UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


NATL RIFLE ASSN AMER

v.

RENO, JANET


99-5270a

D.C. Cir. 2000


*	*	*


United States Court of Appeals


FOR THE DISTRICT OF COLUMBIA CIRCUIT


Argued March 17, 2000 Decided July 11, 2000 


No. 99-5270


National Rifle Association of America, Inc. et al.,  Appellants


v.


Janet Reno, Attorney General of the United States,  Appellee


Appeal from the United States District Court  for the District of
Columbia  (No. 98cv02916)


Stephen P. Halbrook argued the cause for appellants. With  him on the
briefs was Richard E. Gardiner.


Michael S. Raab, Attorney, U.S. Department of Justice,  argued the
cause for appellee. On the brief were David W.  Ogden, Acting
Assistant Attorney General, Mark B. Stern,  and Susan L. Pacholski,
Attorneys, and Wilma A. Lewis,  U.S. Attorney.


Before: Sentelle, Tatel and Garland, Circuit Judges.


Opinion for the Court filed by Circuit Judge Tatel.


Dissenting opinion filed by Circuit Judge Sentelle.


Tatel, Circuit Judge: The National Rifle Association chal- lenges a
Justice Department regulation providing for tempo- rary retention of
data generated during background checks of  prospective firearms
purchasers, as required by the Brady  Handgun Violence Prevention Act.
According to the NRA,  the Brady Act requires immediate destruction of
personal  information relating to lawful firearm transactions. The At-
torney General interprets the statute differently, arguing that 
temporary retention of data for at most six months is neces- sary to
audit the background check system to ensure both its  accuracy and
privacy. Finding nothing in the Brady Act that  unambiguously
prohibits temporary retention of information  about lawful
transactions, and finding that the Attorney Gen- eral has reasonably
interpreted the Act to permit retention of  such information for audit
purposes, we affirm the district  court's dismissal of the


I.


The Gun Control Act of 1968 makes it unlawful for certain  individuals,
including convicted felons, fugitives from justice,  and illegal
aliens, to possess firearms. See 18 U.S.C.  ss 922(g). The Brady
Handgun Violence Prevention Act of  1993 required the Attorney General
to establish a "national  instant criminal background check system,"
known as the  NICS, to search the backgrounds of prospective gun
purchas- ers for criminal or other information that would disqualify 
them from possessing firearms. See s 103(b), Pub. L. No.  103-159, 107
Stat. 1536. A computerized system operated by  the FBI, the NICS
searches for disqualifying information in  three separate databases:
(1) the "NICS Index," containing  records on persons known to be
disqualified from possessing  firearms under federal law; (2) the
"National Crime Informa- tion Center," containing records on
protective orders, deport- ed felons, and fugitives from justice; and


Identification Index," containing criminal history records. 28  C.F.R.
s 25.6(c)(1)(iii).


Before selling a weapon, firearm dealers must submit the  prospective
purchaser's name, sex, race, date of birth, and  state of residence to
the NICS operations center at the FBI.  Id. s 25.7(a). If the firearm
dealer is in a state that has  elected to serve as a "point of
contact" for NICS queries, the  dealer must submit the inquiry to the
relevant state agency.  Id. s 25.6(d). Upon receiving such an inquiry,
the FBI or  state agency must immediately provide the gun dealer with 
one of three responses: (1) "proceed," if no information in the 
system indicates that a firearm transfer would be unlawful;  (2)
"denied," if the prospective purchaser may not legally  possess a
firearm; or (3) "delayed," if further research is  necessary. Id. s
25.6(c)(1)(iv); Brady Act s 103(b), 107 Stat.  at 1541.


A Justice Department regulation requires the FBI to retain  records of
all NICS background searches--including names  and other identifying
information about prospective gun pur- chasers--in an automated "Audit
Log." 28 C.F.R. s 25.9(b).  According to the regulation, the Audit Log
is "a chronological  record of system (computer) activities that
enables the recon- struction and examination of the sequence of events
and/or  changes in an event." Id. s 25.2. The regulation's preamble 
describes the purpose of the Audit Log:


By auditing the system, the FBI can identify instances in  which the
NICS is used for unauthorized purposes, such  as running checks of
people other than actual gun trans- ferees, and protect against the
invasions of privacy that  would result from such misuse. Audits can
also deter- mine whether potential handgun purchasers or [gun deal-
ers] have stolen the identity of innocent and unsuspecting 
individuals or otherwise submitted false identification  information,
in order to thwart the name check system.  The Audit Log will also
allow the FBI to perform quality  control checks on the system's


the accuracy of the responses given by the NICS record  examiners to
gun dealers.


National Instant Criminal Background Check System Regu- lation, 63 Fed.
Reg. 58303, 58303-04 (1998) (hereinafter,  NICS Regulation); see also
28 C.F.R. s 25.9(b)(2).


