Proposal #1: Prompt Destruction of Records of Allowed Transactions (§25.9(b)(1),(2) and (3))

The proposed rule would mandate the destruction of all information in the National Instant Criminal Background Check (NICS) Audit Log related to allowed transfers "prior to the beginning of the next NICS business day following the date on which an FFL receives communication of the determination that the transfer may proceed." (25.9(b)(1)(ii)).

The Department of Justice asserts that the basis for this change "lies in three provisions of the Brady Act." Section 103(h) requires the Attorney General to "prescribe regulations to ensure the privacy and security of the information in the system." Section 103(i) prohibits the establishment of a registration system with respect to firearms. Section 102(b) requires the FBI to "destroy all records of the system with respect to the call and all records of the system relating to the person or the transfer," when receipt of the firearm would not violate state or federal law.

The Proposed 24-hour Rule is Inconsistent with Established Department Policy

Less than three months prior to the issuance of this proposed rule, the Department, under Attorney General Ashcroft, argued successfully in a brief filed with the U.S. Supreme Court (see Attachment 2) that a rule permitting records of allowed transfers to be retained for up to six months was consistent with the Brady Act.² The Supreme Court rejected the appeal of the National Rifle Association's challenge to the NICS rule in the lower courts. In fact, the Department through the Solicitor General's office, vigorously defended the longer retention period and the value of the audit log:

The information in the audit log is "used to analyze system performance, assist users in resolving operational problems, support the appeals process...or support audits of the use of the system" [citations omitted]. Audit log information on allowed transfers "may be accessed directly only by the FBI for the purpose of conducting audits of the use and performance of the NICS" [citations omitted]. The Attorney General's regulations expressly prohibit the use of the audit log to establish a firearms registry [citations omitted]. The audit log can be retained no more than six months, after which all information on approved transactions—except the NICS transaction number and the date the transaction number was assigned—must be destroyed [citations omitted].³

In the same brief, the Department argued that "the audit log is designed to ‘satisfy the statutory requirement of ensuring the privacy and security of the NICS and the proper operation of the system.'" The Department then cited the preamble to the regulation issued in 1998 that allowed a six-month retention period:

By auditing the system, the FBI can identify instances in which the NICS is used for unauthorized purposes, such as running checks of people other than actual gun transferees, and protect against the invasions of privacy that would result from such misuse. Audits can also determine whether potential handgun purchasers or [Federal Firearms Licensees or FFLs] have stolen the identity of innocent and unsuspecting individuals or otherwise submitted false identification information in order to thwart the name check system. The Audit Log will also allow the FBI to perform quality checks on the system's operation by reviewing the accuracy of the responses given by the NICS record examiners to gun dealers.⁴

The Department also contended that "the information contained in the audit log, moreover, cannot be readily transformed into a federal firearms registry." This is because, as the Department's brief went on to note, the audit log "includes no addresses of persons approved to buy firearms, nor any information on specific weapons, nor even whether approved gun purchasers actually completed a transaction. The contents of the audit log are routinely purged and never contain information on more than six months of proposed transactions."⁵

Finally, the Department's brief observes that while the Brady Law required that NICS records on allowed transfers be destroyed, "it is silent as to the timing of that destruction; the requirement of ‘immediate' destruction that petitioners insist on does not appear in the statute itself."⁶

It is perplexing how the Department can now assert that the Brady Law requires the issuance of a rule mandating the virtual immediate destruction of records of allowed transactions when less than three months before issuing the new rule the Department defended as entirely consistent with the Brady Law a rule allowing those records to be maintained for six months. This position was effectively advocated by the Department, upheld by the U.S. Court of Appeals for the District of Columbia Circuit on July 11, 2000, and left undisturbed by the U.S. Supreme Court on June 25, 2001.

