Gun Control: Improving the National Instant Criminal Background Check
System (Statement/Record, 06/21/2000, GAO/T-GGD-00-163).

This testimony draws on two recent GAO reports on the establishment and
operation of the National Instant Criminal Background Check System,
which was mandated by the Brady Act in 1998. (See GAO/GGD/AIMD-00-64,
Feb. 2000, and GAO/GGD-00-56, Apr. 2000.) GAO focuses on the following
four aspects of the system: (1) the system's availability and
responsiveness, (2) the type of information available from the system
compared to that available to state and local law enforcement agencies
before the system, (3) the advantages and the disadvantages of system
background checks done by state agencies rather than the FBI, and (4)
the extent to which transactions under the system have resulted in
firearms being sold to ineligible persons.

--------------------------- Indexing Terms -----------------------------

 REPORTNUM:  T-GGD-00-163
     TITLE:  Gun Control: Improving the National Instant Criminal
	     Background Check System
      DATE:  06/21/2000
   SUBJECT:  Federal/state relations
	     Law enforcement information systems
	     Law enforcement agencies
	     Gun control law
	     Firearms
	     State law
	     Data bases
	     Crimes or offenses
IDENTIFIER:  FBI National Instant Criminal Background Check System
	     FBI National Crime Information Center Project 2000
	     FBI Interstate Identification Index
	     Byrne Formula Grant
	     DOJ National Criminal History Improvement Program

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GAO/T-GGD-00-163

United States General Accounting Office
GAO

Testimony

Before the Committee on the Judiciary
U.S. Senate

For Release on Delivery
Expected at
10:00 a.m. EDT
Wednesday
June 21, 2000
GAO/T-GGD-00-163

GUN CONTROL
Improving the National Instant Criminal

Background Check System

Statement for the Record of Laurie E. Ekstrand
Director, Administration of Justice Issues
General Government Division

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 (184427)

Statement
Gun Control:  Improving the National Instant
Criminal Background Check System
Page 15                          GAO/T-GGD-00-163
Mr. Chairman and Members of the Committee:

     I am pleased to be here today to discuss
selected topics from our two recently completed
reviews1 pertaining to the establishment and
operation of the National Instant Criminal
Background Check System (NICS). NICS was
established in November 1998 as mandated by the
Brady Handgun Violence Prevention Act.2

     My testimony today will focus on four aspects
of NICS:  (1) system availability and
responsiveness; (2) type of information available
under NICS compared to that available to state and
local law enforcement agencies prior to NICS; (3)
advantages and disadvantages of NICS background
checks being conducted by designated state
agencies rather than the FBI; and (4) the extent
to which transactions under NICS have resulted in
firearms being sold to persons ineligible to
possess a firearm.

     In our February and April 2000 reports, we
noted the following:

ï¿½    NICS set a goal of being available 98 percent
of its scheduled operating time. It met this goal
4 of the months and did not meet it 8 of the
months between November 30, 1998, and November 30,
1999. During this time period, about 72 percent of
callers received a proceed response within
minutes; the other 28 percent were initially
delayed. For about 80 percent of the delayed
transactions, FBI examiners took 2 hours or less
from the time they received the transaction
information to provide a proceed or deny response.
ï¿½    Establishment of the newly created NICS Index
database provides centralized access to data that
were not available to state and local agencies
prior to NICS. However, the NICS Index does not
contain all potentially disqualifying records.
ï¿½    State agencies are generally better
positioned to perform NICS background checks than
the FBI because they may have access to additional
data and be better able to interpret their own
state records and laws. However, certain barriers
have prevented most states from becoming full
participants in NICS.
ï¿½    During the first 10 months of NICS
implementation, 2,519 persons who were sold guns
were later determined by the FBI to be prohibited
from owning them. These transactions resulted from
NICS background checks that were not completed by
the FBI within 3 business days and, according to
the provisions of the Brady Act, the sales were
then allowed to proceed by default.

 Recognizing the potential public safety risks
associated with prohibited persons being allowed
to purchase firearms, we identified three options
to improve NICS by minimizing the number of
transactions involving prohibited persons that are
allowed to proceed by default.

