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entitled 'Gun Control and Terrorism: FBI Could Better Manage Firearm-
Related Background Checks Involving Terrorist Watch List Records' which 
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Report to Congressional Requesters:

United States Government Accountability Office:

GAO:

January 2005:

Gun Control and Terrorism: 

FBI Could Better Manage Firearm-Related Background Checks Involving 
Terrorist Watch List Records:

GAO-05-127:

GAO Highlights:

Highlights of GAO-05-127, a report to congressional requesters:

Why GAO Did This Study:

Membership in a terrorist organization does not prohibit a person from 
owning a gun under current law. Thus, during presale screening of 
prospective firearms purchasers, the National Instant Criminal 
Background Check System historically did not utilize terrorist watch 
list records. However, for homeland security and other purposes, the 
Federal Bureau of Investigation (FBI) and applicable state agencies 
began receiving notices (effective February 3, 2004) when such 
screening involved watch lists records. GAO determined (1) how many 
checks have resulted in valid matches with terrorist watch list 
records, (2) procedures for providing federal counterterrorism 
officials relevant information from valid-match background checks, and 
(3) the extent to which the FBI monitors or audits the states' handling 
of such checks.

What GAO Found:

During the period GAO reviewed--February 3 through June 30, 2004--a 
total of 44 firearm-related background checks handled by the FBI and 
applicable state agencies resulted in valid matches with terrorist 
watch list records. Of this total, 35 transactions were allowed to 
proceed because the background checks found no prohibiting information, 
such as felony convictions, illegal immigrant status, or other 
disqualifying factors.

Firearm-Related Background Checks with Valid Matches to Terrorist Watch 
List Records, February 3 through June 30, 2004:

Agency: FBI; 
Valid matches: 21; 
Results of background checks: Allowed to proceed: 19; Results of 
background checks: Denied: 2; Results of background checks: Results 
pending or records not available: 0.

Agency: State agencies; 
Valid matches: 23; 
Results of background checks: Allowed to proceed: 16; Results of 
background checks: Denied: 4; Results of background checks: Results 
pending or records not available: 3.

Total; 
Valid matches: 44; 
Results of background checks: Allowed to proceed: 35; Results of 
background checks: Denied: 6; Results of background checks: Results 
pending or records not available: 3.

Source: GAO analysis of FBI data and interviews with state agency 
officials.

[End of table]

Federal and state procedures--developed and disseminated under the 
Department of Justice's direction--do not address the specific types of 
information from valid-match background checks that can or should be 
provided to federal counterterrorism officials or the sources from 
which such information can be obtained. Justice officials told GAO that 
information from the background check system is not to be used for 
general law enforcement purposes but can be shared with law enforcement 
agents or other government agencies in the legitimate pursuit of 
establishing a match between the prospective gun buyer and a terrorist 
watch list record and in the search for information that could prohibit 
the firearm transfer. Most state agency personnel GAO contacted were 
not aware of any restrictions or limitations on providing valid-match 
information to counterterrorism officials. FBI counterterrorism 
officials told GAO that routinely receiving all available personal 
identifying information and other details from valid-match background 
checks could be useful in conducting investigations. As part of routine 
audits the FBI conducts every 3 years, the Bureau plans to assess the 
states' handling of firearm-related background checks involving 
terrorist watch list records. However, given that these background 
checks involve known or suspected terrorists who could pose homeland 
security risks, more frequent FBI oversight or centralized management 
would help ensure that suspected terrorists who have disqualifying 
factors do not obtain firearms in violation of the law. The Attorney 
General and the FBI ultimately are responsible for managing the 
background check system, although they have yet to assess the states' 
compliance with applicable procedures for handling terrorism-related 
checks. Also, more frequent FBI oversight or centralized management 
would help address other types of issues GAO identified--such as 
several states' delays in implementing procedures and one state's 
mishandling of a terrorism-related background check.

What GAO Recommends:

Proper management of firearm-related background checks involving valid 
matches with terrorist watch list records is important. GAO recommends 
that the Attorney General (1) clarify procedures to ensure that the 
maximum amount of allowable information from these background checks is 
consistently shared with counterterrorism officials and (2) either 
strengthen the FBI's oversight of state agencies or have the FBI 
centrally manage all valid-match background checks. The Department of 
Justice agreed.

www.gao.gov/cgi-bin/getrpt?GAO-05-127.

To view the full product, including the scope and methodology, click on 
the link above. For more information, contact Laurie Ekstrand at (202) 
512-8777 or ekstrandl@gao.gov. 

[End of section]

Contents:

Letter:

Results in Brief:

Background:

NICS Searches Terrorist Watch List Records Generated by Numerous 
Federal Agencies:

NICS Transactions Resulted in 44 Valid Matches with Terrorist Records 
in VGTOF:

NICS Procedures Contain General Guidelines for Sharing Information with 
Counterterrorism Officials:

The FBI Has Not Routinely Monitored the States' Handling of Terrorism- 
Related NICS Transactions; States Have Encountered Issues:

Conclusions:

Recommendations for Executive Action:

Agency Comments and Our Evaluation:

Appendix I: Objectives, Scope, and Methodology:

Objectives:

Scope and Methodology:

Data Reliability:

Appendix II: Federal and State Requirements for Retaining Information 
from Terrorism-Related NICS Transactions:

Federal Records Retention Requirements: Next-Day Destruction:

State Records Retention Requirements Vary:

Appendix III: Comments from the Department of Justice:

Tables:

Table 1: Watch Lists Maintained by Federal Agencies:

Table 2: NICS Transactions with Valid Matches to Terrorist Records in 
VGTOF, February 3 through June 30, 2004:

Abbreviations:

ATF: Bureau of Alcohol, Tobacco, Firearms and Explosives:

FBI: Federal Bureau of Investigation:

Justice: Department of Justice:

NICS: National Instant Criminal Background Check System:

TSC: Terrorist Screening Center:

VGTOF: Violent Gang and Terrorist Organization File:

United States Government Accountability Office:

Washington, DC 20548:

January 19, 2005:

The Honorable Joseph R. Biden, Jr.: 
Committee on the Judiciary: 
U.S. Senate:

The Honorable Frank R. Lautenberg: 
Committee on Homeland Security and Governmental Affairs: 
U.S. Senate:

Terrorist and criminal watch lists--sometimes referred to as watchout, 
lookout, target, or tip-off lists--are important tools for law 
enforcement and homeland security purposes. This report responds to 
your request for information on how the Federal Bureau of 
Investigation's (FBI) National Instant Criminal Background Check System 
(NICS) handles checks of prospective firearms purchasers that hit on 
and are confirmed to match terrorist watch list records.

As you know, under the Brady Handgun Violence Prevention Act and 
implementing regulations, the FBI and designated state and local 
criminal justice agencies use NICS to conduct background checks on 
individuals seeking to purchase firearms or obtain permits to possess, 
acquire, or carry firearms.[Footnote 1] During the NICS check, 
descriptive data provided by an individual--such as name and date of 
birth--are used to search databases containing criminal history and 
other relevant records to determine whether or not the person is 
disqualified by law from receiving or possessing firearms. For 
instance, persons prohibited by federal law from receiving firearms 
include convicted felons, fugitives, unlawful drug users, and aliens 
illegally or unlawfully in the United States.

According to the Department of Justice (Justice), under federal and 
state law, neither suspected nor actual membership in a terrorist 
organization is a stand-alone factor that would prohibit a person from 
receiving or possessing a firearm. Thus, FBI and state personnel 
processing NICS transactions historically did not receive notice when 
NICS searches hit on terrorist watch list records. In such cases, if 
there were no other records in the databases checked by NICS showing 
the person to be prohibited, the transaction received an immediate 
"proceed" response. However, in November 2003, Justice directed the FBI 
to revise its procedures to better ensure that suspected members of 
terrorist organizations who have disqualifying factors do not receive 
firearms in violation of the law. Under revised procedures effective 
February 3, 2004, all NICS transactions with potential or valid matches 
to terrorist watch list records are automatically delayed to give NICS 
personnel the chance to further research the transaction for 
prohibiting information before a response (e.g., proceed or denied) is 
given to the initiator of the background check. If no prohibiting 
information is found, the transaction may proceed and a known or 
suspected terrorist can legally purchase firearms.

This report addresses the following questions regarding NICS and 
terrorist watch lists:

* What terrorist watch lists are searched during NICS background checks?

* How many NICS transactions have resulted in valid matches with 
terrorist watch list records?

* For valid matches, what are federal and state procedures for sharing 
NICS-related information with federal counterterrorism officials?

* To what extent does the FBI monitor the states' handling of NICS 
transactions with valid matches to terrorist watch list records? What 
issues, if any, have state agencies encountered in handling such 
transactions?

* Also, appendix II of this report presents summary information on 
federal and state requirements for retaining information related to 
NICS transactions with valid matches to terrorist watch list records.

In performing our work, we interviewed officials from the Department of 
Justice, the FBI, and the Terrorist Screening Center--a multiagency 
center responsible for consolidating federal terrorist watch lists--and 
reviewed documentation they provided us. We obtained data on NICS 
transactions that resulted in valid matches with terrorist watch list 
records during the period February 3, 2004 (when the revised NICS 
procedures took effect), through June 30, 2004. We also contacted 11 
states (California, Colorado, Florida, Hawaii, Illinois, Massachusetts, 
North Carolina, Pennsylvania, Tennessee, Texas, and Virginia) that FBI 
data indicated--and the states subsequently confirmed--had processed 
NICS checks (during the period February 3 through June 30, 2004) that 
resulted in one or more valid matches with terrorist watch list 
records. The results of our interviews with state officials may not be 
representative of the views and opinions of others nationwide. We were 
unable to fully assess the reliability or accuracy of the data provided 
to us because of ongoing terrorism investigations. However, we did 
discuss the sources of data with FBI and state officials and determined 
that the data were sufficiently reliable for the purposes of this 
review. Further, we reviewed applicable laws, procedures, and other 
documents related to handling NICS transactions that hit on terrorist 
watch list records or the retention of NICS information.

We performed our work from April through December 2004 in accordance 
with generally accepted government auditing standards. Appendix I 
presents more details about our objectives, scope, and methodology.

Results in Brief:

During presale screening of prospective firearms purchasers, NICS 
searches terrorist watch list records generated by numerous federal 
agencies, including components of the Departments of Justice, State, 
and Homeland Security. Applicable records are consolidated by the 
Terrorist Screening Center, which then makes them available for certain 
uses or purposes, such as inclusion in an FBI database that is searched 
during NICS checks of prospective firearms purchasers.

