Defs. Ex. 1 at Page 1 of 3 Case 1:18-cv-01336-TSC Document 54-3 Filed 02/26/22 Page 1 of 17 Defs. Ex. 1 at Page 2 of 3 Case 1:18-cv-01336-TSC Document 54-3 Filed 02/26/22 Page 2 of 17 Defs. Ex. 1 at Page 3 of 3 Case 1:18-cv-01336-TSC Document 54-3 Filed 02/26/22 Page 3 of 17 Defs. Ex. 2 at Page 1 of 4 Case 1:18-cv-01336-TSC Document 54-3 Filed 02/26/22 Page 4 of 17 Defs. Ex. 2 at Page 2 of 4 Case 1:18-cv-01336-TSC Document 54-3 Filed 02/26/22 Page 5 of 17 Defs. Ex. 2 at Page 3 of 4 Case 1:18-cv-01336-TSC Document 54-3 Filed 02/26/22 Page 6 of 17 Defs. Ex. 2 at Page 4 of 4 Case 1:18-cv-01336-TSC Document 54-3 Filed 02/26/22 Page 7 of 17 Defs. Ex. 3 at Page 1 of 4 Case 1:18-cv-01336-TSC Document 54-3 Filed 02/26/22 Page 8 of 17 Defs. Ex. 3 at Page 2 of 4 Case 1:18-cv-01336-TSC Document 54-3 Filed 02/26/22 Page 9 of 17 9) For U.S. citizens, if the potential transferee's name does not match any record searched by the NICS or upon confirmation that a record demonstrates an individual is not prohibited from receiving a firearm, the NICS Section will inform the FFL to proceed the transfer of the firearm and to record this answer on the ATF Form 4473. For an NFA check, the NICS Section provides a recommendation of proceed. 10) Upon confirmation that a record demonstrates an individual is prohibited from receiving a firearm, the NICS Section will inform the FFL to deny the transfer of the firearm and to record this answer on the ATF Form 4473. For an NFA check, the NICS Section provides ATF with a recommendation of deny. 11) For those transactions in which the NICS Section cannot provide a definitive response of either proceed or deny, the transaction will be placed in a "delayed" status for further research. The NICS Section conducts research on delayed transactions to determine whether the record(s) in question demonstrates that receipt of a firearm by the potential transferee would violate subsection (g) or (n) of the Gun Control Act or state law. 12) The Brady Act [18 U.S.C. § 922(t)(2)(C)] requires that all NTNs and their creation dates be retained indefinitely. Additionally, pursuant to 28 C.F.R. § 25.9, the FBI is required to maintain an automated NICS Audit Log of all incoming and outgoing transactions that pass through the system, including the type of transaction, the time and date of inquiry, identifying information about the prospective transferee, and the NTN. The NICS Audit Log is used to conduct audits of the use and performance of the NICS. The NICS Audit Log is monitored and reviewed on a regular basis as part of that audit authority to detect any possible misuse of the NICS. 13) Pursuant to 28 C.F.R. § 25.9(b)(l), the NICS Section is required to destroy all NICS Audit Log records relating to allowed transactions (other than the NTN assigned to the NICS transaction and the date the NTN was assigned). This destruction requires the NICS Section to destroy all personal identifying information regarding the transferee within 24 hours of informing an FFL the transaction may proceed. The regulation also limits the retention of delayed transactions to 90 ·days from the date the background check was initiated, at which time all personal identifying information of the transferee and information identifying the specific FFL initiating the check are destroyed. 14) Through additional research and analysis, it has been determined that the court documentation from 2009 establishes that Mr. Bargeron could not have been previously convicted of a felony. There is a lack of evidence that Mr. Bargeron has been convicted of any offense related to his 1999 arrest. Based on the information available to NICS at this time, it has determined that Mr. Bargeron is not a prohibited person. 15) In summary, Mr. Bargeron's criminal history record reflects a an arrest for the charge of Burglary for date of arrest 01/21/1999. The NICS section has exhausted all efforts to obtain a final disposition. Due to his criminal record and the inability to obtain disposition information, Mr. Bargeron will need to apply for the Voluntary Appeal File and be issued a Unique Personal Identification Number to prevent unnecessary delays or denial of future transactions. 3 Defs. Ex. 3 at Page 3 of 4 Case 1:18-cv-01336-TSC Document 54-3 Filed 02/26/22 Page 10 of 17 Defs. Ex. 3 at Page 4 of 4 Case 1:18-cv-01336-TSC Document 54-3 Filed 02/26/22 Page 11 of 17 Mr. Curtis W. Gilbert Deputy Assistant Director Enforcement Programs and Services 99 New York Ave, NE SN-600 Washington, DC 20226 Dear Mr. Gilbert: U.S. Department of Justice Federal Bureau of Investigation Clarksburg. WV 26306 June 3, 2019 This letter is in response to your June 19, 2018 Memorandum regarding the processing of National Firearms Act (NFA) appeals by the FBI Criminal Justice Information Services (CJIS) Division's National Instant Criminal Background Check System (NICS) Section. The FBI previously stated that the NICS Section is not responsible for processing NF A appeals. In response, you stated that the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) "has neither the legal or regulatory authority to process appeals for the correction of erroneous NICS system information as this authority is clearly and