Background
Effective February 28, 1994, the interim
provisions of the Brady Act required licensed
firearms dealers to request a presale background
check on handgun purchasers. These checks
generally were to be conducted by the chief law
enforcement officer (CLEO)3 in the purchaser's
residence community to determine, on the basis of
available records, if the individual was legally
prohibited from buying the firearm under the
provisions of federal, state, or local law. The
sale was not to be completed for 5 business days
unless the dealer received an approval from the
CLEO before that time. If the CLEO did not contact
the dealer by the end of the 5-day period, the
dealer could make the sale unless the dealer had
reason to believe the transaction would be
unlawful.

NICS Implementation
Beginning on November 30, 1998, the permanent
provisions of the Brady Act became effective with
implementation of NICS. Managed by the Federal
Bureau of Investigation (FBI), NICS is used to
make presale background checks for purchases from
licensed firearms dealers of all firearms, not
just handguns.4

     Unlike the decentralized background check
process under interim Brady, NICS allows the FBI
and states to check a person's eligibility to
purchase firearms using a single, computerized
search. The NICS background check provides
centralized access to criminal history and other
potentially disqualifying records by querying
three national databases:

ï¿½    National Crime Information Center 2000 (NCIC
2000).  Predating NICS, NCIC 2000 is the nation's
most extensive computerized criminal justice
information system. Among other things, NCIC 2000
contains records on wanted persons and persons
under protection or restraining orders.
ï¿½    Interstate Identification Index (III).  Also
pre-dating NICS, III is an index-pointer system
for the interstate exchange of criminal history
records. Among other things, III records include
information on persons arrested or convicted of
felony and/or misdemeanor criminal offenses.
ï¿½    NICS Index.  A new database created
specifically for NICS, the NICS Index contains
information provided by federal and state agencies
specifically identifying persons prohibited under
federal law from receiving or possessing a
firearm. The NICS Index includes records on
unlawful drug users or addicts, illegal or
unlawful aliens, persons who were dishonorably
discharged form the military, persons who have
renounced their U.S. citizenship, and persons who
have been adjudicated or committed as a mental
defective.

State Participation in NICS
     To initiate background checks on persons
attempting to purchase firearms, licensed firearms
dealers contact either the FBI or designated state
agencies (in those states willing to participate
as NICS liaisons). Generally, depending upon the
state in which the firearms dealer is conducting
business and the type of firearm purchased, there
are three methods of performing background checks:

ï¿½    In the 24 so-called "nonparticipant" states,
dealers are to contact the FBI for NICS background
checks on all firearms transfers (permits or
purchases). This category also includes the
District of Columbia, Puerto Rico, and the U.S.
Virgin Islands.
ï¿½    In the 15 "full-participant" states, dealers
are to contact a designated state or local
agency-for example, the state police-which then
conducts the NICS background check.
ï¿½    In the remaining 11 "partial-participant"
states, dealers are to contact (1) the FBI for
background checks on long gun purchases or permits
or (2) a designated state agency for background
checks on handgun purchases or permits.

In designing NICS, the FBI hoped that as many
states as possible would be full participants.
Although the number of full-participant states is
15, the group includes some of the most populous
states, such as California, Florida, Illinois, New
Jersey, Pennsylvania, and Virginia. According to
FBI data for the first year of NICS operations
(Nov. 30, 1998, through Nov. 30, 1999), about one-
half of all NICS background checks were conducted
by state agencies.

3 Days Allowed to Approve or Deny NICS
Transactions
Under NICS, firearms are not to be transferred
until a background check determines that the
transfer will not violate applicable federal and
state laws. However, the Brady Act allows law
enforcement agencies up to 3 business days to
complete the background check. If the background
check cannot be completed within 3 business days
(e.g., if available records in the national
databases are incomplete and the buyer's
eligibility is not verified within 3 days), the
purchase is then allowed to proceed-that is, to
proceed by default.

During the first year of NICS operations, the FBI
and designated state agencies conducted about 8.8
million background checks using NICS. FBI data
indicated that 2 percent (about 81,000) of the
FBI's 4.4 million background checks resulted in
denials. That is, the potential buyer was found to
be disqualified under federal or state law from
purchasing or possessing a firearm because, for
example, criminal history records showed a felony
conviction.

