FBI and ATF in A Lover's Quarrel?

Case 1:18-cv-01336-TSC Document 54-3 Filed 02/26/22 Page 1 of 17
Defs. Ex. 1 at Page 1 of 3









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

U.S. Department of Justice
Federal Bureau of Investigation
Clarksburg. WV 26306
June 3, 2019
Mr. Curtis W. Gilbert

Deputy Assistant Director
Enforcement Programs and Services
99 New York Ave, NE
SN-600
Washington, DC 20226
Dear Mr. Gilbert:
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 ATF processing of NICS 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 work1, to include NFA 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 NFA appeals, Federal Fireanns Licensing Center (FFLC) background checks, Federal Explosives Licensing Center
(FELC) background checks, NFA 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 ofanother 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
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 Control 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 were 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 ATF. 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 NFA transfer checks are passed to the FBI. As the ATF
is the "denying agency," NFA transfer appellants would need to contact the ATF, 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 NFA 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
FBI will no longer make recommendations to the ATF as ATF checks should no longer be
processed by the NICS 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 the NF A, the ATF has not established appeal procedures for addressing
denied NF A transfer appeals based upon the results of a NICS background check. As this
contact with the NICS for NF A transfers was mandated by ATF Regulation, and not by the NF A,
codification of appeal procedures in the ATF Regulations is the most logical solution. Because
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 NICS portion of any NFA transfer appeal would not
resolve the NF A transfer appeal in its entirety. As a result, for transfers denied under the NFA
by the ATF, based upon the results of a NICS background check, the J\ TF should refrain from
directing appellants to the NICS Section fo r appeal processing. 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 ATF fo r
adjudication of the transaction.
ln order to facilitate a smooth transition, the NICS Section will be in contact to

arrange a face-to-face meeting with ATF representatives. At that time, the NICS Section will
discuss options and develop a plan fo r transitioning ATF work back to the ATF. The NICS
Section values the partnership with the ATF and remains dedicated to working together in
support of both agency's core missions.
Deputy Assistant Director

Information Services Branch
CJTS Division
1 - Mr. Adam Braverman

Associate Deputy Attorney General
Office of the Deputy Attorney General
950 Pennsylvania Avenue, NW, Room 4115
Washington, DC 20530
3
FBI000632


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

FBI and ATF in A Lover's Quarrel?

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Case 1:18-cv-01336-TSC Document 54-3 Filed 02/26/22 Page 1 of 17

Defs. Ex. 1 at Page 1 of 3

Defs. Ex. 1 at Page 2 of 3

Defs. Ex. 1 at Page 3 of 3

Defs. Ex. 2 at Page 1 of 4

Defs. Ex. 2 at Page 2 of 4

Defs. Ex. 2 at Page 3 of 4

Defs. Ex. 2 at Page 4 of 4

Defs. Ex. 3 at Page 1 of 4

Defs. Ex. 3 at Page 2 of 4

10) Upon confirmation that a record demonstrates an individual is prohibited from

Defs. Ex. 3 at Page 4 of 4

U.S. Department of Justice

Federal Bureau of Investigation

Mr. Curtis W. Gilbert

can be located at 31U.S.C. §1341, §1342, §§ 1349-1351, and§§ ISi 1-1519.

Defs. Ex. 4 at Page 1 of 3

Mr. Curtis W. Gilbert

Mr. Curtis W. Gilbert

ln order to facilitate a smooth transition, the NICS Section will be in contact to

Deputy Assistant Director

1 - Mr. Adam Braverman

Defs. Ex. 5 at Page 1 of 2

Defs. Ex. 5 at Page 2 of 2

U.S. Department of Justice

Federal Bureau of Investigation

GARY JAMES LECOMTE

RE: Firearm-Related Challenge

Dear Mr. Lecomte:

Based on further review and subsequent documentation, we have been able to

Biometric Services Section

Defs. Ex. 6 at Page 1 of 1

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