unambiguously provided to the FBI." Further, you stated that A TF processing of NI CS appeals would be violative of both the NICS Regulations and, likely, the Administrative Procedures Act (APA). On this point, the FBI does not disagree, as the FBI Director is the designated system manager of the NICS. See 28 C.F.R § 25.3. However, it is the position of the FBI that ATF NFA transfers do not fall within the purview of the NICS provisions of the Brady Handgun Violence Prevention Act of 1993 (Brady Act); (now codified, in part, at Title 34, United States Code (U.S.C.), Section 40901) therefore, application and analysis of the NICS Regulations (Title 28, Code of Federal Regulations (C.F.R.), Section 25 .1-25.11) seems unnecessary. In fact, it is the position of the FBI that the processing of any ATF work 1, to include NF A appeals by the NICS Section, pursued due to the denial of a transfer based upon the results of a NICS background check, runs afoul of Federal Appropriations laws and the Anti-Deficiency Acts. 2 .3 1 NF A appeals, Federal Fireanns Licensing Center (FFLC) background checks, Federal Explosives Licensing Center (FELC) background checks, NF A background checks, or any other ATF-related background checks. 2 Key Appropriations laws can be found at 31 U.S.C . § 1301and31 U.S .C. § lS02(a). Key Anti-Deficiency Act statutes can be located at 31U.S.C. §1341, §1342, §§ 1349-1351, and§§ ISi 1-1519 3 See generally, Principles of Federal Appropriations Law (Third Edition, Volume II, January 2004 at page 6-236 " .•. treating a transaction which should be reimbursed as nonreimbursable may result in an improper augmentation. For example, an agency receives appropriations to do its own work, not that of another agency. Accordingly, as a general proposition, interdepartmental loans of persoMel on a nonreimbursable basis improperly augment the appropriations of the receiving agency. 65 Comp. Oen 635 (1986); 64 Comp. Oen. 370 (1985). Such nonreimbursable loans also constitute a misuse of the detailing agency 's appropriation under 31 U.S.C. § 1301 . 8-247347, June 22, 1992 ." FBI000630 Defs. Ex. 4 at Page 1 of 3 Case 1:18-cv-01336-TSC Document 54-3 Filed 02/26/22 Page 12 of 17 Mr. Curtis W. Gilbert Appeals ofNFA denials are not NICS appeals as set forth in the Brady Act. While the Brady Act provides both administrative and judicial remedies for any person denied a firearm, this process is limited to those persons the NICS has denied a firearm under subsections (s) and (t) of Section 922 of the Gun Co ntrol Act of 1968 (GCA), as amended, (18 U.S.C. §§ 921-931 ). See 18 U. S.C. § 925A and 34 U. S. C. § 4090l(g). In addition, the remedies set forth in the Brady Act are limited to transfers where "licensees" have contacted the NICS prior to a GCA transfer of a fireann. As defined in 34 U.S.C. § 40901(j)(l), the tenn "licensee" does not include the ATF or ATF Director. It is the position of the FBI that ATF NFA transfers do not fall within the purview of the NICS provisions of the Brady Act. Rather access is authoriz.ed, via regulation, to the NICS for purposes unrelated to NICS background checks required by the Brady Act for non-Brady uses such as NFA transfers. See 28 C.F.R. § 25 .6 (j)(2). Nevertheless, if potential transferees under the NF A we re able to avail themselves of the remedies set forth in the NICS Regulations, the ATF, not the FBI, should be deemed the "denying agency." As the FBI is not the denying agency, the FBI's NICS appeal process cannot serve as a remedy to individuals the ATF has denied under the NF A. The NFA transfer process is administered and enforced by the A TF . The NF A firearms may be transferred upon application if the transfer, receipt, or possession by the transferee does not place the transferee in violation of the law. See 26 U.S. C. § 5812(a). Interpreting 26 U.S.C. § 5812(a), the ATF has mandated contact with the NICS in making the determination as to whether the transfer, receipt, or possession of a firearm would violate the law. See 27 C.F.R. § 479.86. Noticeably absent from the NFA and the implementing regulations, are provisions for appeals of denied transfers or remedies for the erroneous denial of a transfer. Currently, the FBI only provides recommendations to the ATF based upon the results of a NICS background check when ATF NF A transfer checks are passed to the FBI. As the ATF is the "denying agency," NFA transfer appellants would need to contact the A TF , not the FBI. Since ATF contact with the NICS for NFA transfers was mandated by ATF Regulation (27 C.F.R. § 479.86), and not by the NFA, itself, codification of appeal procedures in the ATF Regulations (including procedures for NFA transfers denied based upon the search of the NICS) should be considered and promulgated to rectify this gap. The FBI has given the ATF access to the NICS to work transactions and view the search results. As the denying agency, the ATF should determine, based on all of the information in its possession, if the NF A transfer appeal is upheld or overturned. The current NICS appeal process would not result in resolution of the NFA appeal in its entirety (as a search of the NICS is only one search authorized as part of an