During the period February 3 through June 30, 2004, a total of 44 NICS 
transactions (involving 36 different individuals) resulted in valid 
matches with terrorist watch list records, according to FBI data and 
our interviews with state agency officials. Of the 44 transactions with 
valid matches, 35 were allowed to proceed because the background checks 
found no prohibiting information, such as felony convictions or illegal 
immigrant status; 6 were denied based on prohibiting information; and 3 
were either pending a final resolution or the final resolution was not 
available. We could not determine whether the individuals who had more 
than one valid match had actually attempted to purchase firearms or 
acquire firearms permits on separate occasions, or if the multiple 
transactions were run for other purposes (e.g., rechecks), in part 
because information related to applicable NICS records was not 
available due to legal requirements for destroying information on 
transactions that are allowed to proceed.[Footnote 2] For valid 
matches, federal and state procedures--developed and disseminated under 
the Department of Justice's direction--do not address the specific 
types of information from NICS transactions that can or should be 
provided to federal counterterrorism officials or the sources from 
which such information can be obtained. Justice's position is that the 
types of information that can be routinely provided generally are 
limited to the information contained within the NICS database, such as 
certain biographical data collected from a gun dealer for purposes of 
running a NICS check (e.g., name and date of birth). Justice noted, 
however, that NICS personnel can request additional information from a 
gun dealer or from a law enforcement agency processing a firearms 
permit application, if that information is requested by a 
counterterrorism official in the legitimate pursuit of establishing a 
match between the prospective gun buyer and a terrorist watch list 
record. Justice told us that in cases in which a match is established 
and law enforcement agents want additional information about the 
firearm transaction--such as the residence address of the prospective 
firearm purchaser or the make and model of the firearm(s) to be 
transferred--law enforcement officers could coordinate with the Bureau 
of Alcohol, Tobacco, Firearms and Explosives (ATF) to have ATF request 
such information from the gun dealer's records without a warrant. Most 
state agency personnel we contacted were not aware of any restrictions 
or limitations on sharing information with counterterrorism officials. 
Most state personnel told us that--at the request of counterterrorism 
officials--the state would contact the gun dealer or refer to the state 
permit application to obtain and provide all available information 
related to a NICS transaction. FBI counterterrorism officials told us 
that receiving all available personal identifying information and other 
details from terrorism-related NICS transactions could be useful in 
conducting investigations.

Although the Attorney General and the FBI ultimately are responsible 
for managing NICS, the FBI has not routinely monitored the states' 
handling of NICS transactions with valid matches to terrorist watch 
list records. For example, while the FBI has notified state agencies 
about the procedures for handling NICS transactions with valid matches 
to terrorist watch list records, it has not routinely assessed the 
extent to which the states have implemented and followed procedures. 
According to the FBI, routine monitoring of the states has not been 
performed because of the difficulty in obtaining reliable state data. 
The FBI's plans call for auditing the states' compliance with the 
procedures every 3 years. However, given that valid-match background 
checks involve known or suspected terrorists who could pose homeland 
security risks, more timely or more frequent monitoring would help 
ensure that terrorists who have disqualifying factors do not obtain 
firearms in violation of the law. Also, under the FBI's planned 3-year 
audit cycle, relevant information from valid-match checks may have been 
destroyed pursuant to federal or state laws and therefore not available 
for review. Our work revealed several issues state agencies have 
encountered in handling terrorism-related NICS transactions, including 
delays in implementing procedures and a mishandled transaction.

This report provides recommendations for the Attorney General to (1) 
clarify procedures to ensure that the maximum amount of allowable 
information from terrorism-related NICS transactions is consistently 
shared with counterterrorism officials and (2) either implement more 
frequent monitoring by the FBI of applicable state agencies or have the 
FBI centrally manage all terrorism-related background checks. The 
Department of Justice agreed with our recommendations.

Background:

The permanent provisions of the Brady Handgun Violence Prevention Act 
took effect on November 30, 1998. Under the Brady Act, before a 
federally licensed firearms dealer can transfer a firearm to an 
unlicensed individual, the dealer must request a background check 
through NICS to determine whether the prospective firearm transfer 
would violate federal or state law.[Footnote 3] The Brady Act's 
implementing regulations also provide for conducting NICS checks on 
individuals seeking to obtain permits to possess, acquire, or carry 
firearms. According to the Department of Justice, under current law, 
inclusion on a terrorist watch list is not a stand-alone factor that 
would prohibit a person from receiving or possessing a firearm. Thus, 
if no other federal or state prohibitors exist, a known or suspected 
terrorist can legally purchase firearms.

Approximately 8.5 million background checks are run through NICS each 
year, of which about one-half are processed by the FBI's NICS Section 
and one-half by designated state and local criminal justice agencies. 
Under federal and state requirements, prospective firearms purchasers 
must provide information that is needed to initiate a NICS background 
check. For example, in order to receive a firearm from a licensed 
dealer, federal regulations require an individual to complete a 
Firearms Transaction Record (ATF Form 4473). Among other things, this 
form requires prospective purchasers to provide the following 
descriptive data: name, residence address, place of birth, height and 
weight, sex, date of birth, race, state of residence, country of 
citizenship, and alien registration number (for non-U.S. citizens). A 
Social Security number is optional. Firearms dealers use the Form 4473 
to record information about the firearms transaction, including the 
type of firearm(s) to be transferred (e.g., handgun or long gun); the 
response provided by the FBI's NICS Section or state agency (e.g., 
proceed or denied); and information specifically identifying each 
firearm to be transferred (e.g., manufacturer, model, and serial 
number), which shows whether the transaction involves the purchase of 
multiple firearms. Individuals applying for state permits to possess, 
acquire, or carry firearms also are required to provide personal 
descriptive data on a state permit application. State laws vary in 
regard to the types of information required from permit applicants.

The purpose of the NICS background check is to search for the existence 
of a prohibitor that would disqualify a potential buyer from purchasing 
a firearm pursuant to federal or state law. During the NICS check, 
descriptive data provided by an individual--such as name and date of 
birth--are used to search databases containing criminal history and 
other records supplied by federal, state, and local agencies.[Footnote 
4] One of the databases searched by NICS is the FBI's National Crime 
Information Center database, which contains criminal justice 
information (e.g., names of persons who have outstanding warrants) and 
also includes records on persons identified as known or suspected 
members of terrorist organizations. The terrorist-related records are 
maintained in the National Crime Information Center's Violent Gang and 
Terrorist Organization File (VGTOF), which was designed to provide law 
enforcement personnel with the means to exchange information on members 
of violent gangs and terrorist organizations.

Although NICS checks have included searches of terrorist records in 
VGTOF, NICS personnel at the FBI and state agencies historically did 
not receive notice when there were hits on these records. The FBI 
blocked the VGTOF responses (i.e., the responses were not provided to 
NICS personnel) under the reasoning that VGTOF records contain no 
information that would legally prohibit the transfer of a firearm under 
federal or state law. However, in November 2002, the FBI began an audit 
of NICS transactions where information indicated the individual was an 
alien, including transactions involving VGTOF records. In one instance 
involving a VGTOF record, the audit revealed that an FBI field agent 
had knowledge of prohibiting information not yet entered into the 
automated databases checked by NICS. As a result, in November 2003, the 
Department of Justice--citing Brady Act authorities--directed the FBI 
to revise NICS procedures to better ensure that subjects of VGTOF 
records who have disqualifying factors do not receive firearms in 
violation of applicable federal or state law. Specifically, the Brady 
Act authority cited allows the FBI up to 3 business days to check for 
information demonstrating that a prospective buyer is prohibited by law 
from possessing or receiving a firearm.[Footnote 5]

Under revised procedures effective February 3, 2004, FBI and state 
personnel who handle NICS transactions began receiving notice of 
transactions that hit on VGTOF records. Also, under the revised 
procedures, all NICS transactions with potential or valid matches to 
VGTOF records are automatically delayed to give NICS personnel the 
chance to further research the transaction before a response (e.g., 
proceed or denied) is given to the initiator of the background check. 
For all potential or valid matches with terrorist records in VGTOF, 
NICS personnel are to begin their research by contacting the Terrorist 
Screening Center (TSC) to verify that the subject of the NICS 
transaction matches the subject of the VGTOF record, based on the name 
and other descriptors.[Footnote 6] For confirmed matches, NICS 
personnel are to determine whether federal counterterrorism officials 
(e.g., FBI field agents) are aware of any information that would 
prohibit the individual by law from receiving or possessing a firearm. 
For example, FBI field agents could have information not yet posted to 
databases checked by NICS showing the person is an alien illegally or 
unlawfully in the United States. If counterterrorism officials do not 
provide any prohibiting information, and there are no other records in 
the databases checked by NICS showing the individual to be prohibited, 
NICS personnel are to advise the initiator of the background check that 
the transaction may proceed. If the NICS background check is not 
completed within 3 business days, the gun dealer may transfer the 
firearm (unless state law provides otherwise).

Designated state and local criminal justice agencies are responsible 
for conducting background checks in accordance with NICS policies and 
procedures. However, the Attorney General and the FBI ultimately are 
responsible for managing the overall NICS program. Thus, the FBI's 
Criminal Justice Information Services Division conducts audits of the 
states' compliance with federally established NICS regulations and 
guidelines. Also, the FBI is a lead U.S. law enforcement agency 
responsible for investigating terrorism-related matters.

NICS Searches Terrorist Watch List Records Generated by Numerous 
Federal Agencies:

During presale screening of prospective firearms purchasers, NICS 
searches terrorist watch list records generated by numerous federal 
agencies, including components of the Departments of Justice, State, 
and Homeland Security. Applicable records are consolidated by TSC, 
which then makes them available for certain uses or purposes, such as 
inclusion in VGTOF--a database routinely searched during NICS 
background checks.

Numerous Federal Agencies Maintain Terrorist Watch Lists:

Terrorist watch lists are maintained by numerous federal agencies. 
These lists contain varying types of data, from biographical data--such 
as a person's name and date of birth--to biometric data--such as 
fingerprints. Our April 2003 report identified 12 terrorist or criminal 
watch lists that were maintained by nine federal agencies.[Footnote 7] 
Table 1 shows the 12 watch lists and the current agencies that maintain 
them.

Table 1: Watch Lists Maintained by Federal Agencies:

Department: State; 
Agency: Bureau of Consular Affairs; 
Watch list: Consular Lookout and Support System.

Department: State; 
Agency: Bureau of Intelligence and Research; 
Watch list: TIPOFF[A].

Department: Homeland Security; 
Agency: U.S. Customs and Border Protection; 
Watch list: Interagency Border Inspection System.

Department: Homeland Security; 
Agency: Transportation Security Administration; 
Watch list: No-Fly List.

Department: Homeland Security; 
Agency: Transportation Security Administration; 
Watch list: Department: Selectee List.

Department: Homeland Security; 
Agency: U.S. Immigration and Customs Enforcement; 
Watch list: National Automated Immigration Lookout System.

Department: Homeland Security; 
Agency: U.S. Immigration and Customs Enforcement; 
Watch list: Automated Biometric (fingerprint) Identification System.

