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

On June 16, 2004, the Office of the Inspector General (OIG) sent copies of the draft report to the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), the Executive Office for U.S. Attorneys (EOUSA), and the Federal Bureau of Investigation (FBI) with a request for written comments. The ATF, EOUSA, and FBI responded to us in separate memoranda dated July 9, July 15, and July 2, 2004, respectively. The ATF concurred with eight of the ten recommendations that required its action. The ATF did not concur with our recommendation to modify the NFORCE system to allow the Brady Operations Branch to refer delayed denials directly to the appropriate ATF field office, or our recommendation to use non-agent personnel to handle the administrative tasks related to NICS cases. The EOUSA and the FBI concurred with the recommendations (one each) that required their action. Our analysis of the components' comments follows.

RECOMMENDATIONS

Recommendation 1: The ATF should modify its NFORCE system to allow the Brady Operations Branch to refer delayed denials directly to the appropriate ATF field office.

Status: Unresolved - Open.

Summary of ATF Response. The ATF did not concur with this recommendation. The ATF stated that it did not believe that decentralizing the referral process would improve the processing of NICS referrals. In addition, the ATF stated that the special agents in charge (SAC) of its division offices need to be aware of the types and level of investigative activity being performed by assigned special agents and need to be able to analyze and prioritize the referrals based on individual law enforcement priorities.

OIG Analysis. We disagree with the ATF's rationale for not implementing this recommendation. At none of the four ATF division offices we visited did the SACs review, analyze, or prioritize the delayed denials. Instead, the NICS coordinators at the division offices received the delayed denials directly from the Brady Operations Branch and forwarded them, without additional review, to the appropriate field office for investigation and retrieval of the firearms. The resident agents in charge or group supervisors at the field offices were the ones responsible for reviewing, analyzing, and prioritizing the NICS referrals. Therefore, in our opinion, sending the delayed denials to the division offices served no useful purpose. In fact, we found that the process actually caused delays in retrieving firearms in those instances when the division office NICS coordinator failed to forward the delayed denials to the field offices in a timely manner. Accordingly, we believe that having the Brady Operations Branch bypass the ATF division offices and send the delayed denials directly to the field office for firearm retrievals would improve the timeliness of the process. Please reconsider this response and let us know by September 10, 2004, whether the ATF will modify its NFORCE system.

Recommendation 2: The ATF should use non-agent personnel to handle the administrative tasks related to NICS cases.

Status: Unresolved - Open.

Summary of ATF Response. The ATF did not concur with this recommendation. While the ATF acknowledged the benefits of using non-agent personnel in this capacity, it stated that the cost of hiring and training non-agent personnel would outweigh the benefits. Specifically, the ATF stated that: 1) the volume of delayed denials has steadily declined since the implementation of the NICS, a trend that the ATF expects to continue; 2) clearly established written referral guidelines provided by the U.S. Attorneys' offices (USAO) would further reduce the number of referrals to a manageable level; and 3) the role of non-agent personnel would be limited and only ATF special agents would be able to determine the type and immediacy of actions to be taken in response to a particular referral.

OIG Analysis. We disagree with the ATF's rationale for not implementing the recommendation. First, according to data contained in the FBI's annual NICS operations reports, although the volume of delayed denials was declining after CY 2000, the number of delayed denials increased from 3,429 in CY 2002 to 3,601 in CY 2003. Our concern, however, is not with the overall number of delayed denials, but with the disproportionate number of delayed denials received by some of the ATF divisions, notably New Orleans, Seattle, St. Paul, and Kansas City. Even within those districts, a small handful of the field offices receive the majority of the retrievals. Our review found that these field offices often experienced extensive delays in conducting NICS investigations and in retrieving firearms from prohibited persons. Special agents at these locations cited the volume of NICS referrals, the labor-intensive nature of NICS investigations, and other competing priorities as reasons for the extensive delays. The use of non-agent personnel at these locations to perform the largely administrative tasks associated with NICS investigations would allow the special agents to perform firearm retrievals more expeditiously.

Second, clearly established USAO prosecutorial guidelines would help reduce only the number of standard denial referrals, not delayed denial referrals. Because a standard denial only involves the prohibited person's attempted purchase of a firearm, ATF special agents initiate an investigation only if the prohibited person is likely to be prosecuted by the USAO. However, because delayed denials involve a prohibited person who has successfully obtained a firearm, ATF special agents must take action in all cases to retrieve the firearm regardless of whether the case is ultimately referred for prosecution. Therefore, the field offices' volume of delayed denial cases is not affected by the existence of or lack of USAO prosecutorial guidelines.