NFA transfer) or enable the applicant to proceed with the transfer, as the ATF requires the entire transfer process to be reinstituted by the individual. If an appeal process is established by the ATF , the FBI would leverage existing means, outside of the NICS process, for updating and correcting records within its systems when provided with information that requires the correction or modification of an FBI record. The FBI will continue to permit the ATF access to the NICS for NFA transfers, unrelated to NICS background checks, in accordance with 28 C.F. R. § 25.6 G)(2) . However, the 2 FBI000631 Defs. Ex. 4 at Page 2 of 3 Case 1:18-cv-01336-TSC Document 54-3 Filed 02/26/22 Page 13 of 17 Mr. Curtis W. Gilbert FBI will no lon ger mak e recommendations to the ATF as A TF checks should no longer be processed by the NI CS Section. In conclusion, while the ATF, by way of regulation, has mandated contact with the NICS in making the determination as to whether the transfer, receipt, or possession of a firearm would violate th e NF A, the ATF ha s not estab li shed appeal procedures for address in g denied NF A transfer appeals based up on the results of a N IC S background check. As this contact with the NI CS for NF A transfers was mandated by ATF Regulation, and not by the NF A, codification of appeal procedures in the A TF Regulations is the most logical so luti on. Becau se the search of the NICS is only one search authorized as part of an NF A transfer, and the FBI is not the denying entity, resolution of the NI CS portion of any NFA transfer appeal would not resolve the NF A transfer appeal in its ent ir ety. As a re su lt , for transfers denied under the NFA by the ATF, based upon the results of a NI CS background check, the J\ TF should refrain from directing appellants to the NI CS Sec ti on fo r appeal pro cess in g. Add itionally, as the ATF is funded by statute for the work the FBI is currently performing, the FBI will no longer be making recommendations on ATF work, but rather making the information available to the A TF fo r adjudication of the transaction. ln o rd er to facilitate a smooth transition, the NICS Sec ti on will be in co nt act to arrange a face-to-face meeting wi th A TF representatives. At that time, the NI CS Section w ill discuss options and develop a plan fo r transitioning ATF work back to the ATF. The NICS Section values the partnership with the ATF a nd remains dedicated to working together in support of both agency 's core mi ss ions. 1 - Mr. Adam Braverman Associate Deputy Attorney General Office of th e Deputy Atto rn ey General U.S. Department of Justice 950 Pennsyl va ni a Avenue, NW , Room 4115 Washington, DC 20530 3 Deputy Assistant Director Information Services Branch C JT S Divis ion FBI000632 Defs. Ex. 4 at Page 3 of 3 Case 1:18-cv-01336-TSC Document 54-3 Filed 02/26/22 Page 14 of 17 Defs. Ex. 5 at Page 1 of 2 Case 1:18-cv-01336-TSC Document 54-3 Filed 02/26/22 Page 15 of 17 Defs. Ex. 5 at Page 2 of 2 Case 1:18-cv-01336-TSC Document 54-3 Filed 02/26/22 Page 16 of 17 U.S. Department of Justice Federal Bureau of Investigation Clarksburg, WV 26306 November 16, 2021 GARY JAMES LECOMTE 5531 MARKET ROAD MARSING, ID 83639 RE: Firearm-Related Challenge NTN: 2YCWZXK Dear Mr. Lecomte: This responds to your inquiry concerning your eligibility to possess or receive a firearm. The fingerprints you previously submitted are identical with those in a record used in the evaluation of your attempt to possess or receive a firearm. The court documentation and/or other pertinent materials submitted have been reviewed. Based on further review and subsequent documentation, we have been able to determine you are eligible to possess or receive a firearm. The FBI’s Criminal Justice Information Services (CJIS) Division Firearm-Related Challenge Certificate is enclosed. You must take this original certificate to the Federal Firearms Licensee (FFL) who initiated your background check through the National Instant Criminal Background Check System (NICS) to complete your transaction. If more than 30 days have elapsed since the initial background check, the FFL must recheck the NICS before allowing the firearm transfer. The FBI offers the Voluntary Appeal File (VAF) as an option for individuals to request the NICS retain information to prevent future extended delays or erroneous denials in their attempts to possess or receive a firearm. If you would like to be considered for VAF entry, a VAF application is available at https://www.fbi.gov/file-repository/vaf-form-25.pdf/view and may be submitted along with your fingerprint card to the FBI Criminal Justice Information Services Division, National Instant Criminal Background Check System Section, Voluntary Appeal File, Post Office Box 4278, Clarksburg, West Virginia 26302-4278. The submitted documents will not be returned. You are encouraged to submit documentation within 88 days of the date of this letter as the FBI is required to destroy the research associated with overturned transactions within 90 days. Biometric Services Section Criminal Justice Information Services Division Enclosure Defs. Ex. 6 at Page 1 of 1 Case 1:18-cv-01336-TSC Document 54-3 Filed 02/26/22 Page 17 of 17