NICS System Availability and Responsiveness
The NICS system is scheduled to be open for
business 17 hours a day, 7 days a week. The FBI
has specified a NICS availability requirement of
98 percent. That is, the FBI expects NICS to
operate satisfactorily 98 percent of the scheduled
operating time. During the 12-month period from
November 30, 1998, to November 30, 1999, NICS met
or exceeded its availability requirement of 98
percent during 4 months. During the other 8
months, availability ranged from 92 percent to
97.7 percent, for an average of 95.4 percent. July
1999 marked the lowest point in availability
during this time period, which was immediately
preceded by the 4 months in which the availability
requirement was met. During this 12-month period,
no clear pattern of availability emerged.

FBI data show that for about 72 percent of the
background checks conducted by the FBI as of
November 30, 1999, NICS provided approval
responses within 30 seconds after the purchaser's
identifying information was input into the system.
An FBI analysis of a sample of the 28 percent that
were delayed responses concluded that most of
these responses (80 percent) were resolved within
2 hours or less, and that the remainder (20
percent) took several hours or days to resolve.
After 3 business days without a resolution, the
transaction is considered to be a default proceed,
and the gun dealer can then legally transfer the
firearm without an affirmative response from the
FBI as to the purchaser's eligibility. We discuss
default proceed transactions in more detail later
in this testimony.

NICS Index Provides Centralized Access to More
Data but Has Not Reached Its Full Potential
Prior to NICS, state and local CLEOs had
centralized, automated access to federal and state
criminal history records and wanted-persons
files-the basis for most firearms purchase
denials-through NCIC and III. In addition, many
CLEOs also had access to state or locally
maintained data on some of the other firearm
disqualifying factors-e.g., mental illness, court
restraining orders, and domestic violence
misdemeanors-either through statewide databases or
local databases (such as city or county criminal
justice systems). However, CLEOs did not access
specific data files or databases for other
nonfelony, noncriminal firearm disqualifiers-such
as illegal or unlawful aliens, dishonorable
discharges, and citizenship renunciations.

With the implementation of NICS, all of the
firearm disqualifying categories can now be
checked in a single, computerized search-to the
extent automated records are available. That is,
NICS continues to provide centralized access to
criminal history and other records (such as
domestic violence misdemeanors and restraining
orders) through NCIC 2000 and III. In addition,
NICS also provides simultaneous access to
additional nonfelony, noncriminal disqualifying
records-records that were not centrally available
to CLEOs under interim Brady-through the newly
established NICS Index.

NICS Index Does Not Include All Disqualifying
Records
Despite improving access to firearm disqualifying
records with the establishment of the NICS Index,
NICS has not yet reached its full potential for
performing firearms background checks. For
example, 1 year after the implementation of NICS,
the NICS Index database had relatively few records
for most of the categories. As of November 30,
1999, the total number of records in the NICS
Index was just over 1 million. However, the vast
majority of those records (about 90 percent)
covered just one category (illegal or unlawful
aliens) and were provided by one federal agency,
the Immigration and Naturalization Service (INS).
In addition, the total represents only about a 10-
percent increase over the number of records the
NICS Index contained when it became operational 1
year earlier. And, nearly all of the increase
involved records from just two federal
agencies-INS and the Department of Veterans
Affairs. Very few disqualifying records were
obtained from the states during this time.

Because of certain barriers, we recognize that not
all existing records can or will be included in
the NICS Index, even though these records could be
useful in identifying persons attempting to
purchase firearms who are disqualified by law from
doing so. For example, according to FBI officials,
some state and local agencies may be prohibited by
state law from sharing substance abuse or mental
health records with other agencies or providing
them to the NICS Index. Some states have also
expressed concern about whether the records would
ever be used for other purposes, such as
background checks for employment or professional
licensing.

FBI Continuing Its Efforts to Populate the NICS
Index Database
According to FBI officials, the identification of
records that should be included in the NICS Index
requires ongoing cooperation among numerous
federal and state agencies. The officials told us
that the FBI's role in this process is one of
outreach-that is, to ensure that all federal and
state agencies have been notified of (1) the
availability of the NICS Index and the system
interface requirements and (2) the necessity to
provide accurate and valid records that can be
supported in the event of an appeal. As of
December 1999, FBI officials summarized their
ongoing outreach efforts as follows:

ï¿½    The FBI was continuing to contact federal
agencies to identify and obtain any relevant
federal records that could be incorporated into
the NICS Index. Approximately half of the agencies
had responded; the remaining agencies were being
contacted by telephone.
ï¿½    For state records, the FBI had drafted a
letter to be sent to all states inquiring whether
they possessed any records to submit to the NICS
Index. This letter was still being reviewed
internally.
ï¿½    The FBI was also contacting the NICS points-
of-contact in each state that participates in NICS
to further inquire about records that might be
available for submission to the NICS Index.
ï¿½    Also, the FBI was preparing an FBI/state
memorandum of understanding to address the issue
of how state records would be used in the NICS
Index and allow states to delete their records if
NICS' purpose were ever expanded beyond firearms
background checks.