The regulation restricts use of the Audit Log. Information  "pertaining
to allowed transfers may only be used by the FBI  for the purpose of
conducting audits of the use and perfor- mance of the NICS." 28 C.F.R.
s 25.9(b)(2). The Audit Log  "may not be used by any department,
agency, officer, or  employee of the United States to establish any
system for the  registration of firearms, firearm owners, or firearm
transac- tions or dispositions. The Audit Log will be monitored and 
reviewed on a regular basis to detect any possible misuse of  the NICS
data." Id.


The Notice of Proposed Rulemaking had called for retain- ing
information relating to allowed transfers in the Audit Log  for
eighteen months. National Instant Criminal Back- ground Check System
Regulations, 63 Fed. Reg. 30430, 30432  (proposed June 4, 1998).
Declaring that "the general reten- tion period for records ... in the
NICS Audit Log should be  the minimum reasonable period for performing
audits on the  system," the final regulation reduced the retention
period to  "in no event more than six months." NICS Regulation, 63 
Fed. Reg. at 58304. The regulation's preamble states that  "the FBI
shall work toward reducing the retention period to  the shortest
practicable period of time less than six months  that will allow basic
security audits of the NICS." Id. The  Attorney General has since
published a proposed rule that  would shorten the retention period for
records of allowed  transfers to ninety days. National Instant
Criminal Back- ground Check System Regulation, 64 Fed. Reg. 10262,


When removed from the Audit Log, personal information  relating to
allowed transfers is destroyed. 28 C.F.R.  s 25.9(b)(1). NICS records
relating to denied firearm trans- fers are kept in the Audit Log for
ten years, then transferred  to a Federal Records Center for storage.
Id. State agencies 


performing background checks in lieu of the FBI may retain  information
on allowed transfers if the records are "part of a  record system
created and maintained pursuant to indepen- dent state law regarding
firearms transactions." Id.  s 25.9(d)(1), (d)(2).


On the day the NICS regulation became effective, the  National Rifle
Association of America, joined by the Law  Enforcement Alliance of
America, Inc., and four John and  Jane Does, filed suit in the U.S.
District Court for the District  of Columbia, arguing that temporary
retention of NICS rec- ords of allowed transfers violates three
provisions of the  Brady Act: section 922(t)(2)(C), requiring that the
system  "destroy" records of allowed transactions; section 103(i)(1), 
prohibiting the government from "requir[ing] that any  [NICS] record
... be recorded at or transferred to a [govern- ment] facility"; and
section 103(i)(2), prohibiting the govern- ment from "us[ing] the
[NICS] system ... to establish any  system for the registration of
firearms." 107 Stat. at 1540,  1542. The complaint also alleged that
the Attorney General  has no authority to exempt NICS information
retained by  state agencies from the Brady Act's destruction
requirement,  even if that information is "part of a record system
created  and maintained pursuant to independent state law."


The Attorney General interpreted the Act differently, argu- ing that
neither section 922(t)(2)(C) nor section 103(i)(1) pro- hibits
temporary retention of NICS records, and that the  Audit Log is not a
"system for ... registration" within the  meaning of section
103(i)(2). For authority to create the  Audit Log, the Attorney
General relied on her statutory  obligations to establish a system
capable of providing accu- rate information on the lawfulness of
firearm transactions, see  Brady Act, s 103(b), 107 Stat. at 1541, and
to protect the  privacy and security of the NICS. See Brady Act, s


The district court, finding nothing in the Brady Act to  require
immediate destruction and the Attorney General's  construction of the
statute reasonable, dismissed the com- plaint pursuant to Federal Rule
of Civil Procedure 12(b)(6). 


Renewing the arguments it made in the district court, the  NRA appeals.
Our review is de novo. See, e.g., Brown v.  Plaut, 131 F.3d 163, 167
(D.C. Cir. 1997).


II.


Because the NRA challenges a statute administered by a  government
agency, we proceed in accordance with the famil- iar two-part test of
Chevron U.S.A. Inc. v. Natural Resources  Defense Council, Inc., 467
U.S. 837 (1984). We ask first  "whether Congress has directly spoken
to the precise ques- tion at issue," for if it has, "that is the end
of the matter; for  the court, as well as the agency, must give effect
to the  unambiguously expressed intent of Congress." Id. at 842-43. 
If we find the statute silent or ambiguous with respect to the 
precise question at issue, we proceed to the second step of  Chevron
analysis, asking "whether the agency's answer is  based on a
permissible construction of the statute." Id. at  843. At this point
in our review, we afford substantial  deference to the agency's
interpretation of statutory lan- guage. See id. at 844.


