SPEAKERS CONTENTS INSERTS
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IMPLEMENTATION OF THE NATIONAL INSTANT-CHECK SYSTEM FOR BACKGROUND CHECKS OF FIREARM PURCHASERS
SUBCOMMITTEE ON CRIME
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTH CONGRESS
JUNE 11, 1998
Serial No. 145
Printed for the use of the Committee on the Judiciary
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For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
COMMITTEE ON THE JUDICIARY
HENRY J. HYDE, Illinois, Chairman
F. JAMES SENSENBRENNER, Jr., Wisconsin
BILL McCOLLUM, Florida
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB INGLIS, South Carolina
BOB GOODLATTE, Virginia
STEPHEN E. BUYER, Indiana
ED BRYANT, Tennessee
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
EDWARD A. PEASE, Indiana
CHRIS CANNON, Utah
JAMES E. ROGAN, California
LINDSEY O. GRAHAM, South Carolina
Page 3 PREV PAGE TOP OF DOCMARY BONO, California
JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
CHARLES E. SCHUMER, New York
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
STEVEN R. ROTHMAN, New Jersey
THOMAS E. MOONEY, Chief of Staff-General Counsel
JULIAN EPSTEIN, Minority Staff Director
Subcommittee on Crime
BILL McCOLLUM, Florida, Chairman
STEPHEN E. BUYER, Indiana
STEVE CHABOT, Ohio
Page 4 PREV PAGE TOP OF DOCBOB BARR, Georgia
ASA HUTCHINSON, Arkansas
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
JAMES E. ROGAN, California
LINDSEY O. GRAHAM, South Carolina
CHARLES E. SCHUMER, New York
SHEILA JACKSON LEE, Texas
MARTIN T. MEEHAN, Massachusetts
ROBERT WEXLER, Florida
STEVEN R. ROTHMAN, New Jersey
PAUL J. MCNULTY, Chief Counsel
GLENN R. SCHMITT, Counsel
DANIEL J. BRYANT, Counsel
NICOLE R. NASON, Counsel
DAVID YASSKY, Minority Counsel
C O N T E N T S
June 11, 1998
Page 5 PREV PAGE TOP OF DOC McCollum, Hon. Bill, a Representative in Congress from the State of Florida, and chairman, Subcommittee on Crime
Baker, James, Washington Representative, Sporting Arms and Ammunition Manufacturers Institute
Kemmler, Lieutenant Robert, Assistant Records Management Officer, Virginia Department of State Police
Kessler, James S., Jr., Section Chief, Criminal Justice Information Services Division, Federal Bureau of Investigation
Metaksa, Tanya, Executive Director, NRA Institute for Legislative Action
Norquist, Grover, President, Americans for Tax Reform
Smith, Lieutenant Colonel Cynthia, Maryland State Police Department
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Baker, James, Washington Representative, Sporting Arms and Ammunition Manufacturers Institute: Prepared statement
Page 6 PREV PAGE TOP OF DOC Bishop, Demery R., Section Chief, U.S. Department of Justice, Federal Bureau of Investigation, Criminal Justice Information Services Division, letter to Major Jeffrey Harmon, Maine State Police, dated December 12, 1997
Federal Register, Proposed Rules, dated June 4, 1998
Kemmler, Lieutenant Robert, Assistant Records Management Officer, Virginia Department of State Police: Prepared statement
Kessler, James S., Jr., Section Chief, Criminal Justice Information Services Division, Federal Bureau of Investigation: Prepared statement
Loesch, David R., Acting Assistant Director in Charge, Criminal Justice Information Services Division, letter to Hon. Bill McCollum, dated July 28, 1998
Metaksa, Tanya, Executive Director, NRA Institute for Legislative Action: Prepared statement
Letter to John W. Magaw, Director, Bureau of Alcohol, Tobacco and Firearms, Department of the Treasury, dated May 19, 1998
Letter to Walfred A. Nelson, Chief, Firearms and Explosives Division, Bureau of Alcohol, Tobacco and Firearms, Department of the Treasury, dated June 10, 1998
Norquist, Grover, President, Americans for Tax Reform: Prepared statement
Smith, Lieutenant Colonel Cynthia, Maryland State Police Department: Prepared statement
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Material submitted for the record
IMPLEMENTATION OF THE NATIONAL INSTANT-CHECK SYSTEM FOR BACKGROUND CHECKS OF FIREARM PURCHASERS
THURSDAY, JUNE 11, 1998
House of Representatives,
Subcommittee on Crime
Committee on the Judiciary,
The subcommittee met, pursuant to notice, at 9:45 a.m., in Room 2141, Rayburn House Office Building, Hon. Bill McCollum [chairman of the subcommittee] presiding.
Present: Representatives Bill McCollum, George W. Gekas, Stephen E. Buyer, Bob Barr, Asa Hutchinson, Lindsey O. Graham, and Sheila Jackson Lee.
Staff present: Paul McNulty, Chief Counsel; Nicole Nason, Counsel; Kara Smith, Staff Assistant, and David Yassky, Minority Counsel.
OPENING STATEMENT OF CHAIRMAN McCOLLUM
Page 8 PREV PAGE TOP OF DOC Mr. MCCOLLUM [presiding]. Good morning. This hearing of the Crime Subcommittee shall come to order. This morning we are here to discuss the implementation of the national instant-check system for background checks on firearm purchasers.
When the Brady Act was passed in the 103rd Congress, I was an outspoken proponent of the creation of a national criminal instant-check system, or NICS, which the legislation gave the Attorney General 60 months to establish. It was the next step in a process started with an amendment I offered to the 1988 Anti-Drug Abuse Act requiring the Attorney General to establish a point-of-purchase background check system. I have consistently believed that the best way to balance the rights of gun owners with the need for public safety is to have an electronic system in place whereby a purchaser can know within minutes if he or she is able to lawfully obtain a firearm.
As we are aware, the 60 months have nearly expired and the instant-check system is to be operational by November of this year. The FBI, tasked by the Attorney General to create and run the system, recently published in The Federal Register their proposed regulations for the implementation of the system. It is that proposed implementation plan which we are here to fully explore today.
Of course, as with any new program, Congress should neither anticipate nor plan for every aspect of its creation. The FBI has been diligently working on the specifics, and I know there are many FBI employees who have dedicated the last several years of their career to getting the national instant-check system up and running, and I appreciate their continued commitment.
Page 9 PREV PAGE TOP OF DOC Also, as with any new program, there is significant expense involved. One of the questions we must explore today is, what happened to the money already appropriated for the NICS? Congress has appropriated hundreds of millions of dollars in recent years and should have a complete accounting of those expenditures. Also, what further expenses are anticipated, and how should they be funded?
In addition, we need to consider the quality of State criminal history records, the foundation of NICS. Are there some State records which the Federal Government does not have, such as those relating to mental disability or drug addiction? That is a very significant public policy issue. We certainly don't want to undermine the overall purpose of instant-check by allowing criminals to lawfully gain access to firearms because the most useful and extensive records are not checked.
However, while I am concerned about the FBI's proposal to impose a fee and retain records of background checks for 18 months, I do not want this program to collapse under its own weight before it even gets off the ground. As John Heywood so famously noted, ''Rome was not built in a day.'' We must find the clearest way to implement NICS, while still allowing room for it to improve and grow.
Like most Members, my top priority is to see to it that the instant-check is fully operational by November. I look forward to hearing from all of our witnesses today as we continue toward a national instant-check system for firearms purchases.
Do any other membersMr. Gekas, do you wish to make an opening statement?
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Mr. GEKAS. Yes. Thank you, Mr. Chairman.
Mr. MCCOLLUM. You're welcome.
Mr. GEKAS. As I was preparing to attend this important hearing, I began to look back at the era to which you alluded, when the Brady bill was the subject of the day. I remember very well having prepared an instant-check amendment to the then-pending Brady bill. In committee, in Judiciary Committee, we were opposed by those who traditionally opposed any effort to protect our gun owners, the law-abiding citizens who use and carry weapons legally and properly and for proper and legal purposes.
At any rate, having been frustrated originally and at committee to the amendment process, finally, by a miracle, at the conference that was then held between the Senate and the House on the Brady bill, I again offered the amendment and, lo and behold, it passed. So that the instant-check portion was folded into the Brady bill, along withas I recall, Mr. Chairman, you may help me on thisa sunset provision on the Brady bill itself to coincide with the implementation of the instant-check. Isn't that correct?
Mr. MCCOLLUM. If the gentleman would yieldthat is correct. It was a 60-month period all together, including a sunset.
Mr. GEKAS. Yes, that's why this is so important. The Chair is to be commended for bringing to the forefront a timely hearing because the whole aura of the Brady bill and its consequences, including the implementation of instant-check, is of the moment. We're at the threshold of the period of time when all of this has to come about. That's why I'm eager to hear the witnesses and to do what we can, as a committee and as individual members, to make certain that the intent back then coincides with the results now.
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I thank the Chair.
Mr. MCCOLLUM. You're quite welcome, Mr. Gekas.
Do any other members wish to make an opening statement? Mr. Barr.
Mr. BARR. Thank you, Mr. Chairman. Mr. Chairman, it was 5 years ago in the 103rd Congress that the Brady Act was passed, the legislation and then the act that came along when the President signed it. Had I been in Congress at the time, I would have voted against that measure in favor of an immediate instant background check. However, we are here today, in the final days of that measure, the Brady Act which sunsets this fall, late November, into the National Instant-Check System.
Background checks are an extremely poor way of preventing criminals from obtaining firearms. I stress the word ''preventing.'' That is what we ought to be trying to do, is prevent criminals from obtaining firearms.
The vast majority of people who enter stores to purchase firearms are law-abiding Americans, not criminals. For those few are identified as a felon few, if any, in the so-called Brady States are ever arrested. So while they may be initially deterred, these criminals also remain free to try and find a gun through other sources.
But today is not about the debate about the Brady Act. It is about the implementation of a superior system, the National Instant-Check System or NICS, and whether or not we in the Congress will allow the Second Amendment to be taxed and the Federal Government to register the guns of law-abiding Americans.
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The FBI, tasked by the Justice Department with implementing and running the NICS, intends to charge a fee for processing the background checks. This Congress will, I believe in a bipartisan vote say, not just no, but absolutely no.
The FBI has also proposed maintaining records of computerized transactions of approved, that is, approved purchases for which there is no reason why that law-abiding American citizen should be able to obtain that gun and exercise their constitutional rights, for up to 18 months. Again, I'm confident that in a bipartisan vote this Congress will say not just no, but absolutely no.
The bipartisan legislation I speak of today is H.R. 3949, the No-Gun Tax Act. I introduced this legislation with Congressmen Barcia, Graham, Boucher, and Strickland, a strong bipartisan coalition. The FBI claims it needs to charge a fee to discourage all States from sending the Bureau requests for background checks. The FBI says they cannot afford this. I must admit that I find this somewhat ironic. Wasn't it this same Clinton administration that when it mandated background checks in 1993 did not provide one penny to the States to conduct those checks. I should add, for the record, the Supreme Court found the Brady checks unconstitutional and a violation of the 10th Amendment.
Mr. Chairman, if the NICS is in the best interest of the Nation, then it should be the Nation and all taxpayers that bear the cost thereof. If the FBI needs more money to run the system, then it should ask for the money as part of its general appropriations process.
But I do have some doubts as to currently whether the FBI needs the money. We saw last year that there were substantial, substantial amounts of money that the FBI and the Department of Justice had appropriated to them under the Anti-Terrorism Act that were never used or were reused for purposes quite at odds with the purposes for which they were appropriated, that is anti-terrorism efforts.
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What I fear, but believe, is that the Bureau is carrying out a longstanding policy of this administration to discourage firearms ownershipin this case, by taxing the Second Amendment to charge what some would call a user fee but what is, in fact, a tax, a gun tax. As stewards of the Constitution and of the Second Amendment, we cannot, should not, and, I believe, will not let this happen.
Mr. Chairman, one of the greatest fears of gun owners is the registration of their guns by any governmental organization, be it local, State, or Federal. The Federal Government must forever be prevented from collecting data on law-abiding gun owners simply because they are gun owners. I would like to say that it is not a matter of trust, but it is. The Federal Government cannot be trusted with this most private of information, information that could be abused by overzealous officials or partisan political operatives in, let us say, a future White House.
The FBI will claim it needs to keep the information on gun purchases for various reasons. None are relevant. There is no legitimate reason to register someone's gun, or more properly to allow the government to require a citizen's gun to be registered.
As it is, the transactions are permanently identified with an identification which can be traced back to the local dealer who is required by law currently to keep the record of this 4473 Form filled out for firearms purchases. This trail can, and is, easily followed in conjunction with any criminal investigation or to do an audit check of a dealer if such becomes necessary and if it is justified in a specific case.
Page 14 PREV PAGE TOP OF DOC Mr. Chairman, I thank you for holding this important hearing and I look forward to hearing from our distinguished
Mr. GEKAS. Would the gentleman yield for a moment?
Mr. BARR. I'd be happy to yield to the distinguished chairman.
Mr. GEKAS. Yes, thank you. You do not equate, do youI hope not, because then it puts me in a quandarythe results of an instant-check with what you claim to be registration? In other words, if the instant-check that is now in place in many States occurs and the law enforcement authorities get the name of the person against whom they're doing the check, do you consider that by itself a form of registration?
Mr. BARR. No. I'm very much in support of the instant-check as I know many, many citizens including civil liberties organizations, such as the NRA and many law enforcement groups, favor. Yes, and there is a mechanism, as I know the chairman is aware, for maintaining the information that is necessary to track that. But it is not necessary for the instant-check to perform its purposes for the government to be allowed to compile and maintain a repository for any length of time simply on the names of citizens who own guns.
Mr. GEKAS. I'm relieved to know we're on the same track.
Mr. BARR. We're absolutely, Mr. Chairman.
Mr. GEKAS. Thank you. I yield back.
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Mr. MCCOLLUM. Thank you very much, Mr. Barr. Ms. Jackson Lee, you're recognized for an opening statement.
Ms. JACKSON LEE. Thank you very much. On November 30, 1998, Congress made a decision to protect the citizens of the United States, the goal of the Brady Act to keep weapons out of the hands of dangerous people. H.R. 3949 is of great concern to me. H.R. 3949, the No-Gun Tax Act of 1998, handicaps officials in achieving that goal.
Phrase Two of the Brady Act calls for the creation and implementation of the instant background check system. In order to maintain this system, the FBI has suggested a modest user fee, not a tax. H.R. 3949 wants to prohibit any government agency or official acting on behalf of the United States from charging a user's fee for the background checks. This makes no sense and is a direct contradiction with the ideals of the Brady Act.
Supporters of this legislation argue that the user's fee is a tax which asks the average American to pay a fee to prove that he or she is not a criminal while receiving no benefit. This is not true. The implementation of the instant background check is a benefit. The instant background check will eliminate the 5-day waiting period, would allow those who wish to purchase a gun immediate approval. The user's fee is necessary to maintain this system.
The supporters of this legislation also argue that the burden will fall on ordinary working Americans. Ordinary working Americans want to feel safe in the streets and in their homes. While I ask, what price do you put on safety? The ordinary working American would not consider it a burden to pay a user's fee on a system that will provide them with security.
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This bill also calls for the criminalization of keeping background information for longer than 24 hours in cases where the purchaser has been approved, and criminalizes the practice of keeping background checks for more than 5 years in cases where the potential purchaser has been denied. This provision is an attack to the very spirit of the Brady Act.
The storing of background information for only 24 hours does not give the FBI or any other official acting under the guise of the Brady Act the power needed to document and control the usage of dangerous weapons. In essence, this provision says that you can do whatever you want with a gun as long you wait the required 24 hours. Those who use their weapons for hunting or other legal recreational purposes have nothing to fear by the maintenance of background information.
The Federal Firearms Licensing Bureau does not receive information about an individual's background. The 5-year restriction for maintaining background information on those individuals who have been denied a gun license is ridiculous. Those who are ineligible to purchase a gun should be monitored for the safety of the citizens of this great country.
I do think that it is important to have this hearing, but it's interesting to me that again we have the intrusion and the oppression of the National Rifle Association. Just this past week, there was some misrepresentation that Moses would bring a softer and kinder National Rifle Association.
It is well known that most Americans agree with the waiting period, the idea of requiring people to go under some sort of assessment before they get a gun license or an opportunity to walk around with a gun. This redundant and senseless and ridiculous argument that is used constantly, people don't killwhat is itguns don't kill, people do, is ludicrous and ridiculous when you talk about the increase in homicides, the violence in our schools, and the absolute overwhelming that we have with this gun mentality in this country. Then the NRA will use and misuse children and women who will come up and suggest that they need guns to protect themselves.
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Well, I am outraged. This is again another waste of time to the extent that this legislation interferes with the legitimate law enforcement agency that is trying to do their job. Not only are they trying to do their job, but they're trying to do what the American people would like them to do.
A simple user fee is reasonable and legitimate. I hope that we will fall on the side of our law enforcement officers who are trying to do their job.
And certainly, those who are here to argue differently, they have the right to the First Amendment. But again the NRA can anybody and manipulate them and make them say things that they'd like to say. I hope that we'll have that fall on deaf ears so that we can move forward and protect
Mr. GEKAS. Would the lady yield for a moment?
Ms. JACKSON LEE. I'd be happy to yield to the gentleman.
Mr. GEKAS. I just wanted toI'm not sure from your opening statement, are you in favor of the instant-check which is the subject of this hearing?
Ms. JACKSON LEE. I certainly am and I'm in favor of the user fee
Mr. GEKAS. I just wanted you to know for record and historical purposes, it was the NRA that propelled and supported and defended the concept of instant-check
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Ms. JACKSON LEE. Yes, I realize that
Mr. GEKAS [continuing]. And that we are having this hearing
Ms. JACKSON LEE. I'm reclaiming my time. I realize that they instituted that. That is because they were trying to counter the 5- and 7-day waiting period.
Obviously, I'm looking for any glimmer of hope and light that will allow the opportunity for guns to be checked. I prefer the extension of the Brady bill, which is a waiting period.
The user or the instant-check was to be utilized by the NRA or promoted because they did not want a waiting period of 5 to 7 days. So in the worst of all worlds, in which I exist, I am certainly accepting of any kind of check. I am also in support of the user fee which the FBI needs in order to promote this kind of program.
I yield back my time. Thank you.
Mr. MCCOLLUM. Mr. Hutchinson, do you desire to make an opening statement?
Mr. HUTCHINSON. Mr. Chairman, I just want to thank you for holding this hearing. I believe that this is a very important issue. We certainly do not need to put these fees on the consumers. But we need to move forward with the instant-check system. I hope that this hearing will help us to move forward on that.
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I thank you for this. I look forward to the testimony today.
Mr. MCCOLLUM. Thank you, Mr. Hutchinson.
Now I will introduce our first panel of witnesses and, actually, we only have one witness who will be accompanied by a very important person. So we'll introduce them both.
Our first witness this morning is Mr. James Kessler, a 25-year veteran of the Federal Bureau of Investigation. Mr. Kessler currently serves as Section Chief for the Identification and Investigative Services Section of the Criminal Justice Information Services Division in Clarksburg, West Virginia. Prior to this assignment, he served as an assistant special agent in charge of the Mobile, Alabama Field Division.
Also with us this morning is Dr. Jan Chaiken. Currently, Dr. Chaiken is the Director of the Justice Department's Bureau of Statistics, a position which he has held since September 1994. During his tenure as BJS Director, Dr. Chaiken has focused on the use of modern technologies, such as the World Wide Web, to provide the public with up-to-date statistics, to allow the rapid interstate exchange of criminal histories and registered sex offenders, and to develop improved computerized tracking of Federal defendants through the criminal justice process.
Due to the short notice, Dr. Chaiken was not able to provide a written statement but he'll be able to answer any questions that the members have.
We want to welcome both of you today. You may both take your seats. I should have said that earlier while I was introducing you both.
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Without objection, Mr. Kessler, your complete statement will be entered in the record and you may summarize that for us as you see fit. You're recognized for the purposesin doing so, you need to flip on your microphone. There's a little switch there at the base of the microphone in front of you. Mr. Kessler, you're recognized.
STATEMENT OF JAMES S. KESSLER JR., SECTION CHIEF, CRIMINAL JUSTICE INFORMATION SERVICES DIVISION, FEDERAL BUREAU OF INVESTIGATION
Mr. KESSLER. Good morning, Mr. Chairman. I want to thank you for inviting me to appear before this committee to present an update regarding the FBI's work to implement the Brady Handgun Violence Prevention Act. I have with me today Mr. Emmet Rathbum. He is the Unit Chief of the Programs Development Section, in charge of developing and implementing the system.
As you may recall, your committee was briefed on the FBI's Brady work on March 5th of last year. I'm happy to report that much progress has been made since that time. Based upon the FBI's concept of operations which was approved by the Attorney General on August 4, 1997 and according to your schedule, our development and implementation efforts are on target. As you can imagine with a tasking of this magnitude, we are continually reviewing its effectiveness and making adjustments when needed to meet the statutory deadline.
As you know, Brady requires the Attorney General to establish an instant-check system to supply information on whether receipt of a firearm by a prospective transferee would violate the United States Code or State law.
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The FBI's concept of operations includes a strategy to make use of two existing criminal justice information systems, one being NCIC which is theand also Triple I. Triple I contains records from both the FBI and the State's criminal history record information databases, including felony crimes. NCIC contains active records pertaining to fugitives, subjects of straining orders, foreign fugitives and others.
To supplement the records and provide access to the other categories of the Gun Control Act disqualifiers, the NICS Index is being created pursuant to authority established under section 103(E) of the Brady Act. The majority of the records in the NICS Index were contributed by Federal agencies, such as the Departments of Justice, INS, Defense, Veterans' Affairs, and Transportation. In all, NICS will provide access to records associated with each of the nine categories of disqualifiers identified in the Gun Control Act.
Mr. Chairman, I want to emphasize something this morning that this concept of operations has been, in fact, a cooperative effort involving many entities. First off, we've had input from local, county, and State law enforcement and have worked very closely with them in developing this concept of operations. We also formulated the Brady Task Force to help in this endeavor.
Once we established this, we ran this by our Criminal Justice Information Services Division Advisory Policy Board which is made up of State, county, local and Federal law enforcement officers. We conducted a user fee meeting in Milwaukee in August 1997 which bought representatives from
Page 22 PREV PAGE TOP OF DOC Mr. BARR. Excuse me, Mr. Chairman.
Mr. MCCOLLUM. Mr. Barr.
Mr. BARR. Could I ask the witness, is he reading from his prepared remarks? He submitted prepared remarks and I don't have this in there. Is there a different set of remarks we might have?
Mr. KESSLER. No, I'mall of this has been published in my written statement. I'm adding to that.
Mr. MCCOLLUM. Yes. Mr. Barr, he has the right to give us a summary and add to it.
Mr. BARR. No, I know he does. It just makes it rather difficult when we get something in advance and then he reads something entirely different. It makes it sort of difficult to follow. Will we get a copy of what the gentleman is reading from?
Mr. KESSLER. Mr. Barr, I'm not reading. I'm talking.
Mr. BARR. I understand the difference.
Mr. MCCOLLUM. He's just got handwritten notes
Mr. BARR. Okay. It just makes it sort of difficult and one wonders why they bother submitting written statements if they don't use them.
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Mr. MCCOLLUM. Well, Mr. Barr, most of time we expect them to give us separate statements than necessarily what they put
Mr. BARR. I see
Mr. MCCOLLUM [continuing]. So it's rather routine in this situation.
Mr. BARR. Well, okay.
Mr. MCCOLLUM. But I understand your difficulty. Thank you. Please proceed, Mr. Kessler.
Mr. KESSLER. Thank you, sir.
All of this was put together in connection with our contractor, SAIC, and was rolled forward and approved by the Attorney General.
I would be remiss if I didn't recognize the contributions of all these people who have been involved in this process. In particular, the FBI employees who have been involved, as you stated Mr. Chairman, in putting this together.
I want to talk a little bit about what's going to happen November 30, 1998. A person who goes in to buy a gun is going to have to present appropriate identification to the Federal firearms licensee, be it at a Wal-Mart, K-Mart, or whatever, a place they might buy a gun. He's going to take that information and put it on a form. He's going to call a number and based on that information, they're going to check these systems, the NCIS, Triple I and our NICS System. Based upon what they find in there, they're going to get a message back either proceed or delay. The firearms licensees will not get any specific criminal information.
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Once they get a proceed, they will go ahead and sell the gun. This is going to happen in the vast majority of the cases. If there is a delay, this information will go to an FBI analyst who will review that information to determine, number one, if it's the same person and if the information it contained that caused the stop is a NICS of the Brady disqualifier.
Overall, I want to emphasize 98 percentour prediction is 98 percent of those people who go in to buy a gun will walk out with their gun. I want to make that very clear.
Now, in situations where they are denied they will have appropriate appeal process to try to correct the record. In that regard, they will have to submit fingerprints to us so we can verify that record. I just want to make that clear about what's going to happen on November 30th.
Let me summarize the end of this, sir, and I'll get on.
Information on the NICS concept of operations has been, and continues to be, a priority of the FBI's Criminal Justice Information Services Division. The FBI anticipates performing approximately 4.9 million of the projected 11.4 million checks required annually based on our concept of operations.
According to our forecast and in conjunction with our established concept of operations, we will use approximately 350 full time personnel to staff the analytical side of the operations, which will operate 7 days a week, 17 hours a day. Because the call center portion of the NICS has been designed in such a way that the operators will have no access to sensitive data, the outsourcing approach is viable. However, outsourcing other aspects of the NICS operation center would not be feasible because of the need to access sensitive information.
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The FBI is in the process of establishing a user fee in the Code of Federal Regulations. We anticipate publishing our notice of proposed rulemaking soon. We've had the accounting firm of Grant Thornton validate our methodology and calculations.
In summary, Mr. Chairman, the FBI is continuing to implement the concept of operations for NICS as approved by the Attorney General. In that regard, we are confidentand I emphasize confidentthat our objectives and schedule will be met barring any changes to our long established course of action.
I'm ready to answer any questions the members may have.
[The prepared statement of Mr. Kessler follows:]
PREPARED STATEMENT OF JAMES S. KESSLER JR., SECTION CHIEF, CRIMINAL JUSTICE INFORMATION SERVICES DIVISION, FEDERAL BUREAU OF INVESTIGATION
GOOD MORNING, MR. CHAIRMAN. THANK YOU FOR INVITING ME TO APPEAR BEFORE YOUR COMMITTEE TO PRESENT AND UPDATE INFORMATION ABOUT THE FBI'S WORK TO IMPLEMENT THE BRADY HANDGUN VIOLENCE PREVENTION ACT. I HAVE WITH ME TODAY MR. EMMET RATHBUN, UNIT CHIEF OF THE PROGRAMS DEVELOPMENT SECTION.
AS YOU MAY RECALL, YOUR COMMITTEE WAS BRIEFED ON THE FBI'S BRADY WORK ON MARCH FIFTH OF LAST YEAR. I AM HAPPY TO REPORT THAT MUCH PROGRESS HAS BEEN MADE SINCE THAT TIME. BASED UPON THE FBI'S CONCEPT OF OPERATIONS WHICH WAS APPROVED BY THE ATTORNEY GENERAL ON AUGUST 4, 1997 AND ACCORDING TO OUR SCHEDULE, OUR DEVELOPMENT AND IMPLEMENTATION EFFORTS ARE ON TARGET. AS YOU CAN IMAGINE WITH A TASKING OF THIS MAGNITUDE, WE ARE CONTINUALLY REVIEWING ITS EFFECTIVENESS AND MAKING ADJUSTMENTS WHEN NEEDED TO MEET THE STATUTORY DEADLINE. I WANT TO TAKE JUST A FEW MOMENTS TO REFRESH YOUR MEMORY ON OUR APPROACH TO DEVELOPING THE NATIONAL INSTANT CHECK SYSTEM, COMMONLY REFERRED TO AS NICS AND PROVIDE YOU WITH A STATUS REPORT ON WHERE WE ARE TODAY.