According to FBI officials, once initial outreach
efforts were completed, the FBI would decide the
types of additional action that were needed to
increase the number of federal and state records
in the NICS Index. However, the officials noted
that, since the FBI cannot compel federal and
state agencies to identify records and submit them
to the NICS Index, the FBI's outreach efforts must
be viewed as a continuous and cooperative process.

Increased State Participation Could Improve NICS,
but Barriers Exist

     Under permanent Brady, states generally are
better positioned than the FBI to conduct NICS
background checks. States have access to all of
the information available to the FBI through NICS,
plus some state agencies can access additional
information available only to their respective
state. Further, state agencies may be better able
to interpret their respective state's criminal
records and applicable firearms laws.

States May Have Access to More Disqualifying
Records
In some cases, state agencies participating in
NICS have access to more databases and/or records
than the FBI. Under NICS, when the FBI or a state
agency performs a firearm purchase background
check, disqualifying records are automatically
checked using NCIC 2000, III, and the NICS Index.
The FBI's initial automated NICS check is limited
to records in these three databases.5 However,
some states have automated access to additional
databases or records available within their state,
which cannot be accessed by or shared with other
states or the FBI. As a result, this additional
access to records may improve the states' ability
to identify persons ineligible to purchase
firearms. The following examples illustrate
situations where state agencies conducting NICS
background checks could access more firearm
disqualifying data than the FBI:

ï¿½    Mental Disability.  Virginia, a full-
participant state under NICS, has a state database
that identifies individuals within the state who
have mental health disabilities or have been
adjudicated mentally incompetent. This state
database is available only to the Virginia State
Police for firearms background check purposes, and
the database cannot be accessed by other states or
the FBI either directly or through the NICS Index.
According to Virginia State Police data for
January through September 1999, Virginia's instant
check system denied 51 firearms transactions based
on information in the state's mental health
database. If the FBI had been conducting
Virginia's firearms background checks during this
time, that information would not have been
accessible to them.
ï¿½    Fugitives.  The wanted-persons file in NCIC
2000-which is queried during a NICS background
check-may not contain records on every state
arrest warrant issued. According to FBI officials,
each individual agency that issues warrants is
responsible for entering its warrants into NCIC
2000. Consequently, there is no way to tell how
many outstanding warrants have been issued by
state and local agencies but not entered into NCIC
2000. However, state officials have told us they
are able to access their own state's outstanding
warrants through state or local databases,
regardless of whether the warrant had been entered
into NCIC 2000.
ï¿½    Restraining Orders.  The
restraining/protective order file in NCIC
2000-also queried during a NICS background
check-may not contain records on every active
state restraining order. According to FBI
officials, the situation is similar to fugitive
warrants in that each individual agency is
responsible for entering restraining orders into
NCIC 2000. Consequently, there is no way to tell
how many orders have been issued by state and
local agencies but not entered into NCIC 2000.
Further, incompatibilities between state records
and NCIC 2000 records requirements may prevent
some states from entering their orders into NCIC
2000. However, state agencies that conduct
background checks would generally have access to
state or local databases where the restraining
order information was originally recorded. In a
well-publicized incident in Colorado last year,
the FBI approved the transfer of a firearm to an
individual who should have been prohibited from
purchasing a firearm due to an active restraining
order. The information regarding the restraining
order was not available to the FBI through NICS,
but, according to state officials, it would have
been accessible to a Colorado law enforcement
agency. The prohibited individual purchased the
firearm and used it to kill three children.6 FBI
officials acknowledged that compatibility problems
exist in some states and noted that these states
are working with NCIC 2000 officials to resolve
the problems.