We begin with the NRA's Chevron one argument that three  provisions of
the Brady Act unambiguously prohibit the At- torney General from
retaining information about allowed  transactions for any purpose,
including auditing. In evaluat- ing these arguments, we must not
"confine [ourselves] to  examining a particular statutory provision in
isolation. The  meaning--or ambiguity--of certain words or phrases may
 only become evident when placed in context." FDA v. Brown  &
Williamson Tobacco Corp., 120 S. Ct. 1291, 1300 (2000).  We must also
"exhaust the traditional tools of statutory  construction," Natural
Resources Defense Council, Inc. v.  Browner, 57 F.3d 1122, 1125 (D.C.
Cir. 1995) (internal quota- tion marks omitted), and may examine the
statute's legislative  history in order to "shed new light on
congressional intent,  notwithstanding statutory language that appears
superficially  clear." Id. at 1127 (internal quotation marks omitted).
Fi- nally, "we must be guided to a degree by common sense as to  the
manner in which Congress is likely to delegate a policy 


decision ... to an administrative agency." Brown & Wil- liamson, 120 S.
Ct. at 1301.


The first Brady Act provision the NRA relies on is section 


If receipt of a firearm would not [be unlawful], the  system shall--


(A) assign a unique identification number to the trans- fer;  (B)
provide the [firearms dealer] with the number;  and  (C) destroy all
records of the system with respect to  the call (other than the
identifying number and the  date the number was assigned) and all
records of the  system relating to the person or the transfer.


18 U.S.C. s 922(t)(2). According to the NRA, when the  statute says
"destroy all records" it means "destroy all rec- ords immediately,"
not within six months. That is certainly  one possible interpretation
of section 922(t)(2)(C). At Chev- ron step one, however, the question
is whether the statute  unambiguously requires immediate destruction.
We think  the answer is no.


To begin with, section 922(t)(2)(C) does not say "destroy 
immediately"; it says only "destroy." When Congress wants  to instruct
an agency not only to take certain action, but to  take it
immediately, it knows how to do so. For example,  once an
administrative agency determines whether a person  requesting
administrative records is entitled to receive them,  Congress requires
the agency to "immediately notify the  person making such request of
such determination." 5 U.S.C.  s 552(a)(6)(A)(i). Similarly, the Equal
Employment Opportu- nity Commission must "immediately refer" to the
Merits  System Protection Board any decision finding that the Board 
incorrectly interpreted governing law or issued a decision 
unsupported by record evidence. Id. s 7702(b)(5)(B). Con- gress even
used the word "immediately" elsewhere in the  Brady Act. Describing
the NICS and the Attorney General's  obligation to make information
available to firearms dealers,  Congress referred to a system of


immediately." Brady Act s 103(b), 107 Stat. at 1541. Yet  when in
section 922(t)(2)(C) Congress directed the Attorney  General to
"destroy" the information, it did not specify "im- mediately." The
word's absence indicates to us that Con- gress has not unambiguously
required immediate destruction  of NICS records.


The NRA argues that, read in context, section 922(t)(2)(C)  does in
fact require immediate destruction of NICS records  relating to
allowed transfers. Its argument goes like this: (1)  Congress intended
the NICS to function as a database of  "information, to be supplied
immediately, on whether receipt  of a firearm" would be prohibited by
law. Brady Act  s 103(b), 107 Stat. at 1541 (emphasis added). (2)
Because  under the statute, providing a NICS identification number 
signals a gun dealer that a transfer may proceed, see 18  U.S.C. s
922(t)(1)(B)(i), the "assign" and "provide" mandates  of sections
922(t)(2)(A) and (B) must be executed immediate- ly. (3) "The
'destroy' mandate [of section 922(t)(2)(C)] is part  and parcel of
this system, and compliance with that mandate  must also be


We agree with the first two steps of the NRA's reasoning.  The statute
clearly requires NICS identification numbers to  be both assigned and
provided immediately. See Brady Act  s 103(b), 107 Stat. at 1541; 18
U.S.C. s 922(t)(1)(B)(i); but cf.  28 C.F.R. s 25.6(c)(1)(ii)
(providing identification numbers  prior to conducting background
searches). Destruction of  NICS records, however, plays no role in
either authorizing or  rejecting firearm transfers--the action that
section 103(b)  requires to be taken immediately. NICS record
examiners  can complete the "assign" and "provide" tasks and respond 
immediately to gun dealers without immediately destroying  the
information. The "destroy" mandate is thus not "part  and parcel" of


Our conclusion that section 922(t)(2)(C) does not unambigu- ously
require immediate destruction of NICS records finds  support in the
Act's legislative history. As reported to the  House by the Judiciary
Committee, the Brady bill contained  no destruction requirement at
all. See H.R. Rep. No. 


103-344 (1993), reprinted in 1993 U.S.C.C.A.N. 1984. The  obligation to
destroy NICS records was added during floor  debate. As passed by the
House, the bill stated that the  system shall "immediately destroy all
records" of allowed  transactions. See 139 Cong. Rec. H9098, 9123,
9144 (daily ed.  Nov. 10, 1993). The Conference Committee, however, 
adopted the Senate's version of the destruction requirement,  which
did not contain "immediately." Compare 139 Cong.  Rec. H9123 (daily
ed. Nov. 10, 1993) (House version), with 139  Cong. Rec. S16506 (daily
ed. Nov. 19, 1993) (Senate version).  It was this version that both
houses approved and the Presi- dent signed.