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AS YOU KNOW, THE BRADY ACT REQUIRES THE ATTORNEY GENERAL TO ESTABLISH AN INSTANT CHECK SYSTEM TO SUPPLY INFORMATION ON WHETHER RECEIPT OF A FIREARM BY A PROSPECTIVE TRANSFEREE WOULD VIOLATE SECTION 922 OF TITLE 18, OF UNITED STATES CODE, OR STATE LAW. THE ATTORNEY GENERAL ASKED THE FBI TO SUPERVISE THE DEVELOPMENT AND OPERATION OF THE NICS.
THE FBI'S CONCEPT OF OPERATIONS FOR NICS INCLUDES A STRATEGY THAT MAKES USE OF TWO EXISTING CRIMINAL JUSTICE INFORMATION RECORD SYSTEMS, THE NATIONAL CRIME INFORMATION CENTER (NCIC) AND THE INTERSTATE IDENTIFICATION INDEX OR TRIPLE I, WHICH ARE JOINTLY MANAGED BY THE FBI AND THE STATES. THESE SYSTEMS OF RECORDS CONTAIN INFORMATION PERTAINING TO SEVERAL GUN CONTROL ACT DISQUALIFYING CATEGORIES. TRIPLE I CONTAINS RECORDS FROM BOTH THE FBI'S AND STATES' CRIMINAL HISTORY RECORD INFORMATION DATABASES, INCLUDING FELONY CRIMES, MISDEMEANOR CHARGES OF DOMESTIC VIOLENCE AND RELATED CONVICTION DATA, AS WELL AS CHARGES FOR SUBSTANCE ABUSE AND SOME ILLEGAL ALIEN RECORDS. NCIC CONTAINS ACTIVE RECORDS PERTAINING TO FUGITIVES, SUBJECTS OF RESTRAINING ORDERS, FOREIGN FUGITIVES, DEPORTED FELONS, AND PERSONS IN THE U.S. SECRET SERVICE PROTECTIVE FILE. TO SUPPLEMENT THE RECORDS AVAILABLE THROUGH TRIPLE I AND NCIC, AND TO PROVIDE ACCESS TO RECORDS PERTAINING TO THE OTHER CATEGORIES OF GUN CONTROL ACT DISQUALIFIERS, A THIRD COLLECTION OF RECORDS, THE NICS INDEX, IS BEING CREATED PURSUANT TO AUTHORITY ESTABLISHED IN SECTION 103 (E) (1) OF THE BRADY ACT. THE MAJORITY OF THE RECORDS IN THE NICS INDEX WILL BE CONTRIBUTED BY FEDERAL AGENCIES, SUCH AS THE DEPARTMENTS OF JUSTICE (INS), DEFENSE, VETERANS' AFFAIRS, AND TRANSPORTATION UNDER MEMORANDA OF UNDERSTANDING. HOWEVER, STATES MAY CONTRIBUTE RECORDS TO THE NICS INDEX PERTAINING TO DENIED PERSONS. IN ALL, THE NICS WILL PROVIDE INSTANTANEOUS ACCESS TO RECORDS ASSOCIATED WITH EACH OF THE NINE CATEGORIES OF DISQUALIFIERS IDENTIFIED IN THE GUN CONTROL ACT: CONVICTED FELONS; PERSONS CONVICTED OF A MISDEMEANOR CRIME OF DOMESTIC VIOLENCE; ILLEGAL ALIENS; ADJUDICATED MENTAL DEFECTIVES; CITIZENSHIP RENUNCIATES; SUBJECTS OF CERTAIN RESTRAINING ORDERS; FUGITIVES; CONTROLLED SUBSTANCE ABUSERS; AND DISHONORABLE DISCHARGEES.
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ALL FEDERAL FIREARMS LICENSEES (FFLS) WILL BE ABLE TO REQUEST A NICS CHECK USING A TOLLFREE TELEPHONE NUMBER. THIS TOLLFREE NUMBER WILL BE ANSWERED BY A STAFF OF OPERATORS WHO WILL TAKE THE NECESSARY INFORMATION TO VERIFY THE FFL'S ACCESS PRIVILEGES AND CONDUCT THE NICS CHECK. A SECOND ACCESS MEANS, REFERRED TO AS AN UNASSISTED SEARCH OR ELECTRONIC ACCESS WILL BE AVAILABLE TO A LIMITED NUMBER OF FFLS, BASED ON CERTAIN SALES VOLUME AND TECHNOLOGICAL CRITERIA, AS YET TO BE DEFINED. THIS ELECTRONIC ACCESS WILL ELIMINATE THE NEED FOR AN OPERATOR'S INTERVENTION AND WILL ALLOW FFLS TO INITIATE NICS CHECKS ON THEIR OWN VIA A COMPUTER MODEM CONNECTION THROUGH A FIREWALL TO THE NICS.
THE CONTENT OF RECORDS ACCESSIBLE THROUGH THE NICS WILL NOT BE DISCLOSED TO THE FEDERAL FIREARMS LICENSEE REQUESTING THE BACKGROUND CHECK. THE FFL WILL ONLY BE GIVEN INFORMATION AS TO WHETHER THE NICS CHECK IDENTIFIED A RECORD THAT WOULD PROHIBIT THE CUSTOMER FROM POSSESSING A FIREARM, OR THAT THE NICS CHECK IDENTIFIED NO DISQUALIFYING RECORDS. WHEN A NICS CHECK IDENTIFIES A RECORD, OR RECORDS, THAT POTENTIALLY MATCHES THE CUSTOMER, HUMAN INTERVENTION IS REQUIRED TO PERFORM A RECORD ANALYSIS; FIRST TO MORE ACCURATELY ASSESS WHETHER THE RECORD MATCHES THE CUSTOMER AND SECOND TO DETERMINE WHETHER THE RECORD ACTUALLY CONTAINS DISQUALIFYING INFORMATION. FOR EXAMPLE, THE CUSTOMER MAY HAVE A CRIMINAL HISTORY RECORD INCLUDED IN THE TRIPLE I, BUT THE RECORD MAY NOT CONTAIN ANY DISQUALIFYING CONVICTIONS. IF THE TRIPLE I RECORD DOES NOT CONTAIN DISPOSITION DATA, SOMEONE MUST CONTACT THE APPROPRIATE ENTITY TO OBTAIN A DISPOSITION IN ORDER TO DETERMINE IF THE RECORD DISQUALIFIES THE CUSTOMER FROM POSSESSING A FIREARM.
THE NICS CONCEPT OF OPERATIONS ACCOUNTS FOR THIS HUMAN INTERVENTION TO BE PERFORMED EITHER BY A STATE AGENCY THAT AGREES TO ACT AS A NICS POINTOFCONTACT FOR FFLS WITHIN THAT STATE OR BY THE FBI. IT IS WIDELY AGREED THAT A STATE ACTING AS A POINT OF CONTACT WOULD HAVE ACCESS TO ADDITIONAL RECORDS NOT AVAILABLE TO NICS. HOWEVER, SEVERAL STATES ARE NOT ABLE TO ACT AS A POINT OF CONTACT FOR NICS DUE TO A LACK OF STATE LEVEL STATUTORY AUTHORITY; LACK OF FUNDING; OR LACK OF OTHER RESOURCES. AS OF TODAY WE ANTICIPATE THAT FIFTEEN STATES AND THE DISTRICT OF COLUMBIA WILL PERFORM ALL THE NICS CHECKS REQUESTED BY THEIR FFLS. ANOTHER FOURTEEN STATES AND THE U.S. VIRGIN ISLANDS WILL PERFORM SOME, BUT NOT ALL OF THE NICS CHECKS NEEDED, SOME WILL PERFORM CHECKS FOR PERMITS, WHILE OTHERS WILL DO CHECKS FOR HANDGUNS ONLY. THIS LEAVES THE FBI TO PERFORM ALL THE CHECKS FOR TWENTY STATES AND PUERTO RICO. ONE STATE HAS YET TO INDICATE WHICH CHECKS IF ANY IT WILL PERFORM.
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THERE ARE MANY ADVANTAGES TO A STATE PERFORMING THE NICS CHECK: FIRST, WHEN PERFORMING A CHECK OF THE NICS STATES WILL MOST LIKELY ALSO CHECK THEIR STATE RECORDS THAT ARE NOT ACCESSIBLE VIA THE NICS: SECOND, PERSONNEL AT THE STATE LEVEL WILL BE ABLE TO BETTER INTERPRET STATE LAWS AND STATE CRIMINAL HISTORY RECORD DATA. THIS IS PARTICULARLY IMPORTANT WITH THE PASSAGE OF THE LAUTENBERG AMENDMENT WHICH MADE MISDEMEANOR DOMESTIC VIOLENCE CONVICTIONS A BRADY DISQUALIFIER, BECAUSE MANY OF THESE CONVICTIONS ARE NOT READILY IDENTIFIED AS SUCH. THIRD, STATE PERSONNEL ARE IN A BETTER POSITION TO OBTAIN DISPOSITION DATA ASSOCIATED WITH STATE RECORDS. IN ADDITION, BECAUSE OF THE LAG TIME BETWEEN THE ENTRY OF ARREST AND CONVICTION DATA AT THE STATE AND FEDERAL LEVEL, MORE TIMELY RECORD INFORMATION IS AVAILABLE WITHIN THE STATE. FINALLY, BY SERVING AS A POINTOFCONTACT, STATES ARE RETAINING CONTROL OVER DETERMINING WHO IN THEIR STATE CAN PURCHASE A FIREARM.
REGARDLESS OF WHETHER THE FBI OR A STATE ACTS AS THE FFL'S NICS POINT OF CONTACT, IT IS ESTIMATED THAT UP TO TWENTYFIVE PERCENT OF THE CHECKS MAY REQUIRE HUMAN INTERVENTION FOR RECORD ANALYSIS I MENTIONED PREVIOUSLY. OBVIOUSLY THERE IS A COST EITHER TO THE STATE OR TO THE FBI FOR THIS EFFORT. ADDITIONALLY, THERE ARE COSTS ASSOCIATED WITH PROVIDING GUN DEALERS ACCESS TO THE NICS. THE CONCEPT OF OPERATIONS HAS BEEN DEVELOPED TO DATE BASED UPON THE FBI'S STATUTORY AUTHORITY FOR COLLECTING A USER FEE FOR RECORD CHECKS. THE FBI WILL NOT CHARGE A USER FEE WHEN A STATE POINTOFCONTACT DOES THE CHECK. THOSE STATES, HOWEVER, MAY ELECT TO COLLECT A FEE ON THEIR OWN, IF THEY ARE AUTHORIZED TO DO SO BY THEIR STATE. THE USER FEE WOULD ONLY BE COLLECTED BY THE FBI IF A STATE POINTOFCONTACT DOES NOT CONDUCT THE NICS CHECK.
IMPLEMENTATION OF THE NICS CONCEPT OF OPERATIONS HAS BEEN AND CONTINUES TO BE A PRIORITY OF THE FBI'S CRIMINAL JUSTICE INFORMATION SERVICES (CJIS) DIVISION. THE FBI NICS OPERATORS AND ANALYSTS I'VE BEEN DISCUSSING ALONG WITH A GROUP OF CUSTOMER SERVICE REPRESENTATIVES, AND APPROPRIATE MANAGEMENT PERSONNEL, WILL FORM A NEW ENTITY WITHIN THE CJIS DIVISION, TO BE KNOWN AS THE NICS OPERATION CENTER. ACCORDING TO OUR FORECASTS, WHICH ARE BASED ON CURRENT TRIPLE I USE FOR FIREARMS RELATED PURPOSES, AND ASSUMPTIONS CONCERNING THE NUMBER OF FIREARMS PERMITS ISSUED AND THE RATIO BETWEEN THE NUMBER OF HANDGUNS TO LONG GUNS SOLD PER CAPITA, THE FBI ANTICIPATES PERFORMING APPROXIMATELY 4.9 MILLION OF THE PROJECTED 11.4 MILLION CHECKS REQUIRED ANNUALLY. THESE ESTIMATES DO NO T ACCOUNT FOR THE APPROXIMATE 2.5 MILLION PAWN SHOP REDEMPTIONS AND 4.0 MILLION GUN SMITH REPAIRS ANNUALLY, WHERE THERE IS A TEMPORARY TRANSFER OF POSSESSION OF A FIREARM. THESE TWO SITUATIONS WERE EXEMPT FROM THE INTERIM PROVISION OF BRADY; HOWEVER, THE PERMANENT PROVISION PROVIDES FOR NO SUCH EXEMPTION.
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INITIALLY, THE NICS OPERATION CENTER WILL BE STRUCTURED IN TWO PARTS. THE TELEPHONE OPERATOR PORTION, OR CALL CENTER, WILL BE OUTSOURCED TO THE PRIVATE SECTOR. THE ANALYTICAL AND CUSTOMER SERVICE WORK PORTION WILL BE LOCATED IN CLARKSBURG, WEST VIRGINIA, AT OUR CJIS FACILITY AND STAFFED WITH EXISTING FBI PERSONNEL. ACCORDING TO OUR FORECAST, AND IN CONJUNCTION WITH OUR ESTABLISHED CONCEPT OF OPERATIONS, WE WILL USE APPROXIMATELY 350 FULL TIME PERSONNEL TO STAFF THE ANALYTICAL SIDE OF THE OPERATIONS CENTER. BECAUSE THE CALL CENTER PORTION OF THE NICS HAS BEEN DESIGNED IN SUCH A WAY THAT THE OPERATORS WILL HAVE NO ACCESS TO SENSITIVE DATA, THE OUTSOURCING APPROACH IS VIABLE. HOWEVER, OUTSOURCING OTHER ASPECTS OF THE NICS OPERATION CENTER WOULD NOT BE FEASIBLE BECAUSE OF THE NEED FOR ACCESS TO SENSITIVE INFORMATION. ONCE NICS IS OPERATIONAL AND THE FBI HAS TIME TO ANALYZE ACTUAL WORK LOADS, AS WELL AS COSTS AND BENEFITS, WE MAY PURSUE THE OPTION TO DEVELOP OUR OWN CALL CENTER OR INTEGRATE THE CALL CENTER OPERATIONS WITH THE ANALYTICAL OPERATIONS.
THE FBI IS IN THE PROCESS OF ESTABLISHING ITS USER FEE IN THE CODE OF FEDERAL REGULATIONS AND WE ANTICIPATE PUBLISHING OUR NOTICE OF PROPOSED RULE MAKING SOON TO ALLOW FOR AN APPROPRIATE COMMENT PERIOD. OUR CALCULATIONS SUGGEST THE USER FEE FOR TELEPHONE ACCESS WILL BE APPROXIMATELY $16.00 PER INQUIRY. WE HAVE HAD THE ACCOUNTING FIRM OF GRANT THORNTON VALIDATE OUR METHODOLOGY AND CALCULATIONS.
IN SUMMARY, THE FBI IS CONTINUING TO IMPLEMENT THE CONCEPT OF OPERATIONS FOR NICS AS APPROVED BY THE ATTORNEY GENERAL. IN THAT REGARD WE ARE CONFIDENT THAT OUR OBJECTIVES AND SCHEDULE WILL BE MET BARRING ANY CHANGES TO OUR LONG ESTABLISHED COURSE OF ACTION.
Mr. MCCOLLUM. Thank you very much, Mr. Kessler. I think there are several things that we're all going to want to ask you this morning. I will yield myself 5 minutes and then we may take a second round of questions if needed to resolve all of the questions that members may have.
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With respect to this check that you're in the process of doing and implementing in November, am I correct that this is a name check? It is a check which does not involve fingerprints. It does not involve any biometric check. It is a check strictly of names to see if you get a hit, if somebody has a criminal record of some sort. Am I correct in that?
Mr. KESSLER. Yes, sir, name check with other relevant descriptive data, along with the name, but no fingerprints. You're right, Mr. Chairman.
Mr. MCCOLLUM. And, it also does not involve a check of some of thesome of the disabilities in the law because the records themselves wouldn't contain some of those disabilities, the mental disability and that sort of thing that you have in the State catalogues that you're resourcing. Is that correct?
Mr. KESSLER. That's correct.
Mr. MCCOLLUM. So, we're essentially checking to see if somebody has a felony conviction by name and if they have, perhaps, a misdemeanor conviction in the domestic area which is now a disqualifier. Those are the two things that may possibly show up to disqualify somebody in the check that you're discussing implementing by regulation. Is that correct?
Mr. KESSLER. Well, we have, of course, input from some other Federal agencies regarding individuals who may have renounced their citizenship, individuals who may have been dishonorably discharged from the service, information on people with mental disabilities. That is going to be in the next portion of the background check. That will be in addition to
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Mr. MCCOLLUM. So that will be in addition to the other. So you will have that much available. So there are a few things, but not everything in the disability area that you could check. Is that correct?
Mr. KESSLER. Well, some States have records that we will not have access to.
Mr. MCCOLLUM. All right. Let me ask this question. The fee seems to be generating most of the heat here, as well, to some extent, the record-keeping question. When you go through this process, why do you need to charge a fee, how much is that fee, who's going to pay it, and how is it going to be collected?
Mr. KESSLER. We set up this fee and we haven't arrived at a figure yet. It probably will be somewhere between $13.00 and $16.00. This, basically, is to fund the personnel who are operating the system. We have sized this thing based on the concept of operations.
I emphasize that we've had a lot of contact with the various States so we know about how many States are going to do these checks themselves and how many the FBI is going to have to do solely. So we sized this fee to cover only our costs and the costs of operating the call center, and there's no extra money at all. We had a CPA firm come in to validate those fees.
In reality, with 350 people, what we project we need right now to cover that, that will be fees used for that, for overhead. Without a user fee, quite frankly, I don't think any States are going to participate. It's all going to come to the FBI and it's going to create a situation where we're going to have to have many more people available to handle all these checks that some of the States right now are going to do themselves.
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Mr. MCCOLLUM. Well, let me ask you this question. Supposehow much money are we talking about, roughly?
Mr. KESSLER. I haven't run the figures out, sir, but
Mr. MCCOLLUM. Well, let's suppose
Mr. KESSLER. This is a rough estimate, okay? I'm shooting from the hip a little bit and I'm a little reluctant to do that, but we're talking in the neighborhood ofif we do all the checks, all the handguns, long guns for every State, probably $140 million.
Mr. MCCOLLUM. A year?
Mr. KESSLER. Yes, sir, for every year.
Mr. MCCOLLUM. Now, you say if we appropriated that money, you still don't think this would work?
Mr. KESSLER. Sir, it would work, but I don't think it'll work by November 30 because we wouldwe're going to have to hire probably as many as 500 more individuals
Page 33 PREV PAGE TOP OF DOC Mr. MCCOLLUM. But whatwait a minute now. Let's go back to why the States would not do the check, if we're going to collect the fee that you're describing andthat's not going to be $140 million in fees under the system you've described, right?
Mr. KESSLER. No.
Mr. MCCOLLUM. So what would that total? What's it going to cost usif you collect all these fees, what's that going to amount to in order to pay for the people that you're talking about?
Mr. KESSLER. Well we estimate 4 million checks a year at $16 a check. I don't have my calculator with me to run that out.
Mr. MCCOLLUM. But it's a lot less than the amount that you just described to us. What I'm curious about is your connection between having to do the checks yourselves and having the States do them. Explain that. Why would we have to do the checks ourselves if we didn't collect a fee, if we instead appropriated the money that would be the equivalent of what you would be paying these people to do the checks?
Mr. KESSLER. Well, I think there's some corollary area thatif the Stateif we couldn't collect a fee, the States would also not be able to collect a fee for processing this.
Mr. MCCOLLUM. Do they collect fees currently?
Page 34 PREV PAGE TOP OF DOC Mr. KESSLER. Yes.
Mr. MCCOLLUM. The States collect fees currently
Mr. KESSLER. Yes, sir.
Mr. MCCOLLUM [continuing]. To process whatever they put into their systems?
Mr. KESSLER. You know, whatever their State laws are regarding purchases of guns. Yes sir, they do collect fees now.
Mr. MCCOLLUM. And you're suggesting that if you don't collect a fee, they won't collect a fee?
Mr. KESSLER. Well, I'm saying if we don't collectif we say we're going to do it for free, what person would want to get a check for the State and have to pay to the State when they can come to the FBI and get it for free. So I think the States would probably withdraw from doing this and we would get all the checks then. We would be doing the 11 million instead of the 4 million that we project right now.
Mr. MCCOLLUM. Yes, but if you're dependinglet me get this straight. I realize I'm running out of my time, but I really don't understand this and I want to understand it.
Page 35 PREV PAGE TOP OF DOC Mr. KESSLER. I understand.
Mr. MCCOLLUM. If we're going to have this process you're describing set up in November, there is going to be a heavy use or dependence upon an existing State system. Is that correct? You're going to have the States doing a lot of the checking?
Mr. KESSLER. Well, we're doing the checking. We're going to check the NCIC, Triple I, and the NICS database. Realizing that States have records that we don't have, we would prefer the States to do the checks, quite frankly. They have better records than we do. They have more detailed records. They have records that relate to State laws which, you know, are not applicable to the Federal law. So they have better records than we do. They have more detailed records than we do.
Mr. MCCOLLUM. All right. But again, I'm still very lost here, somewhere in the trees. I don't know if anybody else is, but I sure am.
If we have a system set up that you're proposing under the regulations that have been published where you're going to collect certain fees and so forth, then my understanding is, if I'm correct, that part of the check that you're doing and the use of those fees are going to be for a certain limited number of personnel at the FBI who are going to access three different databases. One of the principal databases will be existing State databases, and those existing State databases include materials that are being placed in those databases by the States because they are charging a fee right now to gun purchasers. Part of that fee money is going to pay for the cost of putting information into the database, right? Is that correct, as things now stand?
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Mr. KESSLER. Let me, let me
Mr. MCCOLLUM. If the Federal Government simply does what Mr.Barr wants to do and appropriates the money, why is this going to cause a problem? We'd like to do this. If we choose to pay for the cost of this, why would there be the additional cost, why would you have to do it all as opposed to doing what you plan to do anyway in November? That's what I want you to explain to me.
I don't understand why there would be any difference. Why couldn't we just pick up the amount that you otherwise would be charging as a fee to pay for the part of this that you plan to do in November under the scheme you've proposed? Why can't the Federal taxpayers, through appropriations, just pick that cost up instead of your charging a fee and the States continue to do what you plan for them to do? They continue to charge whatever fees they're charging and the system continues to be accessed as it's been accessed. You wouldn't set up any new system that way. You'd just go ahead and do what you're doing. Why couldn't we do that?
Mr. KESSLER. Well, that is possible but I go back to my original statement, Mr. Chairman. If you have somebody out in the State who needs to get a check through Brady to buy a handgun and the FBI offers it for nothing if you fund us and the State charges $10, I think the States would be hard pressed to justify why they can charge $10 when they can get it done for free with the FBI. Does that make any sense?
Mr. MCCOLLUM. Well, I guess you're saying thatthe present time, whatever check is being done, the States are getting a fee for it. In the future, they are going to come to you. They won't go to the State. Is that the idea? And they would be paying you a fee under your scheme.
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Mr. KESSLER. We're only going to charge fees for those situations where we act as the point of contact.
Mr. MCCOLLUM. Your fee is going to be in additionis in addition to the State fee?
Mr. KESSLER. No, sir. If the State is the point of contact, they will pay the State. If the States choose not to participate and come to the FBI, that's the people we will charge the fee to.
Mr. MCCOLLUM. To the States?
Mr. KESSLER. No, to the firearms licensee, to the purchaser only for those situations where we act as the point of contact. If they go through the Statesyou see, some States will want to act as points of contact. If they do that, there is no fee from the FBI, whatsoever.
Mr. MCCOLLUM. Well, maybe that's where my confusion is. So you're saying that there are multiple ways this can be done. Some States would continue to be the point of contact for the gun dealers who are paying for the service to the State. And in some cases, the gun dealers would come directly to the FBI under what you're proposing.
Mr. KESSLER. Yes, sir. Those are the ones we would charge the fee to
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Mr. MCCOLLUM. The ones that would come directly to you?
Mr. KESSLER. Yes, sir.
Mr. MCCOLLUM. Are there some States where they couldn't go? Why couldn't they all be required to go to the Statesin all 50 Statesas opposed to coming to you?
Mr. KESSLER. They'd like to, but I think they're not required to do so under the law.
Mr. MCCOLLUM. And they're not equipped necessarily to do so?
Mr. KESSLER. Some of them, that's correct. Some of them are not equipped.
Mr. MCCOLLUM. So your point is you simply want to charge a fee in those cases where they come to you because if you don't do that, you figure that there won't be any incentive for the States that are going to do this on their own to continue to do it on their own and you'll get the responsibility for all 50 States which will up the cost and delay the implementation of this because you don't have the manpower, the equipment, or whatever to put this on line in November unless you have the support of a certain number of these States?
Mr. KESSLER. Yes, sir, as we've done to the concept of operation. We contacted these States and we know pretty much who is going to participate and who is not at this point. We're structured so we can make November 30 based on where we are right now.
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Mr. MCCOLLUM. How many States are we talking about that would participate where you don't have to do the check and they're going to do it for the fee they charge?
Mr. KESSLER. Well, we have 20 States where the States will do the check themselves. And we have 11 States where the States will check handguns only. So it gets a little fuzzy. We'll do the long guns on 11 of the States and those 11 will do handguns only, and 20 will do all of them. That's States and territories now. There's 3 territories we're talking also.
Mr. MCCOLLUM. All right. Well, I've taken more than the 5 minutes, but I just didn't understand where we're coming from. I apologize, but I just couldn't get it clear in my head. I didn't understand it. I think I do better now, although I have a lot more questions.
I'm going to yield to Mr. Barr. Mr. Barr you're recognized for 5 minutes.
Mr. BARR. Thank you. I appreciate the chairman taking some extra time to try and get to the bottom of this. It is confusing, but I think a great deal of the confusion can be removed if one realizes that if one charges a fee at the point of service or the point of registration or the point of purchase that will have an effect on the gun purchasers and will, in fact, cause some people not to purchase guns. I think that is really, perhaps, what's behind this to some extent.
Page 40 PREV PAGE TOP OF DOC Mr. Kessler, I did note that in your oral remarksand by the way, I mean you did submit your written remarks and you request that those be made a part of the record?
Mr. KESSLER. Yes, sir.
Mr. BARR. And you stand by those?
Mr. KESSLER. Yes, sir.
Mr. BARR. Okay, thank you. In your written remarks, but not in your oral remarks, you make the statement that the authority, in your view, the authority for levying this user fee or gun tax is ''based upon the FBI's statutory authority for collecting a user fee for record checks.''
I also see in a letter from the Bureau in December 1997 that the so-called authority on which the Bureau relies for charging this user fee or tax is the Appropriations Act for the Departments of Commerce, Justice and the State, for the Fiscal Year 1991, Public Law 101515.
I did, as I'm sure you have done, taken a look at that law. It obviously has nothing whatsoever to do with Brady since it precedes Brady by 3 years. It provides in relevant part that the ''Director of the Federal Bureau of Investigation may establish and collect fees to process fingerprint identification records and name checks for noncriminal justice, nonlaw enforcement, employment and licensing purposes.'' That is indeed a very specific, very limited authority in that appropriations act for the levying of such fees, taxes or user fees, whatever you call them as the Bureau is now proposing. I do note that the Bureau has put out for comment rules to that effect on June 4. I'd like to ask unanimous consent to have these placed in the record Mr. Chairman.
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Mr. MCCOLLUM. Without objection.
[The information referred to follows:]
[Federal Register: June 4, 1998 (Volume 63, Number 107)]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
DEPARTMENT OF JUSTICE
28 CFR Part 25
[AG Order No. 215898]
National Instant Criminal Background Check System Regulations
AGENCY: Department of Justice.
ACTION: Proposed rule.