Third, we agree it would not be appropriate for non-agent personnel to determine the type and immediacy of actions to be taken in response to a particular referral. Instead, non-agent personnel could be used to perform the administrative tasks necessary to assist the special agent in making these determinations. These administrative tasks include researching state laws to determine the individual's prohibited status, obtaining court records, performing database searches to obtain the prohibited person's address, sending contact letters and arranging third party transfers of firearms at the request of the special agent, and confirming those instances in which the person either returned the firearm to the FFL or transferred the firearm to a third party.

In summary, we believe that the ATF's practice of requiring special agents to perform the extensive administrative tasks associated with NICS cases is not an efficient use of its resources and has, in some instances, delayed the retrieval of firearms from prohibited persons. Accordingly, we believe that using non-agent personnel to assist special agents at those field offices that receive a high volume of NICS cases would be a more efficient and effective use of the ATF's resources. Please reconsider this response and let us know by September 10, 2004, whether the ATF will use non-agent personnel to handle the administrative tasks related to NICS cases.

Recommendation 3: The ATF should establish timeliness standards for firearm retrievals and develop a system for ATF field office management to monitor and report on compliance with these standards.

Status: Resolved - Open.

Summary of ATF Response. The ATF partially concurred with the recommendation. In its response, the ATF stated that while it agreed that general timeliness standards could be established, it did not believe that a uniform timeliness standard could be applied to each NICS case. The ATF stated that it is in the process of drafting instructions to the field mandating that an investigation be initiated within 30 days of receipt of the referral and that its special agents document in the ATF case management system (NFORCE) what investigative activity has occurred at least once every 30 days until the case is recommended for prosecution, the firearm is recovered, or the case is closed.

OIG Analysis. We agree with the ATF that it would not be feasible to expect all NICS investigations to adhere to a singular timeliness standard. However, we believe that the establishment and monitoring of timeliness standards are necessary to alert ATF field office management to delays in retrieving firearms and to enable management to take timely corrective action to address the delays. The ATF's proposed timeliness standards appear to be reasonable and meet the intent of the recommendation. In its response, the ATF did not address the second part of the recommendation regarding the reporting of instances of noncompliance by ATF field management. During our review, we found that the ATF division office SACs and ATF headquarters managers were generally unaware when specific field offices were experiencing excessive delays in retrieving firearms. Therefore, we believe that for oversight purposes, field management should regularly report on its compliance with the timeliness standards. We consider the recommendation resolved, but will keep it open until the ATF provides: 1) a copy of the instructions issued to its field offices pertaining to the timeliness standards and 2) documentation of the system by which ATF field office management will report on their office's compliance with the timeliness standards.

Recommendation 4: The ATF should revise its standard initial contact letter to include a response time frame and should direct its personnel to send the letters on a timely basis, to track responses to the letters, and to take timely action to retrieve the firearms when the letters are unsuccessful in eliciting a response.

Status: Resolved - Open.

Summary of ATF Response. The ATF concurred with the recommendation and stated that it will: 1) issue a memorandum to all its field offices to send the contact letters by certified mail with a return receipt requested, 2) amend the contact letter to require the recipient to contact the ATF within 14 days of receiving the letter, and 3) issue an ATF order to direct the special agents to track cases in NFORCE to ensure that actions are timely.

OIG Analysis. We consider the recommendation resolved, but will keep it open until the ATF provides a copy of: 1) the memorandum issued to its field offices regarding the issuance of contact letters, 2) the amended contact letter, and 3) ATF Order 3310.4C.

Recommendation 5: The EOUSA should ensure that annually each USAO provide the ATF with specific prosecutorial guidelines for NICS cases.

Status: Resolved - Open.

Summary of EOUSA Response. The EOUSA concurred with the recommendation and stated that in July 2001 it directed all USAOs to review and revise their respective NICS case guidelines in accordance with the Attorney General's directive of June 28, 2001, and that the USAOs had complied with this request. Further, the EOUSA stated that it will take steps to encourage each USAO to review its prosecutorial guidelines annually, update the guidelines when necessary, and provide updated guidelines to the ATF.