To be sure, as the NRA points out, the Conference Report  did not list
the absence of "immediately" among the substan- tive differences
between the House and Senate bills. See  H.R. Conf. Rep. No. 103-412
(1993), reprinted in 1993  U.S.C.C.A.N. 2011. But this does not change
the critical fact:  The word "immediately," which had appeared in the
House  bill, is missing from the final Act. Although not necessarily 
reflecting congressional intent not to require immediate de-
struction, see Hammontree v. NLRB, 925 F.2d 1486, 1492  (D.C. Cir.
1991) (en banc), this omission supports our conclu- sion that
congressional intent on the precise question before  us--the sole
focus of Chevron one inquiry--is at least ambig- uous.


The parties debate the significance of subsequent legisla- tive
developments. An appropriations rider, expressly re- sponding to the
proposed Audit Log, would have conditioned  NICS funding on the
"immediate destruction of all informa- tion" relating to persons
eligible to possess firearms. See 144  Cong. Rec. S8680 (daily ed.
July 21, 1998) (proposed amend- ment no. 3233). As in the case of the
Brady Act itself, the  word "immediately" was deleted from the final
act. See  Omnibus Consolidated and Emergency Supplemental Appro-
priations Act of 1999 s 621(2), Pub. L. No. 105-277; see also  An Act
Making Consolidated Appropriations For the Fiscal  Year Ending
September 30, 2000, and For Other Purposes  s 619(2), Pub. L. No.
106-113 (using the same language).  Also, two bills that would have


government employees who retain NICS records for more  than twenty-four
hours were introduced but never passed.  See No Gun Tax Act of 1998,
H.R. 3949, 105th Cong.; Fire- arms Owner Privacy Act of 1998, S. 2175,
105th Cong. s 2.  Heeding the Supreme Court's recent warning, "[w]e do
not  rely on Congress' failure to act" as dispositive evidence of 
congressional intent. Brown & Williamson, 120 S. Ct. at  1312. At the
same time, this post-Brady Act legislative  activity reflects no
unambiguous congressional intent to re- quire immediate destruction of
NICS records. Indeed, the  effort to require immediate destruction
goes on: A bill now  pending in the Senate once again calls for
records of allowed  transfers to be destroyed immediately. See Right
to Bear  Arms Privacy and Protection Act of 2000, S. 2270, 106th Cong.


Our dissenting colleague finds the absence of "immediate- ly" in
section 922(t)(2)(C) of no consequence because "[i]n no  case has a
court held that power has been granted to a  federal agency by
Congress's failure to enact a limitation to a  directly contradictory
statutory command." Slip Op. at 7  (Sentelle, J., dissenting). But the
Attorney General does not  claim authority for the Audit Log
regulation from the absence  of "immediately," nor from any other
congressional failure to  prohibit temporary retention of NICS
records. Instead, the  Attorney General relies on two separate grants
of affirmative  authority, i.e., sections 103(b) and 103(h) of the
Brady Act.  Before we can evaluate the reasonableness of the Attorney 
General's interpretation of those two sections, however, we  must
consider the NRA's remaining Chevron one arguments,  i.e., that two
other provisions of the Brady Act unambiguous- ly prevent temporary
retention of NICS information, for if  the NRA is correct, "that is
the end of the matter." Chevron,  467 U.S. at 842. The two provisions


Prohibition Relating to Establishment of Registration  Systems with
Respect to Firearms.


No department, agency, officer, or employee of the Unit- ed States
may--


(1) require that any record or portion thereof generat- ed by the
[NICS] be recorded at or transferred to a  facility owned, managed, or
controlled by the United  States or any State or political subdivision
thereof; or  (2) use the [NICS] to establish any system for the 
registration of firearms, firearm owners, or firearm  transactions or
dispositions, except with respect to  persons, prohibited [by law],
from receiving a firearm. 


Brady Act s 103(i), 107 Stat. at 1542.


The NRA contends that the Audit Log represents a "clear  violation" of
subsection (1) because the Log "constitutes 'any  record or portion
thereof generated by' NICS, and it is  'recorded at or transferred to'
a federal facility." Appellants'  Br. at 11-12. Several considerations
persuade us that sub- section (1) is not so clear. To begin with, the
statute's  prohibition against "record[ing]" a "record" is inherently
am- biguous. What is a "record," when has it been "recorded,"  and
what kind of "record" cannot be "recorded?" When a  NICS operator
enters the name of a prospective purchaser  into the system, is that a
"record?" Has it been "recorded?"  If not, when does it become a
"record" that cannot be  "recorded?"


In addition to the inherent ambiguity of these words,  section
922(t)(2)(C) speaks of "destroy[ing] all records" relat- ing to
allowed transfers, apparently assuming that records  may be created.
Asked about this at oral argument, NRA  counsel conceded that records
could lawfully be kept for three  business days while research is
undertaken following a "de- layed" response. See 18 U.S.C. s
922(t)(ii); 28 C.F.R.  s 25.6(c)(1)(iv)(B). If the NRA's answer is
correct--we think  it is--then subsection (1) cannot categorically
prohibit the  government from making records of NICS information.