SUMMARY: The United States Department of Justice is publishing a proposed rule for the National Instant Criminal Background Check System (NICS) to establish policies and procedures for ensuring the privacy and security of this system and to implement a NICS appeals policy for persons who have been denied the purchase of a firearm because of information in the NICS they believe to be erroneous or incorrect. Specifically, this rule will detail policies for validating NICS data, storing, accessing, and querying records in the system, retaining and destroying NICS information, and correcting erroneous data in the system.
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DATES: Written comments must be received on or before September 2, 1998.
ADDRESSES: All comments concerning this proposed rule should be mailed to: Mr. Emmet A. Rathbun, NICS Project Manager, Federal Bureau of Investigation, CJIS Division, Module C3, 1000 Custer Hollow Road, Clarksburg, West Virginia 263060147.
FOR FURTHER INFORMATION CONTACT: Mr. Emmet A. Rathbun, NICS Project Manager, telephone number (304) 6252000.
SUPPLEMENTARY INFORMATION: On November 30, 1993, Pub. L. 103159 (107 Stat. 1536) was enacted, amending the Gun Control Act of 1968 (GCA), as amended (18 U.S.C Chapter 44). Title I of Pub. L. 103159, the ''Brady Handgun Violence Prevention Act'' (''Brady Act''), requires the Attorney General to establish by November 30, 1998, ''a national instant criminal background check system that any [firearms] 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.'' To implement the NICS, the Brady Act authorizes the development of hardware and software systems to link State criminal history check systems into the national system. It also authorizes the Attorney General to obtain official information from any Federal Department or agency on persons for whom receipt of a firearm would be in violation of the law.
The Bureau of Alcohol, Tobacco and Firearms (ATF), Department of the Treasury, issued proposed regulations, 63 FR 8379 (Feb. 19, 1998), Notice Number 857, ''Implementation of Pub. L. 53159, Relating to the Permanent Provisions of the Brady Handgun Violence Prevention Act,'' which specify how Federal firearms licensees (FFLs) shall interact with the NICS. In general, the proposed ATF regulations: Specify the time when an FFL must contact the NICS; detail the criteria that
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must be met in order for a firearm permit to operate as an exception to the requirement of a NICS background check, including the requirement that state officials issuing such permits conduct a NICS check on all applicants for permits issued on or after November 30, 1998; note the applicability of the requirement of a NICS background check to pawned firearm transactions; require the Director of ATF to contact the NICS before approving a firearm transfer under the National Firearms Act; amend the ATF firearms transaction record, Form 4473, to allow FFLs to solicit additional optional information about the purchaser for submission with a NICS background check request in order to help avoid cases of misidentification by the system; and require FFLs to record on Form 4473 all responses received from the NICS and to maintain a copy of each Form 4473 for which a NICS transaction number (a unique identification number assigned to each NICS check) has been received, regardless of whether the transfer of the firearm was completed.
Section 922 of title 18 prohibits certain persons from shipping or transporting any firearm in interstate or foreign commerce, or receiving any firearm that has been shipped or transported in interstate or foreign commerce, or possessing any firearm in or affecting commerce. These prohibitions apply to any person who:
(1) Is under indictment for or has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year;
Page 44 PREV PAGE TOP OF DOC (2) Is a fugitive from justice;
(3) Is an unlawful user of or addicted to any controlled substance;
(4) Has been adjudicated as a mental defective or committed to a mental institution;
(5) Is an alien illegally or unlawfully in the United States;
(6) Has been discharged from the Armed Forces under dishonorable conditions;
(7) Having been a citizen of the United States, has renounced U.S. citizenship;
(8) Is subject to a court order that restrains the person from harassing, stalking, or threatening an intimate partner or child of such intimate partner; or
(9) Has been convicted in any court of a misdemeanor crime of domestic violence.
The ATF published a final rule concerning ''Definitions for the Categories of Persons Prohibited From Receiving Firearms'' in the Federal Register on June 27, 1997 (T.D. ATF391, 62 FR 34634). These definitions became effective August 26, 1997, and shall apply to the operation and use of the NICS.
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Department of Justice Action
The Federal Bureau of Investigation (FBI), as directed by the Attorney General, has coordinated the development efforts of the NICS since 1994. The FBI is negotiating formal Memoranda of Understanding (MOUs) between the FBI and Federal agencies that will supply data to the NICS. The MOUs outline procedures for supplying data to the NICS and define limits on the appropriate use of the data.
This proposed rule may directly impact the following groups: prospective firearms purchasers, Federal firearms licensees (FFLs), state and local law enforcement agencies, and certain Federal agencies.
Brady Act Task Group
Immediately after the Brady Act went into effect on February 28, 1994, the FBI established a Brady Act Task Group (BATG) composed of experienced state and local law enforcement officials. The FBI has worked closely with the BATG, whose purpose has been to assist in the development and finalization of requirements for implementing the NICS.
In order to establish the NICS in a way that incorporates relevant information for the various categories of prohibited persons previously mentioned, the FBI has created a new database called the ''NICS Index'' with information concerning individuals who fall within categories 3 through 7 of the prohibited persons described above. A NICS background check will check this new database and also existing systems of records operated by the FBI, such as the National Crime Information Center (NCIC), and the Interstate Identification Index (III).
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The NICS Index will contain (1) records provided by Federal agencies to the FBI on persons prohibited from receiving firearms under Federal law and (2) records provided voluntarily by some states on persons who have been denied the purchase of a firearm or who are known to be disqualified from possessing a firearm under Federal law. Information in the NICS Index will be provided to the FBI on magnetic tape media or through electronic access by Federal agencies and authorized state or local law enforcement agencies. Access to the NICS Index will generally be restricted to purposes related to NICS background checks pursuant to the Brady Act; other access shall be limited to uses for the purpose of (1) providing information to Federal, state, or local criminal justice agencies in connection with the issuance of a permit or license to possess, acquire, conceal, or transfer a firearm or (2) responding to an inquiry from the ATF in connection with a civil or criminal law enforcement activity relating to the Gun Control Act (18 U.S.C. Chapter 44).
In states where they agree to do so, state or local law enforcement agencies will serve as Points of Contact (POCs) for the NICS. As POCs, these agencies will receive inquiries by FFLs, initiate NICS background checks through electronic access to the NICS via the NCIC communications network, receive and review any matching records retrieved by the system, check state and local record systems (including criminal justice databases) for disqualifying records, determine whether any of the matching records provide reason to believe that the individual is disqualified from possessing a firearm, and provide responses back to the FFL. States may also exchange messages regarding long-gun purchases made outside of a purchaser's state of residence. The FBI will not charge FFLs a fee for NICS background checks processed by state POCs.
Page 47 PREV PAGE TOP OF DOC In states where there is no POC, FFLs will contact the NICS Operations Center, a unit run by the FBI, either by telephone or through electronic dial-up access, to request a NICS background check. In these non-POC states, the NICS Operations Center will perform the NICS background check, analyze any matching records, and provide a response back to the FFL. The FBI will charge FFLs in non-POC states a fee for NICS background checks processed by the NICS Operations Center.
A NICS background check will consist of a search using name, sex, race, date of birth, state of residence, and other identifying information provided by a purchaser for records in the NICS Index, NCIC, and III. In states where state or local law enforcement agencies act as POCs, the POCs may also check state or local record systems. For each background check, the NICS will consolidate matching records from the NICS Index, NCIC and III. In cases where the checks are performed by state or local POCs, an authorized state or local official will receive and evaluate matching records forwarded by the FBI and any available state records and will determine whether the prospective purchaser is the subject of the matching
records and whether the records provide reason to believe that the prospective purchaser is ineligible to receive a firearm under state or Federal law. In states where FFLs contact the FBI directly, an FBI analyst will make these determinations. In either case, only the decision whether or not the transfer may proceed (communicated in the form of a message stating ''proceed,'' ''delayed,'' or ''denied''), and none of the underlying information, will be provided to the FFL.
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Retention and Destruction of Records in the NICS
The FBI will retain indefinitely records in the NICS Index that prohibit persons from receiving or possessing a firearm unless such records are updated or canceled by the agency that supplied the records to the NICS Index. In cases where the firearms disability is temporary in nature, the NICS Index will automatically purge the record on the date of its expiration or when it is no longer disabling.
The FBI will maintain an automated Audit Log of all transactions that pass through the NICS. Transactions relating to firearm transfer approvals in the Audit Log will be maintained for eighteen months. After this time, information contained in the Audit Log related to the person or the transfer will be destroyed; only the NICS Transaction Number (NTN), a unique number assigned to each valid background check inquiry received by the NICS, and the date on which the NTN was assigned, will be retained. This temporary retention of information will assist the FBI and state and local officials in auditing and/or investigating unauthorized use of the NICS. The FBI will retain a log of all transactions relating to firearm transfer denials for 10 years, after which time the records will be transferred to a Federal Records Center for retention.
This regulation requires the state and local law enforcement agencies using the system to identify themselves before obtaining access to the NICS through the use of an Originating Agency Identifier (ORI) assigned by the FBI. The Control Terminal Agency (CTA) in each state, typically the state police or department of public safety, will be responsible for providing to the FBI a list of agencies authorized in the state to serve as a POC for the NICS and for ensuring that unauthorized agencies cannot access the system. In addition, the NICS will individually identify and authenticate FBI personnel who access the system. The NICS will also require the use of FBI-assigned ORIs by authorized Federal agency employees who in the future may be provided message-based access to the NICS Index via the NCIC communications network for purposes of adding, updating, and canceling records.
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To ensure the proper level of access for each transaction, an agency must include its ORI in each message it sends to the NICS. Agencies providing records to the NICS must include their ORI and a unique agency record identifier (ARI) in each record provided. The system will allow authorized Federal and state agencies to add data to the NICS Index and to update or cancel only the data that they have provided.
The NICS will authenticate electronic connections by all users to prevent unauthorized access to the system. The FBI will provide to NICS users ''NICS Security Guidelines'' which will detail their security roles and responsibilities.
Federal agencies and state and local law enforcement agencies acting as POCs will be responsible for ensuring that their personnel who process and handle data for the NICS comply with the NICS Security Guidelines, the NCIC Security Policy of 1992, applicable Federal laws, such as the Privacy Act of 1974 and the Computer Security Act of 1987, and with their own policies and procedures for protecting information. In addition, if the NICS allows a Federal agency direct terminal access to the NICS for the purpose of adding, updating, or canceling records, the agency, at a minimum, must ensure that terminal operators follow the NCIC Security Policy.
Federal agencies and state and local law enforcement agencies that contribute information to the NICS Index will label any magnetic media used to transport NICS data. These labels will identify the agency supplying the data and the sensitivity of the data. The FBI will store NICS data only in areas that are physically safe from access by unauthorized persons or exposure to environmental hazards.
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If an agency communicates electronically with the NICS via the NCIC communications network, the computer site and/or terminal area used by the agency must have adequate physical security to protect against unauthorized personnel gaining access to the computer equipment or to any of the stored data, as discussed in the NCIC Security Policy. Visitors in the area of the computer site and/or terminal must be accompanied by staff personnel at all times, and access to the terminal area is restricted to the minimum number of authorized employees needed to complete the work.
Authority To Obtain Records From Federal Agencies
Section 103(e)(1) of the Brady Act states that ''[n]otwithstanding any other law, the Attorney General may secure directly from any department or agency of the United States such information on persons for whom receipt of a firearm would violate subsection (g) or (n) of section 922 of title 18, United States Code or State law, as is necessary to enable the system to operate in accordance with this section. On request of the Attorney General, the head of such department or agency shall furnish such information to the system.''
Privacy Act Notice and Rule
Pursuant to the Privacy Act of 1974, a Privacy Act Notice describing the system of records and exempting its records from certain provisions of the Privacy Act is published elsewhere in today's Federal Register.
User Fee Charge
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FFLs who contact the NICS Operations Center by telephone or by electronic means to initiate a background check will be assessed a fee. The user fee will be published separately in the Federal Register.
Appeal From a Denial and the Correction of Erroneous System Information
If, as a result of a NICS background check, an individual is unable to purchase a firearm, the individual may request the reason(s) for the denial from the agency that made the determination (either the FBI or the POC). The denying agency (either the FBI or the POC) shall respond with the reasons for the denial within five business days of receipt of the request. The individual may challenge the accuracy of the record by appealing to the state or local POC that denied the transfer, the agency that originated the record, or the FBI. If a record is found to be erroneous, the data in the NICS shall be corrected and the individual will be provided a written confirmation of the correction of erroneous data to present to the FFL. If more than 30 days have transpired since the initial check, the FFL will recheck the NICS without a fee before allowing the sale to continue. The Brady Act also provides that an individual may contest the accuracy or validity of a disqualifying record by bringing ''an action against the State or political
subdivision responsible for providing the erroneous information, or responsible for denying the transfer, or against the United States, as the case may be, for an order directing that the erroneous information be corrected or that the transfer be approved, as the case may be.''
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Applicable Administrative Procedures and Executive Orders
Regulatory Flexibility Analysis
The Attorney General, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and by approving it certifies that this regulation will not have a significant economic impact on a substantial number of small entities. A Brady Act Task Group, composed of experienced state and local law enforcement officials, provided input on the design of the NICS. When developing the guidelines for the NICS, both the Task Group and the FBI took into account the fact that many FFLs are small businesses. The obligation of FFLs to contact the NICS before transferring a firearm is imposed by the Brady Act and is detailed in the above-described proposed ATF regulations implementing the permanent provisions of the Brady Act. In designing the NICS, the FBI has sought to avoid burdens on small entities beyond those requirements needed to conduct the statutorily prescribed background checks effectively and to ensure the privacy and security of the information in the NICS. The FBI is not aware of any relevant Federal rules that duplicate, overlap, or conflict with this rule.
Executive Order 12866
This proposed rule has been drafted and reviewed in accordance with Executive Order 12866, section 1(b), Principles of Regulation. The Department of Justice has determined that this proposed rule is a ''significant regulatory action'' under Executive Order 12866, section 3(f), Regulatory Planning and Review, and thus it has been reviewed by the Office of Management and Budget (OMB).
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Executive Order 12612
This rule will not have a substantial direct effect on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 12612, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a Federal Assessment.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This proposed rule is not a major rule as defined by Section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This proposed rule will not result in an annual effect on the economy of $100,000,000 or more, a major increase in costs or prices, or have significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.
Page 54 PREV PAGE TOP OF DOCPaperwork Reduction Act of 1995
The collection of information contained in this notice of proposed rulemaking has been submitted to the OMB for review in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)). Comments on the collection of information should be sent to the Office of Management and Budget, Attention: Desk Officer of the Department of Justice, Office of Information and Regulatory Affairs, Washington, DC 20503, with copies to Mr. Robert B. Briggs, Clearance Officer, United States Department of Justice, Information Management and Security Staff, Justice Management Division, Suite 850, Washington Center, 1001 G Street, NW, Washington, DC 20530. Comments are specifically requested concerning:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the Department of Justice and the FBI, including whether the information will have practical utility;
(2) The accuracy of the estimated burden associated with the proposed collection of information (see below);
(3) How the quality, utility, and clarity of the information to be collected may be enhanced; and
(4) How the burden of complying with the proposed collection of information may be minimized, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Page 55 PREV PAGE TOP OF DOC The collection of information in this proposed regulation is for the purpose of establishing the NICS, a national background check system that FFLs are required by the Brady Act to contact for information about whether the transfer of a firearm to a prospective purchaser would violate Federal or state law. A database called the NICS Index is being created which will contain information about individuals who fall into the non-criminal categories of persons who are disqualified from possessing a firearm under Federal law. Some states may voluntarily submit information to the FBI concerning certain individuals who fall into one or more of these categories, such as persons who have been adjudicated as mental defectives or who have been committed to mental institutions, for input into the NICS Index. This data may be submitted by such states on a magnetic tape medium, which the FBI will download into the NICS Index. The FBI will also allow such states to make individual record submissions via the NCIC communications network. It is estimated that, at the outset, five states will voluntarily contribute such data to the NICS Index. Additional states may contribute data in the future. It is estimated that it will require 24 hours for each contributing state to write the specifications and program for the magnetic tapes that will be submitted to the FBI. Thereafter, it is estimated that it will require one hour to place data on the tape each time it is submitted to the FBI. Tape submissions will be made approximately once per month; electronic submissions may be made at the state's convenience. Thus, it is estimated that, in the first year in which it makes data submissions to the NICS Index, a contributing state will spend up to 36 hours in making its submissions. In succeeding years, it is estimated that each submitting state will spend up to 12 hours per year in making submissions. The total public burden (in hours) associated with the collection from the estimated five initial respondents, therefore, is 180 hours in the first year and 60 hours each succeeding year.
List of Subjects in 28 CFR Part 25
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Administrative practice and procedure, Automatic data processing, Business and industry, Courts, Firearms, Information, Law enforcement officers, Reporting and recordkeeping requirements, and Telecommunications.
Accordingly, Title 28 of the Code of Federal Regulations is proposed to be amended by adding the following new part 25:
PART 25DEPARTMENT OF JUSTICE INFORMATION SYSTEMS
Subpart AThe National Instant Criminal Background Check System
25.1 Purpose and authority.
25.3 System information.
25.4 Record source categories.
25.5 Validation and data integrity of records in the system.
25.6 Accessing records in the system.
25.7 Querying records in the system.
25.8 System safeguards.
25.9 Retention and destruction of records in the system.
25.10 Correction of erroneous system information.
Page 57 PREV PAGE TOP OF DOC25.11 Prohibited activities and penalties.
Authority: Pub. L. 103159, 107 Stat. 1536.
Subpart AThe National Instant Criminal Background Check System
Sec. 25.1 Purpose and authority.
The purpose of this subpart is to establish policies and procedures implementing the Brady Handgun Violence Prevention Act (Brady Act), Public Law 103159, 107 Stat. 1536. The Brady Act requires the Attorney General to establish a National Instant Criminal Background Check System (NICS) to be contacted by any licensed importer, licensed manufacturer, or licensed dealer of firearms for determination of whether the transfer of a firearm to any person who is not licensed under 18 U.S.C. 923 would be in violation of Federal or state law. These regulations are issued pursuant to section 103(h) of the Brady Act, 107 Stat. 1542, and include requirements to ensure the privacy and security of the system and appeals procedures for persons who have been denied the right to purchase a firearm as a result of a NICS background check performed by the Federal Bureau of Investigation (FBI) or a state or local law enforcement agency.
Sec. 25.2 Definitions.
Appeal means a formal procedure to challenge the denial of a firearm transfer.
Page 58 PREV PAGE TOP OF DOC ARI means a unique Agency Record Identifier assigned by the agency submitting records for inclusion in the NICS Index.
Audit log means a chronological record of system (computer) activities that enables the reconstruction and examination of the sequence of events and/or changes in an event.
Business day means a 24-hour day (beginning at 12:01 a.m.) on which state offices are open in the state in which the proposed firearm transaction is to take place.
Control Terminal Agency means a state or territorial criminal justice agency recognized by the FBI as the agency responsible for providing state- or territory-wide service to criminal justice users of NCIC data.
Data source means an agency that provided specific information to the NICS.
Delayed means a temporary denial of a firearm transfer requiring more research prior to a NICS ''Proceed'' or ''Denied'' response.
Denied means denial of a firearm transfer based on a NICS response indicating one or more matching records were found providing reason to believe that receipt of a firearm by a prospective purchaser would violate 18 U.S.C. 922 or state law.
Denying agency means a POC or the NICS Operations Center, whichever determines that information in the NICS indicates that the transfer of a firearm to a person would violate Federal or state law, based on a background check.
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Dial-up access means any routine access through commercial switched circuits on a continuous or temporary basis.
Federal agency means any authority of the United States that is an ''Agency'' under 44 U.S.C. 3502(1), other than those considered to be independent regulatory agencies, as defined in 44 U.S.C. 3502(10).
FFL (federal firearms licensee) means a person licensed by the Bureau of Alcohol, Tobacco and Firearms as a manufacturer, dealer, or importer of firearms.
Firearm has the same meaning as in 18 U.S.C. 921(a)(3).
Licensed dealer means any person defined in 27 CFR 178.11.
Licensed importer has the same meaning as in 27 CFR 178.11.
Licensed manufacturer has the same meaning as in 27 CFR 178.11.
NCIC (National Crime Information Center) means a nationwide computerized information system of criminal justice data established by the FBI as a service to local, state, and Federal criminal justice agencies.
NICS means the National Instant Criminal Background Check System, which an FFL may contact for information on whether receipt of a firearm by a person who is not licensed under 18 U.S.C. 923 would violate Federal or state law.
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NICS Index means the database, to be managed by the FBI, containing information provided by Federal and state agencies about persons prohibited under Federal law from receiving or possessing a firearm. The NICS Index is separate and apart from the NCIC and the Interstate Identification Index (III).
NICS Operations Center means the unit of the FBI that receives telephone or electronic inquiries from FFLs to perform background checks, makes a determination based upon available information as to whether the receipt or transfer of a firearm would be in violation of state or Federal law, researches criminal history records, tracks and finalizes appeals, and conducts audits of system use.
NICS Operations Center's regular business hours means the hours of 9 a.m. to 2 a.m., Eastern Time, seven days a week.
NICS Representative means a person who receives telephone inquiries to the NICS Operations Center from FFLs requesting background checks and provides a response as to whether the receipt or transfer of a firearm may proceed or is delayed.
NRI (NICS Record Identifier) means the system-generated unique number associated with each record in the NICS Index.
NTN (NICS Transaction Number) means the unique number that will be assigned to each valid background check inquiry received by the NICS. Its primary purpose will be to provide a means of associating inquiries to the NICS with the response provided by the NICS to the FFL.
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ORI (Originating Agency Identifier) means a nine-character identifier assigned by the FBI to an agency which has met the established qualifying criteria for ORI assignment to identify the agency in transactions on the NCIC System.
Originating Agency means an agency that provides a record to a database checked by the NICS.
POC (Point of Contact) means a state or local law enforcement agency serving as an intermediary between an FFL and the system. A POC will receive NICS background check requests from FFLs, check state or local record systems, perform NICS inquiries, determine whether matching records provide reason to believe that an individual is disqualified from possessing a firearm under Federal or state law, and respond to FFLs with the results of a NICS background check.
Proceed means a NICS response indicating no matching record was found to prohibit the transfer of a firearm.
Record means any item, collection, or grouping of information about an individual that is maintained by an agency, including but not limited to information that disqualifies the individual from receiving a firearm and that contains his or her name or other personal identifiers.
Page 62 PREV PAGE TOP OF DOC STN (State-Assigned Transaction Number) means a unique number that may be assigned by a POC to each valid background check inquiry.
System means the National Instant Criminal Background Check System (NICS).
Sec. 25.3 System information.
(a) There is established at the FBI a National Instant Criminal Background Check System.
(b) The system will be located at the Federal Bureau of Investigation, 1000 Custer Hollow Road, Clarksburg, West Virginia 263060147.
(c) The system manager and address are: Director, Federal Bureau of Investigation, J. Edgar Hoover F.B.I. Building, 935 Pennsylvania Avenue, NW, Washington, DC. 20535.
Sec. 25.4 Record source categories.
It is anticipated that most records in the NICS Index will be obtained from Federal agencies. It is also anticipated that a limited number of authorized state and local law enforcement agencies will voluntarily contribute records to the NICS Index. Information in the NCIC and III systems that will be searched during a background check will be contributed voluntarily by Federal, state, local, and international criminal justice agencies.
Page 63 PREV PAGE TOP OF DOCSec. 25.5 Validation and data integrity of records in the system.
(a) The FBI will be responsible for maintaining data integrity during all NICS operations that are managed and carried out by the FBI. This responsibility includes:
(1) Ensuring the accurate adding, canceling, or modifying of NICS Index records supplied by Federal agencies;
(2) An automatic rejection of any attempted entry of records into the NICS Index that contain detectable invalid data elements;
(3) Automatic purging of records in the NICS Index after they are on file for a prescribed period of time; and
(4) Quality control checks in the form of periodic internal audits by FBI personnel to verify that the information provided to the NICS Index remains valid and correct.
(b) Each data source will be responsible for ensuring the accuracy and validity of the data it provides to the NICS Index and will immediately correct any record determined to be invalid or incorrect.
Sec. 25.6 Accessing records in the system.
Page 64 PREV PAGE TOP OF DOC (a) FFLs may initiate a NICS background check only in connection with a proposed firearm transfer as required by the Brady Act. FFLs are strictly prohibited from initiating a NICS background check for any other purpose. The process of accessing the NICS for the purpose of conducting a NICS background check is initiated by an FFL's contacting the FBI NICS Operations Center (by telephone or electronic dial-up access) or a POC. FFLs in each state will be advised by the FBI or a POC whether they are required to initiate NICS background checks with the NICS Operations Center or the POC and how they are to do so.
(b) Access to the NICS through the FBI NICS Operations Center. FFLs may contact the NICS Operations Center by telephone only during its regular business hours. Electronic dial-up access to the NICS will be provided to a limited number of FFLs at the beginning of the system's operation. As the system develops its capacity to accept such access, a larger number of FFLs may be provided electronic dial-up access in the future. FLLs with electronic dial-up access will be able to contact the NICS 24 hours each day.
(c) The FBI NICS Operations Center, upon receiving an FFL telephone or electronic dial-up request for a background check, will:
(1) Verify the FFL Number and password;
(2) Assign a NICS Transaction Number (NTN) to a valid inquiry and provide the NTN to the FFL;
(3) Search the relevant databases (i.e., NICS Index, NCIC, III) for any matching records; and
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(4) Provide the following NICS responses based upon the consolidated NICS search results to the FFL that requested the background check:
(i) Proceed response, if no disqualifying information was found in the NICS Index, NCIC, or III.
(ii) Delayed response, if the NICS search finds a record that may indicate that the prospective purchaser is disqualified from possessing a firearm by Federal or state law. A ''Delayed'' response to the FFL indicates that the firearm transfer should not proceed pending receipt of a follow-up response from the NICS or the expiration of three business days (exclusive of the day on which the query is made), whichever occurs first. (Example: An FFL requests a NICS check on a prospective firearm purchaser at 9 a.m. on Friday and shortly thereafter receives a ''Delayed'' response from the NICS. Assuming state offices in the state in which the FFL is located are closed on Saturday and Sunday and open the following Monday, Tuesday, and Wednesday, and the NICS has not yet responded with a ''Proceed'' or ''Denied'' response, the FFL may transfer the firearm at 12:01 a.m. Thursday.)
(iii) Denied response, when at least one matching record is found in either the NICS Index, NCIC, or III that provides reason to believe that receipt of a firearm by the prospective purchaser would violate 18 U.S.C. 922 or state law. The ''Denied'' response will be provided to the requesting FFL by the NICS Operations Center during its regular business hours after review of any potentially disqualifying information.
(5) None of the responses provided to the FFL will contain any of the underlying information in the records checked by the system.
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(d) Access to the NICS through POCs. In states where a POC is designated to process background checks for the NICS, FFLs will contact the POC to initiate a NICS background check. The POC will notify FFLs in its state of the means by which FFLs can contact the POC. The NICS will provide POCs with electronic access to the system 24 hours each day through the NCIC communication network. Upon receiving a request for a background check from an FFL, a POC will:
(1) Verify the FFL number;
(2) Enter a purpose code indicating that the query of the system is for the purpose of performing a NICS background check in connection with the transfer of a firearm; and
(3) Transmit the request for a background check via the NCIC interface to the NICS.
(e) Upon receiving a request for a NICS background check, POCs may also conduct a search of available files in state and local law enforcement and other relevant record systems, and may provide a unique State-Assigned Transaction Number (STN) to each valid inquiry for a background check.
(f) When the NICS receives an inquiry from a POC, a search will be made of the relevant databases (i.e., NICS Index, NCIC, III) for any matching record(s), and the NICS will provide an electronic response to the POC. This response will consolidate the search results of the relevant databases and will include the NTN. The following types of responses may be provided by the NICS to a state or local agency conducting a background check:
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(1) No record response, if the NICS determines, through a complete search, that no matching record exists.