States May Be Better Able to Interpret State Laws
State agencies participating in NICS may be better
able to interpret their own state's laws to
determine a person's eligibility to purchase
firearms than the FBI.  Many states have enacted
their own unique statutes regarding the sale and
possession of firearms-including requirements for
firearms purchase permits, mandatory waiting
periods, and notification to state or local
authorities. These state laws can have complex
provisions, particularly regarding the restoration
of an individual's rights to possess a firearm,
once those rights have been revoked (e.g., because
of criminal activity). As such, in performing
firearms background checks, state agencies may be
better able to understand how their own state's
laws apply to an individual's eligibility to
purchase a firearm in their state.

The FBI agreed that state agencies may be better
able than the FBI to interpret their own
applicable state laws. Also, this belief is
consistent with analysis of appeals decisions
regarding firearms-purchase denials made by the
FBI under NICS. For example, during the first year
of NICS operations:

ï¿½    About 22 percent (2,710) of the appeals (on
which a final decision had been reached as of
November 30, 1999) were successful-that is, the
denials were reversed.
ï¿½    About 42 percent of reversed denials (for
which the reason for reversal was available)
occurred because FBI examiners had misinterpreted
state statutes or records in making the initial
denials.

To help improve interpretation of state laws, the
FBI contacted the states via mass mailing in June
1999 to request that the states validate their
firearms laws. Subsequently, the FBI made state
law information widely accessible electronically
within the law enforcement community by include
such information in the Law Enforcement On-Line
Internet site.7

Barriers to Increased State Participation in NICS
     The FBI acknowledges that states may have
certain advantages in conducting NICS background
checks, including access to additional data in
their own state and the ability to better
interpret their own criminal history records and
firearms laws. Further, according to the FBI, the
functioning of NICS would be more effective and
efficient if more or all states were full
participants (i.e., if each state had a designated
agency for conducting background checks). However,
at the time of our review, most states were either
nonparticipants or partial participants in NICS.
Despite the potential advantages of states
conducting background checks, any consideration of
ways to encourage states to be full participants
in NICS would need to recognize the following
mitigating factors:

ï¿½    Fiscal Priorities.  States may have competing
fiscal priorities that prevent them from
initiating or expanding their role in NICS.
Because the FBI performs NICS checks without
charging a fee, some states may consider
performing this effort at the state level to be a
waste of state resources. One state-South
Carolina-recently dropped out as a full
participant in NICS, and FBI officials noted that
four other states may be at risk to drop out
because they are currently operating under
executive order rather than state statute. Federal
funding proposals-including a NICS user fee and
direct appropriations-have been developed that
could increase state participation in NICS;
however, these proposals have not been approved by
Congress.
ï¿½    Handguns vs. Long Guns.  States that already
conduct NICS background checks for handguns-such
as Maryland and Washington-may not want to expand
their responsibilities to long guns, which may be
viewed as less of a public safety risk than
handguns. And, as noted above, the FBI is already
performing long-gun background checks in those
states free of charge.
ï¿½    States' Rights.  Some states may be
philosophically unwilling to participate in NICS,
as demonstrated by the various state legal
challenges to the local background check
requirements of interim Brady.8 Because NICS was
also established under the Brady Act, some states
may consider NICS implementation to be a federal
government responsibility.
ï¿½    Resources/Expertise.  States may encounter
difficulties in conducting timely or complete
background checks for a variety of administrative
reasons, including a lack of resources or
expertise. During early 1999, for example, the
Maryland State Police encountered difficulties in
processing NICS background checks in a timely
manner, allowing a number of prohibited persons to
purchase handguns.

Default Proceed Transactions Pose Public Safety
and Other Concerns
During the first 10 months of NICS
implementation-November 30, 1998, through
September 30, 1999-2,519 individuals who were sold
guns were later determined by the FBI to be
prohibited persons. These were default proceed
transactions resulting from NICS background checks
were not completed by the FBI within the 3
business days allowed by statute under the Brady
Act. After 3 days elapsed, these transactions were
considered default proceeds, and the gun dealers
were then legally able to transfer the firearm
without an affirmative response from the FBI as to
the purchaser's eligibility.9

     According to FBI officials, default proceed
transactions occur primarily due to lack of arrest
dispositions in automated state criminal history
records. A typical example of a delayed NICS
transaction involves a record showing a felony-
related arrest (not a federal disqualifier) but no
information about whether the case was prosecuted
and resulted in a conviction (which would be a
federal disqualifier). In these instances,
additional research is needed before the
transaction can be approved or denied. FBI
examiners typically must contact a state or local
entity that has the needed information-often a
local court-to determine the purchasers'
eligibility. The ability to obtain the required
disposition information in a timely manner depends
on several factors, including whether the court is
open, the willingness of the court clerk's staff
to assist the FBI, and the availability and
accessibility of the disposition information.