Moreover, if subsection (1) forbade the government from  recording NICS
information, it would directly conflict with  other provisions of the
Brady Act. Subsection (1) reaches  "any [NICS] record or portion
thereof," yet the Brady Act  expressly authorizes the government to
retain certain records  of NICS transactions. For example, it permits
retention of 


records relating to denied firearm transfers. See Brady Act  s
103(i)(2), 107 Stat. at 1542 (forbidding use of the NICS to  establish
a firearm registry "except with respect to persons  prohibited [by
law] from receiving a firearm"); 18 U.S.C.  s 922(t)(2) (requiring
destruction of NICS records only if  "receipt of a firearm would not
[be unlawful]"). Even with  respect to allowed transfers, section
922(t)(2)(C) permits re- tention of certain portions of NICS records.
18 U.S.C.  s 922(t)(2)(C) (allowing permanent retention of NICS
identifi- cation numbers and the dates those numbers were assigned). 
These limitations on the obligation to destroy NICS records  would
have no meaning if subsection (1) barred recording of  any information


To avoid the first of these inconsistencies, the NRA urges  us to read
into subsection (1) the clause "except with respect  to persons,
prohibited [by law], from receiving a firearm,"  which appears at the
end of subsection (2) (the no firearm  registry provision). " 'The
short answer [to this argument] is  that Congress did not write the
statute that way.' " Russello  v. United States, 464 U.S. 16, 23
(1983) (quoting United  States v. Naftalin, 441 U.S. 768, 773 (1979)).
The language  applicable to both subsections (1) and (2)--"No
department,  agency, officer, or employee of the United States may"--
appears in the introductory text, not in the text of the  subsections.
Had Congress intended the language excepting  denied transfers to
apply to both subsections, it would have  included that language in
the introductory text as well. So  written, the statute would have
read: "If a firearm transfer  would not be unlawful, no department,
agency, officer, or  employee of the United States may...." Indeed,
that is just  how Congress wrote section 922(t)(2), in which the
phrase, "If  receipt of a firearm would not [be unlawful]," precedes
the  separately enumerated requirements to "assign," "provide,"  and
"destroy." Because similarly qualifying language ap- pears neither in
section 103(i)'s introductory text nor in  subsection (1), we can only
conclude that subsection (1)  reaches, as its plain text indicates,
"any record ... generated  by the [NICS]."


Claiming its interpretation of subsection (1) does not con- flict with
section 922(t)(2)(C)'s requirement that transaction  numbers be
retained, the NRA argues that Congress can  always "establish a
general rule" and then "make exceptions."  Appellants' Reply Br. at 9.
Of course Congress may carve  out particular exceptions to a general
mandate. Indeed,  section 922(t)(2)(C) does precisely that, requiring
destruction  of all records of allowed transfers "other than the
identifying  number and the date the number was assigned." 18 U.S.C. 
s 922(t)(2)(C). Subsection (1), however, contains no similar 
qualification. "[W]here Congress includes particular lan- guage in one
section of a statute but omits it in another  section of the same Act,
it is generally presumed that Con- gress acts intentionally and
purposely in the disparate inclu- sion or exclusion." Russello, 464
U.S. at 23 (quoting United  States v. Wong Kim Bo, 472 F.2d 720, 722
(5th Cir. 1972)  (alteration in original)). Accordingly, we presume
that when  Congress excluded qualifying language from subsection (1),


Our conclusion that subsection (1) does not unambiguously  prohibit the
government from recording NICS information is  reinforced by the fact
that the Attorney General has ad- vanced an alternative plausible
interpretation. Emphasizing  the word "require," she argues that the
statute only prohibits  the government from requiring third parties,
such as firearm  dealers, from recording information at a government
facility.  Had Congress intended subsection (1) to have the meaning 
the NRA gives it, the Attorney General argues, the statute  presumably
would have read: "No department, agency, offi- cer, or employee of the
United States may--(1) record any  record or portion thereof generated
by the [NICS] ... at a  [government] facility . ..." That is precisely
how Congress  wrote subsection (2), which, unlike subsection (1),
directly  prohibits the government from using the system as a firearm 
registry; it does not prohibit the government from requiring  that it
be used as such. Though we owe no deference to the  Attorney General's
interpretation of statutory language at  this stage of Chevron
analysis, the plausibility of her view  highlights the statute's
ambiguity. See United States v. 


Nozfiger, 878 F.2d 442, 446-47 (D.C. Cir. 1989) (a statute is 
ambiguous if it can be read in more than one way).