(2) Partial response, if the NICS has not completed the search of all of its records. This response will indicate the databases that have been searched (i.e., III, NCIC, and/or NICS Index) and the databases that have not been searched. It will also provide any potentially disqualifying information found in any of the databases searched. A follow-up response will be sent as soon as all the relevant databases have been searched. The follow-up response will provide the complete search results.
(3) Single matching record response, if all records in the relevant databases have been searched and one matching record was found.
(4) Multiple matching record response, if all records in the relevant databases have been searched and more than one matching record was found.
(g) Generally, based on the response(s) provided by the NICS, and other information available in the state and local record systems, a POC will:
(1) Confirm any matching records; and
(2) Notify the FFL of the NICS response that the transfer may proceed, is delayed pending further record analysis, or is denied and include in this notification the NTN and, if applicable, an STN.
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(h) In cases where a transfer is denied by a POC, the POC may provide a denial notification to the NICS. This denial notification will include the name of the person who was denied a firearm and the NTN. The information provided in the denial notification will be maintained in the NICS Audit Log described in Sec. 25.9(b). This notification may be provided immediately by electronic message to the NICS (i.e., at the time the transfer is denied) or as soon thereafter as possible. If a denial notification is not provided by a POC, the NICS will assume that the transfer was allowed and will destroy its records regarding the transfer in accordance with the procedures detailed in Sec. 25.9.
(i) Recording the NTN. FFLs are required to record the NTN they receive in a NICS response on the appropriate ATF form for audit and inspection purposes, under 27 CFR 178.124 recordkeeping requirements. This requirement applies regardless of whether the NTN is provided to the FFL by the FBI NICS Operations Center or a POC and whether the transfer of the firearm is completed.
(j) Access to the NICS Index for purposes unrelated to background checks required by the Brady Act. Access to the NICS Index for purposes unrelated to NICS background checks pursuant to 18 U.S.C. 922(t) shall be limited to uses for the purpose of:
(1) Providing information to Federal, state, or local criminal justice agencies in connection with the issuance of a permit or license to possess, acquire, conceal, or transfer a firearm; or
(2) Responding to an inquiry from the ATF in connection with a civil or criminal law enforcement activity relating to the Gun Control Act (18 U.S.C. Chapter 44).
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Sec. 25.7 Querying records in the system.
(a) The following search descriptors will be required in all queries of the system for purposes of a background check:
(4) Complete date of birth; and
(5) State of residence.
(b) A unique numeric identifier may also be provided to search for additional records based on exact matches by the numeric identifier. Examples of unique numeric identifiers for purposes of this system are: Social Security number (to comply with Privacy Act requirements, a Social Security number will not be required by the NICS to perform any background check) and miscellaneous identifying numbers (military number or number assigned by Federal, state, or local authorities to an individual's record). Additional identifiers that may be requested by the system after an initial query include height, weight, eye and hair color, and place of birth. At the option of the querying agency, these additional identifiers may also be included in the initial query of the system.
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Sec. 25.8 System safeguards.
(a) Information maintained in the NICS Index is stored electronically for use in an FBI computer environment. The NICS central computer will reside inside a locked room within a secured facility. Access to the facility will be restricted to authorized FBI personnel who have identified themselves and their need for access to a system security officer.
(b) Access to data stored in the NICS is restricted to duly authorized agencies. The security measures listed in paragraphs (c) through (f) of this section are the minimum to be adopted by all POCs and data sources having access to the NICS. Each state's Control Terminal Agency will provide to the NICS Operations Center a list of valid ORIs for those agencies that will serve as POCs for the NICS.
(c) State or local law enforcement agency computer centers designated by a Control Terminal Agency as POCs shall be authorized NCIC users and shall observe all procedures set forth in the NCIC Security Policy of 1992 when processing NICS background checks. The responsibilities of the Control Terminal Agencies and the computer centers include the following:
(1) The criminal justice agency computer site must have adequate physical security to protect against any unauthorized personnel gaining access to the computer equipment or to any of the stored data.
(2) Since personnel at these computer centers can have access to data stored in the NICS, they must be screened thoroughly under the authority and supervision of a state Control Terminal Agency. This authority and supervision may be delegated to responsible criminal justice agency personnel in the case of a satellite computer center being serviced through a state Control Terminal Agency. This screening will also apply to non-criminal justice maintenance or technical personnel.
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(3) All visitors to these computer centers must be accompanied by staff personnel at all times.
(4) POCs utilizing a state/NCIC terminal to access the NICS must have the proper computer instructions written and other built-in controls to prevent data from being accessible to any terminals other than authorized terminals.
(5) Each state Control Terminal Agency shall build its data system around a central computer, through which each inquiry must pass for screening and verification.
(d) Authorized state agency remote terminal devices operated by POCs and having access to the NICS must meet the following requirements:
(1) POCS and data sources having terminals with access to the NICS must physically place these terminals in secure locations within the authorized agency;
(2) The agencies having terminals with access to the NICS must screen terminal operators and must restrict access to the terminals to a minimum number of authorized employees; and
(3) Copies of NICS data obtained from terminal devices must be afforded appropriate security to prevent any unauthorized access or use.
(e) FFL remote terminal devices may be used to transmit queries to the NICS via electronic dial-up access. The following procedures will apply to such queries:
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(1) The NICS will incorporate a security authentication mechanism that performs FFL dial-up user
authentication before network access takes place;
(2) The proper use of dial-up circuits by FFLs will be included as part of the periodic audits by the FBI; and
(3) All failed authentications will be logged by the NICS and provided to the NICS security administrator.
(f) FFLs may use the telephone to transmit queries to the NICS, in accordance with the following procedures:
(1) FFLs may contact the NICS Operations Center during its regular business hours by a telephone number provided by the FBI;
(2) FFLs will provide the NICS Representative with their FFL Number and password, the type of sale, and the name, sex, race, date of birth, and state of residence of the prospective buyer; and
(3) The NICS will verify the FFL Number and password before processing the request.
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(g) The following precautions will be taken to help ensure the security and privacy of NICS information when FFLs contact the NICS Operations Center:
(1) Access will be restricted to the initiation of a NICS background check in connection with the proposed transfer of a firearm.
(2) The NICS Representative will only provide a response of ''Proceed'' or ''Delayed'' (with regard to the prospective firearms transfer), and will not provide the details of any record information about the purchaser. In cases where potentially disqualifying information is found in response to an FFL query, the NICS Representative will provide a ''Delayed'' response to the FFL. A follow-up ''Proceed'' or ''Denied'' response will be provided by the NICS Operations Center during its regular business hours and before the expiration of three business days (exclusive of the day on which the query is made) after the FFL query.
(3) The FBI will periodically monitor telephone inquiries to ensure proper use of the system.
(h) All transactions and messages sent and received through electronic access by POCs and FFLs will be automatically logged in the NICS Audit Log described in Sec. 25.9(b). Information in the NICS Audit Log will include initiation and termination messages, failed authentications, and matching records located by each search transaction.
(i) The FBI will monitor and enforce compliance by NICS users with the system security requirements outlined in the NICS Security Guidelines.
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Sec. 25.9 Retention and destruction of records in the system.
(a) The NICS will retain indefinitely NICS Index records that indicate that receipt of a firearm by the individuals to whom the records pertain would violate Federal or state law unless such records are canceled by the originating agency. In cases where a firearms disability is only temporary, as defined by 27 CFR part 178, the NICS will automatically purge the pertinent record on a specified date as determined by the referenced regulation. Unless otherwise removed, records contained in the NCIC and III files that are accessed during a background check will remain in those files in accordance with established policy.
(b) 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 purchaser and the NTN). After eighteen months, if the transfer is allowed, all information in the Audit Log related to the person or the transfer will be destroyed, other than the NTN assigned to the transfer and the date the number was assigned. 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. The NICS will not be used 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 USC 922 (g) or (n) or by state law.
Page 75 PREV PAGE TOP OF DOC (2) The 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. The NICS, including the NICS Audit Log, may 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. The Audit Log will be monitored and reviewed on a regular basis to detect any possible misuse of the NICS data.
(c) The following records in the FBI-operated terminals of the NICS will be subject to the Brady Act's requirements for destruction:
(1) All inquiry and response messages (regardless of media) relating to a background check that results in an allowed transfer; and
(2) All information (regardless of media) contained in the NICS Audit Log relating to a background check that results in an allowed transfer.
(d) The following records of state and local law enforcement units serving as POCs will be subject to the Brady Act's requirements for destruction:
(1) All inquiry and response messages (regardless of media) relating to the initiation and result of a check of the NICS that allows a transfer; and
(2) All other records relating to the person or the transfer created as a result of a NICS check that are not part of a record system created and maintained in accordance with state law.
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Sec. 25.10 Correction of erroneous system information.
(a) An individual may request the reason for the denial from the agency that conducted the check of the NICS (the ''denying agency,'' which will be either the FBI or the state or local law enforcement agency serving as a POC). The FFL will provide to the denied individual the name and address of the denying agency and the unique transaction number (NTN or STN) associated with the NICS background check. The request for the reason for the denial must be made in writing to the denying agency.
(b) The denying agency will respond to the individual with the reasons for the denial within five business days of its receipt of the individual's request. The response should indicate whether additional information or documents are required to support an appeal, such as fingerprints in appeals involving questions of identity (i.e., a claim that the record in question does not pertain to the individual who was denied).
(c) If the individual wishes to challenge the accuracy of the record upon which the denial is based, or if the individual wishes to assert that his or her rights to possess a firearm have been restored, he or she may make application first to the denying agency, i.e., either the FBI or the POC. If the denying agency is unable to resolve the appeal, the denying agency will so notify the individual and shall provide the name and address of the agency that originated the document containing the information upon which the denial was based. The individual may then apply for correction of the record directly to the agency from which it originated. If the record is corrected as a result of the appeal to the originating agency, the individual shall so notify the denying
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agency, which will, in turn, verify the record correction with the originating agency (assuming the originating agency has not already notified the denying agency of the correction) and take all necessary steps to correct the record in the NICS.
(d) As an alternative to the above procedure, the individual may elect to direct his or her challenge to the accuracy of the record, in writing, to the FBI, NICS Operations Center, Criminal Justice Information Services Division, 1000 Custer Hollow Road, Module C3, Clarksburg, West Virginia 263060147. Upon receipt of the information, the FBI will investigate the matter by contacting the POC that denied the transaction or the data source. The FBI will request the POC or the data source to verify that the record in question pertains to the individual who was denied or verify or correct the challenged record. The FBI will consider the information it receives from the individual and the response it receives from the POC or the data source. If the record is corrected as a result of the challenge, the FBI shall so notify the individual, correct the erroneous information in the NICS, and give notice of the error to any Federal department or agency or any state that was the source of such erroneous records.
(e) Upon receipt of notice of the correction of a contested record from the originating agency, the FBI or the agency that contributed the record shall correct the data in the NICS and the denying agency shall provide a written confirmation of the correction of the erroneous data to the individual for presentation to the FFL. If the appeal of a contested record is successful and less than thirty (30) days have transpired since the initial check, and there are no other disqualifying records upon which the denial was based, the NICS will communicate a ''proceed'' response to the FFL. If the appeal is successful and more than thirty (30) days have transpired since the initial check, the FFL must recheck the NICS (without being charged a fee) before allowing the sale to continue. In cases where multiple disqualifying records are the basis for the denial, the individual must pursue a correction for each record.
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(f) An individual may also contest the accuracy or validity of a disqualifying record by bringing an action against the state or political subdivision responsible for providing the contested information, or responsible for denying the transfer, or against the United States, as the case may be, for an order directing that the contested information be corrected or that the firearm transfer be approved.
Sec. 25.11 Prohibited activities and penalties.
(a) State or local agencies, FFLs, or individuals violating this subpart A shall be subject to a fine not to exceed $10,000 and subject to cancellation of NICS inquiry privileges.
(b) Misuse or unauthorized access includes, but is not limited to, the following:
(1) State or local agencies', FFLs', or individuals' purposefully furnishing incorrect information to the system to obtain a ''proceed'' response, thereby allowing a firearm transfer;
(2) State or local agencies'', FFLs', or individuals' purposefully using the system to perform a check for unauthorized purposes; and
(3) Any unauthorized person's accessing the NICS.
Page 79 PREV PAGE TOP OF DOC Dated: May 28, 1998.
Janet Reno, Attorney General.
[FR Doc. 9814795 Filed 6198; 8:45 am] BILLING CODE 441002U
[Federal Register: June 4, 1998 (Volume 63, Number 107)]
[Proposed Rules] [Page 3042930430]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
DEPARTMENT OF JUSTICE
28 CFR Part 16
[AAG/A Order No. 15298]
Exemption of System of Records Under the Privacy Act
AGENCY: Department of Justice.
ACTION: Proposed rule.
SUMMARY: The Department of Justice, Federal Bureau of Investigation, proposes to exempt the National Instant Criminal Background Check System (NICS) from 5 U.S.C. 552a(c)(3) and (4); (d); (e)(1), (2), and (3); (e)(4)(G) and (H); (e)(5) and (8); and (g). The purpose of the proposed rule is to exempt the NICS from certain requirements of the Privacy Act for the reasons specified below. The exemptions are necessary because some information in NICS is from law enforcement records. Therefore, to the extent that they may be subject to exemption under subsections (j)(2), (k)(2), and (k)(3), these records are not available under the Privacy Act and not subject to certain of its procedures such as obtaining an accounting of disclosures, notification, access, or amendment/correction.
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DATES: Comments must be submitted on or before July 6, 1998.
ADDRESSES: All comments should be submitted to Patricia E. Neely, Program Analyst, Information Management and Security Staff, Justice Management Division, Department of Justice, Washington, DC 20530 (Room 850, WCTR Building).
FOR FURTHER INFORMATION CONTACT: Patricia E. Neely, (202) 6160178.
SUPPLEMENTARY INFORMATION: In the notice section of today's Federal Register, the Department of Justice provides a description of the ''National Instant Criminal Background Check System (NICS), JUSTICE/ FBI018.'' Also in the rules section of today's Federal Register, the Department of Justice provides proposed rules to establish policies and procedures for operating the system, ensuring the privacy and security of the NICS, and implementing its alternative access and appeal provisions. This order relates to individuals rather than small business entities. Nevertheless, pursuant to the requirements of the Regulatory Flexibility Act, 5 U.S.C. 601612, it is hereby stated that this order will not have ''a significant economic impact on a substantial number of small entities.''
List of Subjects in 28 CFR Part 16
Administrative Practices and Procedures, Courts, Freedom of Information Act, Government in the Sunshine Act, and the Privacy Act.
Dated: May 7, 1998.
Page 81 PREV PAGE TOP OF DOCStephen R. Colgate,
Assistant Attorney General for Administration.
Pursuant to the authority vested in the Attorney General by 5 U.S.C. 552a and delegated to me by Attorney General Order 79378, it is proposed to revise 28 CFR part 16, as set forth below.
1. The authority for part 16 continues to read as follows:
Authority: 5. U.S.C. 301, 552, 552a, 552b(g), 553; 18 U.S.C. 4203 (a)(1); 28 U.S.C. 509, 510, 534; 31 U.S.C. 3717, 9701.
2. It is proposed that 28 CFR 16.96 be amended by adding paragraphs (p) and (q) to read as follows:
Sec. 16.96 Exemption of Federal Bureau of Investigation (FBI) Systemslimited access.
* * * * *
(p) The National Instant Criminal Background Check System (NICS), (JUSTICE/FBI018), a Privacy Act system of records, is exempt:
(1) Pursuant to 5 U.S.C. 552a(j)(2), from subsections (c) (3) and (4); (d); (e) (1), (2), (3); (e)(4) (G) and (H); (e) (5) and (8); and (g); and (2) Pursuant to 5 U.S.C. 552a(k) (2) and (3), from subsections (c) (3), (d), (e) (1), and (e)(4) (G) and (H).
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(q) These exemptions apply only to the extent that information in the system is subject to exemption pursuant to 5 U.S.C. 552a(j)(2), (k)(2), and (k)(3). Exemptions from the particular subsections are justified for the following reasons:
(1) From subsection (c)(3) because the release of the accounting of disclosures would place the subject on notice that the subject is or has been the subject of investigation and result in a serious impediment to law enforcement.
(2) From subsection (c)(4) to the extent that it is not applicable since an exemption is claimed from subsection (d).
(3)(i) From subsection (d) and (e)(4) (G) and (H) because these provisions concern an individual's access to records which concern the individual and such access to records in the system would compromise ongoing investigations, reveal investigatory techniques and confidential informants, invade the privacy of persons who provide information in connection with a particular investigation, or constitute a potential danger to the health or safety of law enforcement personnel.
(ii) In addition, from subsection (d)(2) because, to require the FBI to amend information thought to be not accurate, timely, relevant, and complete, because of the nature of the information collected and the essential length of time it is maintained, would create an impossible administrative burden by forcing the agency to continuously retrograde its investigations attempting to resolve these issues.
Page 83 PREV PAGE TOP OF DOC (iii) Although the Attorney General is exempting this system from subsection (d) and (e)(4) (G) and (H), an alternate method of access and correction has been provided in 28 CFR, part 25, subpart A.
(4) From subsection (e)(1) because it is impossible to state with any degree of certainty that all information in these records is relevant to accomplish a purpose of the FBI, even though acquisition of the records from state and local law enforcement agencies is based on a statutory requirement. In view of the number of records in the system, it is impossible to review them for relevancy.
(5) From subsections (e) (2) and (3) because the purpose of the system is to verify information about an individual. It would not be realistic to rely on information provided by the individual. In addition, much of the information contained in or checked by this system from Federal, State, and local criminal history records.
(6) From subsection (e)(5) because it is impossible to predict when it will be necessary to use the information in the system, and, accordingly, it is not possible to determine in advance when the records will be timely. Since most of the records are from State and local or other Federal agency records, it would be impossible to review all of them to verify that they are accurate. In addition, no alternate procedure is being established in 28 CFR, part 25, subpart A, so the records can be amended if found to be incorrect.
(7) From subsection (e)(8) because the notice requirement could present a serious impediment to law enforcement by revealing investigative techniques and confidential investigations.
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(8) From subsection (g) to the extent that, pursuant to subsections (j)(2), (k)(2), and (k)(3), the system is exempted from the other subsections listed in paragraph (p) of this section.
[FR Doc. 9814796 Filed 6398; 8:45 am]
BILLING CODE 441002M
Mr. BARR. Thank you. Where exactly isand maybe you can enlighten us as to the Bureau's legal reasonings as to why it thinks that this very specific, limited authority in 1991, for 1991, that is limited explicitly and expressly to employment and licensing purposes for fingerprint identification records, and certainly given, I know, your understanding of the fact that it is Congress that levies taxes and has the sole constitutional authority to do that, and also, knowing as I'm sure you do, that in other instances where the FBI has been expressly by statute authorized and allowed to assess a certain fee for a certain type of background check, such as in parimutuel betting, for purposes of employment, such as in banking for employment checks and background checks, the Bureau obviously felt the need and correctly understood the state of the law to require them to come to the Congress and request that express authority, statutory authority, to do so because they would not otherwise have it.
In other words, the Bureau does not have general authority. to assess user fees or taxes or whatever you call them. It has to have express statutory authority. It does not have it in this case. Yet, the Bureau is relying on an appropriations amendment for the 1991 Appropriations Act which has nothing to do with this, either the type of records or the specific records. I'm just wondering if you could enlighten us as to the constitutional authority and legal reasoning in support of what is now an official request on the public recordit actually isn't a requestit is that this is what the FBI is going to do to start assessing these fees or taxes.
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Mr. KESSLER. I'd be happy to comment on that Congressman. First off, there is nothing in Brady which address the question of fees of NICS checks. Public Law 101515 authorizes the FBI to establish, collect, retain fees to process name checks for noncriminal justice purposes. The purpose of the NICS checks is to prevent individuals who are prohibited by law from possessing firearms from purchasing guns. The check is not being performed to determine whether the individual has violated the law.
Mr. BARR. Is it providedis it to be conducted for employment and licensing purposes?
Mr. KESSLER. It's noncriminal justice purposes, which we think
Mr. BARR. Is it to be for employment and licensing purposes which is the modifying language that has to do with that entire provision of the 1991 law?
Mr. KESSLER. No, sir.
Mr. BARR. Okay. I didn't think so.
Mr. KESSLER. Could I finish my statement?
Mr. BARR. Absolutely.
Page 86 PREV PAGE TOP OF DOC Mr. KESSLER. We think the FBI's NICS checks are part of the administration of a civil program to enforce gun laws. Thus, the fee statute allows the FBI to collect fees to recover the cost of providing NICS checksNICS name checks to the firearm licensee. That's the position we took on that. It's a noncriminal justice purpose. It's not a criminal purpose. It's for the purpose of determining whether or not a person can buy a gun.
Mr. BARR. But that is neither an employment nor a licensing purpose. That is the only authority under this particular provision of the Appropriations Act that you cite as the authoritythat the Bureau cites as the authority. I think it is an absolute defective reason. And I don't think that the Bureau has the authority to do this.
Mr. Chairman, could I ask unanimous consent for one further question?
Mr. MCCOLLUM. Without objection.
Mr. BARR. Thank you. Also, in your written statement but not in your oral statement you indicate that the Bureau intends to and is askingone reason why it is asking for this fee to run checks on what you identified as approximately 2.5 million pawn shop redemptions and 4 million gunsmith repairs annually where there is what you referred to as a temporary transfer of possession of a firearm. It is apparently now the Bureau's position that not only will it require the check and the fee or tax where there is a gun purchase, which is clearly I think we would agree, a point at which there is a transfer of possession, a transfer of title, to now include pawn shops and gunsmith repairs.
To my understanding now that whenever a person goes to redeem their gun from a pawn shop or to get it back from a gunsmith repair place that they will have to go through the background check and pay another one of the Bureau's taxes. Is this not a cannon? I hate to steal someone else's thunder, but one of the other witnesses in their written testimony indicates that this is like having to apply for a new registration on your car when you pick it up from having an oil check.
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There is noI mean unless the Bureau is arguing that at such point as a person redeems their gun from a pawn shop or gets back their gun after a legitimate gunsmith has worked on it that there is a transfer of possession or ownership, which would mean that at the point they gave it to the pawn shop or the gunsmith for repairs there was transfer of possession or ownership. Where is the authority for the Bureau, one, to consider that to be a transfer the same as a purchase from an FFL, and what is the basis for, if not simply to amass data on individual citizens for the purpose of requiring an additional background check at that point?
Mr. KESSLER. Congressman Barr, that has not been fully decided yet. The situation we're in is that those two situations were exempt under the interim provisions of Brady. But there's no such exemption provided in the permanent.
Mr. BARR. Does that mean that the FBI therefore interprets the law that they have the authority to do this which is in your written testimony?
Mr. KESSLER. Let me yield to Mr. Rathbun.
Mr. RATHBUN. What has occurred here is we've been working very closely with the Bureau of Alcohol, Tobacco and Firearms. They actually interpreted this section of the Brady Act on our behalf. ATF has published proposed regulations that call for a check in these instances. They are considering this to be a transfer of a firearm.
Mr. BARR. Does the FBI, a part of the Department of Justice, consider that to be a transfer of ownership? That would be a very interesting legal concept. Does the Department of Justice and the Bureau consider that to be a transfer of ownership when somebody pawns a gun and then reclaims it, or simply takes a firearm in to be repaired by a licensed gunsmith?
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Mr. RATHBUN. At the present time, we're yielding that question to the Treasury Department.
Mr. BARR. They said they agreed with you, so you must have a position on it.
Mr. RATHBUN. They agreed with us? I don't recall saying that.
Mr. BARR. I do. And I have it in the written testimony here, that this is the position of the Bureau.
Mr. RATHBUN. You will notice that in the statement, it says that these checks are not a part of the anticipated checks and that's because
Mr. BARR. Then why would they be in the record here for discussion?
Mr. RATHBUN. That's because the Treasury Department rule is not final and these may or may not end up being a part of the instant-check system. This is still under review by Treasury.
Mr. BARR. But the FBI believes that it has the authority to do this and it is seeking also to assess a user fee or a tax for every one of those transactions.
Page 89 PREV PAGE TOP OF DOC Mr. RATHBUN. If these are considered to be firearms transfers by the Treasury Department, then there would be a NICS check required and we would charge a user fee.
Mr. BARR. Is that the new definition by the Department of Justice and the FBI of what constitutes a legal transfer of ownership? Simply giving a piece of equipment, in this case a firearm, to somebody to perform a repair on it?
Mr. RATHBUN. To my knowledge, the Department of Justice and the FBI have not made a ruling on that. We are referring that to the Treasury Department.
Mr. BARR. Then why is it even in here?
Mr. RATHBUN. Because that may affect the number of checks that we're required to do.
Mr. BARR. Just in anticipation of this very broad authority and new legal concept of a transfer, you're asking for a fee for that purpose?
Mr. RATHBUN. We're suggesting that proposed rules by the Treasury Department would call for a NICS check in these instances, but we don't have a final ruling on that yet.
Mr. BARR. Thank you and I thank the Chair for its indulgence.
Page 90 PREV PAGE TOP OF DOC Mr. MCCOLLUM. Thank you, Mr. Barr. Mr. Hutchinson, you're recognized for 5 minutes.
Mr. HUTCHINSON. Thank you, Mr. Chairman. Mr. Kessler, you indicated that there was a formal audit or study done as to the cost and the need to implement a fee and how you arrived at this particular fee. Did this study that you cite indicate what would be the decline in purchase of firearms due to the increase in fees?
Mr. KESSLER. No, sir, that wasn't in the scope of their study. They were just looking at our methodology and the numbers that we were looking at. We provided them certain information. It was a financial audit.
Mr. HUTCHINSON. All right. You answered my question. I'm going to try to ask you a series of questions so I want you to answer completely. But let me go ahead and move on to some other questions.
Have you considered that there will be a decline of consumer use of firearms because of what I consider a significant fee that would be attached to the purchase of the firearm?
Mr. KESSLER. That's certainly possible.
Mr. HUTCHINSON. But has that been factored in to your studies? You say the answer is no?
Page 91 PREV PAGE TOP OF DOC Mr. KESSLER. Yes, sir.
Mr. HUTCHINSON. This fee is basically for access to the NCIC and for the FBI's labor in conducting that instant-check?
Mr. KESSLER. Yes, sir.
Mr. HUTCHINSON. Are there other fees attached to access to the NCIC? I mean every State utilizes the NCIC program and law enforcement uses it day in and day out. Are there fees associated with other access to the NCIC?
Mr. RATHBUN. The computer systems that we operate for the benefit of law enforcement are provided at no charge. The FBI pays for the computers, the communications, and then the State picks up the cost of the terminals within the State. But the FBI has no charge for providing those computers services.
In this particular case, where we're talking about the fee structure as proposed, it's not for the use of NCIC or the computers because we will continue to offer those services free of charge to those States who take the telephone calls and do the checks on behalf of the dealers. The fee is to cover the cost of the FBI receiving that telephone call from the dealer, analyzing the records, determining whether the person is eligible or not eligible
Mr. HUTCHINSON. It has to be done instantaneously so that person who receives the call then will access the NCIC and any other records that are based upon a computer data base so they can give a response immediately. That's the whole idea, isn't it?
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Mr. RATHBUN. That's correct. The fee will cover the cost for that individual, the telephone call, the terminal to make the access
Mr. HUTCHINSON. How does that $13 to $16 fee compare with what the States are charging for their fee? Mr. Kessler?
Mr. KESSLER. Mr. Rathbun has done some studies on that. I mean, there's a variety of fees and there's some that are very comparable to that $16 fee.
Mr. HUTCHINSON. Are there some States who do not charge a fee?
Mr. RATHBUN. I don't know of any. There may be.