Moreover, the FBI has stated unequivocally in its March 2000 NICS Operations Report on NICS that an adequate document retention period was needed in order to improve the ability of the system to prevent prohibited persons from acquiring firearms. The report actually recommended a one-year retention period and noted that the CJIS Advisory Policy Board concurred with that recommendation.⁷

In addition, an internal Department of Justice document, NICS Records Retention Options Matrix, prepared as part of an internal Justice Department study of options for records retention in 1998, evaluated the pros and cons of various document retention options, states that among the "key cons" of a 24-hour retention policy are that it "eliminates the ability to audit the system" and "limits time to identify and investigate system misuse." (See Attachment 3).

The Proposed Rule is the Product of a Highly Irregular Process

Further evidence of the complete absence of any justification for the proposed rule is the manner in which it came about–in stark contrast with the 90-day rule which was twice suspended and now has been put into effect, albeit in a hobbled form, as a placeholder while the proposed rule is pending.

In connection with the establishment of the NICS, the FBI proposed regulations concerning retention of records. Initially, the FBI had hoped to be able to retain records of approved transactions for eighteen months in order to fulfill its responsibility to safeguard the privacy and security of the system. However, due to concerns that were expressed over the length of this retention period, the FBI shortened the retention period to six months, the amount of time established by the NICS regulations that were issued just before the NICS effective date of November 30, 1998.

On March 3, 1999, the Department proposed a further reduction of the record retention period to a mere 90 days⁸ This proposal sought to establish a shortened retention period of 90 days, clarified that only the FBI has direct access to the NICS Audit Log, and clarified that the FBI may extract and provide information from the NICS Audit Log to ATF for use in ATF inspections of FFL records, under certain conditions. Comments on the proposed rule were accepted until June 6, 1999, and more than 150 comments were received, including comments from state law enforcement officials that the retention period should be extended to one year, not reduced to 90 days.

Although the proposed 90-day rule reduced the retention period for information related to firearm transfers in the NICS Audit Log, the VPC supported the rule. The VPC recognized that firearm sellers and owners were strongly contending that they had a substantial privacy interest in limiting the retention period to that period necessary to serve the purposes of the NICS Audit Log; indeed, an appropriations rider in the Senate eliminating any retention period was dropped only when the Office of Management and Budget made a commitment to reduce the retention period as was done in the proposed rule.

At the time that the VPC supported the 90-day rule, the VPC concluded that the failure to adopt the proposed rule would result in the elimination of any record retention requirement which, in turn, would seriously damage NICS. In recognition of this fact, the VPC has consistently supported legislation to establish a minimum 90-day retention period by statute, including legislation (S. 1253) introduced by Senator Charles Schumer of New York (see Attachment 4) and an amendment sponsored by Representative James Moran of Virginia to legislation making appropriations for the Departments of Commerce, Justice and State.

On January 12, 2001, the NICS Final Rule was issued by then-Attorney General Janet Reno. On January 22, 2001, the NICS Final Rule was published in the Federal Register.⁹ It adhered to the proposed rule with only two technical changes. The effective date of the NICS Final Rule was March 5, 2001.

On January 20, 2001, however, the Bush Administration, through White House Chief of Staff Andrew Card, issued the Card Memorandum. In pertinent part, paragraph 3 of that Memorandum ordered the Heads and Acting Heads of Executive Agencies and Departments to take the following step: "With respect to regulations that have been published in the [Federal Register] but have not taken effect, temporarily postpone the effective date of the regulations for 60 days, subject to the exception described in paragraph 1 [the exception "for emergency or other urgent situations relating to health and safety]".¹⁰ Paragraph 3 of the Card Memorandum did not require notice and comment with respect to the postponement of the effective date of a Final Rule.