This brings us to subsection (2), which forbids the govern- ment from
"us[ing] the [NICS] system ... to establish any  system for the
registration of firearms, firearm owners, or  firearm transactions or
dispositions." According to the NRA,  the Audit Log regulation
violates this subsection because the  Audit Log is itself a "form of
registration." Appellants' Br.  at 15. But subsection (2) does not
prohibit all forms of  registration. It prohibits only "system[s] for
the registration  of firearms, firearm owners, or firearm transactions
or dispo- sitions." The Audit Log is not such a system. As designed 
by the Attorney General, it functions as a system for protect- ing the
privacy of the NICS and for quality control. The  Audit Log regulation
expressly provides that "[i]nformation  in the Audit Log pertaining to
allowed transfers may only be  used by the FBI for the purpose of
conducting audits of the  use and performance of the NICS." 28 C.F.R.
s 25.9(b)(2).  To enforce this restriction, "[t]he Audit Log will be
monitored  and reviewed on a regular basis to detect any possible
misuse  of the NICS data." Id.


The Audit Log, moreover, contains no information about  "firearms" or
"firearm transactions or dispositions." Nor  does it contain a
comprehensive list of "firearm owners." To  be sure, the Log includes
names of persons approved to buy  firearms in the past six months, but
as the Attorney General  observes, "[t]he six-month snapshot of
potential firearms  transferees in the audit log reveals virtually
nothing about  the universe of firearms owners in the United States."
Ap- pellee's Br. at 26.


To illustrate the difference between the Audit Log and a  firearms
registry, the Attorney General calls our attention to  the central
registry of machine guns established by the  National Firearms Act.
See 26 U.S.C. s 5841. The machine  gun registry contains information
on all machine guns not  possessed by the United States, including
data on the weap- ons themselves, dates of registration, and the names
and  addresses of persons entitled to posses them. Id. 


s 5841(a)(1)-(3). Far less comprehensive, the Audit Log in- cludes no
addresses of persons approved to buy firearms, nor  any information on
specific weapons, nor even whether ap- proved gun purchasers actually
completed a transaction.  And unlike the machine gun registry,
information in the Audit  Log is routinely purged after six months.
The Audit Log  therefore represents only a tiny fraction of the
universe of  firearm owners.


It does not follow, of course, that the Audit Log could never  function
as a firearm registry. But the Log's deficiencies as  a system for
registering firearms make it unlikely that it  would be used for that
purpose. Indeed, the NRA does not  allege that the FBI has used the
Audit Log for purposes  other than "conducting audits of the use and
performance of  the NICS." 28 C.F.R. s 25.9(b)(2). The NRA's argument 
rests entirely on the fact that the Audit Log contains the  names of
persons approved to buy firearms in the past six  months. This is not
enough to convert the Log into a  "system for the registration" of
firearm owners. The Audit  Log regulation is therefore not prohibited
by section 103(i)(2).


III.


Having found nothing in either section 922(t)(2)(C) or sec- tion 103(i)
that unambiguously prohibits temporary retention  of NICS records of
allowed transactions for audit purposes,  we turn to an examination of
the affirmative grants of author- ity on which the Attorney General
relies. She finds authority  for the Audit Log regulation in two
provisions of the Brady  Act: section 103(b), which requires the
Attorney General to  establish a system capable of immediately
providing informa- tion on whether a firearm transfer would be
unlawful, and  section 103(h), which requires the Attorney General to
pre- scribe regulations to protect the system's security and priva-
cy. Because neither provision speaks directly to the creation  of an
Audit Log, we evaluate the Attorney General's argu- ments pursuant to
the second step of Chevron analysis,  asking whether the Audit Log
regulation reflects "a permissi- ble construction of the statute."


"Such deference," the Supreme Court recently explained, "is  justified
because 'the responsibilities for assessing the wisdom  of ... policy
choices and resolving the struggle between  competing views of the
public interest are not judicial ones,'  ... and because of the
agency's greater familiarity with the  ever-changing facts and
circumstances surrounding the sub- jects regulated." Brown &
Williamson, 120 S. Ct. at 1300  (quoting Chevron, 467 U.S. at 866).
And, as we have said,  "[a]s long as the agency stays within
[Congress'] delegation, it  is free to make policy choices in
interpreting the statute, and  such interpretations are entitled to
deference." Arizona  Public Service Co. v. EPA, 211 F.3d 1280, ___,
2000 WL  493047,*5 (D.C. Cir. 2000) (internal quotation marks omitted)
 (second alteration in original). So long as the agency's 
interpretation is reasonable, we uphold it "regardless whether  there
may be other reasonable, or even more reasonable,  views." Allied
Local and Regional Manufacturers Caucus v.  EPA, No. 98-1526, ___ F.3d
___, ___, 2000 WL 737750, *7  (D.C. Cir. 2000) (internal quotation