Department: Justice; 
Agency: U.S. Marshals Service; 
Watch list: Warrant Information Network.

Department: Justice;
Agency: FBI; 
Watch list: Violent Gang and Terrorist Organization File.

Department: Justice;
Agency: FBI; 
Watch list: Integrated Automated Fingerprint Identification System[B].

Department: Justice;
Agency: U.S. National Central Bureau of Interpol; 
Watch list: Interpol Terrorism Watch List.

Department: Defense; 
Agency: Air Force (Office of Special Investigations); 
Watch list: Top 10 Fugitive List.

Source: GAO.

[A] In November 2003, the Terrorist Threat Integration Center assumed 
responsibility for the functions of the Department of State's TIPOFF 
counterterrorism program. The Terrorist Threat Integration Center was 
created in January 2003 to merge and analyze terrorist-related 
information collected domestically and abroad in order to form the most 
comprehensive possible threat picture.

[B] The Integrated Automated Fingerprint Identification System is the 
FBI system for searching the fingerprint-supported criminal history 
records maintained by the FBI. The fingerprints and corresponding 
criminal history information are submitted by federal, state, and local 
law enforcement agencies.

[End of table]

At the time we issued our April 2003 report, federal agencies did not 
have a consistent and uniform approach to sharing terrorist watch list 
information.

TSC Was Established to Consolidate Terrorist Watch Lists:

TSC was established in September 2003 to consolidate the government's 
approach to terrorism screening and provide for the appropriate and 
lawful use of terrorism information. In addition to consolidating 
terrorist watch list records, TSC serves as a single point of contact 
for law enforcement authorities requesting assistance in the 
identification of subjects with possible ties to terrorism. TSC has 
access to supporting information behind terrorist records and can help 
resolve issues regarding identification. TSC also coordinates with the 
FBI's Counterterrorism Division to help ensure appropriate follow-up 
actions are taken.

TSC receives the vast majority of its information about known or 
suspected terrorists from the Terrorist Threat Integration Center, 
which assembles and analyzes information from a wide range of sources. 
In addition, the FBI provides TSC with information about purely 
domestic terrorism (i.e., activities having no connection to 
international terrorism). According to TSC officials, from December 1, 
2003--the day TSC achieved an initial operating capability--to March 
12, 2004, TSC consolidated information from 10 of the 12 watch lists 
shown in table 1 into a terrorist-screening database. The officials 
noted that the database has routinely been updated to add new 
information. Further, TSC officials told us that information from the 
remaining 2 watch lists--the U.S. Immigration and Customs Enforcement's 
Automated Biometric Identification System and the FBI's Integrated 
Automated Fingerprint Identification System--will be added to the 
consolidated database at a future date not yet determined.

A provision in the Intelligence Authorization Act for Fiscal Year 2004 
required the President to submit a report to Congress by September 16, 
2004, on the operations of TSC.[Footnote 8] Among other things, this 
report was to include:

* a determination of whether the data from all the watch lists 
enumerated in our April 2003 report have been incorporated into the 
consolidated terrorist-screening database;

* a determination of whether there remain any relevant databases not 
yet part of the consolidated database; and:

* a schedule setting out the dates by which identified databases--not 
yet part of the consolidated database--would be integrated.

As of November 2004, the report on TSC operations had not been 
submitted to Congress.

TSC, through the participation of the Departments of Homeland Security, 
Justice, and State and intelligence community representatives, 
determines what information in the terrorist-screening database will be 
made available for which types of screening purposes.

Eligible TSC Records Are Added to VGTOF and Searched by NICS:

In November 2003, the Department of Justice directed the FBI's NICS 
Section to develop appropriate procedures for NICS searches of TSC 
records when the center and its consolidated watch list database were 
established and operational. In accordance with this directive, the FBI 
and TSC have implemented procedures that allow all eligible records in 
the center's consolidated terrorist-screening database to be added to 
VGTOF and searched during NICS background checks. According to FBI and 
TSC officials, since December 2003, eligible records from the terrorist-
screening database have been added to VGTOF and searched during NICS 
background checks.

NICS Transactions Resulted in 44 Valid Matches with Terrorist Records 
in VGTOF:

For the period February 3 through June 30, 2004, FBI data and our 
interviews with state agency officials indicated that 44 NICS 
transactions resulted in valid matches with terrorist records in VGTOF. 
Of this total, 35 transactions were allowed to proceed because the 
background checks found no prohibiting information, such as felony 
convictions or illegal immigrant status, as shown in table 2.

Table 2: NICS Transactions with Valid Matches to Terrorist Records in 
VGTOF, February 3 through June 30, 2004:

Agency handling transactions: FBI; 
Valid matches: 21; 
Results of valid matches: Transactions allowed to proceed: 19; 
Results of valid matches: Transactions denied: 2; 
Results of valid matches: Transactions unresolved[A]: 0; 
Results of valid matches: Unknown status[B]: 0.

Agency handling transactions: State agencies; 
Valid matches: 23[C]; 
Results of valid matches: Transactions allowed to proceed: 16; 
Results of valid matches: Transactions denied: 4; 
Results of valid matches: Transactions unresolved[A]: 1; 
Results of valid matches: Unknown status[B]: 2.

Total; 
Valid matches: 44[D]; 
Results of valid matches: Transactions allowed to proceed: 35; 
Results of valid matches: Transactions denied: 6; 
Results of valid matches: Transactions unresolved[A]: 1; 
Results of valid matches: Unknown status[B]: 2.

Source: GAO analysis of data provided by the FBI's NICS Section and 
interviews with state agency officials.

[A] Transactions unresolved refers to open transactions pending a final 
proceed or denied determination.

[B] Unknown status consists of closed transactions for which the final 
proceed or denied determination was not available.

[C] The 23 valid matches handled by state agencies occurred in 11 
states that process NICS transactions (Calif., Colo., Fla., Hawaii, 
Ill., Mass., N.C., Pa., Tenn., Tex., and Va.).

[D] Of the 44 total valid matches, 30 were related to prospective gun 
purchases and 14 involved applications for permits to possess, carry, 
or acquire firearms.

[End of table]

According to FBI data and our interviews with state agency officials, 
the 44 total valid matches shown in table 2 involved 36 different 
individuals (31 individuals had one match and 5 individuals had more 
than one match). We could not determine whether the 5 individuals with 
more than one match had actually attempted to purchase firearms or 
acquire firearms permits on separate occasions, in part because 
information related to applicable NICS records was not available due to 
legal requirements for destroying information on transactions that are 
allowed to proceed.[Footnote 9] Our work indicated that the multiple 
transactions could have, for example, been run for administrative 
purposes (e.g., rechecks).

The FBI's revised procedures for handling NICS transactions with valid 
matches to terrorist watch list records--i.e., to delay the 
transactions to give NICS personnel the chance to further research for 
prohibitors--have successfully resulted in the denial of firearms 
transactions involving known or suspected terrorists who have 
disqualifying factors. Specifically, two of the six denied transactions 
shown in table 2 were based on prohibiting information provided by FBI 
field agents that had not yet been entered in automated databases 
checked by NICS. According to agency officials in the two states that 
handled the transactions, FBI field agents provided information showing 
that one of the individuals was judged to be mentally defective and the 
other individual was an alien illegally or unlawfully in the United 
States. Based on this information, both firearm transfers were denied.

The vast majority of NICS transactions that generated initial hits on 
terrorist records in VGTOF did not result in valid matches. 
Specifically, during the period in which the 44 valid matches were 
identified--February 3 through June 30, 2004--officials from the FBI's 
NICS Section estimated that approximately 650 NICS transactions 
generated initial hits on terrorist records in VGTOF.[Footnote 10] The 
high rate of potential matches returned--i.e., VGTOF records returned 
as potential matches based upon the data provided by the prospective 
purchaser--is due to the expanded search parameters used to compare the 
subject of a background check with a VGTOF record. An FBI NICS Section 
official told us that by comparing data from the NICS transaction 
(e.g., name, date of birth, and Social Security number) with data from 
the VGTOF record, it generally is easy to determine if there is a 
potential or valid match. The official told us that NICS personnel drop 
the false hits from further consideration and follow up only on 
transactions considered to be potential or valid matches. A false hit, 
for example, could occur when the subject of a NICS transaction and the 
subject of a VGTOF record have the same or a similar name but a 
different date of birth and Social Security number.

As table 2 shows, the 44 NICS transactions with valid matches to 
terrorist records in VGTOF were processed by the FBI's NICS Section and 
11 states during the period February 3 through June 30, 2004. In 
December 2004, FBI officials told us that during the 4 months following 
June 2004--that is, during July through October 2004--the FBI's NICS 
Section handled an additional 14 transactions with valid matches to 
terrorist records in VGTOF. Of the 14 transactions with valid matches, 
FBI officials told us that 12 were allowed to proceed because the 
background checks found no prohibiting information, and 2 were denied 
based on prohibiting information. It was beyond the scope of our work 
to assess the reliability or accuracy of the additional data.

NICS Procedures Contain General Guidelines for Sharing Information with 
Counterterrorism Officials:

Federal and state procedures--developed and disseminated under the 
Department of Justice's direction--contain general guidelines that 
allow FBI and state personnel to share information from NICS 
transactions with federal counterterrorism officials, in the pursuit of 
potentially prohibiting information about a prospective gun buyer. 
However, the procedures do not address the specific types of 
information that can or should be provided or the sources from which 
such information can be obtained. Justice's position is that the types 
of information that can be routinely provided generally are limited to 
the information contained within the NICS database. Justice noted, 
however, that NICS personnel can request additional information from a 
gun dealer or from a law enforcement agency processing a firearms 
permit application, if that information is requested by a 
counterterrorism official in the legitimate pursuit of establishing a 
match between the prospective gun buyer and a VGTOF record. Most state 
personnel told us that--at the request of counterterrorism officials-- 
the state would contact the gun dealer or refer to the state permit 
application to obtain and provide all available information related to 
a NICS transaction. FBI counterterrorism officials told us that 
receiving all available personal identifying information and other 
details from terrorism-related NICS transactions could be useful in 
conducting investigations.

FBI NICS Section Procedures and Guidance for Sharing NICS-Related 
Information:

As mentioned previously, for all potential or valid matches with 
terrorist records in VGTOF, NICS personnel are to begin their research 
by contacting TSC to verify the match. According to the procedures used 
by the FBI's NICS Section, during the screening process, TSC will ask 
NICS staff to provide "all information available in the transaction," 
including the location of the firearms dealer, in the pursuit of 
identifying a valid match. If a coordinated effort by TSC and FBI NICS 
Section staff determines that the subject of the NICS transaction 
appears to match a terrorist record in VGTOF--based on the name and 
other descriptors--TSC is to refer the NICS Section staff to the FBI's 
Counterterrorism Division for follow-up. Further, the procedures note 
that there will be instances when NICS Section staff are contacted 
directly by a case agent, who will ask the NICS Section staff to share 
"additional information from the transaction or provide necessary 
information to complete the transaction."

Justice's Position on Sharing NICS-Related Information:

The Department of Justice's position is that information from the NICS 
database is not to be used for general law enforcement 
purposes.[Footnote 11] Justice noted, however, that information about a 
NICS transaction can be shared with law enforcement agents or other 
government agencies in the legitimate pursuit of establishing a match 
between the prospective gun buyer and a VGTOF record and in the search 
for information that could prohibit the firearm transfer. Justice 
explained that the purpose of NICS is to determine the lawfulness of 
proposed gun transactions, not to provide law enforcement agents with 
intelligence about lawful gun purchases by persons of investigative 
interest. Thus, Justice told us that as set forth in NICS procedures, 
all information about a transaction hitting on a VGTOF record can be 
shared with field personnel in the pursuit of establishing whether the 
person seeking to buy the gun is the same person with the terrorist 
record in VGTOF. Justice added that this is done during the search for 
prohibiting information about the person whose name hit on the VGTOF 
record. Further, Justice noted that information about NICS transactions 
also can be and routinely is shared by NICS with law enforcement 
agencies when the information indicates a violation, or suspected 
violation, of law or regulation.[Footnote 12]

According to Justice, the types of information that can be routinely 
shared under NICS procedures generally are limited to the information 
collected by or contained within the NICS database. Specifically, 
Justice noted that--in verifying a match and determining whether 
prohibiting information exists--the following information can be 
routinely shared with TSC and counterterrorism officials:

* certain biographical data from the ATF Form 4473 collected from a gun 
dealer for purposes of running a NICS check (e.g., name, date of birth, 
race, sex, and state of residence);

* the specific date and time of the transaction;

* the name, street address, and phone number of the gun dealer; and:

* the type of firearm (e.g., handgun or long gun), if relevant to 
helping confirm identity.

Justice told us that additional information contained in the ATF Form 
4473, such as residence address or the number and make and model of 
guns being sold, is not required or necessary to run a NICS check. 
Justice noted, however, that there are times when NICS personnel will 
contact a gun dealer and request a residence address on a person who is 
determined to be prohibited from purchasing firearms--such as when 
there is a hit on a prohibiting arrest warrant record--so that the 
information can be supplied to a law enforcement agency to enforce the 
warrant. Similarly, Justice told us that NICS procedures do not 
prohibit NICS personnel from requesting a residence address from a gun 
dealer--or from a law enforcement agency issuing a firearms permit in 
the case of a permit check--if that information is requested by a 
counterterrorism official in the pursuit of establishing a match 
between the gun buyer and the VGTOF record. Justice noted that gun 
dealers are not legally obligated under either NICS or ATF regulations 
to provide this information to NICS personnel but frequently do 
cooperate and provide the residence information when specifically 
requested by NICS personnel.

Further, Justice told us that in cases in which a match is established 
and the field does not have the residence address or wants the address 
or other additional information on the Form 4473 regarding a 
"proceeded" transaction, FBI personnel can then coordinate with ATF to 
request the information from the gun dealer's records without a 
warrant. Specifically, Justice cited provisions in the Gun Control Act 
of 1968, as amended, that give the Attorney General the authority to 
inspect or examine the records of a gun dealer without a warrant "in 
the course of a reasonable inquiry during the course of a criminal 
investigation of a person or persons other than the [federal firearms] 
licensee."[Footnote 13] Justice explained that unless the person is 
prohibited or there is an indication of a violation or potential 
violation of law, FBI NICS personnel do not perform this investigative 
function for the field. FBI field personnel can, however, get the 
investigative information from gun dealers through coordination with 
ATF.

We recognize that current procedures allow NICS personnel to share "all 
information available in the transaction" with TSC or counterterrorism 
officials, in the pursuit of identifying a true match and the discovery 
of information that is prohibiting. However, given Justice's 
interpretation, we believe that clarifying the procedures would help 
ensure that the maximum amount of allowable information from terrorism- 
related NICS transactions is consistently shared with counterterrorism 
officials. For example, under current procedures, it is not clear if 
the types of information that can or should be routinely shared are 
limited to the information contained within the NICS database or if 
additional information can be requested from the gun dealer or from the 
law enforcement agency processing a permit application.

Types of Information Shared by the FBI's NICS Section:

The FBI's NICS Section did not maintain data on the types of 
information it shared with TSC or counterterrorism officials to (1) 
verify matches between NICS transactions and VGTOF records or (2) 
pursue the existence of firearm possession prohibitors. According to 
the NICS Section, such data are not maintained because NICS procedures 
provide for the sharing of all information available from the 
transaction, including the location of the gun dealer, in the pursuit 
of identifying a true match. The NICS Section told us that data 
required to initiate a NICS check--such as name, date of birth, sex, 
race, state of residence, citizenship, and purpose code (e.g., firearm 
check or permit check)--are captured in the NICS database and shared on 
every NICS transaction. A NICS Section official told us that the 
specific or approximate date and time of each transaction also is 
consistently shared with TSC.

TSC did maintain data on the types of information shared by the NICS 
Section. Specifically, in verifying matches, TSC data showed that NICS 
Section staff shared basic identifying information about the 
prospective purchasers (e.g., name, date of birth, and Social Security 
number). However, TSC data showed that NICS Section staff did not 
consistently share the specific location or phone number of the gun 
dealer. According to the procedures used by the FBI's NICS Section, in 
the pursuit of identifying a valid match, TSC will ask NICS staff to 
provide the location of the gun dealer. The NICS Section told us that 
this includes the specific location and phone number of the gun dealer.

According to TSC officials, once the FBI's NICS Section has shared 
information on an identity match and TSC verifies the match, the 
information provided by the NICS Section is forwarded to the FBI's 
Counterterrorism Division. The Counterterrorism Division is to then 
contact the NICS Section to follow up on the match. If the NICS Section 
does not receive a response from the Counterterrorism Division, the 
NICS Section is to aggressively pursue contacting the division to 
resolve the transaction. Counterterrorism Division officials told us 
the information provided by the NICS Section is routinely shared with 
field agents familiar with the terrorist records in VGTOF.

NICS Section officials also told us that for each transaction with a 
valid match to a VGTOF record, NICS Section staff talked directly to a 
field agent to pursue prohibiting information.[Footnote 14] The NICS 
Section did not maintain data on what, if any, additional information 
from the NICS transactions was shared during these discussions. 
However, NICS Section officials told us that in no cases did NICS staff 
contact the gun dealer to obtain--and provide to counterterrorism 
officials--additional information about the firearm transaction (e.g., 
information such as the prospective purchaser's residence address) that 
was not submitted as part of the initial NICS check or already 
contained within NICS. The NICS Section was aware of one instance in 
which NICS staff was asked by a counterterrorism official to obtain 
address information to assist in determining whether a VGTOF hit was a 
valid match. In that case--involving a firearm permit check--the NICS 
staff was able to get residence address information from the law 
enforcement agency processing the permit application and provide it to 
the counterterrorism official.

State Agency Procedures and Guidance for Sharing NICS-Related 
Information:

According to the FBI-disseminated procedures used by state agencies, in 
the process of contacting TSC, state staff are to share "all 
information available in the transaction," including the location of 
the firearms dealer, in the pursuit of identifying a true match and 
determining the existence of prohibiting information. If TSC and state 
staff make an identity match, TSC is to refer the state staff to the 
FBI's Counterterrorism Division for follow-up. Unlike the procedures 
used by the FBI's NICS Section, the state agency procedures do not 
address whether there will be instances when state staff are to be 
contacted directly by a case agent, or what additional information from 
the NICS transaction could be shared during such contacts.

Most state agency officials we contacted told us they interpreted the 
procedures as allowing them to share all available information related 
to a NICS transaction requested by counterterrorism officials, 
including any information contained on the forms used to purchase 
firearms or apply for firearms permits. Also, most state agency 
officials told us they were not aware of any restrictions or specific 
FBI guidance on the types of information that could or could not be 
shared with counterterrorism officials. According to the FBI's NICS 
Section, the procedures used by state agencies note that in the process 
of contacting TSC, state staff will share all information available in 
the transaction in the pursuit of identifying a true match and the 
discovery of information that is prohibiting. As mentioned previously, 
we believe that clarifying the procedures would help ensure that the 
maximum amount of allowable information from terrorism-related NICS 
transactions is consistently shared with counterterrorism officials.

The state agencies we contacted did not maintain data on the types of 
information they shared with TSC or counterterrorism officials to 
verify matches between NICS transactions and VGTOF records or pursue 
prohibiting information. However, in verifying matches, TSC data showed 
that state agency staff shared basic identifying information about the 
prospective purchasers (e.g., name, date of birth, and Social Security 
number). TSC data also showed that state agency staff did not 
consistently share the specific location or phone number of the gun 
dealer. TSC officials told us they basically can identify the date and 
time of a firearm transaction because TSC records the date and time 
NICS staff call TSC, which occurs very shortly after the gun dealer 
initiates the NICS check. TSC and FBI Counterterrorism Division 
officials told us they handle state agency referrals the same way as 
they handle referrals from the FBI's NICS Section.

Most of the state agency officials we contacted told us that if 
requested by counterterrorism officials (e.g., FBI field agents), state 
agency staff would either call the gun dealer or refer to the state 
permit application to obtain and provide all available information 
related to a NICS transaction. This information could include the 
prospective purchaser's residence address and the type and number of 
firearms involved in the transaction. Officials in three states told us 
that state staff had shared the prospective purchaser's residence 
address with FBI field agents. In one of the three cases, the field 
agent was interested in the residence address because the individual 
was in the country illegally and was wanted for deportation.

In its written comments on a draft of this report, Justice noted that 
in the case of the individual who was in the country illegally, because 
the individual was a prohibited person, there was no restriction on 
obtaining and providing the additional information about the denied 
transaction to a law enforcement agency after the identity was already 
established. Justice also noted that regarding the sharing of 
information from state firearm permit applications, there is no Brady 
Act limitation on the state supplying transaction information to field 
agents for investigative purposes after identity is established, as the 
use and dissemination of state firearm permit information is governed 
by state law.

NICS-Related Information Could Be Useful to Counterterrorism Officials:

According to officials from the FBI's Counterterrorism Division, 
personal identifying information and other details about NICS 
transactions with valid matches to terrorist records in VGTOF could be 
useful to FBI field agents in conducting terrorism investigations. 
Specifically, the officials noted the potential usefulness of locator 
information, such as the prospective purchaser's residence address, the 
date and time of the transaction, and the specific location of the gun 
dealer at which the transaction took place. The officials also told us 
that information on the type of firearm(s) involved in the transaction 
and whether the transaction involved the purchase of multiple firearms 
could also be useful to field agents. According to one official, in 
general, agents would want as much information as possible that could 
assist investigations. The FBI's NICS Section noted, however, that NICS 
procedures provide for sharing information only when it is relevant to 
determining a true match between a NICS transaction and a terrorist 
record in VGTOF.

The FBI Has Not Routinely Monitored the States' Handling of Terrorism- 
Related NICS Transactions; States Have Encountered Issues:

Although the Attorney General and the FBI ultimately are responsible 
for managing NICS, the FBI has not routinely monitored the states' 
handling of terrorism-related background checks. For example, the FBI 
does not know the number and results of terrorism-related NICS 
transactions handled by state agencies since June 30, 2004. Also, the 
FBI has not routinely assessed the extent to which applicable state 
agencies have implemented and followed procedures for handling NICS 
transactions involving terrorist records in VGTOF. The FBI's plans call 
for conducting audits of the states' compliance with the procedures 
every 3 years. Our work revealed several issues state agencies have 
encountered in handling NICS transactions involving terrorist records 
in VGTOF, including delays in implementing procedures and a mishandled 
transaction.

FBI Has Not Routinely Monitored the States' Handling of NICS 
Transactions Involving VGTOF Records:

The FBI has not routinely monitored the states' handling of NICS 
transactions involving terrorist records in VGTOF. For example, in 
response to our request for information--covering February 3 through 
June 30, 2004--the FBI's NICS Section reviewed all state NICS 
transactions that hit on VGTOF records during this period to identify 
potential matches. We used this information to follow up with state 
agencies and create table 2 in this report. However, since June 30, 
2004, the FBI's NICS Section has not tracked or otherwise attempted to 
collect information on the number of NICS transactions handled by state 
agencies that have resulted in valid matches with terrorist records in 
VGTOF or whether such transactions were approved or denied. NICS 
Section officials told us that while the NICS Section does not have 
aggregate data, FBI officials at TSC and the FBI's Counterterrorism 
Division are aware of valid-match transactions that state agencies 
handle. Given the significance of valid matches, we believe it would be 
useful for the FBI's NICS Section to have aggregate data on the number 
and results of terrorism-related NICS transactions handled by state 
agencies, particularly if the data indicate that known or suspected 
terrorists may be receiving firearms. In response to our inquiries, in 
October 2004, Justice and FBI NICS Section officials told us they plan 
to study the need for information on state NICS transactions with valid 
matches to terrorist records in VGTOF and the means by which such 
information could be obtained.

Also, while the FBI has taken steps to notify state agencies about the 
revised procedures for handling NICS transactions involving VGTOF 
records--including periodic teleconferences and presentations at a May 
2004 NICS User Conference[Footnote 15]--the FBI has not routinely 
assessed the extent to which states have implemented and followed the 
procedures. According to the FBI, the NICS Section performed an 
assessment of all NICS transactions involving VGTOF records from 
February 3, 2004 (the day the block on VGTOF records was removed) to 
March 22, 2004, in order to assess the extent to which the states 
implemented and followed procedures. For example, a NICS Section 
official told us that NICS personnel called state agencies to make sure 
they contacted TSC to verify matches and also contacted 
counterterrorism officials to pursue prohibiting information. However, 
according to the NICS Section, the assessment concluded on March 23, 
2004, because NICS Section personnel could not fully assess the 
reliability or accuracy of the information provided by the states. 
Officials from two states told us that additional FBI oversight could 
help ensure that applicable procedures are followed. One of the state 
officials told us that such FBI oversight could be particularly 
important since NICS transactions with valid matches to VGTOF records 
are rare and there could be turnover of state personnel who process the 
transactions.

As part of routine state audits the FBI conducts every 3 years, the FBI 
plans to assess the states' handling of terrorism-related NICS 
transactions. Specifically, every 3 years, the FBI plans to audit 
whether designated state and local criminal justice agencies are 
utilizing the written procedures for processing NICS transactions 
involving VGTOF records. Moreover, for states with a decentralized 
structure for processing NICS transactions--i.e., states with multiple 
local law enforcement entities that conduct background checks (rather 
than one central agency)--the goal of the audit is to determine if 
local law enforcement agencies conducting the checks have in fact 
received the written procedures, and if so, whether the procedures are 
being followed.[Footnote 16] However, given that the relevant NICS 
transactions involve known or suspected terrorists who could pose 
homeland security risks, we believe that a 3-year audit cycle is not 
sufficient. Also, under a 3-year audit cycle, information from NICS 
transactions with valid matches to terrorist records in VGTOF may have 
been destroyed pursuant to federal or state requirements and therefore 
may not be available for review.[Footnote 17] Further, a 3-year audit 
cycle may not be sufficient help ensure the timely identification and 
resolution of issues state agencies may encounter in handling terrorism-
related NICS transactions.

States' Issues in Handling Terrorism-Related NICS Transactions:

State agencies have encountered several issues in handling NICS 
transactions involving terrorist records in VGTOF. Specifically, of the 
11 states we contacted, 9 states experienced one or more of the 
following issues:

* 4 states had delays in implementing procedures,

* 3 states questioned whether state task forces were notified,

* 2 states had problems receiving responses from FBI field agents,

* 1 state mishandled a transaction, and:

* 3 states raised concerns about notifications.

Four States Had Delays in Implementing Procedures:

Four of the 11 states we contacted had delays of 3 months or more in 
implementing NICS procedures for processing transactions that hit on 
VGTOF records--procedures that were to have been effective on February 
3, 2004. Each of the 4 states processed one NICS transaction with a 
valid match to terrorist records in VGTOF before becoming aware of and 
implementing the new procedures. In processing the transactions, our 
work indicated that at least 3 of the 4 states did not contact TSC, as 
required by the procedures. The fourth state did not have information 
on how the transaction was processed. Although our work indicated that 
the FBI provided the new procedures to state agencies in January 2004, 
1 of the 4 states did not implement the procedures until after a state 
official attended the May 2004 NICS User Conference. Officials in the 
other 3 states were not aware of the new procedures at the time we made 
our initial contacts with them in June 2004 (2 states) and August 2004 
(1 state). Subsequent discussions with officials in 2 of the 3 states 
indicated the new procedures have been implemented. In November 2004, 
an official in the third state told us the procedures had not yet been 
implemented.

Three States Questioned whether State Task Forces Were Notified:

Officials in 3 of the 11 states told us they believed their respective 
state's homeland security or terrorism task forces should be notified 
when a suspected terrorist attempts to purchase a firearm in their 
state, but the officials said they did not know if TSC or the FBI 
provided such notices. Officials from the FBI's Counterterrorism 
Division did not know the extent to which FBI field agents notified 
state and local task forces about terrorism-related NICS transactions, 
but the officials told us that such notifications likely are made on a 
need-to-know basis.[Footnote 18] Justice and FBI officials acknowledged 
that this issue warrants further consideration.

Two States Had Problems Receiving Responses from FBI Field Agents:

Officials in 2 of the 11 states told us that in the pursuit of 
prohibiting information, their respective states had problems receiving 
responses from FBI field agents. These problems led to delays in each 
state's ability to resolve one NICS transaction with a valid match to a 
terrorist record in VGTOF. According to state officials, under the 
respective state's laws, the two transactions were not allowed to 
proceed during the delays, even though prohibiting information had not 
been identified. The two transactions were resolved as follows:

* In response to our inquiries, in November 2004, an analyst in one of 
the states contacted an FBI field agent, who told the analyst that the 
subject of the background check had been removed from VGTOF. A state 
official told us the NICS transaction was in a delay status for nearly 
10 months.

* Regarding the other state, the NICS transaction was in an unresolved 
status for a period of time specified by state law, after which it was 
automatically denied. According to state officials, a state analyst 
made initial contact with an FBI field agent, who said he would call 
the analyst back. The state officials told us that the analyst made 
several follow-up calls to the agent without receiving a response.

As of November 2004, the FBI had not responded to our request for 
information regarding the issues or circumstances as to why the FBI 
field agents had not contacted the two states' analysts.

One State Mishandled a Transaction:

One of the 11 states mishandled a NICS transaction with a valid match 
to a terrorist record in VGTOF. Specifically, although the state 
received notification of the VGTOF hit, the information was not relayed 
to state staff responsible for processing NICS transactions. 
Consequently, the transaction was approved without contacting TSC or 
FBI counterterrorism officials. We informed the state that the FBI's 
NICS Section had identified the transaction as matching a VGTOF record. 
Subsequently, state personnel contacted TSC and an FBI field agent, who 
determined that prohibiting information did not exist. State officials 
told us that to help prevent future oversights, the state has revised 
its internal procedures for handling NICS transactions that hit on 
VGTOF records.

Three States Raised Concerns about Notifications:

Officials in 3 of the 11 states told us that the automatic (computer- 
generated) notification of NICS transactions that hit on a certain 
(sensitive) category of terrorist records in VGTOF is not adequately 
visible to system users and could be missed by state personnel 
processing NICS transactions. The FBI has taken steps to address this 
issue and plans to implement computer system enhancements in June 2005.

Conclusions:

Under revised procedures effective February 3, 2004, all NICS 
transactions with potential or valid matches to terrorist watch list 
records in VGTOF are automatically delayed to give NICS personnel at 
the FBI and applicable state agencies an opportunity to further 
research the transactions for prohibiting information. The primary 
purpose of the revised procedures is to better ensure that known or 
suspected members of terrorist organizations who have disqualifying 
factors do not receive firearms in violation of federal or state law. 
An additional benefit has been to support the nation's war against 
terrorism. Thus, it is important that the maximum amount of allowable 
information from these background checks be consistently shared with 
counterterrorism officials. However, our work revealed that federal and 
state procedures for handling terrorism-related NICS transactions do 
not clearly address the specific types of information that can or 
should be routinely provided to counterterrorism officials or the 
sources from which such information can be obtained. For example, under 
current procedures, it is not clear if certain types of potentially 
useful information, such as the residence address of the prospective 
purchaser, can or should be routinely shared. Also, under current 
procedures, it is not clear if FBI and state personnel can routinely 
call a gun dealer or a law enforcement agency processing a permit 
application to obtain and provide counterterrorism officials with 
information not submitted as part of the initial NICS check. Further, 
some types of information--such as the specific location of the dealer 
from which the prospective purchaser attempted to obtain the firearm-- 
have not consistently been shared with counterterrorism officials. 
Consistently sharing the maximum amount of allowable information could 
provide counterterrorism officials with valuable new information about 
individuals on terrorist watch lists.

The FBI has plans that call for conducting audits every 3 years of the 
states' handling of terrorism-related NICS transactions. However, given 
that these NICS background checks involve known or suspected terrorists 
who could pose homeland security risks, more frequent FBI oversight or 
centralized management is needed. The Attorney General and the FBI 
ultimately are responsible for managing NICS, and the FBI is a lead law 
enforcement agency responsible for combating terrorism. However, the 
FBI does not have aggregate data on the number of NICS transactions 
involving known or suspected members of terrorist organizations that 
have been approved or denied by state agencies to date. Also, the FBI 
has not assessed the extent to which the states have implemented and 
followed applicable procedures for handling terrorism-related NICS 
transactions. Moreover, under a 3-year audit cycle, relevant 
information from the background checks may have been destroyed pursuant 
to federal or state laws and therefore may not be available for review. 
Further, more frequent FBI oversight or centralized management would 
help address other types of issues we identified--such as several 
states' delays in implementing procedures and one state's mishandling 
of a terrorism-related NICS transaction.

Recommendations for Executive Action:

Proper management of NICS transactions with valid matches to terrorist 
watch list records is important. Thus, we recommend that the Attorney 
General (1) clarify procedures to ensure that the maximum amount of 
allowable information from these background checks is consistently 
shared with counterterrorism officials and (2) either implement more 
frequent monitoring by the FBI of applicable state agencies or have the 
FBI centrally manage all terrorism-related NICS background checks.

Agency Comments and Our Evaluation:

We requested comments on a draft of this report from the Department of 
Justice. Also, we provided a draft of sections of this report for 
comment to applicable agencies in the 11 states we contacted.

On January 7, 2005, Justice provided us written comments, which were 
signed by the Acting Assistant Director of the FBI's Criminal Justice 
Information Services Division. According to Justice and FBI officials, 
the draft report was provided for review to Justice's Office of Legal 
Policy, the FBI's NICS Section (within the Criminal Justice Information 
Services Division), the FBI's Counterterrorism Division, and the 
Terrorist Screening Center.

Justice agreed with our two recommendations. Specifically, regarding 
our recommendation to clarify NICS procedures for sharing information 
from NICS transactions with counterterrorism officials, Justice stated 
that (1) the written procedures used by the FBI's NICS Section will be 
revised and (2) additional written guidance should be provided to 
applicable state agencies. Regarding our recommendation for more 
frequent FBI oversight or centralized management of terrorism-related 
NICS background checks, Justice has requested that the FBI report to 
the department by the end of January 2005 on the feasibility of having 
the FBI's NICS Section process all NICS transactions involving VGTOF 
records.

In its written comments, Justice also provided (1) a detailed 
discussion of the Brady Act's provisions relating to the retention and 
use of NICS information and (2) clarifications on the states' handling 
of terrorism-related NICS transactions. These comments have been 
incorporated in this report where appropriate. The full text of 
Justice's written comments is reprinted in appendix III.

Officials from 7 of the 11 states we contacted told us they did not 
have any comments. Officials from the remaining 4 states did not 
respond to our request for comments.

As arranged with your offices, unless you publicly announce its 
contents earlier, we plan no further distribution of this report until 
30 days after its issue date. At that time, we will send copies of this 
report to interested congressional committees and subcommittees. We 
will also make copies available to others upon request. In addition, 
the report will be available at no charge on GAO's Web site at http:// 
www.gao.gov.

If you or your staff have any questions about this report or wish to 
discuss the matter further, please contact me at (202) 512-8777 or 
ekstrandl@gao.gov, or my Assistant Director, Danny R. Burton, at (214) 
777-5600 or burtond@gao.gov. Other key contributors to this report were 
Eric Erdman, Lindy Coe-Juell, David Alexander, Katherine Davis, and 
Geoffrey Hamilton.

Signed by: 

Laurie E. Ekstrand: 
Director, Homeland Security and Justice Issues:

[End of section]

Appendix I: Objectives, Scope, and Methodology:

Objectives:

Our overall objective was to review how the Federal Bureau of 
Investigation's (FBI) National Instant Criminal Background Check System 
(NICS) handles checks of prospective firearms purchasers that hit on 
and are confirmed to match terrorist watch list records. The FBI and 
designated state and local criminal justice agencies use NICS to 
determine whether or not individuals seeking to purchase firearms or 
apply for firearms permits are prohibited by law from receiving or 
possessing firearms. Specifically, we addressed the following questions:

* What terrorist watch lists are searched during NICS background checks?

* How many NICS transactions have resulted in valid matches with 
terrorist watch list records?

* For valid matches, what are federal and state procedures for sharing 
NICS-related information with federal counterterrorism officials?

* To what extent does the FBI monitor the states' handling of NICS 
transactions with valid matches to terrorist watch list records? What 
issues, if any, have state agencies encountered in handling such 
transactions?

Also, we obtained summary information on federal and state requirements 
for retaining information related to NICS transactions with valid 
matches to terrorist watch list records (see app. II).

Scope and Methodology:

In performing our work, we reviewed applicable federal laws and 
regulations, FBI policies and procedures, and relevant statistics. We 
interviewed federal officials at and reviewed documentation obtained 
from the Department of Justice's Office of Legal Policy; the FBI's 
Counterterrorism Division; the FBI's NICS Section and Criminal Justice 
Information Services Division at Clarksburg, West Virginia; and the 
Terrorist Screening Center (TSC), which is the multiagency center 
responsible for consolidating federal terrorist watch lists. Generally, 
our analyses focused on background checks processed by the FBI's NICS 
Section and 11 states during the period February 3, 2004 (when the 
FBI's procedures for handling terrorism-related NICS transactions 
became effective), through June 30, 2004. The 11 states we contacted 
(California, Colorado, Florida, Hawaii, Illinois, Massachusetts, North 
Carolina, Pennsylvania, Tennessee, Texas, and Virginia) were those that 
FBI data indicated--and the states subsequently confirmed--had 
processed NICS checks (during the period February 3 through June 30, 
2004) that resulted in one or more valid matches with terrorist watch 
list records.

Terrorist Watch List Records Searched during NICS Background Checks:

To determine what terrorist watch list records are searched during NICS 
background checks, we interviewed officials from the FBI's NICS Section 
and the Criminal Justice Information Services Division--the FBI 
division responsible for maintaining the Violent Gang and Terrorist 
Organization File (VGTOF)--and obtained relevant documentation. Also, 
we interviewed TSC officials and obtained documentation and other 
relevant information on TSC's efforts to consolidate federal terrorist 
watch list records into a single database. Eligible records from TSC's 
consolidated database are shared with VGTOF and searched during NICS 
background checks.

Number of NICS Transactions with Valid Matches to Terrorist Watch List 
Records:

To determine the number of NICS transactions that resulted in valid 
matches with terrorist records in VGTOF--during the period February 3 
through June 30, 2004--we interviewed officials from the FBI's NICS 
Section and reviewed FBI data. The FBI did not have comprehensive or 
conclusive information on transactions handled by state agencies, but 
FBI data indicated that 12 states (California, Colorado, Florida, 
Georgia, Hawaii, Illinois, Massachusetts, North Carolina, Pennsylvania, 
Tennessee, Texas, and Virginia) likely had processed one or more NICS 
transactions with a valid match to terrorist records in VGTOF during 
this period. We interviewed agency officials in the 12 states to 
corroborate the FBI data and to obtain additional information about the 
related background checks (e.g., whether the transactions were allowed 
to proceed or were denied). We also worked with officials from the 
FBI's NICS Section and state agencies to resolve any inconsistencies. 
For example, our work revealed that 1 of the 12 states (Georgia) had 
not processed a terrorism-related NICS transaction during the period we 
reviewed. As such, our subsequent interviews and analysis focused on 
background checks processed by the FBI's NICS Section and the remaining 
11 states.

Procedures for Sharing NICS-Related Information with Counterterrorism 
Officials:

To determine federal and state procedures for sharing NICS-related 
information with federal counterterrorism officials, we reviewed 
applicable federal laws and regulations, including the Brady Handgun 
Violence Prevention Act[Footnote 19] and NICS regulations. We also 
reviewed FBI and state procedures for handling NICS transactions 
involving terrorist records in VGTOF--procedures that were developed 
and disseminated under the Department of Justice's direction. We 
interviewed officials from the Department of Justice's Office of Legal 
Policy, the FBI's NICS Section, and the 11 states to determine the 
scope and types of NICS-related information that could be shared with 
federal counterterrorism officials under applicable procedures. 
Further, for NICS transactions with valid matches to terrorist records 
in VGTOF--during the period February 3 through June 30, 2004--we 
interviewed officials from the FBI's NICS Section and Counterterrorism 
Division, TSC, and the 11 states to determine the types of NICS-related 
information that were shared with counterterrorism officials.

FBI Monitoring of the States' Handling of NICS Transactions and Issues 
Encountered by State Agencies:

To determine the extent to which the FBI has monitored the states' 
handling of NICS transactions involving VGTOF records, we interviewed 
officials from the Department of Justice's Office of Legal Policy, the 
FBI's NICS Section, and state agencies. We reviewed documents the FBI 
used to notify state agencies about the procedures for handling 
terrorism-related NICS transactions. We also reviewed data and other 
information the FBI maintained on transactions handled by the states. 
Further, we obtained information on the FBI's plans to periodically 
audit whether designated state and local criminal justice agencies are 
utilizing the written procedures for processing NICS transactions 
involving VGTOF records. To identify issues state agencies have 
encountered in handling terrorism-related NICS transactions, we 
interviewed officials from the 11 states. For identified issues, we 
interviewed officials from the Department of Justice and the FBI's NICS 
Section and Counterterrorism Division to discuss the states' issues and 
obtain related information.

Federal and State Requirements for Retaining Information from Terrorism-
Related NICS Transactions:

To determine federal and state requirements for retaining information 
from terrorism-related NICS transactions, we interviewed officials from 
the FBI's NICS Section and state agencies and reviewed applicable 
federal laws and regulations. We also reviewed a Department of Justice 
report that addressed the length of time the FBI and applicable state 
agencies retain information related to firearm background 
checks.[Footnote 20] Further, we interviewed officials from the FBI and 
reviewed relevant FBI documents to determine how the federal 24-hour 
destruction requirement for NICS records of allowed firearms transfers 
would affect the FBI's NICS Section and state policies and procedures.

Data Reliability:

We performed our work from April through December 2004 in accordance 
with generally accepted government auditing standards. We were unable 
to fully assess the reliability or accuracy of the data regarding valid 
matches with terrorist records in VGTOF because the data related to 
ongoing terrorism investigations. However, we discussed the sources of 
data with FBI, TSC, and state agency officials and worked with them to 
resolve any inconsistencies. We determined that the data were 
sufficiently reliable for the purposes of this review. The results of 
our interviews with officials in the 11 states may not be 
representative of the views and opinions of others nationwide.

