House recoils at FBI gun-check fee

An FBI proposal to charge gun dealers for running computer background checks on potential customers drew heated opposition from Congress and lobbyists last week.

Testifying before the House Judiciary Committee's Subcommittee on Crime, FBI officials said the fees are necessary to cover the overhead and the salaries of some personnel who will run the National Instant Criminal Background Check System (NICS), which is required to be operational by November under the Brady Handgun Violence Prevention Act of 1993. The fees would run as high as $16 per transaction.

James Kessler Jr., section chief of the operations branch at the FBI's Criminal Justice Information Services Division, said a 1991 appropriations law for the Justice Department gave the FBI authority to charge the fee for background checks.

But Rep. Bob Barr (R-Ga.) said the fee would most likely be passed on to gun buyers, and it is a tax that is levied by the executive branch without congressional authority.

Tanya Metaksa, executive director of the National Rifle Association, told the subcommittee that the 1991 law covers only fees for background checks for employment and for certain types of licenses, not gun purchases. "We believe the FBI has essentially conjured the authority to levy a tax," she said.

The FBI and states will use NICS to identify would-be gun buyers who are not legally allowed to buy guns. Under the Brady Act, people who fall into one of nine categories, such as fugitives from justice and dishonorably discharged veterans, are not allowed to buy firearms.

When NICS is operational, gun dealers will submit a gun buyer's name to the FBI or to state law enforcement officials, who will electronically transmit the name to NICS. States will decide whether they will act as the NICS contact for gun dealers or whether they will pass the responsibility on to the FBI. The system will then search for matches in the FBI's National Crime Information Center system, which holds records on fugitives, people who are subject to restraining orders and deported felons, and in the Interstate Identification Index, which links the FBI and state databases of felons, drug abusers and people charged with domestic violence. States that choose to accept names may also search other databases the state maintains.

NICS also will scan records in a new database the FBI is creating called the NICS Index, which will include information stored by other federal agencies, such as the Immigration and Naturalization Service and the Defense Department, as well as information stored by states.

FBI officials estimate that the federal government will handle about 4.9 million of the estimated 11.4 million background checks, with states handling the rest. FBI officials expect to do the NICS checks for at least 20 states and Puerto Rico.

The federal government, with help from Science Applications International Corp., has spent close to $30 million internally on the system, according to sources familiar with the project. The federal government has handed out another $200 million to states to get their criminal records in an electronic form that is compatible with the new system.

But about 25 percent of automated NICS matches will not provide the details of the would-be gun buyer's record that are needed to approve or disapprove a purchase. Those matches will only indicate that some kind of record exists. In these cases, a NICS employee must track down a copy of the record to determine if it precludes the individual from owning a gun. These searches are more costly than the automated matches that provide a record, and the FBI wants the user fee to cover that additional cost.

Kessler said if Congress prohibits the FBI from charging the user fee, thereby making the service free, more gun dealers will press for the FBI to conduct NICS background checks because states could still charge for the NICS service. As a result, the FBI would be forced to handle more background checks, requiring the agency to hire more staff to locate files.

Kessler estimated that if the FBI were to handle all the NICS background checks for all 50 states, it would cost about $140 million a year. The FBI planned to handle fewer than 5 million checks per year, but Kessler said that without the fee, the number of checks the FBI would conduct could increase to nearly 12 million. "We're not prepared for that," he said.

But Rep. Asa Hutchinson (R-Ark.) said the checks are the responsibility of the FBI, which should not be allowed to charge the public for the checks. "It's a federal mandate to begin with," Hutchinson said. "I personally don't see any problem with" the FBI handling all the background checks. Subcommittee members suggested that the FBI could handle the background checks with appropriated funds rather than fees, but FBI officials said they were unsure exactly from where those funds would come.

A bill introduced last month by Barr called the No Gun Tax Act would prohibit the FBI from charging fees for the use of NICS and also prevent federal officials from keeping a database on individuals who are approved for gun purchases.