The Violence Policy Center (VPC) is a non-profit organization dedicated to reducing firearm-related death and injury. In 1998, the VPC issued a report on implementation of the National Instant Criminal Background Check System (NICS), and has since monitored developments related to the system.1 In addition, the VPC has presented testimony before Congress regarding NICS, and the VPC lobbies Congress to maintain the integrity of the NICS, improve the effectiveness of the system, and increase resources for the system. For example, the VPC supports legislation to ensure that records of approved transactions are maintained for an amount of time adequate to perform audits of the system.

The VPC, joined by the Legal Community Against Violence and Physicians for Social Responsibility welcome the opportunity to comment on the Department of Justice (DOJ) Federal Bureau of Investigation (FBI) proposed rule. However, we fear that the proposed rule may be a proposal in name only. This is because the proposed rule resulted from a process in which the Department short-circuited the rulemaking process, violated the Administrative Procedures Act, and produced the proposed rule under a veil of secrecy, in order to produce the desired result with a minimum of public scrutiny. In short, this proposed rule is the “fruit of a poisonous tree.”

What the Department now proposes, if implemented, will eviscerate the FBI’s ability to safeguard the privacy and security of the system. It contradicts established Department policy, is the product of a highly irregular rulemaking, and, significantly, the Department has yet even to demonstrate how the system proposed in the rule will operate.

The National Rifle Association and its supporters have indicated that they will be satisfied with nothing less than the complete elimination of the audit log, and can be expected to criticize this proposed rule for retaining records even for a maximum of 24 hours. However, even these critics understand that the proposed rule will produce the desired result – records retention for a nominal period of time that would operate in practice just like a rule requiring immediate destruction of NICS records. In short, with this proposed rule, the Department has placed the special interests of the pro-gun lobby and its supporters in Congress ahead of the public interest, sacrificing the vigorous enforcement of federal gun laws and the effectiveness of NICS. The deficiencies of the proposed rule are so blatant that many major news outlets, Members of Congress, and commentators have publicly opposed the proposal (See Attachment 1). These comments address each specific element of the proposed rule in turn.

1) Paper Tiger? – Will The Brady Law Work After Instant Check?, Violence Policy Center (July 1998).