Mr. HUTCHINSON. I think the average is $9.00, Mr. Barr indicated. Your concern is that if you have a $9.00 fee or a $8.00 fee, or if we appropriate the money, then it will simply increase the utilization of the FBI resources and the States would not do it themselves?
Mr. KESSLER. Yes, sir.
Mr. HUTCHINSON. Well it's a Federal mandate to begin with. I really don't personally see any problem with that. I mean if we appropriate the money, if we provide the resources through Congress and the FBI does that and, certainly, States who are presently charging would probably do away with that and utilize the FBI system. That's what you would anticipate?
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Mr. KESSLER. Yes, sir.
Mr. HUTCHINSON. Did you all consider that possibility or that alternative and look at a budget figure that would be necessary in that alternative?
Mr. KESSLER. Well, we've been following the concept of operations that I've indicated we've built with all these States and a lot of participation in this thing. Based on that, we feel that we'd rather have the States, of course. They have the best records to do it.
We can do it if you appropriate the funds for us to do them all, but you've go to remember November 30 is not that far off. We have been building this thing for years based on this concept of operations. If we change the rules at the last minute, November 30 is going to be difficult for us to meet because we're going to have to hire so many more people and have more room, more desks and everything that goes with it
Mr. HUTCHINSON. Well, I
Mr. KESSLER. We can do it with appropriations but the timing is the factor.
Mr. HUTCHINSON. Well, I understand that this has got a long history, but was that an alternative that was considered? Did you just immediately go to the fee system or did you consider other alternatives?
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Mr. RATHBUN. I can give you a very brief history
Mr. HUTCHINSON. Just give me an answer. How about a brief answer instead of a brief history? [Laughter.]
Mr. RATHBUN. The brief answer would be that originally our advisors from the States said that virtually all States would do the checks and the FBI would do almost none. As the years progressed and in August of last year, it was determined that we were going to do probably half the checks. That's when the fee system came into discussion.
Mr. HUTCHINSON. Without discussion about the budget alternative?
Mr. RATHBUN. That's correct. It was August of last year.
Mr. HUTCHINSON. Finally, if I could ask one more question, Mr. Chairman?
The States that are presently doing the instant-checkare some of these programs the States are implementing based upon a Federal grant? Are they also getting Federal money for the State program of instant-check?
Mr. KESSLER. I don't believe they are, sir.
Page 95 PREV PAGE TOP OF DOC Mr. HUTCHINSON. So they're doing it based upon the fee?
Mr. KESSLER. Yes, sir.
Mr. HUTCHINSON. So they're justthe States are able to do it for $9.00 on the average and we're asking for $13.00 to $16.00?
Mr. KESSLER. Yes, sir.
Mr. HUTCHINSON. Is that just reflecting the inefficiencies of the Federal Government versus the State government?
Mr. KESSLER. No, it reflects
Mr. HUTCHINSON. You say they do it better.
Mr. KESSLER. It reflects volume and, of course, establishing the call center and the overhead associated with searching all these databases and having to do dispositions. They have dispositions right at their fingertips. We're going to have to be on the telephone calling around the country to get disposition.
Mr. HUTCHINSON. Was there consideration to give grants to the States to implement that when they can do it in a more cost-effective fashion?
Mr. MCCOLLUM. Your microphone needs to be on Dr. Chaiken.
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Mr. CHAIKEN. I'm Jan Chaiken at the Bureau of Justice Statistics. We administer these grants to the States. We've provided funding to all the States to build the data systems to do these kinds of checks. But there hasn't been any Federal support to the actual activity that the FBI is talking about, answering the telephones from licensed firearms dealers and looking at the records and deciding whether, in this instance, there is disqualifying information or not
Mr. HUTCHINSON. My time has expired and I appreciate the patience of the chairman. Thank you Mr. Chairman.
Mr. MCCOLLUM. You're welcome, Mr. Hutchison.
But Dr. Chaiken, I think you still wanted to add to that. Please do, but you need to pull that microphone up to you if you would. I want to get the complete answer here. I know Mr. Hutchinson's time is up, but you were adding more and I think we need to put it in the record.
Mr. CHAIKEN. Currently, under the interim Brady system, every State makes checks. It was mentioned that a number plan to continue making the Statesthe checks at the State level after the FBI's instant-check system is in place.
There are various ways that the States recover the costs.
We publish a report regularly on the procedures used in States for firearms sales and firearms checks. So I have here in front of me, for example, Ohio is an instant-check State and they chargethey have a 1900 number so that means already when the firearms dealer is on the phone, they're experiencing a telephone charge. And then, on top of that, they have a %15.00 fee.
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In the State of Florida, they have an instant-check system. They also have a 3-day waiting period. So, in case of any indication that there may be a record, the people who receive these phone calls have 3 days to look into it. It's not the same as having to try to figure this out immediately. They charge an $8.00 fee for each background check in Florida.
So the States handle it differently, but currently every State does these checks and they do not receive any Federal funding for actually carrying out the checks
Mr. MCCOLLUM. Thank you, Dr. Chaiken. Mr. Gekas, you're recognized.
Mr. GEKAS. I thank the Chair. I was just reviewing the debate that we had back on November 10, 1993 on the floor when I offered my amendment. I, in my optimism, was saying at the time, I quote from myI'm quoting me. So what are we talking about here? ''If my amendment is adopted we'll have a 5-day waiting period'' and so forth. ''Then we have a time-certain 60 months within which the instant-check system must go into to effect.'' Then I go on to say that Mr. Brooks and others thought that maybe 48 months would be sufficient. Others thought 30 months. But we settled on 60 months because we felt certain from all indications that, my gosh, it would be nothing to prevent full implementation in 5 years from November 10, 1993.
I believe that what has happened here is that the instant-check concept is being strangled, either deliberately or by negligent administration of the mandate of the Congress from November 10, 1993. I'm very worried about that.
Page 98 PREV PAGE TOP OF DOC Mr. Kessler, how long have you been working on this?
Mr. KESSLER. Well, I've been Section Chief out there for 2 years, but I've been involved in the fingerprint operations. In connection with that, peripherally involved in the NICS. I've been assigned now, starting next Monday, as a Section Chief for NICS to take the product that's being developed and put it into effect November 30th.
Mr. Rathbun has been involved as a unit chief for this for a considerable period of time. So he has more in-depth, detailed knowledge of the historical basis which I have tried to capture in the last couple of weeks.
Mr. GEKAS. Well after November 10, 1993, the date of thewell that was the date of the argument on the floorso it was shortly thereafter, after conference that the bill was actually signed into law, but we say November 1993. Was somebody put in charge immediately, like December 1993? Do you know that?
Mr. KESSLER. Sir, if I could yield to Mr. Rathbun? He has the historical basis on this better than me.
Mr. GEKAS. That's all right with me.
Mr. RATHBUN. Yes, Congressman. I was involved in the project at that timebeginning at that time, along with others in the FBI. So, I've been with the project since the beginning.
Page 99 PREV PAGE TOP OF DOC Mr. GEKAS. You mean from December 1993?
Mr. RATHBUN. That's correct.
Mr. GEKAS. And now at this stage when we come down to the 60th month, which we thought was a rich a period within which this could be accomplished, we're not ready.
In answer to some of the questions that were posed by the chairman and by the gentleman from Georgia, Mr. Barr, I got the impression that even if we appropriated the money or even if the fee were adopted that you're requesting, that you couldn't get it going by November 30, 1998
Mr. KESSLER. No, sir. That's not what I said. I said that based on our concept of operations which involves a fee, we will be up and running November 30th. We're on schedule. We're going to deliver.
Mr. GEKAS. Well then, what's the difference between that and an appropriation to cover the needed expenditures that you will encounter?
Mr. KESSLER. The issue is as we discussed earlier. We've based this concept of operations on a certain number of States who would do their own checks with the user fee. If we take the user fee away and the checks are free at the FBI, I would think that virtually every State was going to yield and say do your check at the FBI.
Page 100 PREV PAGE TOP OF DOC So the volumewe've prepared for about 4 million. Our volume, it could go up to 12 million and we weren't prepared for that.
Mr. GEKAS. In other words, you're telling me that the preparation that was begun in December 1993 that eventually you're going to do for a fee so that you wouldn't need the appropriations and be swamped with the number of requests? Is that what we're saying here?
Mr. KESSLER. Initially, it is my understanding that our initial concept was that all the States would do these checks themselves. And that we wouldn't even be involved in itjust to oversee putting the database together. That was the original concept. It's evolved to the other side of that, quite frankly, where more States are pulling out and saying FBI, you do the check.
Mr. GEKAS. What would happen if we granted the fee and then you would feel that you could implement it by the end of November of this year. Then a citizens' group or individuals or a class action suit or some kind of legal action is brought against the FBI, claiming that this is an illegal fee that is being charged? I'm giving you a hypothetical. And either a supersedeas, a stay of some kind is placed on the FBI's effort and so forth. Are we left without an instant-check system?
Mr. KESSLER. I guess the system and the legal system would have to determine that, sir. I couldn't determine that.
Mr. GEKAS. I posed that not because I was anxious for a definitive answer but I'm afraid that everything is militating against the implementation of the instant-check which is so important to so many people.
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I'm terribly worried about this, Mr. Chairman. Mr. Chairman?
Mr. MCCOLLUM. Yes.
Mr. GEKAS. I think that it requires further inquiry by this committee. I know you have been diligent and will continue to be diligent in monitoring this.
This seems to be a insoluble problem. How are we going have this implemented by Novemberthe end of November 1998, if the FBI is not ready?
Mr. MCCOLLUM. The answer, I think, that Mr. Kessler has given, is that it's not going to be implemented unless the fee system they propose is permitted to go forward.
Mr. GEKAS. I understand that
Mr. KESSLER. It's as simple as that.
Mr. MCCOLLUM. If it's not, then we're back in a quagmire again for a period of time.
Mr. GEKAS. I thank the Chair.
Mr. MCCOLLUM. Thank you, Mr. Gekas.
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I'm going to take another round here and let Mr. Barryou can have some more time if you wish or anyone else who comes in. But there are some unanswered questions for the panel that I think we need to answer.
Why does the FBI, Mr. Kessler, propose to keep records of persons not prohibited from purchasing a firearm for 18 months?
Mr. KESSLER. Mr. Chairman, they're several reasons that we'd like to keep these records beyond the instant-check time of getting rid of them. We need some ability to perform some audits of the use of the system because, quite frankly, there are situations where there are abuses of the system. People use these systems illegally to obtain information.
Now, in this case, they can't obtain specific information, but they can obtain whether or not they have something that would cause them to not be able to buy the firearm on site, some delay. So in that regard, if you take away the ability to maintain these records for some period of time, you take away any evidence of a possible crime. Number one.
In addition, of course, with a user fee the financial audit essentially would be taken away because you wouldn't be able to go back to the specific transactions. You'd be auditing a very broader spectrum.
And another point is the fact that as we have this in our fingerprint operation todayand that's a quality control review procedure to make sure our employees are doing the right things. In this case, we want that ability to go back and evaluate our employees to make sure that, based on the information they got, that they made the right call because we want this system to be flawless. When you have people involved, there is an element sometimes that would cause it to make mistakes. We all make mistakes. In that regard, we need some sort of time to have a quality control review of those procedures.
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And you know, quite frankly, we need the ability to investigate misuses. And that's all it is. Eighteen months is the time that we think is reasonable in order to accomplish that.
Mr. MCCOLLUM. Well, Mr. Kessler, it seems to me that if somebody has been approved for a sale of a gun, as opposed to disqualified, there isn't any real reason other than the audit trail that you talked about to keep those records. There is no real reason that I can see to maintain records that the very nature of keeping becomes controversial, as you can imagine in this whole context.
If, indeed, there is a period of time you need to double check your own people, some system would be developed, I'm sure, to do this in a matter of weeks rather than in a matter of months. I think that's something which needs to be re-examined.
I hate to see us having to legislate on that kind of a deal, but it is terribly controversial to go into recordkeeping relevant to guns, as you know, and 18 months is a long time for the purposes you've described.
Dr. Chaiken, do you know what the States currently do in this regard? Do States keep records of people who come in and purchase guns in any way, shape, or form other than the people who are maybe disqualified? I mean, I can see if you're disqualified, because then you committed a felony or something like that, and that's why you probably keep a record. But if somebody comes in and they're approved for the purchase of gun, they go in and ordinarily buy a gun, they pay whatever fee they pay, I presume they pay for it right on the spotI don't know what kind of records we're talking about. What do States do?
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Mr. CHAIKEN. Under the current interim Brady provisions, the federally-licensed firearms dealer has to obtain a filled-outone of these forms that is used for the background check and they retain that record.
At the local law enforcement agency, the CLEO that actually carries out the check, they do not retain the records of people who are qualified to purchase guns as far as I know. Most of then do retain the ones that are disqualified, mainly because that simplifies them doing the check if this person persists and tries to buy a gun at another place, they don't have to repeat the same exercise. They've retained the information that this person is disqualified.
Mr. MCCOLLUM. The check you're talking about under the Brady Act, where the form is filled out, that's kept at the dealer, isn't it?
Mr. CHAIKEN. Yes, that's kept by the dealer.
Mr. MCCOLLUM. Mr. Kessler, do you propose these records that you're going to retain be retained at the FBI or at the dealer?
Mr. KESSLER. Well, the records themselves will still be at the firearms licensee. We would just have a pointer if we had a problem and we wanted to go back and audit those. ATF does that audit and determines whether or not there are any abuses.
I want to cite one possible example. If I go in to buy a gun and I've got a clean record and walk out with a gun, and the firearms licenseethe next person, a friend walks in and says, well I want to buy a gun too, he runs his check and it doesn't go through. Well, I'll just go ahead and use this guy that was in here a few minutes ago and run his through again and give you the gun. I mean, these are the situations, they may be few and far between, but these are violations of the law that we're trying to prevent. If you take away this ability to keep records, we have difficulty going back and gathering the evidence necessary to bring criminal actions. And that's all were going for.
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The ATF when they do their audits, they're going to have to go back to the licensees to get the names. But we'd only access those in instances where we're doing a criminal investigation.
Mr. MCCOLLUM. Well, I understand that's what your intent would be. And I don't, in any way, wish to cast dispersions upon it. I just want to point out the fact that we're constantly trying to balance the rights of privacy, the concerns of government documentation of the right to bear arms, with the interest of trying to prohibit the criminal from trying to purchase a gun.
And while the persons may be committing a scam, I think the problem we've got, frankly, with the whole instant-check system, which I favor, is the fact that this is still predicated upon a name check where fraud can be rampant. And I know that it's the best you've got at the moment, but we have the technology today, actually, to do the test or the check with fingerprints. I know we have that. It's a very expensive thing, apparently, to get it up and running. And I would think that's the next stage we'd want to go to. That would be the ultimate thing, where you go in, put your finger on that little machine we all know exists, and it checks immediately to see if the files show the fingerprint records. My understanding of the problem with that, you explain to me if I'm wrong, is that there simply isn't a database sufficient, currently, of the fingerprints to go back and do that kind of a check. Is that not the problem with that particular improvement in this process?
Mr. KESSLER. The Integrated Automated Fingerprint Identification System, known as IAFIS, is on schedule to be on line in July 1999, approximately 1 year from now. In that regard, we're going to be processing fingerprints electronically. They'll be submitted electronically, they'll be searched electronically, and we'll have some capabilities, in that regard, to possibly implement some of these checks using fingerprints.
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Mr. MCCOLLUM. Will we be able to access that system for this purpose in any reasonable period of time after it goes on line in 1999?
Mr. KESSLER. I would hope so. We want to get it up and running for the vast majority of the 10-print system first to make sure that it works. We're confident it's going to work and it's a very progressive thing and we're changing the way we've done business since 1924 in fingerprints. That's where I've been involved heavily for the last 2 years, in the operational aspects of that in transitioning that into the IAFIS arena.
Mr. MCCOLLUM. Well, I just
Mr. KESSLER. We're using some of that technology already.
Mr. MCCOLLUM [continuing]. Want to state for the record that since 1988, I've been pushing for that process. I believe that is the true instant-check system. I think that is the one that works. I think the name-check sounds great. I've always believed that it sounds great. I also believe you miss the vast majority of criminals that way.
It's a prettyI know there are some pretty stupid criminals. But it's a pretty stupid guy that goes in and gives his real name when he goes to buy the gun if he's a criminal. So I suspect that even with thisall this work we're doing, that we're not going to begin to screen out the criminals that go to buy guns.
And that's one reason why I am particularly concerned about the audit-keeping and the 18 month period because I think the world and universe of criminals you're going to block from getting guns in the first place with this name check is relatively small. And then the number of people, as you've described yourself, who are committing crimes in the process of doing this in the technical paperwork you're describing is even much smaller. The perceptions, and the price, and cost to the public in terms of the idea of the government keeping records like this is just an enormously heavy price, which I think is neither a viable nor a practical thing to do for individuals rights as they are rightfully seen under the Constitution.
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But anyway, that's my view. Mr. Barr, I yield to you for a second round, 5 minutes.
Mr. BARR. Thank you Mr. Chairman. I'd like to do two things. One, is to reemphasize for the record and for the distinguished witnesses from the Bureau that I think part of the concern that Mr. Gekas hasand he participated in that debate over the Brady bill, I was not in Congress at the time and did not, but I have from time to time, reviewed the record of that case and have at least a passing familiarity with it, as I know you have a very extensive familiarity with it, Mr. Kessler. We also know that Congress has not only authorized, but appropriated fairly significant sums of money since then for the very purpose of having this instant-check system ready to be in place and operational based on the anticipated demand later this year.
I don't recall anything in the record of the debate over Brady and the legislative history that indicated that it contemplated that the only basis on which it would work and the only basis on which moneys were appropriated and authorized for its implementation was based on the gun purchaser having to pay a fee or tax at the time of purchase. There was, in fact, a debate about that; that was something that was considered, and the law did not provide for it. I think you all would be on much stronger ground if there were some legislative record in support of your position, but it's not there. The system did not contemplate that the only way it would work 5 years from the point that it was implemented by law, would be if the States were authorizedor not the Statesbut if the Federal Government were to be able to tax or charge a user fee at that point. The record does not reflect that, and the statutes did not provide that express authority, and I don't think that you would be successful in arguing to a court, successfully, that the language in the 1991 appropriations bill would provide the authority to do that.
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I would like to follow up, also, on the line of questioning that the distinguished chairman was just going into. There are, in fact, two specific Federal lawsthis is, not legislative history; these are Federal lawsthe Firearms Owners Protection Act of 1986 and specific provisions of the Brady law that expressly prohibit the Federal Government from maintaining the very sorts of records that you are proposing to maintain for 18 months. These are not records on persons with a criminal history or one of the other disabling factors which would preclude them from being able to purchase that firearm. These are the other, very large categories you've identified. Ninety-eight percentand the figure may be even higher, but let's take your figure98 percent of people would fall into this category that the Bureau would now be maintaining records on them by name for 18 months, that they own firearms, and this is, I believe, directly contrary to the Firearms Owners Protection Act of 1986 as well as provisions of the Brady law, which expressly prohibit the Federal Government from maintaining these sorts of records.
Now, the legislation that I have introduced and that we're considering today, provides authority to maintain that information, again, on the law-abiding citizen, one who does not suffer from a disability of preventing them from taking possession and ownership of that firearm, to maintain that information for 24 hours. I happen to think that's very generous, because I'm not sure there's any reason to keep it for any time at all. And to say that the government will start compiling this information on law-abiding citizens exercising their Second Amendment right is to protect the public, I think it's hard to say that with a straight face. Any information, then, at all, that is provided to the government, would come under the rubric of having to keep it so that there mightat some point in the future, the government might have a need for it.
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There is, is there not, sufficient information to audit the proper compliance with the law, both as it exists now as well as how it will exist in the Instant-Check System, without all of this additional identifying, personally identifying information on the law-abiding citizen. What specifically is the purpose and under what legal authority in the face of these two laws that expressly prohibits what the Bureau is proposing to do is the authority on which the Bureau is coming forward with this proposal?
Mr. KESSLER. I'd like to yield that to Mr. Rathbum.
Mr. RATHBUM. We couldn't agree more that the Brady Act prohibits the establishment of a registry of firearms purchasers. In the interim provision of the Brady Act, it specifically requires that the chief law enforcement officer destroy any such record within 20 business days. The permanent provision of the Brady Act which establishes the Instant-Check has no such provision, but what the law says in that regard is that the records to prove sales will be destroyed. But it does not mandate a 20 business day, or any other
Mr. BARR. But it does have prohibitory language regarding the retention of records, such records and registry, does it not, the same as the Firearms Owners Protection Act?
Mr. RATHBUM. And since there's no specific
Mr. BARR. Does it not?
Page 110 PREV PAGE TOP OF DOC Mr. RATHBUM. Yes. And since there's no specific timeframe specified in the permanent provision as compared to the interim, we have taken the position that we can maintain those records for administrative purposes for a reasonable period of time.
Mr. BARR. Eighteen months is a reasonable period of time?
Mr. RATHBUM. That's debatable.
Mr. MCCOLLUM. Mr. Barr, Mr. Buyer is here, your time is up, and we've got to go vote in a minute, so I'd like to yield him a little bit of time, we probably have 2 or 3 minutes
Mr. BARR. Can I ask unanimous consent to include in the record the December 1997 letter from the Bureau that I referenced earlier?
Mr. MCCOLLUM. Without objection, sir.
Mr. BARR. Thank you.
[The information referred to follows:]
Major JEFFREY HARMON,
|U.S. Department of Justice,|
|Federal Bureau of Investigation,|
|Criminal Justice Information|
| Services Division|
|Clarksburg, WV, December 12, 1997.|
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Maine State Police,
DEAR MAJOR HARMON: This responds to your telephone conversation with Mr. Chuck Emerson, CTA support contractor, regarding whether the Federal Bureau of Investigation (FBI) is providing a mechanism by which a Federal Firearms Licensee (FFL) may contact the National Instant Criminal Background Check System (NICS) other than by contacting the FBI directly and whether the FBI has legal authority to charge a user fee to FFLs for processing NICS background checks.
The NICS is being established pursuant to the Brady Handgun Violence Prevention Act, Public Law No. 103159, 107 Stat. 1506 (1993). The FBI has developed a Concept of Operations for the NICS, approved by the Attorney General, which allows for and encourages state or local law enforcement agencies to voluntarily serve as points of contact (POCs) for the NICS. The POCs will receive an inquiry from an FFL, initiate a NICS background check, check state or local record systems (including criminal justice databases) for disqualifying records, and provide a response back to the FFL. FFLs in these states will be required to contact the POC, rather than the FBI, to request a NICS background check. In states without POCs, FFLs will contact the FBI to request a NICS background check.
In addition, FFLs that contact the FBI directly to initiate a NICS background check, either by telephone or electronic means, will be assessed a fee. The Appropriations Act for the Departments of Commerce, Justice and State for Fiscal Year 1991, Pub. L. No. 101 515, 104 Stat. 2113 (1990), provides legal authority for the FBI to charge a fee for name checks for non-criminal justice purposes. NICS background checks are requested by gun dealers, not to investigate violations of criminal laws, but as part of the administration of a civil program to enforce the law. Accordingly, since NICS checks are performed for a non-criminal justice purpose, the FBI may charge gun dealers a fee for processing NICS background checks.
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If you have any additional questions, please contact me on (304) 6252740.
|Demery R. Bishop, Section Chief|
|Programs Development Section.|
Mr. MCCOLLUM. Mr. Buyer?
Mr. BUYER. Thank you, Mr. Chairman. I apologize for my tardiness. I attended the funeral this morning of General Pennington, who was the president of the Uniformed Services Association. He was a true warrior. He served our country in World War II, Korea, and Vietnam, and had six bronze stars.
I just have two quick questions. One, is the area in Bradyabout $200 million was appropriated in Bradyto improve the State criminal history records and to get the National Instant-Check System fully functional by November 1998. This funding is in addition to nearly $30 million provided the States from 1991 to 1993, and the earmarked funding distributed since 1990. My question to you is, how much of that money has the FBI received, and, as accurately as possible, what was it used for? Also, how much of it was used by the States, and did all the States receive equal amounts? If they did or did not, why and why not? And if you have that breakdown of the funding by States?
Mr. CHAIKEN. I'm Jan Chaiken. I Director of the Bureau of Justice Statistics that administers these grants. There was a total of $200 million appropriated under Brady, and we established a grant program, an umbrella program, which includes Brady law and the Child Protection Act, and other sources of funding for criminal history improvement. So far, the current program announcement for the latest year's appropriations is now being responded to by the designated people in the States. So far, $162 million has been awarded to the States under this program, and the remainder will be awarded this Fiscal Year, and $6 million was transferred to the FBI for building the NICS.
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We check, from time to time, the FBI expenditures on that account, and as of January of this year, they had expended about $781,000, which was mostly for the planning of this architecture that was described to you, and they intended, at that time, the next major purchases were going to be for the telephone systems and the office equipment, and so forth. So, as was mentioned, the cost of the NICS has to do with the infrastructure of the workstations, the desks, chairs, and so forth, but not the actual criminal history records, which is funded through developments in the States.
Mr. BUYER. I know we're almost out of time, Mr. Chairman. If you would help follow up for us, for the committee, so we can have an understanding of what the States arewhat you've distributed to the States, and what, in fact, they are spending the monies for?
[The information referred to follows:]
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Mr. BUYER. I want to move to the instant-check system. I voted against Brady, and I want to move to that system. When we appropriated a lot of monies, we thought that those were amounts sufficient to, in fact, bring that instant-check system. So when I hear now that there are more demands for more money, we want to become comfortable about for what, why, and what does the FBI need? So you can be helpful to us in that process. I'd appreciate it.
Mr. CHAIKEN. We believe we have brought the States' records systems to the point that they can interact with the NICS and provide the necessary records. It was not envisioned that these funds cover the actual answering of the phones, which is under discussion here today.
Mr. MCCOLLUM. Thank you, Mr. Buyer. I want to thank the entire panel.
Mr. Kessler, as we depart here, I would appreciate it if you, in the next few days, could canvass the States to see if you could determine, from at least their opinion, which ones would continue to go forward if we paidappropriatedthe monies that you would otherwise charge fees for, and which ones would drop out. And, if you can, then, based on that, give us some kind of cost estimate of what it would be for replacing the fees, and what kind of time delays, if any, would there be involving the probability of getting this program under way.
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Mr. MCCOLLUM. And, again, we want to thank the entire panel. We're going to have to be recessed for this vote now; we're going to excuse this panel. The next panel will be called as soon as we get back, but it appears we have a series of votes and I'm expecting it will be after 12 o'clock. So we can alert you, we will not reconvenewhy don't you grab lunchfor sure until noon, and as soon thereafter we will get started. This hearing is in recess.
Mr. GEKAS [presiding]. We must have at least two members present to constitute a hearing quorum; we will recess until the appearance of a second member. What I've done here for those of you who have been following proceedings around here, is to continue my pattern of beginning each hearing in which I'm responsible for the gavel on time. Most of the time, though, I've only had to recess until another member should appear, and we've done that again. So unless somebody wants to sing, or to entertain us otherwise, we will gavel down until another member appears.
Mr. GEKAS. With the presence now of the gentleman from Georgia, Mr. Barr, we have a hearing quorum intact and we can welcome the witnesses from the final panel for their testimony.
This panel consists, first, on behalf of the NRA, Tanya Metaksa. Mrs. Metaksa has been the executive director of the NRA's institute for legislative action since 1994 and is the author of the book Safe, Not Sorry. She previously served as the Chair of the NRA's Women's Policies Committee, and, in recognition of her work, she recently won the NRA's Cybil Leddington Women's Freedom award. Parenthetically, I would say that if Mrs. Metaksa wants to run for office, we hope that it's not central Pennsylvania.
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Next we'll hear from Grover Norquistis Grover here? I don't see him. All right, we'll skip Grover for the moment. James Baker, on behalf of the firearms manufacturers. Mr. Baker has been the Washington representative, Sporting Arms and Ammunition Manufacturers Institute, since 1994.