OIG Analysis. Based on our review, the EOUSA's response that all USAOs had prepared NICS case guidelines is not accurate. We found that 8 of the 25 USAOs included in our review did not have written guidelines. Based on the EOUSA's response of encouraging each USAO to update such prosecutorial guidelines, we consider the recommendation resolved, but will keep it open until the EOUSA provides us with a copy of the prosecutorial guidelines prepared by each USAO.

Recommendation 6: The ATF should examine the feasibility of enabling Brady Operations Branch specialists to identify NICS cases by federal judicial district, thereby enabling the ATF to consolidate all its NICS referral screening at the Brady Operations Branch. In the interim, the ATF should require all division office NICS coordinators to screen NICS standard denial referrals and refer to the field offices only those cases that meet USAO prosecutorial guidelines.

Status: Resolved - Open.

Summary of ATF Response. The ATF concurred with the recommendation and stated that: 1) it had initiated a pilot project to have the Brady Operations Branch screen NICS cases from the Boston division office using specific federal judicial district standards and 2) under current ATF guidelines, all division office NICS coordinators should already be screening standard denial referrals and referring to the field offices only those cases that meet USAO prosecutorial guidelines.

OIG Analysis. With the initiation of its pilot project, the ATF appears to be taking appropriate steps to implement the first part of the recommendation. However, it is unclear from the ATF's response whether the second part of the recommendation has been adequately addressed. Although the ATF's response indicates that all division office NICS coordinators already should be screening standard denial cases and referring to the field offices only those cases that meet USAO prosecutorial guidelines, our review found that this was not being done at 6 of the 17 ATF division offices that received referrals from the Brady Operations Branch. We consider the recommendation resolved, but will keep it open until the ATF provides: 1) documentation showing the results of the pilot project and the ATF's decision on whether to expand the pilot project to encompass all ATF divisions and 2) documentation showing that the 6 ATF division offices that were not screening the NICS referrals are now doing so.

Recommendation 7: The ATF should provide annual training to the NICS coordinators and develop a NICS coordinator handbook.

Status: Resolved - Open.

Summary of ATF Response. The ATF concurred with the recommendation and stated that the ATF's Brady Operations Branch has scheduled a NICS coordinator conference for August 2004 and has prepared a NICS handbook, which will be disseminated at the conference.

OIG Analysis. We consider the recommendation resolved, but will keep it open until the ATF provides: 1) the NICS coordinator conference agenda and list of conference participants and 2) a copy of the NICS handbook.

Recommendation 8: The ATF Brady Operations Branch should refer to the field offices only those alien cases that meet the USAO prosecutorial guidelines.

Status: Resolved - Open.

Summary of ATF Response. The ATF concurred with the recommendation and stated that it would continue to refer to the field only those alien denials that result from both firearm violations (e.g., those that meet USAO prosecutorial guidelines). The ATF further stated that if the denial was based solely on an immigration violation, the referral would be forwarded only to the Department of Homeland Security's Bureau of Immigration and Customs Enforcement (ICE) and not to the ATF field offices.

OIG Analysis. Although the ATF states that it does not refer to its field offices the names of individuals who were denied solely based on immigration violations, our review found that this was occurring. In our sample review of 200 standard referrals, we identified 22 such cases. Therefore, if it is the ATF's policy not to forward these types of cases to its field offices, apparently not all Brady Operations Branch specialists are complying with the policy. We consider the recommendation resolved, but will keep it open until the ATF provides documentation to show that this policy has been adequately communicated to the Brady Operations Branch specialists.

Recommendation 9: The ATF should require division office NICS coordinators and field office personnel to notify the Brady Operations Branch of referrals that do not meet USAO guidelines.

Status: Resolved - Open.

Summary of ATF Response. The ATF concurred with the recommendation and stated it would ensure that the Brady Operations Branch and the ATF field divisions were using the same screening guidelines.

OIG Analysis. The ATF's response of ensuring that the Brady Operations Branch and the ATF field divisions are using the same screening guidelines only partially addresses the recommendation. The ATF also needs to instruct its division NICS coordinators and field office personnel to report any referrals they receive that do not meet the screening guidelines. This feedback will help alert Brady Operations Branch management to any problems occurring in the referral process. We consider the recommendation resolved, but will keep it open until the ATF provides documentation showing that it has established a mechanism for its field divisions to provide feedback to the Brady Operations Branch on receiving referrals that do not meet the screening guidelines.

Recommendation 10: The ATF should require division office NICS coordinators and field office personnel to notify the Brady Operations Branch and the FBI NICS Section of trends in inappropriate referrals of non-prohibited persons. Also, the ATF should require that the 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 non-prohibited status.