On February 23, 2001, acting expressly pursuant to paragraph 3 of the Card Memorandum, Attorney General Ashcroft "temporarily delay[ed] for 60 days the effective date [of the NICS Final Rule.]"¹¹ This action was published in the Federal Register on March 1, 2001. The Attorney General stated that "[t]he temporary 60-day delay in the effective date is necessary to give Department of Justice officials the opportunity for further review and consideration of the new regulations, consistent with the Assistant to the President's memorandum of January 20, 2001."¹² He further stated that, to the extent that 553 of the APA applies to this DOJ action, "it is exempt from notice and comment because it constitutes a rule of procedure under 5 U.S.C. section 553(b)(A). Alternatively, [DOJ's] implementation of this action without opportunity for notice and comment, effective immediately upon publication today in the Federal Register, is based on the good cause exceptions in 5 U.S.C. sections 553(b)(B) and 553(d)(3). Seeking public comment is impracticable, unnecessary and contrary to the public interest."¹³ Finally, the Attorney General stated that "[g]iven the imminence of the effective date, seeking prior public comment on this temporary delay would have been impractical, as well as contrary to the public interest in the orderly promulgation and implementation of regulations. The imminence of the effective date is also good cause for making this action effective immediately upon publication."¹⁴ The new effective date of the NICS Final Rule was May 4, 2001.

The VPC immediately became concerned that the delay and suspension of the NICS Final Rule presaged a reconsideration of the record retention issue, a threat to any record retention, and thus a threat to NICS. The VPC, like the Department, understood, that as long as the record retention period remains six months, this feature of NICS is significantly more vulnerable to efforts to eliminate any record retention requirement. This concern has proven well founded, as evidenced by this proposed rule. In addition, Senator Mike Enzi of Wyoming introduced S. 906, a bill that would amend current NICS procedures to require immediate destruction of records generated by NICS. And in his 2001 speech to the Annual Meeting of the NRA, the Executive Director of its lobbying arm reported the Attorney General's vow to put the "instant" back in the background check system and that a "top-to-bottom review of NICS is underway," albeit not using the requirements of the Administrative Procedures Act.

On May 3, 2001, the Attorney General again "temporarily postpone[d] for an additional 60 days the effective date of [the NICS Final Rule]."¹⁵ This action was published in the Federal Register on May 4, 2001. He stated that "[t]his temporary 60-day delay in the effective date is necessary to give Department of Justice officials further opportunity to review the rule, with the goal of adopting a regulation that will resolve issues regarding audit requirements, privacy interests, and other considerations identified during the recent 60-day review period."¹⁶ The Attorney General repeated his prior statements concerning the application of the APA to the delay, and further stated that "[t]he new Department officials must have sufficient, limited time to review the rule and its administrative record thoroughly in order to determine whether the rule sufficiently addresses questions concerning the implementation of the audit requirements, important privacy interests, and other considerations identified during the recent 60-day period."¹⁷ Finally, tacitly recognizing that delay or suspension of a final rule without notice and comment violates the APA, the Attorney General stated that "additional delays will be ordered only after notice-and-comment rule making on the question of such delay."¹⁸

After the Department announced this second of two unlawful suspensions of the 90-day rule, the VPC and two individual gun purchasers filed suit against Attorney General Ashcroft, seeking a determination that the suspension of the final rule without notice and comment violated the APA (See Attachment 5). In addition, the VPC asserted that the suspension of the rule was "arbitrary and capricious" as there was a complete absence of justification for refusing to allow the 90-day rule to go into effect. At the time that it filed suit, the VPC warned that the suspension of the 90-day rule foreshadowed a reversal of Department policy concerning the retention of records. The VPC was concerned with the very real possibility that the Department's policy regarding NICS would be driven by special interest groups such as the NRA rather than by the legitimate needs of law enforcement.¹⁹

On the day before the Attorney General announced that the period of record retention would be shortened to a maximum of 24 hours, the VPC learned that a shortened period of retention was going to be proposed. Sources within the Department confirmed to Congressional staffers and representatives of the media that the period of retention was being cut from 90 days to 45 days.²⁰ However, the very next day, and without explanation, the Department abandoned 45 days for a maximum of 24 hours.²¹ This 11th hour about face by the Department further confirms the arbitrary nature of the rule that the Department ultimately proposed.²²

The Proposed Rule Undermines the Ability of the FBI to Audit the System

The new rule purports to preserve the ability of the Department to perform so-called real-time audits. However, the Department has yet to demonstrate that such real-time audits actually work. In fact, as of the date of this comment, the VPC understands that numerous representatives of the Department press corps have repeatedly requested a demonstration of the proposed system for conducting so-called "real-time audits." In response to these requests, the Department reportedly has promised to demonstrate the new system. On at least one occasion, a demonstration was scheduled and then abruptly canceled without explanation. And in any event, whatever audits that the new rule permits, they cannot possibly resemble the audits that the FBI had planned to do under the 90-day rule. This is because virtually the only type of audit that can be performed in a maximum of 24 hours is a quality control audit of the individuals who answer telephone queries from FFLs to check whether the FBI persons are following the applicable protocols. The information is not preserved for a period of time sufficient to allow ATF to use the audit log in the course of performing on-site inspections of dealers.

Regrettably, the Department has abandoned a position that was developed through the rulemaking process, defended by the Department, and upheld by the courts. Moreover, the Department has reversed its position with absolutely no policy justification or basis in the record. The proposed rule for a maximum 24-hour document retention period is contrary to the Department's own well-established policy. Furthermore, the proposed rule would arbitrarily overrule a previously issued rule allowing records to be maintained for 90 days. Unlike the proposed rule, the 90-day rule was promulgated after notice and comment and is clearly supported by the record.

Recommendation: The final rule should reject the proposed destruction deadline of a maximum of 24 hours and fully and permanently adopt the final 90-day document retention rule.

2. National Rifle Association v. Ashcroft, Brief for the Respondent in Opposition to Petition for a Writ of Certiorari, No. 00-1332 (May 2001).
   
   
3. See id. at 3-4.
   
   
4. See id. at 4.
   
   
5. See id. at 17.
   
   
6. See id. at 18.
   
   
7. U.S. Department of Justice NICS Operation Report for November 30, 1998 through December 31, 1999, p. 25, (March 2000).
   
   
8. 64 Fed. Reg. 10262.
   
   
9. 66 Fed. Reg. 6470.
   
   
10. 66 Fed. Reg. 7702.
    
    
11. 66 Fed. Reg. 12854-55.
    
    
12. Id. at 12855.
    
    
13. Id.
    
    
14. Id.
    
    
15. 66 Fed. Reg. 22898.
    
    
16. Id.
    
    
17. Id.
    
    
18. Id.
    
    
19. See, e.g., Fox Butterfield, "Challenge Planned to Ashcroft's Delay of Gun Control Rule," N.Y. Times (June 3, 2001).
    
    
20. See, e.g., Eric Lichtblau, "Ashcroft to Announce Plan on Gun Buyer Checks," Los Angeles Times (June 28, 2001); The Associated Press, "Group Upset About Plan to Change Gun Checks," The Charleston Gazette (June 28, 2001).
    
    
21. See, e.g., Associated Press, "Ashcroft Set to Limit U.S. Holding of Gun Data," N.Y. Times (June 28, 2001); Eric Lichtblau, "Short Life for Gun Records," Los Angeles Times (June 28, 2001); Naftali Bendavid, "Ashcroft Pushes Gun Proposals: Destroy Records of Purchases After 24 hours, He Urges," Chicago Tribune (June 29, 2001); Beverley Lumpkin, "Lawyers, Guns and the NRA," ABCNEWS.com (June 29, 2001). [See Attachment 6 for articles cited in footnotes 19 through 21].
    
    
22. Senators Schumer and Kennedy issued a formal request to the Department for documents regarding the highly irregular and suspect process that resulted in this proposed rule. To the VPC's knowledge, the Department has yet to comply with this congressional request, and Senators Schumer and Kennedy have yet to receive any assurance that the Department will do so.

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