear arms, but how about a world record for most shameless attempt to politicize tragedy? The competition would ...

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NRA ILA

Established in 1975, the Institute for Legislative Action (ILA) is the "lobbying" arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution.