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Review of the Bureau of Alcohol, Tobacco, Firearms and Explosives' Enforcement of Brady Act Violations Identified Through the National Instant Criminal Background Check System

Report Number I-2004-006
July 2004


    U.S. Department of Justice
Bureau of Alcohol, Tobacco, Firearms and Explosives

Office of the Director   Washington, DC 20226
July 9, 2004

MEMORANDUM TO: Assistant Inspector General for Evaluation and Audits
FROM: Director
SUBJECT: Response to the Office of Inspector General's (OIG) Draft Report: Review of the Bureau of Alcohol, Tobacco, Firearms and Explosives' Enforcement of Brady Act Violations Identified through the National Instant Criminal Background Check System. A-2004-001.

The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) appreciates the opportunity to respond to the recommendations from the OIG's above-cited draft report. Although we were previously aware of and acting to improve many areas included in your findings, we welcome constructive criticism of our programs as this independent evaluation process typically helps us improve our ability to effectively plan and manage our resources efficiently.

As you know, ATF's move to the Department of Justice established an agency with a more focused mission that reaffirms the importance of preventing the criminal misuse of firearms and explosives. As part of the Department of Justice, we are becoming a stronger, more effective law enforcement and regulatory agency. One part of our mission is to vigorously enforce the Federal firearms laws, which includes National Instant Criminal Background Check System (NICS) referrals from the FBI.

We strongly believe that one of the principal activities of successful firearms enforcement efforts is the effective referral of firearms denials received from the FBI's NICS Operation Center. As such, ATF continues to assess our practices and procedures to ensure that we are constantly improving this complex process.

By way of example, ATF Order 331 0.4C, Integrated Violence Reduction Strategy, which includes a section on the investigation of straw purchase and false statement violations resulting from NICS checks, is in the final stages of review prior to printing. Through these guidelines, ATF will provide additional guidance for the field on improving its NICS procedures and taking appropriate actions necessary to meet or exceed recommendations regarding documentation of NICS referrals.

In general, ATF believes there is a need to increase its resources dedicated to firearms investigations and we have addressed this need in our FY 2006 budget submission.

Our responses to your recommendations are as follows:

1. Modify its case management system to allow the Brady Operations Branch to refer delayed denials directly to the appropriate ATF field office.

ATF does not concur with this recommendation.

ATF believes that decentralizing the process at the division office level would not improve the processing of NICS referrals. The special agent in charge (SAC) of each division office needs to be aware of the types and level of investigative activity being performed by assigned special agents. The SAC, in cooperation with U.S. Attorneys, needs to be able to analyze and prioritize the referrals based on individual law enforcement priorities. This can best be accomplished when the delayed denials, as well as standard denials, flow through the SAC office. Alternatively, ATF believes that improving communications through the NICS Coordinators and Brady Operations Branch would better serve to improve the process. ATF intends to focus on this issue in future training.

2. Use non-agent personnel to handle the administrative tasks related to NICS cases.

ATF does not concur with this recommendation.

While ATF agrees with your assessment that some of the administrative tasks related to NICS cases could be, and in some cases currently are, handled by non-agent personnel, ATF believes that it would be very costly to employ and train additional contractors or other ATF personnel to assist with NICS cases, especially when the need does not appear to be crucial. First, the volume of referrals of delayed denials has been steadily reduced since the inception of NICS, and we expect this trend to continue. Therefore, we do not believe it is appropriate to dedicate contractor resources to an area with a declining workload. In addition, clearly established written referral guidelines, which come from, or are approved by, the U.S. Attorney's Office (USAO) would serve to further reduce the number of referrals to a level that could be managed by existing ATF special agents and field support personnel. This is an issue ATF continues to pursue with the USAOs throughout the country. Finally, ATF firmly believes that although investigative assistants and analysts can assist with the administrative tasks related to a NICS case, this is a limited role and only ATF special agents, who are trained professionals in firearms investigations can determine the type and immediacy of any action that should be taken in response to a particular referral.

3. Establish timeliness standards for firearm retrievals and develop a system for ATF field office management to monitor and report on compliance with these standards.

ATF concurs with this recommendation, in part.

The monitoring of firearm retrievals is the direct responsibility of the field supervisors. The nature and complexity of NICS referrals dictates that they should be examined and investigated on a case-by-case basis. Depending on the nature of the referral, we are sometimes unable to meet a specific deadline on firearms retrievals. Therefore, a specific "timeliness standard" cannot be applied to all cases. In addition, special agents are not always afforded the luxury of making contact with the individuals on the first, second, or even third attempt. However, ATF agrees that general timeliness standards could be established. ATF is in the process of drafting instructions to the field that will mandate that an investigation be initiated within 30 days of receipt of the referral. The referral will also require that agents document in N-FORCE investigative activity at least once every 30 days until the case is recommended for prosecution, the firearm is recovered, or the case is closed.

4. Revise its standard initial contact letter to include a response timeframe and direct its personnel to send the letters on a timely basis, track responses to the letters, and take timely action to retrieve the firearms when the letters are unsuccessful in eliciting a response.

ATF concurs with this recommendation.

ATF will be issuing to all field offices a memorandum that will recommend all initial contact letters be sent certified and return receipt requested. The contact letter will also be amended to state that the recipient of the letter must contact ATF within 14 days of receiving the letter. In addition, ATF Order 3310.4C, Integrated Violence Reduction Strategy, will direct agents to track cases within N-FORCE to ensure that actions are timely.

5. Examine the feasibility of enabling Brady Operations Branch specialists to identify NICS cases by Federal judicial district so that they can be screened using specific USAO guidelines. In the interim, require that all division office NICS coordinators screen standard denial referrals and refer to the field office only those cases that meet USAO prosecutorial guidelines.

ATF concurs with this recommendation.

ATF believes USAO guidelines are at the core of a successful NICS referral program. Since the beginning of the Brady Operations Branch NICS referrals system, ATF has continually sought USAO guidelines in order to streamline the referral process. To date eight field divisions have provided tailored criteria from the USAO's; however, none are specific to particular judicial districts.

The Brady Operations Branch is currently involved in a pilot program with the Boston Field Division to have each of the USAO's provide specific NICS criteria so that the Branch can begin referring cases under specific guidelines by judicial district.

Under current ATF guidelines, NICS coordinators should already be screening standard denial referrals and referring to the field offices only those cases that meet USAO prosecutorial guidelines.

6. Provide annual training to the NICS coordinators and develop a NICS coordinator handbook.

ATF concurs with this recommendation.

In the past, ensuring that coordinators have the necessary training has been problematic because of a high turnover of personnel in that position. However, ATF's Brady Operations Branch has scheduled a conference with all NICS Coordinators in August 2004, and a NICS handbook will be provided at the conference.

7. Require that Brady Operations Branch refer to the field offices only those alien cases that meet the USAO prosecutorial guidelines.

ATF concurs with this recommendation.

ATF agrees that the Brady Operations Branch should refer only those alien cases that meet USAO prosecutorial guidelines; however, ATF has not been provided specific USAO guidelines applicable to alien cases. As a result, until ATF receives such guidance, the Brady Operations Branch will continue to refer to the field only those alien denials that result from both firearm and immigration violations. For example, if an alien's case fits the current referral guideline to be referred as a firearms case, the Brady Operations Branch forwards it to the respective division while also notifying Immigration and Customs Enforcement (ICE). However, if the denial of a transfer to an individual was based only on an immigration violation, a referral is prepared and forwarded only to ICE.

8. Require that division office NICS coordinators and field office personnel notify the Brady Operations Branch of referrals that did not meet USAO guidelines.

ATF concurs with this recommendation.

Should ATF receive previously mentioned guidelines from each USAO, the number of standard denials forwarded to field offices will be dramatically reduced. In the interim, the Brady Operations Branch will work with the NICS coordinators to detemline whether there are additional screening guidelines employed by the field divisions that can be introduced and utilized by the Brady Operations Branch. By ensuring that the field and the Brady Branch are using the same screening guidelines, we believe we can decrease the number of unnecessary referrals.

9. Require that division office NICS coordinators and field office personnel notify the Brady Operations Branch and the FBI NICS Section of trends of inappropriate referrals of non-prohibited persons. Also, require that field office personnel, via the division office NICS coordinators, provide to the FBI NICS Section the names of those individuals that the ATF determines not to be prohibited and documentation to support the reason for the person's non-prohibited status.

ATF concurs with this recommendation.

ATF developed and introduced N-Force to assist investigators in gathering, reporting, and accessing investigative case data with a goal of reducing the amount of time spent on administrative functions by special agents. This computer tracking system for investigations indicates that approximately 10 percent of the NICS referrals forwarded to the field by Brady Operations Branch are closed as "Not a Prohibited Person" as a result of subsequent investigation. The remaining 90 percent are cases involving confirmed prohibited persons.

Whenever "trends" are identified, ATF will report these to the Brady Operations Branch and FBI NICS Section. In the early stages of the Brady Law, the percentage of denials, which were later determined as not prohibited, was much larger than it is today because the process has evolved and improved.

ATF will establish a method by which the field can capture nonprohibited referrals and supply that information to the Brady Operations Branch who will in turn notify the FBI NICS Section.

10. Ensure that the Brady Operations Branch is, and continues to be sufficiently staffed to minimize backlogs and sufficiently funded to implement necessary automated system modifications.

ATF concurs with this recommendation.

ATF agrees that the Brady Operation Branch needs additional staffing as well as improvements to the ATF NICS Referral System. However, many operational areas within ATF are also in pressing need of personnel and resources. ATF must carefully allocate its resources in accordance with priorities established by the Department of Justice and ATF among the full array of activities. We will ensure that the Brady Operations Branch is sufficiently staffed to fulfill its mission. Toward this end, we are hiring two data entry contractors.


ATF will employ a well-balanced strategy to ensure that NICS delayed and standard denials are acted upon in a timely fashion. Additionally, ATF will maximize the use of our available resources. ATF faces a number of emerging challenges in the years ahead, which dictate that ATF utilize innovative solutions and technology in its strategies to accomplish goals we have set. ATF will continue, in the years to come, to look for ways to improve our business practices.

If you have any questions regarding this response, please contact, Carol Campbell Audit Liaison, Office of Inspection, at (202) 927-8276.

[original signed]

Carl J. Truscott