Status: Resolved - Open.

Summary of ATF Response. The ATF concurred with the recommendation and agreed to: 1) report trends in inappropriate referrals of non-prohibited persons to both the Brady Operations Branch and the FBI NICS Section and 2) establish a method by which the field can capture non-prohibited referrals and supply that information to the Brady Operations Branch, which in turn will notify the FBI NICS Section. In its response, the ATF also stated that its review of NFORCE data indicated that only 10 percent of the NICS referrals forwarded to the field by the Brady Operations Branch were closed as "Not a Prohibited Person" as a result of subsequent investigation and that the remaining 90 percent pertained to confirmed prohibited persons.

OIG Analysis. The ATF's statement that 90 percent of the NICS referrals forwarded to the field by the Brady Operations Branch pertained to confirmed prohibited persons is not accurate. NICS coordinators and field office managers process standard denials and delayed denials differently. A standard denial is first reviewed to determine whether the case meets USAO prosecutorial guidelines and therefore merits investigation. If the case does not meet USAO prosecutorial guidelines, the second step, which is to determine whether the person is actually prohibited, will not be performed. Instead, the NICS coordinator or field office manager will close the case in NFORCE under the categories "No Potential," "Did Not Meet Federal/State Guidelines," or has "No Prosecutive Merit." In contrast, a delayed denial is first reviewed to determine whether the person is actually prohibited prior to initiating a firearms retrieval. Because of these different approaches, the ATF can identify only what percentage of the delayed denials pertain to confirmed prohibited persons and cannot do the same for standard denials. On the basis of our review, we believe that the percentage of persons subsequently found not to be prohibited is significantly higher than the 10 percent cited by the ATF. As indicated in the report, 69 of the 197 delayed denials we reviewed were closed because the person was determined not to be prohibited.

Regardless of this issue, the ATF concurred with the recommendation. We consider the recommendation resolved, but will keep it open until the ATF provides: 1) written policies or procedures requiring the NICS coordinators to report trends in inappropriate referrals of non-prohibited persons to both the Brady Operations Branch and the FBI NICS Section and 2) documentation of the established methodology for capturing non-prohibited referrals and supplying that information to the Brady Operations Branch and to the FBI NICS Section.

Recommendation 11: The ATF should ensure that the Brady Operations Branch is sufficiently staffed to minimize backlogs and sufficiently funded to implement necessary automated system modifications.

Status: Resolved - Open.

Summary of ATF Response. The ATF concurred with the recommendation and agreed that the Brady Operations Branch required additional staffing, as well as improvements to the ATF NICS. The ATF stated that many operational areas within the ATF are also in pressing need of personnel and resources and that it must carefully allocate its resources in accordance with Department and ATF priorities. The ATF agreed to ensure that the Brady Operations Branch was sufficiently staffed and stated that it is in the process of hiring two data entry contractors.

OIG Analysis. The ATF's addition of two contractors to the Brady Operations Branch's staffing should address the Branch's short-term staffing needs. However, some of our other recommendations to centralize the screening function at the Brady Operations Branch may increase the workload of the Branch and require additional staff, and therefore the ATF also needs to plan for the Branch's long-term staffing needs. In its response, the ATF did not specifically address what steps it was taking to ensure that the Brady Operations Branch is sufficiently funded to implement necessary automated system modifications. We believe that these modifications are essential to improving the efficiency and effectiveness of the NICS referral process and that the ATF should seek additional funding for these modifications. We consider the recommendation resolved, but will keep it open until the ATF provides: 1) documentation that the two contractors have been hired, along with a description of their duties, and 2) documentation of the efforts made by the ATF to obtain funding for the Brady Operation Branch's automated system modifications.

Recommendation 12: The FBI should distinguish delayed denials from standard denials on its daily electronic transfers of denial transactions to the ATF NICS Referral System.

Status: Resolved - Open.

Summary of FBI Response. The FBI concurred with the recommendation and stated that on April 13, 2004, it initiated a program change request to allow for the marking of those denial transactions requiring a firearm retrieval. This change will result in the daily transfer of two files to the ATF - one containing standard denials and one containing delayed denials. Because of other priorities, the FBI projected that the system change would not be implemented until September 2005.

OIG Analysis. We consider the recommendation resolved, but will keep it open until the FBI provides documentation that the required system change has been implemented.