We'll also hear from Lieutenant Colonel Cynthia Smith, from the Maryland State Police Department. Lieutenant Colonel Smith has been a law enforcement officer with the Maryland State Police since January 1982 and has served in a variety of operational administrative capacities. She currently serves as bureau chief of Drug and Criminal Enforcement for the Maryland State Police Department.
Joining us also, as the last witness, is Lieutenant Robert Kemmler, assistant records management officer of the Virginia Department of State Police. Lieutenant Kemmler is an 18-year veteran of the Virginia State Police and spent 16 of those years serving in a variety of capacities for the Virginia Bureau of Criminal Investigation.
And now Grover has joined us. Mr. Norquist is president of the Americans for Tax Reform, a coalition of taxpayer groups opposed to higher taxes at the Federal and State levels. Along with his responsibilities at ATR, Mr. Norquist serves on the National Commission on the Restructuring the Internal Revenue Service. He also writes a monthly column, Politics, for the American Spectator.
With that, we'll ask each witness to try to conform to the 5-minute rule that we impose regularly on such panels, and we will say at the outset that their written statements, each one of them, will be, without objection, made a part of the record, and we'll ask that each of you summarize that written statement during the time allotted. And then, if you wishwhether you wish or notwe want to ask you some questions. So we'll begin with Mrs. Metaksa.
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STATEMENT OF TANYA METAKSA, EXECUTIVE DIRECTOR, NRA INSTITUTE FOR LEGISLATIVE ACTION
Ms. METAKSA. Thank you, Congressman Gekas, and members of the subcommittee, for inviting me to testify in support of the No Gun Tax of 1998 introduced by the gentlemen from Georgia, Mr. Barr. I'm also submitting two attachments, NRA's comments on the implementation of the Brady Act, which we sent to the ATF, and a letter to the Justice Department, requesting information on guns that are redeemed from pawnbrokers or from a gun-repair facility that we have just made available today. Thank you, sir.
Mr. GEKAS. They will be included in the record.
[The information referred to follows:]
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Mr. WALFRED A. NELSON, Chief,
|National Rifle Association of America,|
|Institute for Legislative Action,|
|Fairfax, VA, June 10, 1998.|
Firearms and Explosives Division,
Bureau of Alcohol, Tobacco and Firearms
Department of the Treasury, Washington, DC.
RE: NICS, pawnbrokers, and gun repairs.
DEAR MR. NELSON: We understand that there is much confusion concerning the Bureau of Alcohol, Tobacco and Firearms' (ATF) intended policy concerning whether firearms owners must undergo a NICS check when their firearm is returned to them after being redeemed from a pawnbroker, or after it is sent for repair to a gunsmith, gun dealer or manufacturer. Since the implementation of the instant check program is on a fast track, this letter requests ATF's position on this matter in writing, by close of business, June 17, 1998.
It is clear from the Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, proposed notice of rulemaking regarding the implementation of the national instant criminal background check system (''NICS''), as outlined in the February 19, 1998 Federal Register Notice that the ATF interprets §922(t) to apply to the redemption of a pawned firearm. To justify this interpretation, ATF notes that the statutory language of §922(t) does not include the exemption for handguns ''(other than the return of a handgun to the person from whom it was received.)'' While this is true, such language is not legally necessary in §922(t). The reason is that a pawned firearm is not ''transferred'' to the pawnbroker. A pawned firearm does not change title or ownership, but is merely held as collateral for a loan; since the firearm is still owned, but not physically possessed, by the person who pawned it, no background check should be required for its return following the repayment of the loan. Obviously, if it is not redeemed, it becomes a part of the pawnbroker/FFL's business inventory and a check would be required on any subsequent sale or transfer.
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We also object to ATF attempting to apply NICS to the return of a firearm worked on by a gunsmith or repaired by a factory. Although the statutory language of §922(s) specifically included an exemption from the five day waiting period for handguns which were returned to the person from whom it was received, the five day Brady waiting period applied to handguns which Federal firearms licensees (FFLs) ''sell, deliver, or transfer''. In contrast, the implementation of NICS as outlined in §922(t) applied only to a firearms ''transfer''. There is no transfer of a firearm involved in the situation where, for example, a firearms owner returns his firearm to the manufacturer, under warranty, for repair. The ownership of, and title to, a firearm submitted for repair never changes, and therefore no background check should be required for a return of a person's personal property.
Thank you for your expeditious handling of this request.
|Tanya K. Metaksa, Executive Director.|
Ms. METAKSA. I represent the nearly 3 million members of the National Rifle Association. Our members come from all walks of life and from all levels of society. I can certainly testify to you from my personal experience, having answered my phone, and read my e-mail and other mail, that our members were extraordinarily unhappy when press accounts began to appear about the FBI's plan to charge a ''user fee'' for background checks conducted under the Brady Act's permanent Instant Check System. As you've heard today, they've had good reason to be concerned. We believe the proposed fee is nothing less than a Federal gun tax on the exercise of second Amendment rights by law-abiding Americans. It is unauthorized by any applicable law, and it will have its greatest impact on low-income Americans and on funding for State conservation programs.
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As you know, Mr. Chairman, the NRA was very closely involved with you in drafting the Brady Act's language concerning the Instant Check System. During these discussions, the idea of charging a fee for background checks was not only considered but rejected on the basis that identifying the rare criminal or other prohibited person who attempts a commercial gun purchase is a public good, and paying for it a public responsibility. As a result, there is no language authorizing the charging of a fee, nor have Brady Act supporters ever tried to amend the act in the last 5 years to allow for such a fee.
Instead, as we've seen, the FBI points to an appropriations statute passed before the Brady Act, in 1991. We believe that the 1991 language the FBI cites couldn't have been intended to allow for a fee under an act that wasnt passed until two to 3 years later.
But the real question is, who will bear the burden of this gun tax? At the individual level, it will fall most heavily on ordinary working Americans of modest means. For many Americans, including some who must hunt for subsistence rather than for sport, as well as those most vulnerable to crime and most sorely in need of firearms for self-defense, a tax of $1330 will be a prohibitive addition to the cost of a simple, affordable hunting rifle or self-defense handgun.
Beyond that, the added cost will likely have an adverse effect on the overall level of gun sales, which will be a major drain on the funds collected through the Pittman-Robertson excise tax. That tax, which gun owners have willingly paid for over 60 years, funds State fish and game agencies and wildlife conservation programs which could well suffer from the imposition of this new tax.
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And, finally, we have concerns about the administrative and jurisdictional grounds of the tax. We believe the FBI has conjured the authority to levy a tax. Since it derives the authority for the tax from its imagination, only imagination limits the tax we will be charged today, and how much more we may be charged tomorrow.
Moreover, the FBI has also created the authority to obtain and retain the taxes collected directly, rather than transfer the funds to the general revenue of the Department of the Treasury. The FBI is a highly respected law enforcement team; it is not, however, the U.S. Congress. If the agency perceives a need for a budget increase, or perceives a need to have fees for this effort, it should make its case before Congress, and not start collecting new taxes from American gun owners.
Also, I'd like to mention another concern that is included in my appendix 2. It is a troubling concern. At some of the Federal seminars and again today, I have heard from licenses and read in the testimony of the FBI that licensees have been told that a background check will be required for returns of firearms to their owners, both by pawnbrokers and by gunsmiths. The law states that a background check is required for a transfer of a firearm, yet in these cases there is no change in title or ownership; that is, no transfer. A pawned firearm is still owned by the individual while it is held as collateral for a loan. And, of course, a firearm that is brought to a gunsmith or sent back to a factory for customization or repair is still owned by the individual who wants the work done. It is a legal absurdity to say that a gun owner who sends a defective firearm back to the factory or brings a gun to his local gunsmith for a minor repair has performed a transfer, for the purposes of the gun control act, and should have to undergo a background check just to get his property back. To charge a fee in this situation just adds insult to injury.
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I would like also to turn to the second section of Representative Barr's bill, which would forbid the FBI to retain records of approved checks. As I said earlier, NRA worked very closely with the Subcommittee on Crime during the drafting of the Brady Act, and I'm sure many of the members of the subcommittee remember that maintaining the privacy of gun owners was of paramount importance to us and to you, then, and we believe it still is now. For that reason, the Brady Act clearly states that upon approval of a firearms transaction, the instant-check system shall destroy all records, and that is under the law. It doesn't say that records can be maintained for 18 months. This is consistent with other provisions of Federal law, and we believe it should stay that way.
Even more outrageously, the FBI is proposing to violate the Brady Act itself, which specifies that ''no department, agency, officer, or employee of the United States may require that any record or portion thereof generated by the system established under this section may be recorded at or transferred to a facility owned, managed, or controlled by the United States Government.''
We believe that the creation of a gun registration system is possibly the most dangerous step the Federal Government can take toward destroying Americans' Second Amendment rights. We believe the lessons of history are vivid in the minds of gun owners who value their rights. You know, we go back to gun confiscation schemes in the Soviet Union and Lithuania, or in California, or even in New York City, but we are very, very concerned about this possible gun registration scheme being proposed by the FBI. Time after time, firearms registration systems have led inexorably toward firearms confiscation, despite all promises of anti-gun politicians, bureaucrats, and media figures.
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And I just want to remind you that last year, in Washington State, Initiative 676, a gun owner licensing and registration scheme, was soundly rejected by voters by an overwhelming vote of 71 to 29. It appears axiomatic that registration is anathema to liberty.
We've supported instant-check systems for 10 years, based on our desire to see that criminals don't get guns. But the FBI's plans to use the system to burden gun buyers with an unjustified and unauthorized tax, and to create an intrusive and unlawful gun owner registration system have sorely strained our support. We thank you for the opportunity to appear here today.
[The prepared statement of Ms. Metaksa follows:]
PREPARED STATEMENT OF TANYA METAKSA, EXECUTIVE DIRECTOR, NRA INSTITUTE FOR LEGISLATIVE ACTION
Chairman McCollum, members of the subcommittee, I thank you for inviting me to testify in support of the ''No Gun Tax Act of 1998,'' introduced by the gentleman from Georgia, Mr. Barr.
I represent the nearly three million members of the National Rifle Association. Our members come from all walks of life, and from all levels of American society. I can certainly testify to you from personal experienceanswering my phone and reading my e-mailthat our members were extraordinarily unhappy when press accounts began to appear about the FBI's plan to charge a ''user fee'' for background checks conducted under the Brady Act's permanent instant check system.
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They had good reason to be concerned. The proposed fee is nothing less than a federal gun tax on the exercise of Second Amendment rights by law-abiding Americans. It is unauthorized by any applicable law, and it will have its greatest impact on low-income Americans and on funding for state conservation programs.
Mr. Chairman, as you know, the NRA was very closely involved in the drafting of the Brady Act's language concerning the instant check system. During those discussions, the idea of charging a fee for background checks was not only considered, but rejected on the basis that identifying the rare criminal or other prohibited person who attempts a commercial gun purchase is a public good, and paying for it a public responsibility. As a result, the Brady Act contains no language authorizing the charging of a fee, nor have Brady Act supporters ever tried to amend the Act to allow for such a fee.
Instead, the FBI points to appropriations language passed before the Brady Act, in 1991, which was intended to allow for fees on employment- or licensing-related background screening through the National Criminal Information Center (NCIC), which is a separate system from the National Instant Check System (NICS). Obviously, the 1991 language the FBI refers to couldn't have been intended to allow for a fee under an Act that wasn't passed until two years later.
The next question is, who will bear the burden of this new gun tax? At the individual level, it will fall most heavily on ordinary working Americans of modest means. For many Americansincluding some who must hunt for subsistence rather than for sport, as well as those most vulnerable to crime and most sorely in need of firearms for self-defensea tax of thirteen to thirty dollars will be a prohibitive addition to the cost of a simple, affordable hunting rifle or self-defense handgun.
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Beyond that, the added cost will likely have an adverse effect on the overall level of gun sales, which will be a major drain on the funds collected through the Pittman-Robertson excise tax. That tax, which gun owners have willingly paid for over sixty years, funds state fish and game agencies and wildlife conservation programs, which could well suffer from the imposition of this new tax.
Finally, we have concerns about the tax from administrative and jurisdictional grounds. The FBI has essentially conjured the authority to levy a tax. Since it derives its authority for the tax from the imagination, only the imagination limits the tax we will be charged today and how much more we might be charged tomorrow. Moreover, the FBI has also created the authority to obtain and retain the taxes collecteddirectlyrather than transfer the funds to the Treasury. The FBI is a highly respected law enforcement team. It is not, however, the U.S. Congress. If the agency perceives a need for a budget increase, it should make its case before Congress, not start collecting new taxes from American gun owners.
As an aside, I'd like to mention another concern that many members have brought to my attention. Although I am aware this isn't an FBI matter, it certainly is troublesome. At some of the federal seminars on the instant check system, licensees have been told that a background check will be required for returns of firearms to their owners, both by pawnbrokers and by gunsmiths.
The law says that a background check is required for a ''transfer'' of a firearm. Yet in these cases, there is no change in title or ownershipthat is, no ''transfer''of the firearm; a pawned firearm is still owned by the individual while it is held as collateral for a loan, and of course a firearm that is brought to a gunsmith or factory for customization or repair is still owned by the individual who wants the work done. It is a legal absurdity to say that a gun owner who sends a defective firearm back to the factory, or brings a gun to his local gunsmith for a minor repair, has performed a ''transfer'' for purposes of the Gun Control Act and should have to undergo a background check to get back his own property. To charge a fee in this situation just adds insult to injury. We would urge the FBI and the BATF to remedy this situation administratively, and if it is not remedied, we hope the subcommittee will consider an appropriate legislative solution.
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I would like to turn to the second section of Representative Barr's bill, which would forbid the FBI to retain records of approved checks. As I said earlier, the NRA worked very closely with this subcommittee during the drafting of the Brady Act, and I am sure many of the members of the subcommittee will remember that maintaining the privacy of gun owners was of paramount importance to us then, as it is now.
For that reason, the Brady Act clearly states that upon approval of a firearms transaction, the instant check system ''shall . . . 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 transfer.'' 18 USC §922(t)(2).
The Act doesn't say that the records can be maintained for 18 months. It doesn't say that the FBI can decide to do whatever it wants to do with the records. It says the system ''shall destroy'' the records.
This is consistent with other provisions of federal law, such as the Firearms Owners' Protection Act of 1986, which stated in part, that no ''rule or regulation . . . 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 political subdivision thereof, nor that any system of registration of firearms, firearms owners, or firearms transactions or dispositions be established.'' Pub.L. 99308, May 19, 1986, 100 Stat. 456.
Even more outrageously, the FBI is proposing to violate the Brady Act itself, which specifies that
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''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 may 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 or dispositions except with respect to person, prohibited by section 922 (g) or (n) of title 18, United Stated Code State law, from receiving a firearm.'' Sec. 103(I), Public Law 103159, 107 Stat. 1542 (Nov. 30, 1993).
We believe that the FBI would be hard pressed to explain how their proposed 18-month record retention squares with these prohibitions, since they clearly are planning to retain portions of required records in a federal facility, and to establish a de facto system of registration of firearm transactions and gun owners themselves.
The creation of a gun registration system is possibly the most dangerous step the federal government can take toward destroying Americans' Second Amendment rights. The lessons of history are vivid in the minds of gun owners who value their rights. From gun confiscation schemes launched by the former Soviet Union against Lithuania to turn-guns-in-or-go-to-jail policies in California, gun lists become gun losses, and gun owners know it. In December, 1993, when the gun owner licensing scheme known as 'Brady II' was introduced by Handgun Control, Inc., and Rep. Charles Schumer, the proposal drew immediate fire from law enforcement. Fraternal Order of Police President Dewey Stokes said he opposed ''a situation where we have gun registration.'' Echoing this sentiment was South Carolina FOP President Charles Canterbury who said, that law enforcement officers ''are adamantly opposed to registration of guns.
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Time after time, firearms registration systems have led inexorably toward firearms confiscation, despite all the promises of anti-gun politicians, bureaucrats, and media figures. In New York City, for example, the New York Times editorialized that the city's 1967 rifle registration law was ''. . . not . . . to prohibit but to control dangerous weapons.'' In 1991, following passage of a new city gun ban, some owners of legally registered rifles received letters ordering them to turn in those firearms. Just last year in Washington state, Initiative 676a gun owner
licensing and registration schemewas soundly rejected by voters 71 to 29 percent. It appears axiomatic that registration is anathema to liberty.
Mr. Chairman, the NRA has supported instant check systems for ten years, based on our desire to create an efficient system to effectively screen criminals from buying guns at the retail level while protecting the privacy of honest gun owners. In 1993, we believed that the permanent provisions of the Brady Act had created such a system. But the FBI's plans to use the system to burden gun buyers with an unjustified and unauthorized tax on their right to keep and bear arms, and to create an intrusive and unlawful gun owner registration system, have sorely strained our support.
In conclusion, I would urge the subcommittee to heed the words of Chief Justice Marshall, who stated that ''the power to tax is the power to destroy.'' I would add that the power to register firearms is the power to confiscate them. Representative Barr's bill would prevent the FBI from violating the letter and intent of the Brady Act in both of those areas and restore the instant check to the purpose for which it was intended. The National Rifle Association strongly supports H.R. 3949, and urges the subcommittee to work toward its speedy passage. Thank you.
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[Neither the National Rifle Association of America nor any entity it represents has received any federal grant, contract, or subcontract in the current and preceding two fiscal years.]
Mr. GEKAS. We now turn to Mr. Norquist, who's been very active in the questions of taxation for several years. Mr. Norquist.
STATEMENT OF GROVER NORQUIST, PRESIDENT, AMERICANS FOR TAX REFORM
Mr. NORQUIST. Thank you. I've submitted my testimony for the record. I'd like to make six quick points.
First of all, Americans for Tax Reform endorses H.R. 3949, the No Gun Tax Act of 1998, and considers it a high-priority issue.
Second point, this is a tax we're talking about. There's been some discussion by proponents of this tax that it's something other than a tax, that it's a user fee, or something that should not fall under the constitutional prohibitions of somebody other than Congress enacting or raising taxes. This is clearly a tax. Americans for Tax Reform comes up against many, many schemes at State level and at the local level, and from time to time at the Federal level, with people who want to get a hold of other people's money and call it something other than a tax. This one is a tax.
Page 130 PREV PAGE TOP OF DOC Thirdly, it is a predictably unconstitutional tax because it is not voted by Congress, and Americans for Tax Reform is particularly troubled because this is something that we're seeing more and more of. We now have the Al Gore tax on everybody's phone bills, which was not voted by Congress but is something the FCC is trying to put in, which is billions of dollars. There's no limit to how much our phone bills can increase. This is another one, just like this, when the FBI can decide that they want more money for this, that, or the other thing, and begin to raise this tax again and again.
So, the fourth point is that this is an unlimited tax the FBI wants. If we thought the IRS was a little problematic, guys with guns with the idea that they can enact taxes as well as raise them, I think is particularly problematic, and much too dangerous to be contemplated.
A fifth point, the dollars go to the FBI rather than to general revenues; a terrible conflict of interest, and we've seen this with other areas where taxes are similarly abused. And sixth, because of the importance of this, because this is a bureaucratic effort to allow a bureaucracy to raise taxes, get around Congress, and because this is such an important principle, Americans for Tax Reform will rate this vote as a key vote. It's not a lot of money, but it could become a lot of money, and it's a very important principle to defend now. Thank you.
[The prepared statement of Mr. Norquist follows:]
PREPARED STATEMENT OF GROVER NORQUIST, PRESIDENT, AMERICANS FOR TAX REFORM
Mr. Chairman, members of the subcommittee, thank you for the opportunity to testify today in support on H.R. 3949, the ''No Gun Tax Act of 1998.'' My name is Grover Norquist, I am the President of Americans for Tax Reform.
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As President of Americans for Tax Reform, everyday I see the government taking people's money to use for things that the people wouldn't use it for themselves, given the choice. We have taxes on the money people earn, the money people spend, the money people invest, and even a death tax on money people inherit. Now under the guise of a ''user fee,'' the FBI is proposing to tax people for trying to exercise their Second Amendment right to buy a gun.
Now, there may be a place for user fees when you are actually charging people for something they use. That was the case with the 1991 appropriation rider that the FBI is using as their authority for this. In 1991, The FBI was given the ability to charge user fees for criminal background checks for employment; in other words, employers are paying a fee to run background checks on potential employees. For a fee, the employer makes sure he isn't hiring a criminal, the employee gets a job, and the taxpayer doesn't foot the bill. Everyone is happy.
The gun tax is different. In this case, the FBI is saying that a law-abiding person who wants to buy a gun should have to pay a fee to prove that he is not a criminal. But the gun buyer doesn't get any benefit form that; by keeping criminals from buying guns in gun stores, the system benefits everyone, but the law-abiding gun buyer wasn't going to commit any crimes anyway and he didn't need to pay a fee to find that out.
In fact, the benefits of this system are reduced by the fact that when you tax something, you get less of it; as the FBI imposes a fee, they'll predictably drive people who don't want to pay the fee out of the gun stores and into the private gun market where there aren't any fees.
Page 132 PREV PAGE TOP OF DOC So what's the real motivation here? First of all, since the money the FBI would collect would stay with the FBI, it's another case of a government agency trying to set up its own little petty cash account to fund itself without being accountable to the Congress or the American people.
Worse yet, since there isn't any authority to charge a fee anyway, there also isn't a cap on the fee; so the FBI would be free to raise the gun tax any time they felt like it. That would certainly suit the people in the anti-gun movement who want to make it so expensive to own a gun that ordinary people won't bother, and of course the effect of that would be more people killed or injured by criminals because they couldn't defend themselves, and an easier job for the anti-gun groups who currently have a hard time banning guns just because so many Americans own them.
The second part of Congressman Bar's bill is at least as important as the gun tax. The bill would ban the FBI from keeping records on approved gun sales. This really shouldn't be necessary since both the Firearms Owners' Protection Act, and the Brady Act itself, ban the government from using gun sales records to create a gun registration system. In fact, the Brady Act that set up the instant check system says that the system will ''destroy all records of the system'' with respect to information on the gun buyer.
The FBI says they are only going to keep records on approved sales for 18 months ''for security reasons.'' But the law doesn't say anything about a time limit or ''security reasons,'' it says to ''destroy all records.'' H.R. 3949 limits record retention to 24 hours, but in reality there is no justification for retaining records even 24 minutes. It is a sad commentary on this Administration's attitude toward the law that we have to be here, talking about passing new laws to make them enforce the laws that they themselves supported. But if you have to be redundant to protect gun owner's privacy, so be it.
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Why is it so important to protect gun owners' privacy against gun registration? Because all over the world, from Cuba in the 1950's to the Baltic states in this decade, and not to mention New York City, oppressive governments have used gun registration systems to ban guns that law-abiding people have owned.
This is not to mention the abuses of confidential personal information that have already taken place. Certainly if this registration scheme goes into effect, no gun owner will want to forget the misuse of FBI files by the White House to check up on their political opponents.
Mr. Chairman, American gun owners are law-abiding taxpayers who deserve protection against greedy government, against intrusions on their privacy, and against people who want to take their guns away. I urge the Subcommittee to move quickly to pass H.R. 3949 to stop the gun tax. Thank you.
Mr. GEKAS. At the committee table, now, the gentleman from South Carolina, Mr. Graham. And now, we turn to Mr. Baker.
STATEMENT OF JAMES BAKER, WASHINGTON REPRESENTATIVE, SPORTING ARMS AND AMMUNITION MANUFACTURERS INSTITUTE
Mr. BAKER. Mr. Chairman, members of the committee, thank you for the opportunity to appear here today. My name is James Baker, and I'm representing the Sporting Arms and Ammunition Manufacturers' Institute. Founded in 1926, at the request of the Federal Government, SAAMI is the oldest trade association representing an industry that, in turn, has roots in America older than the Republic itself. We are committed to working with the BATF and the FBI to ensure that the implementation of the National Instant-Checks System is a smooth and constructive transition. My comments will briefly touch on three problems the industry sees in the current plan for implementation of the NICS system, and two other issues that are yet to be resolved by the regulatory agencies.
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First and foremost, the industry objects to the proposed transaction fee. Many members of the committee were here when the Brady bill was first debated, and I was here as well. Thousands of pages of the Congressional Record stand in testimony that the claims made by Brady bill supporters, that the bill was a necessary tool for law enforcement and criminal justice in America. In fact, Mr. Schumer was quoted during the debates as saying, ''We're kidding ourselves,''and I quote''we're kidding ourselves if we think we can control crime without controlling guns, and the first step is the Brady bill.''
Yet, now gun buyers are being asked to pay a so-called fee, and the justification put forth is that the Brady Act is not a criminal justice program. Indeed, many of the Brady Act's original supporters have also now changed their tune, saying that Brady was never intended as a tool for criminal justice. Well, the obvious question is, why not?
The Clinton administration has repeatedly celebrated hundreds of thousands of denials under Brady, but if these numbers are accurate, the administration is telling us that hundreds of thousands of criminals and fugitives were within their grasp, but were put back on the streets. We call on the Clinton administration to make a commitment to use the capabilities of the NICS system to identify, capture, and prosecute persons who violate Federal firearms laws, rather than sending them back into our midst. And if the NICS check is intended to identify these criminals, why should the financial burden fall on the shoulders of the law-abiding?
Regardless of whether the act has been effectively enforced, the proposed gun tax is a dramatic change in plan. In 1994, in The Federal Register notice discussing the Justice Department plan for NICS, Attorney General Janet Reno stated that the Department, and I quote, ''does not intend to charge for such access.''But somewhere along the line, the plan changed. Now it calls for a fee, but in some States but not in others, with figures cited as high as $30 per check, although we heard $16 here today, with no prohibition on arbitrarily increasing the fee in the future. Even this figure represents an inordinate sum that could price otherwise affordable firearms well out of the range for people of lesser means. Bear in mind that the average price of a firearm sold in this country is less than $225, so the proposed fee will result in a tax of close to 10 percent.
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From the industry's perspective, the difference between the proposed NICS fee and a new gun tax is purely one of semantics. Since the 1930's, the industry and our consumers have enthusiastically supported the existing excise tax on firearms and ammunition, because it is non-regressive, uniformly applied, and the proceeds are well spent on wildlife management and habitat conservation, not to mention the fact that it was enacted by Congress.
Secondly, the industry is very concerned about the proposal for the 18-month record retention of NICS. The language of the statute is very clear and it does not provide an 18-month waiting period for compliance. While we have met with the FBI and understand their rationale, we do not agree that their desire to audit the system justifies the potential loss of civil liberties. The privacy rights of innocent, law-abiding Americans demand that information on approved transfers be purged as soon as practically feasible, and that safeguards also be put in place to prohibit the retention of such records at the level of the State interface with NICS, in jurisdictions where such interfaces will exist.
The final issue that is currently in play is the time allotted for a delay in response from the NICS system. The administration has allowed three business days for a response, which, over a weekend, could stretch out to another 5-day waiting period. The very name of the NICS system, as dictated by statute in plain English, confirms that this is not the intended outcome of the NICS implementation. Computers, even government computers, work much more quickly than that, and we expect the administration to share our commitment to implementing a system that lives up to its name.
Beyond these three current issuesand I'll make this quickthere are two others yet to be resolved. The first is the question of requiring a NICS check for transfer of possession of firearms, but not ownership or title. The FBI is considering requiring a NICS check for firearms upon their return to the owner after being repaired. This is again, as Congressman Barr said earlier, to requiring a driver's license test for people picking up their cars after an oil change. The NICS check should only be required for transactions that involve or enable a transfer in title. Second is the undetermined issues, and finally, is the capacity of the system.
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Clearly, the capacity for handling NICS checks is a finite quantity depending on resources, and the industry's estimate of daily demand are roughly twice those of the agencies involved, although I must say that those were altered here by the FBI witnesses this morning. We are encouraged that the FBI's currently surveying retailers to determine national demand, but the livelihood of thousands of independent retailers should not be jeopardized by untested assumptions. Until such time as demand has been accurately assessed, we hope the FBI will err on the side of more capacity rather than less. And thank you very much for the opportunity to testify.