Before considering the Attorney General's interpretation of  the Act,
however, we must address the NRA's contention that  "[n]o deference is
due to the Attorney General in interpreta- tion of statutory
provisions intended to protect the privacy  rights of private citizens
from the Attorney General." Appel- lants' Br. at 30. In support of
this fox-guarding-the-henhouse  argument, the NRA cites Independent
Insurance Agents of  America, Inc. v. Board of Governors of the
Federal Reserve  System, 838 F.2d 627, 632 (2d Cir. 1988), in which
the Second  Circuit admonished: "Courts construing statutes enacted
spe- cifically to prohibit agency action ought to be especially 
careful not to allow dubious arguments advanced by the  agency ... to
thwart congressional intent expressed with  reasonable clarity, under
the guise of deferring to agency  expertise...." We do not read
Independent Insurance  Agents to have added anything new to Chevron
analysis,  much less to have abandoned customary Chevron two defer-
ence. Courts always try not to defer to "dubious" agency  arguments,
or to "thwart" congressional intent. Mindful that 


Congress has acted to curtail the Attorney General's authori- ty, we
proceed with ordinary Chevron two analysis.


The first Brady Act provision on which the Attorney Gen- eral relies is
section 103(b): "[T]he Attorney General shall  establish a national
instant criminal background check system  that any [gun dealer] may
contact ... for information, to be  supplied immediately, on whether
receipt of a firearm by a  prospective transferee would [be
unlawful]." Brady Act  s 103(b), 107 Stat. at 1541. According to the
Attorney Gen- eral, "Congress would not have ordered her to establish
the  NICS without being able to ensure that the system [is]  working,"
i.e., performing as Congress intended. Appellee's  Br. at 18. As
explained in the preamble to the NICS  regulation:


In order to meet her responsibility to maintain the  integrity of
Department systems ... the Attorney Gen- eral must establish an
adequate system of oversight and  review. Consequently, the FBI has
proposed to retain  records of approved transactions in an audit log
for a  limited period of time solely for the purpose of satisfying 
the statutory requirement of ensuring the privacy and  security of the
NICS and the proper operation of the  system.


NICS Regulation, 63 Fed. Reg. at 58303. More specifically,  "[a]udits
can ... determine whether potential handgun pur- chasers or [gun
dealers] have stolen the identity of innocent  and unsuspecting
individuals or otherwise submitted false  identification information,
in order to thwart the name check  system. The Audit Log will also
allow the FBI to perform  quality control checks on the system's
operation by reviewing  the accuracy of the responses given by the
NICS record  examiners to gun dealers." Id. at 58303-04. Reiterating
this  point, the March 1999 notice of proposed rulemaking states  that
"[a]udits of the use of the NICS are considered essential  ... to
ensure that the system is operating in the manner  required by the
Brady Act." National Instant Criminal- Background Check System
Regulation, 64 Fed. Reg. at  10263. The Attorney General's brief
describes the function of  the Audit Log in more detail:


The audit log enables the FBI to monitor the use of the  NICS by
firearms dealers, states serving as points of  contact, and FBI
personnel. The FBI also examines  whether the FBI employees and
contractors are making  correct determinations as to whether potential
transfer- ees are disqualified, to ensure that "proceed" responses 
are not being supplied with regard to persons who are  disqualified.
Decisions to allow a firearm purchase are  not fully automated, and
thus officials must review and  evaluate records before making a
decision. Review of  decisions made by NICS examiners is necessary to
en- sure that responsible individuals make correct decisions  on
whether a transfer is permissible, and to enable  supervisors to
provide additional training where neces- sary.


Appellee's Br. at 16 (internal citations omitted). In addition,  the
Audit Log is "vital to ensuring that the system (including  its
software) is working properly from a technical standpoint." 
Appellee's Br. at 17.


We think the Attorney General's position represents a  reasonable
interpretation of section 103(b)'s requirement that  the NICS provide
"information" on whether firearm transfers  would be unlawful. The
Audit Log, according to the Attorney  General, is essential to
ensuring the accuracy of that "infor- mation." Auditing enables the
Attorney General to learn  whether NICS operators and state points of
contact are  making accurate determinations. In short, the Attorney
Gen- eral uses the Audit Log to accomplish the very purpose of the 
Gun Control and Brady Acts, i.e., to ensure that individuals  not
authorized to possess firearms are unable to purchase  them.


Disputing the need for an Audit Log, the NRA contends  that quality
control measures can be undertaken contempora- neously with background
checks. This may be true, but we  have no way of knowing whether
contemporaneous quality  control would ensure that the NICS operates
as Congress  required. Nor is it our function to make that judgment. 
"[I]t is the agencies, not the courts, that have the technical 


expertise and political authority to carry out statutory man- dates."
General Elec. Co. v. EPA, 53 F.3d 1324, 1327 (D.C.  Cir. 1995).


Our conclusion that the Audit Log regulation represents a  reasonable
interpretation of section 103(b) finds support from  the fact that
auditing is not unusual for computerized systems  like the NICS. For
example, Justice Department regulations  require audits of another
computerized database, the Crimi- nal History Record Information
System, in order to "verify  adherence" to applicable law. 28 C.F.R. s
20.21(e); see also  id. s 20.1 (stating the purpose of the CHRI
system). The  regulations further require that "appropriate records
... be  retained to facilitate such audits." Id. s 20.21(e). We thus 
have no reason to believe that the Attorney General main- tains the
Audit Log for some sinister purpose.