FBI data on the 2,519 default proceeds show that
an average of 25 business days elapsed between the
initial NICS inquiry and the date that the FBI
initiated retrieval of the firearms. In addition:

ï¿½    5 percent (118) of the transactions were
resolved in 5 business days or less, the amount of
time previously allowed under interim Brady to
conduct a background check;
ï¿½    77 percent (1,937) of the transactions were
resolved in 30 business days or less; and
ï¿½    91 percent (2,288) of the transactions were
resolved in 60 business days or less.

Further, the actual number of default proceed
transactions involving prohibited persons might
have been higher than the 2,519 already identified
by the FBI. During the first year of NICS
implementation, the FBI estimates that it was
unable to resolve, within 21 days, about 75,000
background checks-roughly 1.7 percent of the 4.4
million checks that the FBI conducted. According
to FBI officials, these delayed transactions could
not be completed because the FBI was never able to
obtain information on arrest dispositions in order
to verify the purchaser's eligibility. Because, as
reported by the FBI, background checks delayed
more than 24 hours are more likely to involve
prohibited persons than other NICS checks, some of
these 75,000 transactions potentially represent
firearms sold to prohibited persons. Given the
potential increased risk to public safety, the
additional demands on law enforcement resources,
and the exposure of law enforcement agents to the
risks associated with firearms retrievals, it is
therefore important to explore options for
reducing the number of these default proceed
transactions.

Options for Improving NICS by Minimizing Default
Proceed Transactions
To minimize the number of default proceeds
involving prohibited persons, various options can
be considered. One option is to continue providing
grant funds to states to improve the quality and
completeness of automated criminal history
records. Another option is to provide financial
incentives in order to increase the number of
states that participate in NICS. Finally, another
option would be to amend the 3 business-day
default proceed requirement of the Brady Act to
treat differently those potential purchasers with
arrests for disqualifying offenses with no
disposition information. These options should be
considered complementary, rather than mutually
exclusive.

Federal Grants to Improve State Criminal History
Records
Because, according to the FBI, most default
proceeds occur due to a lack of automated or
complete state criminal history records, one
option for reducing or minimizing these delayed
transactions is to help states upgrade the quality
and completeness of these records. A relevant
federal effort ongoing since 1995 is the National
Criminal History Improvement Program (NCHIP),
which provides grant funds to states. Administered
by the Bureau of Justice Statistics, NCHIP has
provided funding to assist states to improve the
quality and accessibility of their criminal
history records, in order to support the
implementation of NICS and enhance the
effectiveness of NICS background checks. Federal
obligations under NCHIP totaled about $293 million
during fiscal years 1995 through 1999.
Additionally, 5 percent of the funds awarded to
states each year under the Byrne Formula Grants
Program are to be used for improving criminal
justice records.10 Justice officials said that they
plan to address NICS implementation issues-such as
automation and accessibility of records on arrest
dispositions-in future years by seeking increased
funding through NCHIP grants.

Financial Incentives to Encourage State
Participation in NICS
Because states can have advantages over the FBI in
conducting NICS background checks-including access
to additional data in their own state and the
ability to better interpret their own criminal
history records and firearms laws-another option
for improving NICS' effectiveness and reducing the
number of default proceed transactions is to
increase state participation in NICS. The
following are several approaches that could
encourage such participation:

ï¿½    NICS User Fee.  Establishing a NICS user fee
could remove a disincentive for states to be NICS
participants. Currently, states have little
incentive to participate because the federal
government performs the NICS check free of charge.
The FBI has previously introduced budget proposals
to fund NICS operations with a user fee. Congress,
however, has acted to prohibit a NICS user fee by
including prohibiting language in the Department
of Justice's fiscal year 1999 and 2000
appropriations acts.11
ï¿½    Direct Appropriations.  Through direct
appropriations, states could be funded to
establish and/or operate NICS units. The U.S.
Senate passed a provision in its 1999 Juvenile
Justice bill that would have authorized $40
million in direct appropriations to states that
participate in NICS.12 The House version of the
bill differed markedly from the Senate version, so
the legislation was sent to conference to resolve
the differences. However, the 1999 legislative
session ended without any further action being
taken.
ï¿½    Criminal Justice Grants.  Although the
Supreme Court has ruled that states cannot be
required or mandated to conduct Brady background
checks, the Court has recognized elsewhere that
Congress, in general, may impose reasonable
conditions on the receipt of federal funds by
states.13 Incentive grants, perhaps associated with
an existing criminal justice grant program, could
be offered to states that agree to become NICS
participants. One such example of an incentive
grant is the Violent Crime Control and Law
Enforcement Act of 1994,14 which authorized federal
incentive grants to eligible states for building
or expanding correctional facilities for violent
offenders, if the states implemented measures
ensuring stricter sentences for violent offenders.
In addition to incentive grants, the NCHIP grant
program already authorizes funding for, among
other things, states to establish programs to
participate in NICS. However, NCHIP grant
requirements currently preclude such funds from
being used to cover any ongoing operating costs of
conducting the background checks.

Amend Brady Act to Minimize Default Proceed
Transactions
Given the long-term nature of efforts to improve
automated criminal history records and the
possibility that not all states would agree to
become NICS participants, another option involves
amending the 3 business-day default proceed
requirement of the Brady Act to treat differently
those potential purchasers with arrests for
disqualifying offenses with no disposition
information.

State Processes that Minimize Default Proceed
Transactions
To illustrate the impact that amending the Brady
Act could have on the number of these default
proceed transactions, we identified three
different state background check
processes-Washington, Colorado, and Georgia-that
tend to minimize such default proceed
transactions:

ï¿½    Washington.  In Washington, which is a
partial participant in NICS (handguns only), state
law allows up to 5 days to perform a background
check. However, if available records indicate the
prospective purchaser has an arrest for a
potentially disqualifying offense, a hold for up
to 30 days can be placed on the transaction's
approval, pending receipt of disposition
information to verify the purchaser's eligibility
to possess a firearm. After 30 days, if the
disposition of the arrest still cannot be
verified, an extension of the hold may be
initiated by obtaining a judicial order showing
good cause.15
ï¿½    Colorado.  Operating as a full-participant
state under NICS, Colorado can deny a purchaser
with an open disqualifying arrest (such as a
felony), even if the disposition cannot be
obtained within the 3 days allowed under permanent
Brady, thus obviating the need for additional time
to further research the transaction.
ï¿½    Georgia.  Also operating as a full-
participant state under NICS, Georgia has issued
regulations stating that, where a background check
identifies the existence of a criminal record that
is not immediately available so as to determine
the eligibility of the purchaser (e.g., an arrest
disposition), the gun dealer may not transfer the
firearm until being advised by the state that the
purchaser is not prohibited.

Potential Impact of Amending the Brady Act
Amending the 3-business-day default proceed
requirement of the Brady Act could have a
significant impact on reducing the number of
default proceeds involving prohibited persons and
mitigating public safety concerns. For example,
either the Colorado or the Georgia approach would,
for all intents and purposes, eliminate default
proceed transactions, including those where a
prohibited person obtains a firearm. The Colorado
approach, however, would result in some purchasers
being incorrectly denied based solely on arrest
records, with the burden then being placed on the
purchasers to appeal the decisions and correct the
records. The Georgia approach should not result in
incorrect denials; however, it places no limit on
the amount of time allowed to research the
transaction.

Under the Washington state approach, if a 30
business-day hold had been in effect during the
first 10 months of NICS, the number of default
proceed transactions would have been reduced by
over 75 percent. Also, according to FBI data, such
a hold on delayed transactions would have affected
only about 88,000 (or 2 percent) of all NICS
transactions-those that the FBI has reported to be
20 times more likely to involve a prohibited
person than transactions involving the average gun
buyer.16 Therefore, additional time to research
such delayed transactions could play a significant
role in preventing firearms sales to potentially
prohibited persons.