[The prepared statement of Mr. Baker follows:]
PREPARED STATEMENT OF JAMES BAKER, WASHINGTON REPRESENTATIVE, SPORTING ARMS AND AMMUNITION MANUFACTURERS INSTITUTE
Mr. Chairman, members of the committee, thank you for the opportunity to appear here today. My name is James Jay Baker, representing the Sports Arms and Ammunition Manufacturers' Institute, or SAAMI.
Founded in 1926 at the request of the federal government, SAAMI is the oldest trade association representing an industry that, in turn, has roots in America older than the republic itself. We are committed to working with BATF and FBI to ensure that implementation of the National Instant Check System is a smooth and constructive transition. After November 30 of this year, the Second Amendment rights of all law-abiding American citizens, and the future of an industry that supports thousands of small businesses and more than 950,000 American jobs, will be in the balance.
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My comments will touch on three problems the industry sees in the current plan for implementation of the NICS system, and two other issues that are yet to be resolved by the regulatory agencies involved.
First and foremost, the industry objects to the proposed fee. Many members of the committee were here when the Brady bill was first debated, and I was here as well. Thousands of pages of the Congressional Record stand in testimony to the claims made by Brady bill supporters, that the bill was a necessary tool for law enforcement and criminal justice in America. In fact, Mr. Schumer, one of your quotes was as follows: ''We are kidding ourselves if we think we can control crime without controlling gunsand the first step is the Brady bill.''
Yet now, gun buyers are being asked to pay a so-called fee and the justificationi put forth is that the Brady Act is not a ''criminal justice'' program. Indeed, many of the Brady Act's original supporters have also now changed their tune, saying that Brady was never intended as a tool for criminal justice. The obvious question is, why not?
The Clinton Administration has repeatedly celebrated hundreds of thousands of denials under Brady. But if these numbers are accurate, the Administration is telling us that hundreds of thousands of criminals and fugitives were within the grasp of law enforcementbut were put back on the streets. We call on the Clinton Administration to make a commitment to use the capabilities of the NICS system, to identify, capture and prosecute persons who violate federal firearms laws, rather than send them back into our midst. And if the NICS check is intended to identify these criminals, why should the financial burden be fall on the shoulders of the law-abiding?
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Regardless of whether the Act has been effectively enforced, the proposed gun tax is a dramatic change in plan. In 1994, in a Federal Register notice discussing the Justice Department plan for NICS, Attorney General Janet Reno stated that the Department (quot.) ''does not intend to charge for such access'' (unquote). But somewhere along the line, the plan was changed. Now it calls for a fee in some states but not in others, with figures cited as high as $30 per check, with no prohibition on arbitrarily increasing the fee in the future. Even this figure represents an inordinate sum that could price otherwise affordable firearms well out of range for people of lesser means. Bear in mind that the average price of a firearm sold in this country is less than $225, so the proposed fee will result in a tax of more than ten percent.
From the industry's perspective, the difference between the proposed NICS fee and a new gun tax is purely one of semantics. Since the 1930s, the industry and our consumers have enthusiastically supported the existing excise tax on firearms and ammunition, because it is non-regressive, uniformly applied, and the proceeds are well spent on wildlife management and habitat conservation.
However, the proposed NICS tax on gun buyers is clearly regressive, and its applicationbased on jurisdictionlacks the simple elements of fairness and uniformity. Due process demands that gun buyers not be separated out into classes by dint of where they live, and should certainly not be denied their rights by an exorbitant tax on their constitutional rights on the same basis. The only fair, feasible national approach is to preclude a NICS fee, or new gun tax, altogether.
Secondly, the industry is very concerned about the proposal for 18-month record retention in NICS. The language of the statute is very clear, and it does not provide an 18-month waiting period for compliance. While we have met with the FBI and understand their rationale, we do not agree that their desire to audit the system justifies the potential loss of civil liberties. The privacy rights of innocent, law-abiding Americans demand that information on approved transfers be purged as soon as is practically feasible, and that safeguards also be put in place to prohibit the retention of such records at the level of the state interface with NICS, in jurisdictions where such interfaces will exist.
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The final issue that is currently in play is the time allotted for a delay in response from NICS. The Administration has allowed three business days for a response, which over a weekend could stretch out to another five-day waiting period. The very name of this system, as dictated by statute in plain English, confirms that this is not the intended outcome of NICS implementation. Computers, even government computers, work much more quickly than that and we expect the Administration to share our commitment to implementing a system that lives up to its name.
Beyond these three current issues, there are two others yet to be resolved. We hope that the agencies involved take advantage of our decades of experience in this field fashioning solutions.
The first is the question of requiring NICS checks for transfers of possession of firearms but not of ownership title. While exemption for pawn redemptions is clearly eliminated by the statute, we have learned that the agencies are also considering requiring a NICS check for firearms upon their return to the owner from repair. This is akin to requiring a driver's license test for people picking up their cars after an oil change. NICS checks should only be required for transactions that involve or enable a transfer in title.
Second of the undetermined issues is the capacity of the system. Clearly, the capacity for handling NICS checks is a finite quantity depending on resources, and the industry's estimates of daily demand are roughly twice those of the agencies involved. We are encouraged that the FBI is currently surveying retailers to determine national demand, but the livelihood of thousands of independent retailers should not be jeopardized by untested assumptions of demand. Until such time as demand has been accurately assessed, we hope the FBI will err on the side of more capacity, rather than less.
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Again, thank you again for the opportunity to appear today.
Mr. GEKAS. We thank the gentleman. We turn to Colonel Smith.
STATEMENT OF LIEUTENANT COLONEL CYNTHIA SMITH, MARYLAND STATE POLICE DEPARTMENT
Colonel CYNTHIA SMITH. Good afternoon, Mr. Chairman, members of the committee. I'm Lieutenant Colonel Cynthia Smith, chief, Bureau of Drug and Criminal Enforcement for the Maryland State Police. On behalf of Colonel David B. Mitchell, our superintendent, thank you for the opportunity to be here and speak before you today. The troopersthe uniformed troopers seated behind merepresent my subject matter experts in the area of firearms registration enforcement.
Maryland State police is the point of contact for all regulated firearms purchases in Maryland. In 1966, Maryland initiated an application process to purchase handguns. This process included a 7-day waiting period and a background check. Since the background check was initiated, there have been over 15,000 persons disapproved to purchase a handgun. This represents approximately 1 percent of the total applications to purchase handguns.
In 1993, due to rising administrative costs, the Maryland legislature initiated a $10 fee for each application received. In 1996, Governor Glendening and the Maryland legislature passed a comprehensive gun-violence act which limited the purchase of regulated firearm to one in a 30-day period, and required a background check and 7-day waiting period for secondary sales.
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As a result of this legislation, Maryland experienced significant reductionapproximately 50 percentin the number of applications received to purchase regulated firearms since 1994. In 1997, the Maryland State police received 21,500 applications to purchase regulated firearms. Of those, roughly 2,100 required comprehensive follow-up investigations by troopers, resulting in 275 disapprovals. This 1 percent represents applicants that were convicted felons, drug abusers, persons convicted of domestic violence, and those with existing ex parte orders, as well as those persons suffering from mental illnesses. Each disapproval tells a dramatic story. I'd like to share two examples with you.
The first is that of a 54-year-old resident, recently released from Maryland's prisons after serving 17 years for murdering his wife with a handgun during a domestic dispute. Once released, the individual made application to purchase a regulated firearm. The second example is of a 24-year-old resident suffering from mental illness. The background check revealed a criminal conviction which led to further investigation, revealing that the individual was contemplating suicide. Because of Maryland's background check and 7-day waiting period, these persons were disapproved. Maryland is very proud of its proactive firearms laws.
In closing, Maryland will maintain our proven system of keeping regulated firearms away from prohibited persons. Our concern is that with the passage of this bill, other States that failed to check local records that cannot be accessed by Federal computers may allow persons that are fugitives, under court restraining orders, convicted of minor drug offenses, and domestic violence offenses, will be allowed to purchase handguns. These persons are then free to move about the country with their guns, and, as such, a person may legally move into the State of Maryland with these weapons that are illegal for the individual to possess under Maryland law. It is only through our local, thorough background checks, national and local records, as well as our 7-day waiting period, that we can ensure the safety of our citizens.
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Should the National Instant Checks System, no-fee instant check be implemented, I urge that our State system will not be circumvented by States that refuse to fully participate and conduct local record checks. Thank you again for the opportunity to appear before you today.
[The prepared statement of Colonel Cynthia Smith follows:]
PREPARED STATEMENT OF LIEUTENANT COLONEL CYNTHIA SMITH, MARYLAND STATE POLICE DEPARTMENT
MR. CHAIRMAN AND MEMBERS OF THE COMMITTEE, I AM LT. COLONEL CYNTHIA R. SMITH, CHIEF, BUREAU OF DRUG AND CRIMINAL ENFORCEMENT FOR THE MARYLAND STATE POLICE.
ON BEHALF OF COLONEL DAVID B. MITCHELL, OUR SUPERINTENDENT, THANK YOU FOR THE OPPORTUNITY TO SPEAK BEFORE YOU TODAY.
THE TROOPERS SEATED BEHIND ME REPRESENT THE SUBJECT MATTER EXPERTS IN THE AREA OF FIREARMS REGISTRATION AND ENFORCEMENT.
THE MARYLAND STATE POLICE IS THE POINT OF CONTACT FOR ALL REGULATED FIREARMS PURCHASES IN MARYLAND.
IN 1966 MARYLAND INITIATED AN APPLICATION PROCESS TO PURCHASE HANDGUNS. THIS PROCESS INCLUDED A SEVEN DAY WAITING PERIOD AND A BACKGROUND CHECK.
Page 143 PREV PAGE TOP OF DOC SINCE THE BACKGROUND CHECK WAS INITIATED THERE HAVE BEEN OVER 15,000 PERSONS DISAPPROVED TO PURCHASE A HANDGUN. THIS REPRESENTS APPROXIMATELY 1% OF THE TOTAL APPLICATIONS TO PURCHASE HANDGUNS.
IN 1993, DUE TO RISING ADMINISTRATIVE COSTS, THE MARYLAND LEGISLATURE INITIATED A $10.00 FEE FOR EACH APPLICATION RECEIVED.
IN 1996, GOVERNOR GLENDENING AND THE MARYLAND LEGISLATURE PASSED A COMPREHENSIVE GUN VIOLENCE ACT WHICH LIMITED THE PURCHASE OF A REGULATED FIREARM TO ONE IN A THIRTY DAY PERIOD AND REQUIRED A BACKGROUND CHECK AND SEVEN DAY WAITING PERIOD FOR SECONDARY SALES.
AS A RESULT OF THIS LEGISLATION MARYLAND EXPERIENCED A SIGNIFICANT REDUCTION OF APPROXIMATELY 50% IN THE NUMBER OF APPLICATIONS RECEIVED TO PURCHASE REGULATED FIREARMS SINCE 1994.
IN 1997 THE MARYLAND STATE POLICE RECEIVED 21,500 APPLICATIONS TO PURCHASE REGULATED FIREARMS. OF THOSE ROUGHLY 2,100 REQUIRED COMPREHENSIVE FOLLOW UP INVESTIGATIONS BY TROOPERS RESULTING IN 275 DISAPPROVALS. THIS 1% REPRESENTS APPLICANTS THAT WERE CONVICTED FELONS, DRUG ABUSERS, PERSONS CONVICTED OF DOMESTIC VIOLENCE AND THOSE WITH EXISTING EX PARTE ORDERS AS WELL AS THOSE PERSONS SUFFERING FROM MENTAL ILLNESSES.
EACH DISAPPROVAL TELLS A DRAMATIC STORY. I'D LIKE TO GIVE YOU TWO EXAMPLES. THE FIRST IS THAT OF A 54 YEAR OLD RESIDENT RECENTLY RELEASED FROM MARYLAND'S PRISONS AFTER SERVING 17 YEARS FOR MURDERING HIS WIFE WITH A HANDGUN DURING A DOMESTIC DISPUTE. ONCE RELEASED THE INDIVIDUAL MADE APPLICATION TO PURCHASE A REGULATED FIREARM. THE SECOND EXAMPLE IS OF A 24 YEAR OLD RESIDENT SUFFERING FROM MENTAL ILLNESS. THE BACKGROUND CHECK REVEALED A CRIMINAL CONVICTION WHICH LED TO FURTHER INVESTIGATION WHICH REVEALED THAT THE INDIVIDUAL WAS CONTEMPLATING SUICIDE. BECAUSE OF MARYLAND'S BACKGROUND CHECK AND SEVEN DAY WAITING PERIOD, THESE PERSONS WERE DISAPPROVED.
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MARYLAND IS VERY PROUD OF ITS PROACTIVE FIREARMS LAWS. IN CLOSING, MARYLAND WILL MAINTAIN OUR PROVEN SYSTEM OF KEEPING REGULATED FIREARMS AWAY FROM PROHIBITED PERSONS. OUR CONCERN IS THAT WITH THE PASSAGE OF THIS BILL, OTHER STATES THAT FAIL TO CHECK LOCAL RECORDS THAT CANNOT BE ACCESSED BY FEDERAL COMPUTERS MAY ALLOW PERSONS THAT ARE FUGITIVES, UNDER COURT RESTRAINING ORDERS, CONVICTED OF MINOR DRUG OFFENSES AND DOMESTIC VIOLENCE OFFENSES WILL BE ALLOWED TO PURCHASE HANDGUNS.
THESE PERSONS ARE THEN FREE TO MOVE ABOUT THE COUNTRY WITH THEIR GUNS AND AS SUCH A PERSON MAY LEGALLY MOVE INTO THE STATE OF MARYLAND WITH THESE WEAPONS THAT ARE ILLEGAL FOR THE INDIVIDUAL TO POSSESS UNDER MARYLAND LAW. IT IS ONLY THROUGH OUR THOROUGH BACKGROUND CHECKS OF NATIONAL AND LOCAL RECORDS AS WELL AS OUR SEVEN DAY WAITING PERIOD THAT WE CAN ENSURE THE SAFETY OF OUR CITIZENS.
SHOULD THE NATIONAL INSTANT CHECK SYSTEM NO FEE INSTACHECK BE IMPLEMENTED, I URGE THAT OUR STATE SYSTEM WILL NOT BE CIRCUMVENTED BY STATES THAT REFUSE TO FULLY PARTICIPATE AND CONDUCT LOCAL RECORD CHECKS.
THANK YOU AGAIN FOR THE OPPORTUNITY TO APPEAR BEFORE YOU TODAY.
Mr. GEKAS. We thank the Colonel, and we turn to Mr. Kemmler. Lieutenant Kemmler.
STATEMENT OF LIEUTENANT ROBERT KEMMLER, ASSISTANT RECORDS MANAGEMENT OFFICER, VIRGINIA DEPARTMENT OF STATE POLICE
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Lieutenant KEMMLER. Thank you, Mr. Chairman and members of the committee. I'm Lieutenant Robert G. Kemmler. I oversee Virginia's Firearms Transactions Program.
The Virginia Firearms Transactions Program became operational November 1, 1989, provides for a timely point of sale, approval/disapproval decision regarding the sale of firearms based on the results of a criminal history records information checking concerning the prospective purchaser. This program authorized properly licensed and registered gun dealers to request criminal history record information checks on prospective purchasers by calling the Department of State Police via the toll-free number. The purchaser's name and certain personal descriptive data are immediately entered into a computer system while the dealer remains on the telephone. The program covers the pre-approval of all firearm sales and transfers, except antique weapons.
Effective July 1, 1993, the firearms dealers were required to report to the State police the number of firearms by category, intended to be transferred and to prohibit any person who is not a licensed firearms dealer from purchasing more than one handgun within any 30-day period without approval from the State police. The design of this program eliminates the traditional waiting period associated with other programs of this type by electronically accessing criminal history records and ''wanted'' databases at the National Crime Information Center and the Virginia Criminal Central Records Exchange, and by providing an almost instantaneous approval/disapproval decision to firearms dealers concerning the firearms sale or transfer.
The computer simultaneously accesses six national and/or State databases. Four of the databases are maintained by the Virginia State Police, accessible by the Virginia Criminal Information network: Virginia's wanted and missing persons files and protective orders, Virginia's criminal history records files, a calendar file on handgun purchases required to monitor and enforce the lawful handgun limitations, and Virginia's database of adjudications of legal incompetence and incapacity and involuntary commitments to mental institutions. The fifth database accessed during this background check is the National Crime Information Center, which contains the national wanted and missing persons file.
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The sixth database accessed is the Interstate Identification Index, which contains the national criminal history record files maintained by the Federal Bureau of Investigation. If an identification is not made in one or more of these files, the computer responds ''yes,'' the sale's approved, and a unique computer-generated approval number is provided to firearms dealer for that transaction. If an identification is made, however, the computer responds ''no,'' the sale is not approved at this time, and a review of the criminal history information is required to be determined lawful eligibility of the prospective firearms purchaser to possess or purchase a firearm. On the average, it takes approximately 2 minutes to provide a firearms dealer with an approval/disapproval decision.
Virginia's program was designed to address certain public safety concerns regarding the transfer of firearms to prohibited persons. Since its inception, through May 31, 1998, 1,450,594 firearms transactions have been processed through the firearms transaction program. Of this amount, 14,723 were disapproved because a prospective purchaser was prohibited by State or Federal law from purchasing or possessing a firearm. The total amount of disapprovals would not have been accomplished without Virginia having developed this program.
Virginia has enacted laws which we believe were necessary in determining which additional person should be prohibited from purchasing a firearm. These laws are the ''one handgun in 30 days'' and the ''misdemeanor drug conviction'' prohibition. An outside law enforcement agency would not be in a position to enforce the laws of Virginia; additionally, this outside agency would not be able to query Virginia's mental health files, the 30-day calendar clock, or the Virginia criminal information network wanted and protective order files.
Page 147 PREV PAGE TOP OF DOC If an outside agency had been conducting Virginia's Instant-Checks from January 1, 1993, to May 31, 1998, it would have failed to deny 2,692 of the 10,327 denied transactions, or 26 percent of the total denied transactions. A total of 987 fugitives have been identified with 456, or approximately 46 percent, apprehended as a result of this program. An outside agency would not be in the proper position to effectively contact a law enforcement agency to respond to a firearms dealer to arrest a fugitive.
Beginning July 1, 1993, the State police found it necessary to become the leading agency for all investigations of illegal attempts to purchase firearms. The State police has confirmed 3,234 arrests for falsifying documents related to the sale of firearms.
In conclusion, Virginia Firearms Transaction Program has begun its tenth year of operation, and significant success has been noted. Virginia no longer has the street or media reputation of being the chief east coast gun supplier for crimes committed elsewhere. The general assembly has come back and repaired weaknesses to the strengths and support its intent to fight crime. Four-hundred fifty-six fugitives have been apprehended that might not have been otherwise, and over the 14,739 individuals prohibited from owning or possessing or transporting firearms have been denied access to firearms. Of these prohibited persons, 2,692 resulted because of Virginia's programs. Thank you.
[The prepared statement of Lieutenant Kemmler follows:]
PREPARED STATEMENT OF LIEUTENANT ROBERT KEMMLER, ASSISTANT RECORDS MANAGEMENT OFFICER, VIRGINIA DEPARTMENT OF STATE POLICE
Page 148 PREV PAGE TOP OF DOC The VFTP, which became operational November 1, 1989, provides for a timely, point-of-sale, approval/disapproval decision regarding the sale of firearms, based upon the results of a criminal history record information check concerning the prospective purchaser.
This program authorizes properly licensed and registered gun dealers to request criminal history record information checks on prospective purchasers by calling the Department of State Police via a toll-free number. The purchaser's name and certain personal descriptive data are immediately entered into a computer system while the dealer remains on the telephone. This program covers the pre-approval of all firearms sales or transfers, except antique weapons.
Effective July 1, 1993, firearms dealers were required to report to the State Police the number of firearms by category intended to be transferred and to prohibit any person whois not a licensed firearms dealer from purchasing more than one handgun within any thirty-day period without approval from State Police.
The design of this program eliminates the traditional waiting periods associated with other programs of this type by electronically accessing criminal history records and ''wanted'' databases at the National Crime Information Center (NCIC) and the Virginia Central Criminal Records Exchange (CCRE) and providing an almost instantaneous approval/disapproval decision to firearms dealers concerning the firearms sale or transfer.
The computer simultaneously accesses six national and/or state databases. Four of the databases are maintained by the Virginia State Police, accessible by the Virginia Criminal Information Network (VCIN): Virginia's wanted and missing persons files and protective orders, Virginia's criminal history record files, a calendar file of handgun purchases required to monitor and enforce lawful handgun limitations and Virginia's database of adjudications of legal incompetence and incapacity, and involuntary commitments to mental institutions.
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The fifth database accessible during this background check is the National Crime Information Center (NCIC), which contains the national wanted and missing persons files. The sixth database accessed is the Interstate Identification Index (III) which contains the national criminal history record files maintained by the Federal Bureau of Investigation.
If an identification is not made in one or more of these files, the computer responds ''Yes,'' the sale is approved and a unique computer-generated approval number is provided to the firearms dealer for that transaction. If an identification is made, however, the computer responds ''NO, THE SALE IS NOT APPROVED AT THIS TIME'' and review of criminal history information is required to determine lawful eligibility of the prospective firearms purchaser to possess or purchase a firearm. On the average, it takes approximately two minutes to provide a firearms dealer with an approval/disapproval decision.
Virginia's program was designed to address certain public safety concerns regarding the transfer of firearms to prohibited persons. Since its inception, through May 31, 1998, 1,450,594 firearms transactions have been processed through the Firearms Transactions Program. Of this amount, 14,723 were disapproved because the prospective purchaser was prohibited by state or federal law from purchasing or possessing a firearm. The total amount of disapprovals would not have been accomplished without Virginia having developed this program. Virginia has enacted laws which we believe were necessary in determining which additional persons should be prohibited from purchasing a firearm. These laws are the one handgun in thirty days, and the misdemeanor drug conviction prohibition. An outside law enforcement agency would not be in a position to enforce the laws of Virginia. Additionally, this outside agency would not be able to query Virginia's Mental Health Files, the thirty day calendar clock or the Virginia Criminal Information Network Wanted or Protective Order Files. If an outside agency had been conducting Virginia's instant checks from January 1, 1993 to may 31, 1998, it would have failed to deny 2,692 of the 10,327 denied transactions or 26 percent of the total denied transactions. A total of 987 fugitives have been identified, with 456 or approximately 46% apprehended as a result of this program. An outside agency would not be in the proper position to effectively contact a law enforcement agency to respond to a firearms dealer to arrest a fugitive.
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Beginning July 1, 1993, the State Police found it necessary to become the leading agency for all investigations of illegal attempt to purchase firearms. The State Police has confirmed 3,234 arrests for falsifying documents related to the sale of firearms.
The VFTP has begun its tenth year of operation and significant success has been noted:
Virginia no longer has the street or media reputation of being the chief east coast gun supplier for crimes committed elsewhere.
The General Assembly has come back and repaired weaknesses to strengthen and support its intent to fight crime.
456 fugitives have been apprehended that might not have been otherwise.
Over 14,739 individuals, prohibited from owning, possessing, or transporting firearms, have been denied access to firearms. Of these prohibited persons, 2,692 resulted because of Virginia's Program.
Mr. GEKAS [presiding]. We thank the gentleman. The Chair will now yield itself 5 minutes for the first round of questioning, and I begin with the last witness.
Page 151 PREV PAGE TOP OF DOC This morning I alluded to the floor action that was taken in 1993 and the amendment that I had offered to attach the instant check to the Brady bill that was then on the floor, and I wanted to tell you, although I didn't recall seeing it in the record, again, that I alluded to Virginia's instant check system as the testing mode for proving that it could work in other States and across the Nation. And so I've always felt close to the Virginia system as being the model for what we attempted to do back in 1993.
Having said that, I'm wondering if this comes into play nowthe Federal instant check systemhow does it affect Virginia's system?
Mr. KEMMLER. Okay. What the NICS system will require out of Virginia, we will have to do some software programming changes. Currently, when we access NCIC III, we will now go into what they call the NICS system. When we go into NICS, NICS will take us into III, NICS will take us into the NCIC-wanted databases. It will also give us other databases; I think there are some State Department files and some other types of Federal files that will come out of that. What will happen is we will get morewe anticipate potentially more denials because you'll get into some more access as far as databases.
As far as we may have to change our laws to the degree that currently under Virginia statute if we do not get information back on the transaction by the end of the next business day, we permit the firearms dealer to transfer the firearm. And under the NICS system, I think it's three business days.
Mr. GEKAS. Well, hypothetically, a Virginia resident who wants to purchase a gun next year, does he have a choice now to go through your system? Does the arms dealer have to go through the Virginia system, or must he conform to the NICS?
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Mr. KEMMLER. Sir, the dealer must go through the Virginia system because by Virginia code the dealer is required to contact the department's State police, and we will be the point of contact for the State for all Virginia firearms dealers.
Mr. GEKAS. And in that circumstance, there would be no fee. Is that correct?
Mr. KEMMLER. Well, we currently charge a fee.
Mr. GEKAS. I mean, not the fee that is contemplated by the NICS program; is that correct?
Mr. KEMMLER. No, sir.
Mr. GEKAS. What is the fee?
Mr. KEMMLER. Okay, our fee currently, we charge in-State residents $2.00 per transaction or for the firearms dealers it's $2.00 per transaction, and it's $5.00 for non-residents on long guns.
Mr. GEKAS. You see no difficulty in becoming compatible with the NICS system; is that fair to judge?
Mr. KEMMLER. Yes, sir. All we have to do is some computer programming changes to alter the screens and the way the information will go back and forth between our system and the NICS system.
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Mr. GEKAS. Now, Colonel Smith, how would Maryland fit into the NICS system?
Ms. SMITH. If you could bear with me for just a minute.
Mr. GEKAS. Yes.
Ms. SMITH. Effectively, Mr. Chairman, it would not impact Maryland's system. We would continue with our current system.
Mr. GEKAS. And you have a fee for the background check. Is that correct?
Ms. SMITH. Yes, sir; we do on regulated firearms.
Mr. GEKAS. It's hard to unscramble and to try to predict.
Mr. Norquist, you mentioned that this is quite similar to the proposed telephone surcharge that is being contemplated and actually being implemented even as we speak here. Would you feel better about itI don't think I would, but would you feel better about it if this were relegated only to thewell, it is relegated only to the new purchases to be made for guns starting in December 1998. It would not apply to all current gun owner holders, shall we say. Does that make it a better tax or user fee?
Page 154 PREV PAGE TOP OF DOC Mr. NORQUIST. But this is a tax that hasn't been voted by Congress, and the fact that it's only a tax on gun owners and only on some gun purchasers doesn't alter the fact that it is not constitutionally enacted through Congress, that there's no limit to it, that it goes into the hands of the people who set the amount of money that is going to be raisedthe FBI itselfwhich leads to all sorts of abuses, which is why one presumes the Constitution forbade this sort of thing in the first place.
So, the fact that it may discriminate only against new purchasers does not make it a better bad tax.
Mr. GEKAS. The reason I asked that is because Mr. Baker testified that the ammo world of user fees has a national base and it covers all ammos. Is that correct, Mr. Baker?
Mr. BAKER. Congressman, it covers firearms and ammunition, and it's a federally-mandated 10 percent or 11 percent excise tax. It goes into a separate segregated fund which is then used for basically conservation purposes.
Mr. GEKAS. And the difference there is that Congress enacted thatthat's the ultimate difference.
Mr. BAKER. And with industry's support.
Mr. GEKAS. Pardon me?
Page 155 PREV PAGE TOP OF DOC Mr. BAKER. And with the support of the firearms and ammunition industry.