[End of section]

Appendix II: Federal and State Requirements for Retaining Information 
from Terrorism-Related NICS Transactions:

Federal Records Retention Requirements: Next-Day Destruction:

On July 21, 2004, the FBI's NICS Section implemented a provision in 
federal law that requires any personal identifying information in the 
NICS database related to allowed firearms transfers to be destroyed 
within 24 hours after the FBI advises the gun dealer that the transfer 
may proceed.[Footnote 21] The law does not provide an exception for 
retaining information from NICS transactions with valid matches to 
terrorist records in VGTOF. Thus, information in the NICS database from 
such transactions also is subject to the federal 24-hour destruction 
provision. Before the 24-hour destruction provision took effect, 
federal regulations permitted the retention of all information related 
to allowed firearms transfers for up to 90 days.[Footnote 22] The 
federal 24-hour retention statute does not specifically address whether 
identifying information in the NICS database related to permit checks-
-which do not involve gun dealers--is subject to 24-hour destruction. 
According to the FBI's NICS Section, the 24-hour destruction 
requirement does not apply to permit checks. Rather, information 
related to permit checks is maintained in the NICS database for up to 
90 days after the background check is initiated.

In implementing the 24-hour destruction provision, the FBI's NICS 
Section revised its policies and procedures to allow for the retention 
of nonidentifying information related to each proceeded background 
check for up to 90 days (e.g., information about the gun dealer). 
According to the FBI, by retaining the nonidentifying information, the 
FBI's NICS Section can initiate firearm retrieval actions when new 
information reveals that an individual who was approved to purchase a 
firearm should not have been. The nonidentifying information is 
retained for all NICS transactions that are allowed to proceed, 
including transactions involving subjects of terrorist watch lists.

Also, in implementing the 24-hour destruction provision, the FBI's NICS 
Section created a new internal classification system for transactions 
that are "open." Specifically, if NICS staff cannot make a final 
determination (i.e., proceed or denied) on a transaction within 3 
business days, the NICS Section is to automatically change the status 
to open. The NICS Section maintains personal identifying information 
and other details related to open transactions until either (1) a final 
determination on the transaction is reached or (2) the expiration of 
the retention period for open transactions, which is a period of no 
more than 90 days. Regarding terrorism-related NICS transactions, the 
open designation would be used, for example, if NICS Section staff did 
not receive responses from FBI field agents within 3 business days.

The 24-hour destruction provision did not affect federal policies for 
retaining NICS records related to denied firearms transactions. Under 
provisions in NICS regulations, personal identifying information and 
other details related to denied firearms transactions are retained 
indefinitely. Also, according to Justice and FBI officials, there are 
no limitations on the retention of NICS information by TSC or 
counterterrorism officials, who received the information to verify 
identities and determine whether firearm-possession prohibitors exist.

State Records Retention Requirements Vary:

Among the states, requirements vary for retaining records of allowed 
transfers of firearms.[Footnote 23] Some states purge a firearm 
transaction record almost immediately after the firearm sale is 
approved, while other states retain such records for longer periods of 
time. Under NICS regulations, state records are not subject to the 
federal 24-hour destruction requirement if the records are part of a 
system created and maintained pursuant to independent state law. Thus, 
states with their own state law provisions may retain records of 
allowed firearms transfers for longer than 24 hours. The retention of 
state records related to denied firearms transactions varies.

[End of section]

Appendix III: Comments from the Department of Justice:

U.S. Department of Justice:

Federal Bureau of Investigation:

Clarksburg, WV 26306:

January 7, 2005:

Ms. Laurie Ekstrand:
Director, Homeland Security and Justice Issues: 
United States Government Accountability Office: 
Washington, DC 20548:

Re: GAO-05-127:

Dear. Ms. Ekstrand:

Thank you for the opportunity to review the Government Accountability 
Office (GAO) draft report entitled "GUN CONTROL AND TERRORISM: FBI 
Could Better Manage Firearm-Related Background Checks Involving 
Terrorist Watch List Records." The draft report has been reviewed by 
various components of the Department of Justice (DOJ), including the 
FBI Criminal Justice Information Services (CJIS) Division, National 
Instant Criminal Background Check System (NICS) Section. This letter 
constitutes the formal Department of Justice comments to the draft 
report and it is requested that it be included in GAO's final report.

The report reviews the experience of the NICS in implementing new 
procedures under which the NICS delays checks on firearms transactions 
that hit on a terrorist watch list record in the National Crime 
Information Center's (NCIC) Violent Gang and Terrorist Organization 
File (VGTOF). The new procedures began in February 2004, pursuant to a 
November 2003 DOJ directive, and required the NICS to delay such 
transactions so that NICS personnel can coordinate with FBI field 
agents to determine whether the agents have prohibiting information 
about a prospective purchaser on the watch list that is not yet 
available in the automated databases checked by the NICS. Because 
persons placed on a terrorist watch list are not prohibited from 
possessing or receiving firearms [NOTE 1], before the February 2004 
change in procedures, such transactions had not been delayed unless the 
NICS check hit upon another prohibiting record. As the report notes, 
the new procedures have been successful in enabling the NICS to deny 
two gun transactions during the five-month period reviewed based on 
prohibiting information provided by the FBI field agents that had not 
yet been entered in the automated databases checked by NICS.

One of the main points made in the report is that the existing 
procedures are not clear enough as to what information can be shared 
with FBI field agents when processing a NICS checks hitting on an NCIC 
VGTOF record. In particular, the report suggests that the procedures 
be more explicit with respect to when a prospective purchaser's 
residence address can and should be obtained and shared by NICS with 
FBI field agents. The FBI's NICS VGTOF Standard Operating Procedures 
(SOP) explicitly provide that all information about a transaction that 
is obtained in the course of processing a NICS check, including the 
name and address of the gun dealer, will be shared by the NICS with law 
enforcement agents or other government agencies to establish whether 
the person seeking to buy the gun is the same person with the record in 
the NCIC VGTOF. This information sharing is done in legitimate pursuit 
of prohibiting information about the person whose name hit on the NCIC 
VGTOF record. In addition, although not explicitly stated in the FBI's 
NICS VGTOF SOP, it is understood by the NICS personnel that if 
requested by an FBI field agent for purposes of establishing the 
identity of the purchaser with the NCIC VGTOF record, the NICS will 
contact a gun dealer or a firearms licensing authority to request the 
residence address of the prospective purchaser, information that is not 
required for running a NICS check. We agree, however, that this 
procedure concerning a follow-up call to obtain a residence address at 
the request of an FBI field agent should be made a part of the written 
FBI's NICS VGTOF SOP, and the FBI will so revise its written procedures.

A discussion of the Brady Handgun Violence Prevention Act's (Brady Act) 
provisions relating to the retention and use of NICS information is 
helpful in understanding the information sharing provisions of FBI's 
NICS VGTOF procedures. The Brady Act restricts the use of identifying 
information in the NICS about "proceeded" gun transactions, prohibiting 
the use of such information to establish a national registry of firearm 
owners and requiring its destruction to protect the privacy of lawful 
gun purchasers. Congress has recently imposed a new legal requirement, 
set forth in the 2004 and 2005 Omnibus Appropriations bills, that such 
identifying information is destroyed by the NICS within 24 hours of 
advising a gun dealer that a transaction can proceed. Thus, since the 
establishment of the NICS in November 1998, the DOJ has taken the 
position that information from the NICS about lawful gun transactions 
is not to be used for general law enforcement purposes. However, 
because the purpose of the NICS is to determine the lawfulness of 
proposed gun transactions, identifying information about a transaction 
that has not been "proceeded" can be shared by the NICS with law 
enforcement agents or other government agencies in legitimate pursuit 
of potentially prohibiting information about a proposed firearm 
transferee. Thus, as set forth in the FBI's NICS VGTOF procedures, all 
NICS information about a transaction hitting on an NCIC VGTOF record 
can be shared with field personnel in pursuit of establishing whether 
the person seeking to buy the gun is the same as the person with the 
record in the NCIC VGTOF.

There is no similar limitation under the Brady Act on sharing NICS 
information with law enforcement agencies about persons determined to 
be prohibited from possessing or receiving a firearm, and NICS 
information on "denied" transactions can be and routinely is provided 
to the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF).

In addition, although NICS information about "proceeded" transactions 
cannot, because of these legal restrictions, be shared with law 
enforcement officials just to provide notice of lawful gun purchases by 
persons of investigative interest, information about NICS transactions, 
including transactions that are eventually "proceeded," can be and 
routinely is shared by the NICS with law enforcement agencies when the 
information indicates a violation, or suspected violation, of law or 
regulation. Thus, Routine Use C of the NICS Privacy Act Notice provides:

If, during the course of any activity or operation of the system 
authorized by the regulations governing the system (28 CFR, part 25, 
subpart A), any record is found by the system which indicates, either 
on its face or in conjunction with other information, a violation or 
potential violation of law (whether criminal or civil) and/or 
regulation, the pertinent record may be disclosed to the appropriate 
agency/organization/task force (whether Federal, State, local, joint, 
or tribal) and/or to the appropriate foreign or international agency/ 
organization charged with the responsibility of investigating, 
prosecuting, and/or enforcing such law or regulation ...

63 FR 65226-27 (Nov. 25, 1998).

In general, the FBI NICS Section only collects certain biographical 
data on a prospective gun purchaser for purposes of running a NICS 
check (e.g., name, date of birth, sex, race, state of residence). 
Additional information contained in the ATF Form 4473 maintained by the 
gun dealer, such as a residence address or the number and make and 
model of guns being sold, is not required or necessary to run a NICS 
check. There are, however, times when the NICS will contact a gun 
dealer and request a residence address on a person that is determined 
to be prohibited, such as when there is a hit on a prohibiting arrest 
warrant record, so that the information can be supplied, pursuant to 
Routine Use C, to a law enforcement agency that can enforce the 
warrant. Gun dealers are not legally obligated under the NICS or the 
ATF regulations to provide this information to the NICS, but frequently 
do cooperate and provide the residence information when specifically 
requested by the NICS.

Similarly, when requested by a counterterrorism official for the 
purpose of establishing identity, additional information about the 
transaction can and is sought by the FBI NICS Section. The FBI's NICS 
VGTOF SOP states: "There will be instances when the VGTOF Examiners 
[NICS personnel specially assigned to handle transaction VGTOF hits] 
are contacted directly by the case agent. The case agent will ask the 
VGTOF Examiner to share additional information from the transaction or 
provide necessary information to determine true identity and complete 
the transaction." The VGTOF Examiners will provide any additional 
information available on the transaction requested by the 
counterterrorism officials in order to resolve the identity issue. The 
additional information can include the residence address of the 
prospective gun buyer or firearms permit applicant obtained through a 
special request to the gun dealer or firearms permitting authority that 
initiated the check. If the information is provided in response to the 
request, the NICS will share that information with the counterterrorism 
official for the purpose of establishing true identity of the 
prospective purchaser. In addition, FBI field personnel can obtain 
additional information on proceeded transactions from gun dealers for 
investigative purposes through coordination with ATF. Thus, if identity 
is already established and the person is a lawful purchaser, 
counterterrorism official, if they do not already know the subject's 
residence address or wish to see address or other additional 
information recorded on the ATF Form 4473, can coordinate with the ATF 
to obtain from the gun dealer additional information on the ATF Form 
4473. If identity is established and the subject is a prohibited 
person, the NICS will attempt to obtain the residence address from the 
gun dealer if requested by the counterterrorism official. As noted 
above, the FBI plans to make these procedures an explicit part of the 
written FBI's NICS VGTOF SOP used by VGTOF Examiners.

