Statements on Introduced Bills and Joint Resolutions

CONGRESSIONAL RECORD
SENATE

STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

Mr. DURBIN. Mr. President, today, I am introducing a bill that would repeal a provision in the Consolidated Appropriations Act of 2004, regarding the amount of time that records of approved gun sales can be retained.

This provision, which will be enacted within the next month, was a measure that the House and Senate conferees agreed to drop, but nonetheless was inserted at the last minute into the Conference Report. That provision is opposed by law enforcement and threatens public safety because each year, it would allow hundreds of convicted felons, fugitives, and possibly even terrorists, to have firearms-even though they are prohibited by Federal law from having one.

Under the Brady Handgun Violence Prevention Act, licensed firearms dealers generally are prohibited from transferring firearms to an individual until a search of the National Instant Criminal Background Check System (NICS) determines that the transfer would not violate applicable Federal or State law. For example, these background checks determine if someone is a convicted felon; convicted of a crime of domestic violence or under a domestic violence restraining order; or a fugitive. Current regulations allow the records of approved firearms sales to be retained in a computer database, known as the NICS Audit Log, for up to 90 days, after which the records must be destroyed.

The NICS Audit Log provides many useful and necessary functions. First, it allows examiners to determine if, based on new information, someone who was allowed to receive a firearm is in fact prohibited by federal law from doing so. Second, the NICS Audit Log allows the FBI to search for patterns of fraud and abuse by both gun dealers and purchasers. Finally, it can help determine if gun buyers have submitted false identification in order to thwart the background check system.

The provision that my legislation today would repeal reduced the time these records may be retained from 90 days to 24 hours. This will decrease the effectiveness of the NICS Audit Log and have a dramatic, negative impact on public safety.

In July 2001, the Department of Justice proposed an almost-identical change to the NICS regulations. In response to that proposal, I asked the non-partisan General Accounting Office to conduct a study on its possible effects. The key finding of this study was: "Regarding public safety, the FBI would lose certain abilities to initiate firearm-retrieval actions when new information reveals that individuals who were approved to purchase firearms should not have been. Specifically, during the first 6 months of the current 90-day retention policy, the FBI used retained records to initiate 235 firearm-retrieval actions, of which 228, 97 percent, could not have been initiated under the proposed next-day destruction policy."

Therefore, if this provision is not repealed, each year, more than 450 people who are prohibited by federal law from having a firearm nonetheless will have one.

This number could even be much higher. In the 6 months examined by the GAO, the FBI determined that an additional 179 transactions were initially approved and reversed more than one day later, but did not result in actual firearm sales. In other words, during this six-month period, the background checks yielded a total of 407 mistakes that would not have been caught if the NICS record retention period had been shortened to 24 hours.

Given this negative effect on public safety, many law enforcement agencies and officials have expressed their opposition. For example, the Law Enforcement Steering Committee (LESC), a nonpartisan coalition of organizations representing law enforcement management, labor, and research, is "concerned with provisions included in the omnibus bill addressing firearms purchasing and the reduction of law enforcement oversight." The nine organizations in the LESC are the following: the Federal Law Enforcement Officers Association, the International Brotherhood of Police Officers, the Major Cities Chiefs Association, the Major County Sheriff's Association, the National Association of Police Organizations, the National Organization of Black Law Enforcement Executives, the National Troopers Coalition, the Police Executive Research Forum, and the Police Foundation.

The Federal Bureau of Investigation Agents Association, a non-governmental professional association with a membership of nearly 9,000 current and more than 2,000 retired FBI agents nationwide has written: "The more the retention period is reduced, the more difficult it would become to use the paperwork to investigate or prosecute crimes related to the use of sales of the firearms in question. Any such efforts can only complicate the already difficult task of law enforcement and jeopardize public safety."

Although the FBI Agents Association does not speak for the official FBI, it is worth noting that the FBI's NICS Operations Report in March 2000 recommended extending the retention period from 90 days to one year and noted that the Advisory Policy Board concurred with that recommendation.

Finally, the International Association of Chiefs of Police, the world's oldest and largest association of law enforcement executives, with more than 19,000 members in 90 countries, stands behind its 2001 letter to the FBI, in which the IACP wrote: "We believe that decreasing the amount of time the purchase records are kept will weaken the background check system and allow more criminals to illegally obtain weapons. . . . The IACP believes that the 90-day retention period should not be shortened. Decreasing the retention period of these records to one business day will not provide law enforcement with sufficient time to perform the necessary audits on the NICS system as established by the Brady Act."

In addition to the threat to public safety, this provision will have monetary costs. According to the GAO report, the FBI has determined that when this change in the NICS retention policy is implemented, many of the audits currently conducted on a monthly or quarterly basis would have to be conducted on a real-time basis-either hourly or daily. The FBI has said it would need to add 10 staff members to conduct these real-time audits, which would bring the total number of audit staff to 19.

Especially in this time of increased attention to homeland security, this is not the proper allocation of our limited resources. Unless we repeal this provision, we will be funding ten additional FBI staff members to implement a policy that would allow hundreds of convicted felons and fugitives to keep their firearms. That clearly does not make sense.

The clock is ticking: this provision will go into effect in less than a month, before July 21, 2004. We must act now to keep firearms out of the hands of hundreds of convicted felons, fugitives, and terrorists each year. I urge my colleagues to join me in support of this important, commonsense legislation to promote public safety and to ensure that similar provisions are not enacted in future appropriation legislation.