Mr. GEKAS. Yes; this was like a consent decree
Mr. BAKER. Correct.
Mr. GEKAS [continuing]. At the hands of the Congress. My time has run out in the first round. I now yield to the gentleman from Georgia.
Mr. BARR. I thank the chairman, the gentleman from Pennsylvania.
You quoted May West, Mr. Norquist?
Mr. NORQUIST. Don't go too far into that one. It was a paraphrase. [Laughter.]
Mr. BARR. Was she a gun owner? [Laughter.]
Mr. NORQUIST. Don't know.
Mr. BARR. You probably don't have any idea. At least, I would hope you have no idea.
Page 156 PREV PAGE TOP OF DOC Mr. NORQUIST. Yes. No personal knowledge.
Mr. BARR. Given your expertise, both personally and as head of Americans for Tax Reform, Mr. Norquist, and havingI noticed you were in the room earlier listening to the first panel, in which we had some extended discussions concerning the authority under which the FBI could even contemplate proposals such as they are now reflected in the CFR. Are you aware of any other instance in which a proposed rule, such as they're proposing here now in the public record, on July 4, has been upheld as a grant of authority on which a tax could be levied for which there is no express or explicit legislative directive?
Mr. NORQUIST. I'm not aware that anyone's gotten away with this before; no.
Mr. BARR. Is that one reason why you think it would be a very, very dangerous precedent that goes far beyond simply the impact on legitimate gun owners?
Mr. NORQUIST. Yes; if agencies are allowed to allocate to themselves, with no legislative basis, the right to raise taxes on people, then Congress has just ceded its prerogatives under the Constitution, and there's no limit. I served on the commission on restructuring the IRS, and there was tremendous concern that even with the oversight that Congress has had on the IRS that there were terrible and tremendous and continued and tolerated abuses, and the American people spoke rather clearly that that had to be fixed.
I think it's a mistake to allow any agency to decide that it has the right to enact taxes without limit and for whatever purposes they see fit. Congress enacts taxestoo many, in my viewbut at a minimum, we ought to restrict all taxation to come from the House of Representatives first, and only with the consent of the Senate and the President, not with a handful of bureaucrats, whether the FBI, the IRS, or over at the FCC.
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Mr. BARR. You also, I know, heard the discussion earlierand I suspect are somewhat familiar with other mechanisms other than an express authority to levy a tax that had been used to collect Government revenues from outside or private partiesand one that we referred to earlier was Public Law 101515, which is cited in the letter that the FBI is sending out to law enforcement in which they citeapparently citeas their authority for this, this particular law, which was an appropriations bill for Fiscal Year 1991.
And, of course, as we discovered earlier, and the FBI finally agreed explicitly with my question to them, that the proposed user fee or tax in this case was not for employment or licensing purposes, which, as I read it, is the sole purpose for which this 1991 authority extended.
Again, given your extensive background in reviewing matters involving taxation and efforts to raise Government revenues, are you aware of any other instance in which this sort of languagevery explicithas been upheld by the courts to levy, pursuant to a law or in furtherance of a law, that came after that particular grant of authority, for purposes that are completely unrelated to it? Are you aware of any case in which that sort of effort has succeeded?
Mr. NORQUIST. I'm not aware of any case where that has happened. I think it's unlikely that a court would uphold that. I think the law as you read it, and as the gentleman from the FBI concurred, clearly does not apply to what they're trying to do.
Page 158 PREV PAGE TOP OF DOC And I think it's a little bit frightening that when we have a division of authority in this country, where to have an agency that not only wants to interpret the law into its own favor in a way that doesn't make any sense, and raise taxeswe kind of divided up power in this country under the Constitution into different placesThe House, the Senate, the White House, the courtsand the gentleman from the FBI wants to both change the law and its interpretation so that his agency can raise taxes on people. That's bizarre, and I would certainly hope that the Congress would act, if the courts don't act first, to put an end to that.
Mr. BARR. Ms. Metaksa, we've also discussed here sort of the second leg of this legislation, and I believe at least part of the opposition that your grassroots organization has to this legislation, and that concerns the development and maintenance of a registry of legitimate law-abiding gun owners who do not suffer from any of the legal disabilities that would preclude them from that transaction, the sale going forward.
Is there not sufficient authority already existing, and as contemplated in this next phase of the Brady law, for the Government to maintain sufficient data for purposes of auditing and tracking to make sure that the system is working without having this additional information for whatever time period they want? Certainly, 18 months is outrageous, but is there not sufficient authority already to enable the Government to audit and track and make sure that the information is being properly accumulated and used?
Ms. METAKSA. Obviously there is, because there is an identifying number and the date the number was assigned. That identifying number refers back to the federally-licensed firearms dealer who has to, under the law, maintain records at his shop that are open to the ATF for inspection. It is not instantly available, but is certainly easily available to the police to go back to the federally-licensed firearms dealer to track the sale of that firearm. So it's there.
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What we object to, of course, is the computerization and the maintenance of records which we believe is clearly illegal under both the Firearms Owners Protection Act and the Brady Act, and subsequent authorizing and appropriations language that have been passed, that no registry of firearms owners will be kept. That's why we support the language in your bill that would penalize those people who would keep such records because it's obvious to us that the FBI has not really understood the language of Federal law.
Mr. BARR. Thank you. I might have some more questions if we have a second round, Mr. Chairman.
Mr. GEKAS. I thank the gentleman. We turn to the gentleman from South Carolina.
Mr. GRAHAM. Thank you, Mr. Chairman. We'll make this Brady 101 for me. We'll try to make sure I understand what we're talking about.
Virginia and Maryland have statutesinstant background check laws. Is that correct? That's what you're telling us?
Mr. KEMMLER. Virginia has an instant background check law.
Mr. GRAHAM. Maryland?
Ms. SMITH. Sir, ours is not an instant check. We have multiple provisions that include a thorough background investigation, along with the 7-day waiting period, and one regulated firearm in a 30-day period.
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Mr. GRAHAM. And on December 1, 1998, the Federal law requires what in terms of instant background checks? Does it mandate instant background checks?
Mr. KEMMLER. I'm not exactly sure.
Mr. GRAHAM. Okay.
Mr. KEMMLER. I know thatI think at that point in time States that are currently acting as point of contact States will be required to go into the NICS system.
Mr. GRAHAM. Okay; all right. In Maryland and Virginia, regardless of how you do the background checks, how long do you keep information on law-abiding gun owners?
Mr. KEMMLER. We have what we call a transaction file that's kept for 12 months, and what the transaction fileit keeps the person's name, the date of the transaction, and the dealer.
Mr. GRAHAM. What about Maryland?
Ms. SMITH. In Maryland, the statute requires that we keep a permanent record of completed regulated firearms transactions.
Page 161 PREV PAGE TOP OF DOC Mr. GRAHAM. Forever.
Ms. SMITH. A permanent record; yes, sir.
Mr. GRAHAM. Okay. What's your opinion if I take my shotgun to have it fixed, for lack of a better word, should I have to have another background check from the law enforcement's point of view?
Ms. SMITH. Sir, in Maryland, currently, we only have provisions that relate to regulated firearms, and a shotgun, in most cases, would not be a regulated firearm.
Mr. GRAHAM. Take my handgun and have it fixed.
Ms. SMITH. Sir, it's an interesting point. I don't think I'm qualified or in a position to render an opinion on that though.
Mr. GRAHAM. Justhow does it strike you? Does it make a whole lot of sense? [Laughter.]
I mean, it's a free country and you can say what you want to, Lieutenant. I mean, do you all do that in Virginia?
Mr. KEMMLER. Currently, we do not requireall we require is what the Federal Government requires if it's a transfer from an individual's inventory.
Page 162 PREV PAGE TOP OF DOC Mr. GRAHAM. So neither State has the requirement that if I go have my gun repaired that I've got to go through all of this again. That's fair to say.
Mr. KEMMLER. Yes, sir.
Mr. GRAHAM. Okay. Mr. Norquist, what's the economic impact of this revenue enhancer?
Mr. NORQUIST. Well, we don't know exactly because the FBI is explaining that they have an unlimited authority in their viewnot granted by Congress, but granted by themselves, evidentlyto raise taxes on people who apply for guns. So, we don't know whether this is going to be $10.00, $20.00, $30.00, or $200.00. We know that when you tax something you get less of it. There are people in this country who want to discourage honest citizens from being able to own guns, and one presumes that if those people are making the decisions at the FBI, that there will be deliberate efforts to go from a 10 percent surtax, in effect, to a 20 or 30 percent one. This iswhat the FBI is claiming to have the authority to do here is an open-ended ability to raise taxes.
Mr. GRAHAM. Okay.
Mr. NORQUIST. They don't have any authority to raise taxes, but they want an open-ended one.
Mr. GRAHAM. From the industry's point of view, sir, what's the economic impact to the industry? Any way to judge?
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Mr. BAKER. Well, it's difficult to measure, but it amounts to almost a 10 percent tax based on their stated desired fee, and obviously that's going to have an impact on firearms purchaseslegitimate firearms purchases.
Mr. GRAHAM. In South Carolina I believeI think this is truethat it used to be that the magistrate got a percentage of the fines that they levied. That never struck me as being a good deal if you're a defendant. Is that sort of what you're trying to tell me here, that the FBI sort of gets rewarded financially?
Mr. NORQUIST. I think we've seen in other cases if you allow the person who is levying a fine or a tax to spend the money themselves, the incentive is there to just keep increasing that. I mean, so this is problematic at many different levels. One, they don't have any constitutional authority to do what they're doing; there's no legislative authority to do this. Two, it's a bad idea if they had the authority, and now they want an unlimited authority, and then they want to keep the money. So, each of those is an argument against the structure that the FBI is trying to organize here.
Mr. GRAHAM. Okay, thank you. I have no further questions.
Mr. BARR [presiding]. I thank the gentleman from South Carolina.
I just had a couple of final questions, but before we do that, I'd like to especially thank and commend the law enforcement officers from Maryland and Virginia that are here and indicate to you that I know I speak on behalf of the entire subcommittee in thanking you for your service to protect our citizens.
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We may have, as you've seen here, some policy disagreements, but that is not something that is your responsibility. Your responsibility, which you carry out in very, very commendable fashion, is to protect our citizens, and I wanted to extend our thanks on behalf of the subcommittee to you today, and we appreciate you all being here very much.
Mr. Norquist, we've talked about two constitutional infirmities with what the Bureau is attempting to do here. We've talked about the unconstitutional usurpation of the power to tax. We've also talked about the unconstitutional blurring of the separation of powers distinctions in our Constitution. Do you also see an unequal protection, unequal enforcement of the law here in that certain citizens would be taxed and others would not be taxed for an identical transaction under identical circumstances?
Mr. NORQUIST. Yes; that's another problem.
Mr. BARR. In other words, citizens of one State might have this tax levied on them; citizens of another State might not.
Mr. NORQUIST. Yes, and I just think it's wrong for the Government to discriminate in that way, and you get these kinds of problems when you don't take your tax policy through the House and then the Senate and get it signed by the President. If you allow bureaucracies that are going to raise taxes and spend the money to decide who they're going to take it from, they're not going to be very choosy about it.
Mr. BARR. Mr. Baker, I want to thank you for the analogy that I stole and butchered a little bit this morning. I found it a very appropriate one and a very good one to use. The gentleman from South Carolina was asking a little bit about the impact on members of your industry if this tax were to go into effect.
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Mr. BAKER. Yes, sir.
Mr. BARR. Could you give us some sort of feel for the nature of businesses, the size of the businesses in which your members are engaged? Are we talking here about Fortune 500 corporations and companies, or are we talking about
Mr. BAKER. Generally not, no.
Mr. BARR [continuing]. Smaller companies?
Mr. BAKER. No, much smaller. We employ about close to 1 millionbased on our own studiesemploy about 1 million Americans in the outdoor sports industry. The yearly sales figures areit's about $30.9 billion total economic activity over the course of a year, I think, based on industry estimates. But the companies themselves, with some few exceptions, are fairly small.
Mr. BARR. Thank you. Ms. Metaksa, I don't know whether you all have hadwhether you, in particular have had a chance to review the proposed rule in the Federal Register of June 4th of this year. But in thereand we just got it last nightone provision it has in here, and this is in the section that is entitled by the Bureau, ''Retention and Destruction of Records in the System.'' And it says, ''Unless otherwise removed, records contained in the NCIC and triple-I files that are accessed during a background check will remain in those files in accordance with established policy.
Page 166 PREV PAGE TOP OF DOC Are you familiar with what the established policy is with regard to those records in the context of what we're talking about here?
Ms. METAKSA. No, I'm not, Mr. Barr.
Mr. BARR. Would you all check into that please?
Ms. METAKSA. I'd be glad to.
Mr. BARR. Because I'd appreciate having benefit of your expertise in that, and there may be other provisions in these proposed rules that are problematic. Even the written testimony of the gentleman from the FBI indicated that they had not proposed rules yet, but they have been, as we've found out.
And other witnesses also, I would appreciate it if you all would take a look at these specific proposed rules because the comment period, of course, is running, and we would like to have the benefit of your expertise if there are other specific infirmities that you see, that you could bring those to our attention so that if we need to make any further adjustments in H.R. 3949 we can do so.
Ms. METAKSA. We will be commenting on the rules, and we'll make that available to you and the subcommittee.
Mr. BARR. Thank you. And just one final question, Ms. Metaksaand I think we've already covered this, but I think it's important enough to bear repeating. Is it your view that there is express prohibitory language already in at least two Federal laws that would expressly prohibit what the FBI is proposing to do here in terms of maintaining the record files that it seeks to maintain?
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Ms. METAKSA. Absolutely.
Mr. BARR. Thank you.
Does the gentleman from South Carolina have any further questions?
And seeing no other members present, I'd like to again thank the panel for being here and the officers from Maryland accompanying the Lieutenant Colonel. We appreciate your testimony. The record will remain open for 2 monthsI was hoping we'd say just a couple of days here. But if you all could, since we do want to move forward on this very quickly; time is of the essence. If you all have any additional materials, either in response to questions or other input based on the information that you have, please get it to us as quickly as possible.
Everybody's statement will be placed in the record in full, and we appreciate very much your being here as a service to the public of this great country. Thank you, and this hearing is adjourned.
[Whereupon, at 1:09 p.m., the subcommittee adjourned subject to the call of the Chair.]
A P P E N D I X
Material Submitted for the Hearing Record
Page 168 PREV PAGE TOP OF DOCSTATEMENT OF ROBERT J. WALKER, PRESIDENT, HANDGUN CONTROL, INC.
Mr. Chairman, thank you for allowing me to submit written testimony regarding implementation of the permanent provisions of the Brady Handgun Violence Prevention Act (P.L. 103159).
Let me start by commending the Department of Justice for its diligence in implementing the Brady Law. Due to the tireless efforts of the Justice Department, coupled with the federal government's original $200 million authorization to computerize state criminal records, the Brady law has made great strides in improving access to criminal history files and preventing felons, fugitives and other illegal purchasers from acquiring handguns at a gun store.
Regrettably, the U.S. Supreme Court ruled in June 1997 that background checks on handgun purchasers are no longer mandatory under federal law. We are delighted to report, however, that despite the Court's ruling, almost every state and local government continues to perform them either voluntarily or because they are required to pursuant to state law. As a result, an estimated 99 percent of all handgun sales are still subject to Brady background checks.
On November 30, 1998, the interim provisions of the Brady law will sunset and be replaced by a National Instant Criminal Background Check System (NICS). While we recognize the inherent value of NICS, the system as currently structured is flawed in two areas that cause us great concern.
First, records that are not computerized and accessible by the federal government will not be searched, unless the state point-of-contact agrees to do so. Local or state records that cannot be accessed by federal computersincluding court restraining orders, involuntary admissions to a mental hospital, minor drug offenses or drug rehabilitation, outstanding misdemeanor arrest warrants, domestic violence misdemeanors, and recent arrests that are not yet computerizedwill not be reviewed.
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Second, the ''cooling off'' period, which is an integral part of the interim Brady law provisions, will effectively be demolished. Unless federal computer records indicate a felony arrest record, a dishonorable discharge, an illegal alien status, or other possible disability, the buyer will get the gun in a matter of a few minutes.
Effective elimination of the waiting period will lead once again to a situation where individuals who impulsively seek to buy a gun to settle a dispute or to end their own life will be able to act on that impulse and take their life or someone else's.
In order to address these two concerns, Handgun Control, Inc. recommends the following amendments to the permanent provisions of the Brady law. First, a requirement that Brady forms be sent to the chief law enforcement officer of the buyer's residence. This would enable local police to screen handgun purchasers to determine whether local records indicate that the buyer is a prohibited purchaser. Second, the establishment of a 72-hour waiting period for handgun purchases, thereby restoring a ''cooling off'' period to the Brady law.
Since the Brady Law was enacted on February 28, 1994, an estimated 316,000 felons, fugitives, drug addicts and other prohibited purchasers have been stopped from buying a handgun. While we recognize that the speed of a background check is important, the thoroughness of that check is of paramount concern. Public safety must be our top priority in getting NICS up and running.
Again, I appreciate the opportunity to present our views to the committee. I look forward to working with you in the future to ensure that the Brady law remains the effective crime fighting tool it was designed to be.
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STATEMENT OF JOHN M. SNYDER, PUBLIC AFFAIRS DIRECTOR, CITIZENS COMMITTEE FOR THE RIGHT TO KEEP AND BEAR ARMS
Mr. Chairman and Members of the Subcommittee, I appreciate the opportunity to offer this statement in support of H. R. 3949, the proposed ''No Gun Tax Act of 1998,'' introduced by Rep. Bob Barr of Georgia, a Member of the Subcommittee.
In 1993, Congress passed and the President signed the Brady Act. This required local law enforcement authorities to conduct a background check on prospective handgun purchasers, a requirement subsequently found unconstitutional by the United States Supreme Court. The Act provided also for a five-day handgun purchase waiting period. It provided further that the five-day handgun purchase waiting period terminate, or ''sunset,'' in November of this year, into the firearms purchase National Instant Check System (NICS).
The Federal Bureau of Investigation (FBI), which will administer the NICS, has begun plans for implementation and has entered into a rule-making phase.
According to a statement made by Congressman Barr on June 4, two of the rules to be proposed are:
(1) A user fee or gun tax ranging anywhere from $13.00 to $15.00 per purchase; and
(2) Retention of personalized information and records on approved gun owners for up to 18 months, in effect de facto firearms registration.
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As Congressman Barr wrote, ''The intent of the Brady Act was never to tax gun owners or register their firearms. In fact, the Brady Act authorized $200 million for states to prepare their criminal data bases over five years for the eventual implementation of NICS. Gun registration is one of the major fears of gun owners everywhere. The federal government must never be allowed to keep records on who owns firearms in this country.''
In proposing the gun tax which it is calling a user fee, the FBI in reality is trying to order prospective law-abiding firearms purchasers to pay to prove that they are not criminals. This truly is outrageous. The government has no legitimate authority to do this. In a certain sense, the first section of H.R. 3949, which addresses this issue, should not be necessary. We should not need a law to tell the government it cannot do what it cannot do. However, the government itself has become so illegitimate in the exercise of its authority that it is necessary for Congress to take this step to rein it in.
With regard to Congressman Barr's second point and, indeed, to the second section of his bill, let us note that the Brady Act itself provides that, once a firearm transaction has been approved, that is once a dealer has called into the instant check system and the transaction is approved, the system shall ''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 transfer.''
That the government seeks to maintain the records for 18 months not only is not authorized by law, in reality it would be against the law. After all, the Brady Act says ''destroy.'' It does not say ''keep for 18 months.''
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Again, this second provision of H.R. 3949 should not be necessary. However, it is. It is because the government has become so cavalier, so arrogant, indeed so unconstitutional in its appreciation of its own authority that it has to be told by Congress, and told every step of the way, apparently, just where its authority in fact begins and ends.
We commend Congressman Barr for introducing H. R. 3949. We support it and we urge the Subcommittee to report it to the full Committee as soon as possible.
STATEMENT OF LARRY PRATT, EXECUTIVE DIRECTOR OF GUN OWNERS OF AMERICA
My name is Larry Pratt. I am Executive Director of Gun Owners of America and appreciate the opportunity to submit this statement on behalf of our 200,000 members.
I am very pleased that the subcommittee is looking into the abuses that are now resulting from the passage of the ill-advised Brady Law in the Democratic Congress of 1993. Almost five years ago, I presented testimony to this very Committee regarding the impending passage of the Brady law.
I was concerned then that this law could be used to register the names of gun buyers. Unfortunately, the FBI's recent draft regulations have validated my initial concerns. On September 30, 1993, I told this Committee that,
The ''instant check'' system, integrated into Brady . . . can easily be converted into a gun owner registration scheme of all or actual gun owners. Once a name is entered into the [federal] central computer to check if the individual is a felon or otherwise unable to purchase a firearm, the name is easily retained in the computer for future use.
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Congress' Office of Technology Assessment commented on the Virginia instant check system saying, ''The Virginia transaction log does not include the names of firearm purchasers, but the potential exists regardless of legal prohibitions.''(see footnote 1)
Unfortunately, these words have all but come true. As long as the instant check continues in operation, there will always be the potential for gun owner registration. The recent FBI regs (issued June 4, 1998) are only the most recent example of how Brady background checks have resulted in officials trying to illegally keep the names of gun buyers in government computers.(see footnote 2)
The bill currently under review (H.R. 3949) will, in some ways, take us closer to removing the unconstitutional yoke that has been placed around gun owners' necks. However, while this bill takes us forward in some ways, I think it would be wise to consider the benefits of fully repealing the Brady Registration Law. Rep. Ron Paul (RTX) has introduced H.R. 2721, ''The Second Amendment Restoration Act,'' which among other things, will repeal the unconstitutional Brady Law in its entirety.
Please consider how each bill (H.R. 2721 and H.R. 3949) would treat the areas below that are of great concern to gun owners.
Repealing the illegal Brady tax
Page 174 PREV PAGE TOP OF DOC Congress has appropriated virtually unlimited funds to build the National Police Computer known as NCIC. The citizen-checking portion passed under the Brady law has its own allotment of $200 million.
Despite this, the ''authorities'' plan to tax the public for each use, but only if local police aren't cooperatingstates with FBI-approved police ''instant'' checks will pay no tax. The tax is imposed by the FBI, although issued as a BATF regulation, a concept that raises its own disturbing concerns. There is no authority for the tax in Brady Part 1 or Part 2. Both H.R. 2721 and H.R. 3949 would end this illegal tax.
Definitively stopping the registration of gun owners
H.R. 2721 stops gun owner registration by repealing the Brady Law in its entirety. H.R. 3949 contains language to stop this registration and to criminalize violations. But H.R. 3949 does not stop background checks from taking place; and that could still allow an open door.
As long as government authorities have to check out gun buyers before the purchase of a firearm, the POTENTIAL for creating a registration list will always exist. As stated by the Justice Department in 1989, ''Any system that requires a criminal history record check prior to purchase of a firearm creates the potential for the automated tracking of individuals who seek to purchase firearms.''
Indeed, there have been several recent examples of privacy abuses that have occurred both at the federal and state levelsall without reprisals or official sanctions. For example, under the Brady Law (Part I), some statesincluding Ohio and Texaswere shown to be keeping lists of gun buyers.(see footnote 3) To date, no prosecutions have resulted. At the federal level, the FBI abused the privacy of about 900 individuals in what has become known as ''Filegate.'' No prosecutions have ensued.
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Regardless of whether gun owners' names are officially allowed to be kept for 24 hours (as under H.R. 3949) or for 18 months (as per the FBI regulations), can anyone really be sure the names of gun buyers will not indefinitely remain on a back-up disk somewhere?
Ending the harassment of long-gun buyers
Part II of the Brady Law forces buyers of long-guns to go through the background check as well. The BATF regulations issued in February make this point very clearly: ''While the interim provisions apply only to handguns, the permanent provisions of the Brady law will apply to all firearms.''(see footnote 4) (Emphasis added.) H.R. 2721 is the only bill that ends background checks on both handgun buyers AND long-gun buyers.
Stopping the feds from collecting Social Security numbers of gun owners
In February, BATF officials made it clear in their proposed regulations that they want gun dealers to collect the Social Security Numbers of gun buyers. The BATF explains it needs this information because, ''by providing a social security number, the transferee might avoid confusion with a prohibited buyer who has the same name and date of birth as the transferee.''(see footnote 5) Regardless of the BATF's reasoning, the giving of people's social security numbers could certainly facilitate the compilation of a registration list.
H.R. 2721by repealing this onerous lawwould stop the BATF from collecting this ''registration'' information. Brady ''registration'' checks would still continue under H.R. 3949.
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Precluding the ''instant'' check from becoming a three day check
The BATF regulations make it clear that the federal bureaucrats will have ''up to three business days'' to respond to each background check request. Since weekends are not typically considered business days, the ''three business days'' can easily impose a five day waiting period for weekend gun salesor a six day waiting period if there is a holiday on a Friday or Monday. This would adversely impact gun dealer sales at all weekend gun shows. Once again, repealing the entire law (as H.R. 2721 does) eliminates this problem.
Stopping the infringement of a Constitutionally protected right
The Second Amendment states, in part, that the ''right of the people to keep and bear arms shall not be infringed.'' That means no waiting periods, no background checks (a prior restraint), and no taxes, fees or bans. Clearly, this amendment is protecting against infringing the rights of individual citizens, and is undoubtedly what the Founding Fathers had in mind when they referred to ''the people.''
On this very point, the Supreme Court stated in U.S. v. Verdugo-Urquidez (1990) that,
'The people' seems to have been a term of art employed in select parts of the Constitution. . . . [and] it suggests that 'the people' protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.(see footnote 6)
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To be sure, honest gun owners should not have to request permission from, or prove their innocence to, the government before exercising a Constitutionally guaranteed rightany more than a preacher or journalist should have to prove their worthiness before exercising their First Amendment rights.
Any scheme that violates this principle is just plain wrong. H.R. 3949 will leave in place a law that forces law-abiding gun owners to first get permission from government officials before exercising their rights. According the General Accounting Office, the Brady law resulted in only three criminals being sent to jail after its first year and a half in operation.(see footnote 7) Why should we leave a law on the books that penalizes honest citizens, but rarely punishes criminals?
I hope the subcommittee will examine H.R. 2721, and bring it up for a vote. It repeals the illegal tax being imposed by the FBI. It definitively stops the registration of gun owners and prevents federal officials from getting gun owners' social security numbers. It ends the harassment of long-gun buyers and keeps the ''instant'' check from becoming a three-to-five-day waiting period. Moreover, it repeals the unconstitutional requirement that forces honest gun owners to prove their innocence to government bureaucrats.
In sum, H.R. 2721 conclusively protects the rights of gun owners. Thank you very much.
(Footnote 1 return)
U.S. Congress, Office of Technology Assessment, Automated Record Checks of Firearm Purchasers: Issues and Options, OTATCT497 [Washington, DC: U.S. Government Printing Office, July 1991].
(Footnote 2 return)
Highly acclaimed civil rights attorney, researcher and author, David Kopel, has noted several states where either registration lists have been illegally compiled from background checks or where such registration lists have been abused by officials. Kopel, ed., Guns: Who Should Have Them?, (1995) at 88, 117 (fn. 75), and 122 (fn. 124).
(Footnote 3 return)
Two letters on file at GOA headquarters bear this out: Stephen B. Savoy, Groves City Police Department (July 25, 1996); Betty D. Montgomery, Ohio Attorney General (June 12, 1997).
(Footnote 4 return)
Federal Register, vol. 63, no. 33, (Feb. 19, 1998), p. 8380.
(Footnote 5 return)
Ibid., p. 8382.
(Footnote 6 return)
U.S. v. Verdugo-Urquidez, Sup. Ct. case No. 881353 (1990).
(Footnote 7 return)
See General Accounting Office, Gun Control: Implementation of the Brady Handgun Violence Prevention Act, January 1996, p. 8.