A special request for additional information was made by the FBI NICS 
Section in one instance when a counterterrorism official requested the 
residence address of a subject while coordinating with FBI NICS 
personnel in the pursuit of determining a true match on a terrorism 
related NCIC VGTOF record. That case involved a firearm permit 
application, and the FBI NICS Examiner was able to obtain the subject's 
residence address from the law enforcement agency processing the permit 
application and provide it to the counterterrorism official in pursuit 
of determining a true match. In the rest of the cases involving NCIC 
VGTOF hits processed by the FBI NICS Section to date, the FBI field 
personnel have been able to determine whether a match exists from the 
information the NICS received from the gun dealer when initiating a 
NICS check and without a special call to the gun dealer or firearm 
permitting authority requesting a residence address.

The report also makes the following observation about the practice of 
state personnel in seeking and providing additional information to FBI 
field personnel when processing transactions hitting on VGTOF records 
in Point-of-Contact (POC) states:

Most of the state agency officials we contacted told us that if 
requested by counterterrorism officials (e.g., FBI field agents), state 
agency staff would either call the gun dealer or refer to the state 
permit application to obtain and provide all available information 
related to a NICS transaction. This information could include the 
prospective purchaser's residence address and the type and number of 
firearms involved in the transaction. Officials in three states told us 
that state staff had shared the prospective purchaser's residence 
address with FBI field agents. In one of the three cases, the field 
agent was interested in the residence address because the individual 
was in the country illegally and was wanted for deportation.

We note that, contrary to the report's implication, in the case 
involving the illegal alien, because the individual was a prohibited 
person, there was no restriction on obtaining and providing the 
additional information about the denied transaction to a law 
enforcement agency after identity was already established. In addition, 
in the case of information from state firearm permit applications, 
there is no Brady Act limitation on the state supplying transaction 
information to the FBI field agents for investigative purposes after 
identity is established, as the use and dissemination of state firearm 
permit information is governed by state law. It is not clear from the 
report whether in other instances the state sought the information from 
a gun dealer after identity was already established or was requested by 
the field as part of the effort to establish identity. Written guidance 
provided to the POC states makes it clear that all information 
concerning a transaction may be provided in pursuit of establishing a 
true match. We agree, however, that additional written guidance should 
be provided to the POC states clarifying when additional information 
may be sought from a gun dealer and shared with FBI field personnel.

Finally, in discussing how POC states are implementing the procedures 
for processing NICS checks that hit on NCIC VGTOF records, the report 
notes that: (1) there are inconsistencies in how state agency staff 
have implemented the procedures and how successful they have been in 
getting responses from FBI field agents; (2) despite an initial effort 
by the FBI to obtain information about NCIC VGTOF transactions 
processed by the POC states, the FBI has been unable to obtain complete 
aggregate information concerning the number of POC transactions with 
confirmed matches to the NCIC VGTOF (i.e., although the Terroist 
Screening Center and FBI field agents know when there is a confirmed 
match, the FBI NICS Section does not have aggregate match data for POC 
state NCIC VGTOF hits in the same way that it has that data for NCIC 
VGTOF hits that it processes); and (3) there is a need for more 
oversight of how the POC states are implementing the NCIC VGTOF hit 
procedures to ensure there is consistency in how the NICS checks for 
prohibiting information on these transactions.

We note that the since implementing these procedures in February 2004, 
it has become apparent that the volume of affected transactions is low 
enough that all of the NCIC VGTOF hits could be processed by the FBI 
NICS Section. Given that fact, together with the report's findings 
concerning inconsistencies in POC states' handling of the transactions, 
and the fact that the effort involved in ensuring consistency in POC 
implementation of the procedures would be greater than simply having 
the FBI NICS Section process POC transactions with NCIC VGTOF hits, the 
FBI has been requested to report to the DOJ by the end of January 2005 
on the feasibility of having all NCIC VGTOF hits processed by the FBI 
NICS Section.

Thank you for the opportunity to comment on your report.

Sincerely yours,

Signed by: 

Jerome M. Pender: 
Acting Assistant Director: 
Criminal Justice Information Services Division:

NOTES: 

[1] As noted in your report, under federal law, persons are prohibited 
from receiving or possessing a firearm if they (1) have been convicted 
of, or are under indictment for, a felony; (2) are a fugitive from 
justice; (3) are unlawful drug users or are addicted to a controlled 
substance; (4) have been involuntarily committed to a mental 
institution or judged to be mentally defective; (5) are aliens 
illegally or unlawfully in the United States, or certain other aliens 
admitted under a nonimmigrant visa; (6) have been dishonorably 
discharged from the military; (7) have renounced their U.S. 
citizenship; (8) are under a qualifying domestic violence restraining 
order; or (9) have been convicted of a misdemeanor crime of domestic 
violence. See Title 18, United States Code, Sections 922(g) and (n).

[End of section]

FOOTNOTES

[1] Brady Handgun Violence Prevention Act, Public Law 103-159, 107 
Stat. 1536 (1993).

[2] In December 2004, FBI officials told us that--during the period 
July 1 through October 31, 2004--the FBI handled an additional 14 NICS 
transactions with valid matches to terrorist watch list records, of 
which 12 were allowed to proceed and 2 were denied. It was beyond the 
scope of our work to assess the reliability or accuracy of the 
additional data. 

[3] Under federal law, persons are prohibited from receiving a firearm 
if they (1) have been convicted of, or are under indictment for, a 
felony; (2) are a fugitive from justice; (3) are unlawful drug users or 
are addicted to a controlled substance; (4) have been involuntarily 
committed to a mental institution or judged to be mentally defective; 
(5) are aliens illegally or unlawfully in the United States, or certain 
other aliens admitted under a nonimmigrant visa; (6) have been 
dishonorably discharged from the military; (7) have renounced their 
U.S. citizenship; (8) are under a qualifying domestic violence 
restraining order; or (9) have been convicted of a misdemeanor crime of 
domestic violence. See 18 U.S.C.  922(g) and  922(n).

[4] In earlier reports, we provided a detailed overview of NICS 
operations. See GAO, Gun Control: Implementation of the National 
Instant Criminal Background Check System, GAO/GGD/AIMD-00-64 
(Washington, D.C.: Feb. 29, 2000); GAO, Gun Control: Options for 
Improving the National Instant Criminal Background Check System, GAO/ 
GGD-00-56 (Washington, D.C.: Apr. 12, 2000); and GAO, Gun Control: 
Opportunities to Close Loopholes in the National Instant Criminal 
Background Check System, GAO-02-720 (Washington, D.C.: July 12, 2002). 

[5] 18 U.S.C.  922(t)(1)(B)(ii).

[6] Pursuant to Homeland Security Presidential Directive 6, TSC was 
established on September 16, 2003, to consolidate the government's 
approach to terrorism screening and provide for the appropriate and 
lawful use of terrorist information in screening processes. 

[7] See GAO, Information Technology: Terrorist Watch Lists Should Be 
Consolidated to Promote Better Integration and Sharing, GAO-03-322 
(Washington, D.C.: Apr. 15, 2003).

[8] Public Law 108-177, 117 Stat. 2599, 2623, 2624 (2003).

[9] Additional information on federal and state requirements for 
retaining records related to NICS transactions is presented in appendix 
II.

[10] The FBI did not have data on the specific number of NICS 
transactions that hit on terrorist records in VGTOF. However, for the 
period February 3 through June 30, 2004, FBI data showed that a total 
of 1,660 NICS transactions hit on either terrorist or violent gang 
records in VGTOF. FBI officials estimated that approximately 40 percent 
(about 650) of the 1,660 hits were on terrorist records. 

[11] As a basis for its position related to proceeded gun transactions, 
Justice noted that the Brady Act restricts the use of identifying 
information in NICS by prohibiting the use of such information to 
establish a national registry of firearm owners and requiring 
destruction of the information to protect the privacy of lawful gun 
purchasers. In addition, Justice noted that recent appropriations act 
provisions require such identifying information in NICS be destroyed 
within 24 hours of advising a gun dealer that a transaction may proceed.

[12] See NICS Privacy Act Notice, Routine Use C, 63 Fed. Reg. 65,223, 
65,224 (1998).

[13] See 18 U.S.C.  923(g)(1)(B)(i). In general, the Attorney General 
has delegated to the Bureau of Alcohol, Tobacco, Firearms and 
Explosives--subject to his and the Deputy Attorney General's direction-
-the authority to investigate, administer, and enforce the laws 
relating to firearms, including exercising the function and powers of 
the Attorney General under various federal firearms laws (see 28 C.F.R. 
 0.130).

[14] We did not interview FBI field agents because the NICS 
transactions and related VGTOF records involved ongoing terrorism 
investigations. Instead, we interviewed officials from the FBI's 
Counterterrorism Division who were responsible for coordinating with 
field agents to determine whether or not they were aware of prohibiting 
information. 

[15] Each year, the FBI's NICS Section sponsors a national conference 
for designated state and local agencies that conduct background checks, 
during which various issues related to the NICS program are addressed.

[16] According to the Department of Justice's Bureau of Justice 
Statistics, over 3,000 state and local agencies conduct background 
checks related to firearm transfers.

[17] As mentioned previously, appendix II presents information on 
federal and state requirements for retaining information related to 
NICS transactions with valid matches to terrorist watch list records.

[18] As mentioned previously, we did not contact FBI field agents 
because the transactions involved ongoing terrorism investigations.

[19] Brady Handgun Violence Prevention Act, Public Law 103-159, 107 
Stat. 1536 (1993).

[20] Department of Justice, Bureau of Justice Statistics, Survey of 
State Procedures Related to Firearm Sales, Midyear 2003, NCJ 203701 
(Washington, D.C.: Aug. 2004).

[21] See section 617 of Public Law 108-199, 118 Stat. 3, 95 (2004).

[22] We previously reported on Justice's then-proposed next-day 
destruction policy. See GAO, Gun Control: Potential Effects of Next-Day 
Destruction of NICS Background Check Records, GAO-02-653 (Washington, 
D.C.: Jul. 10, 2002).

[23] See Department of Justice, Bureau of Justice Statistics, Survey of 
State Procedures Related to Firearm Sales, Midyear 2003, NCJ 203701 
(Washington, D.C.: Aug. 2004).

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