Matters for Congressional Consideration
In our April 12, 2000, report, we suggested that
Congress may wish to consider one or more of the
following options for improving NICS by minimizing
the number of default proceed transactions
involving the transfer of firearms to prohibited
persons:

ï¿½    Recognizing the importance of accurate
criminal history records to NICS' effectiveness,
continue providing federal grants to states for
improving the quality and completeness of
automated criminal history records.
ï¿½    Recognizing that state agencies generally are
better positioned than the FBI to conduct NICS
background checks, provide financial assistance to
states in order to increase the number of states
that participate in NICS.
ï¿½    Recognizing the public safety risks posed by
NICS default proceed transactions, amend the 3
business-day default proceed requirement of the
Brady Act to treat differently those potential
purchasers with arrests for disqualifying offenses
where arrest disposition information is not
readily available.

The first two options could offer a positive, long-
term impact on the overall efficiency and
effectiveness of NICS. The third option could
immediately reduce the number of prohibited
persons receiving firearms under NICS by providing
additional time to research incomplete criminal
history records.

     Mr. Chairman, this concludes my prepared
statement. I would be pleased to answer any
questions that you or other Members of the
Committee may have.

     Contacts and Acknowledgment
For further information regarding this testimony,
please contact Laurie E. Ekstrand on (202) 512-
8777 or Danny R. Burton on (214) 777-5600.
Individuals making key contributions to this
testimony included Philip Caramia, Mary Lane
Renninger, and Ellen Wolfe.

_______________________________
1 Gun Control: Implementation of the National
Instant Criminal Background Check System
(GAO/GGD/AIMD-00-64, Feb. 29, 2000); and Gun
Control: Options for Improving the National
Instant Criminal Background Check System (GAO/GGD-
00-56, Apr. 12, 2000).
2 The Brady Act, Public Law 103-159 (1993).
3 Brady defined a CLEO as the "chief of police,
sheriff, or an equivalent officer or the designee
of any such individual." In some states-by
agreement among the applicable law enforcement
agencies--the state police department served as
the CLEO.
4 NICS background checks are to be performed in
connection with firearms transfers and are not to
be limited to firearms sales (see 63 FR 58306).
When we use the terms "buyer" or "purchaser," we
are also referring to other firearms recipients,
such as individuals redeeming pawned firearms.
5 For delayed transactions that require research
beyond the initial automated inquiry, the FBI also
accesses additional in-house automated databases.
6 Although currently a full-participant state in
NICS, at the time of this incident, Colorado had
discontinued its state-run instant check
program-which had been in operation since 1994-due
to financial considerations. Following the
publicity surrounding the incident, funding for
the program was reinstated by executive order and
later permanently reauthorized by the state
legislature.
7 Law Enforcement On-Line is a secure law
enforcement Internet site managed by the FBI,
which provides communication and information
services to the federal, state, and local law
enforcement community.
8 In Printz v. U.S. (521 U.S. 898), the Supreme
Court ruled that the Brady Act's interim (phase I)
provision commanding the CLEO of each local
jurisdiction to conduct background checks was
unconstitutional in that it compelled state
officers to execute federal law.
9 A small number of these-33-actually occurred
within 3 business days. According to FBI
officials, for these delayed NICS transactions the
gun dealer transferred the firearm to a prohibited
person before 3 business days had elapsed, without
having received a proceed or deny response from
NICS.
10 Crime Technology: Federal Assistance to State
and Local Law Enforcement (GAO/GGD-99-101, June 7,
1999), pp. 29 and 31.
11 Public Law 105-277 (Oct. 21, 1998) and Public
Law 106-113 (Nov. 29, 1999), respectively.
12 Title VIII, section 861, S. 254, passed by the
Senate on May 20, 1999.
13 New York v. U.S., 505 U.S. 144, 165 (1992);
South Dakota v. Dole, 483 U.S. 203, 206 (1987).
14 Public Law 103-322 (Sept. 13, 1994).
15 Washington's 30-day hold rule also applies to
firearms transactions where the background check
indicates open criminal charges, pending criminal
proceedings, pending commitment proceedings, or an
outstanding warrant.
16 FBI, Criminal Justice Information Services
Division, National Instant Criminal Background
Check System: Operations Report (November 30, 1998
- December 31, 1999). More specifically, FBI data
for the first 13 months of NICS implementation
show that delayed background checks taking more
than 24 hours accounted for about 38 percent of
the total number of NICS denials, compared with
the overall NICS denial rate of about 2 percent16.
*** End of document ***