The Attorney General also relies on section 103(h): "[T]he  Attorney
General shall prescribe regulations to ensure the  privacy and
security of the information of the system...."  Brady Act s 103(h),
107 Stat. at 1542. The regulation's  preamble explains how the Audit
Log performs this function:  "By auditing the system, the FBI can
identify instances in  which the NICS is used for unauthorized
purposes, such as  running checks of people other than actual gun
transferees,  and protect against the invasions of privacy that would
result  from such misuse." NICS Regulation, 63 Fed. Reg. at 58303.
During the debates on the Brady bill, Senator Leahy put the concern
this way: I am concerned about giving every gun dealer in the country
access to people's private lives.... My con- cerns are that access to
the background check system  may be abused.... [S]omebody is a
neighbor and says, "I really don't care too much for those people who
moved  down the street. Check them out for me." I find that a  little


139 Cong. Rec. S16326, S16327 (daily ed. Nov. 19, 1993)  (statement of
Sen. Leahy).


The NRA offers a different interpretation of the statute's  references
to privacy and security. As the NRA sees it, the  statute is concerned
about the privacy of only lawful firearm  purchasers. Appellants' Br.
at 24. This certainly represents  one possible, indeed, quite
reasonable interpretation of sec- tion 103(h). But because the statute
nowhere identifies pre- cisely whose privacy interests are protected,
we defer to the  Attorney General's interpretation so long as it is
reasonable.  See Chevron, 467 U.S. at 843 & n.11. Here, the Attorney 
General, the official responsible for establishing and manag- ing a
nationwide database of personal information, has deter- mined that
auditing is necessary to ensure that the system is  not used for
unauthorized purposes. Absent evidence that  this concern is
misplaced, we have no basis for second- guessing the Attorney


The NRA argues that the Attorney General lacks authority  to
investigate abuses involving gun dealers, pointing out that 
enforcement of the Gun Control Act (which the Brady Act  amended) is
vested in the Secretary of the Treasury. See  Gun Control Act of 1968
s 103, Pub. L. No. 90-618, 82 Stat.  1213, 1226. The Brady Act,
however, requires the Attorney  General, not the Treasury Secretary,
to prescribe regulations  to protect the system's privacy.


The NRA next contends that use of the Audit Log to  uncover system
abuses would "necessarily require warrant- less inspection of [gun
dealers' records] not based on clear  statutory grounds, and thus
violate the Fourth Amendment."  Appellants' Br. at 36. Urging us not
to entertain this claim,  the Attorney General argues that the NRA
lacks standing to  assert the Fourth Amendment rights of gun dealers,
that the  NRA's argument is unripe, and that the NRA failed to plead 
a Fourth Amendment claim in its complaint.


We think the Attorney General misconstrues the NRA's  argument. As we
understand it, the NRA asserts no current  Fourth Amendment violation,
but urges us to adopt an inter- pretation of the Brady Act that,
according to the NRA, is  necessary to avoid constitutional doubt.
Although courts  certainly must construe statutes to avoid " 'grave
and doubt-


ful constitutional questions,' " Jones v. United States, 526  U.S. 227,
239 (1999) (quoting United States ex rel. Attorney  General v.
Delaware & Hudson Co., 213 U.S. 366, 408 (1909)),  we have no basis
for crediting the NRA's assertion that the  Attorney General's
interpretation of the Brady Act raises  such questions. To begin with,
the March 1999 proposed  rulemaking explains that audits of firearm
dealers will be  performed in conjunction with the Bureau of Alcohol,
Tobacco  and Firearms' existing system of inspection. National In-
stant Criminal Background Check System Regulation, 64  Fed. Reg. at
10263. Unless that system already violates the  Fourth Amendment--the
NRA never alleges that it does--we  see no basis for concluding that
auditing the NICS would  suddenly produce constitutional violations.
Nor does the  NRA identify any specific features of the auditing
process  that implicate constitutionally protected rights. In short,
the  NRA only speculates that the government could not uncover  abuses
of privacy involving the NICS without violating the  Fourth


Our conclusion that the Audit Log regulation reasonably  implements
sections 103(b) and 103(h) disposes of the NRA's  argument that
retention of NICS records for six months is  unreasonable when
compared with another section of the  Brady Act providing for interim
background checks during  the five-year period the NICS was under
development. Per- formed by state or local chief law enforcement
officers, known  as "CLEOs," these interim checks were to be completed
 within five business days if possible, 18 U.S.C. s 922(s)(2)  (held
unconstitutional in Printz v. United States, 521 U.S. 898  (1997)),
and records of allowed transfers destroyed within  twenty business
days. 18 U.S.C. s 922(s)(6)(B)(i). Observ- ing that "[t]he records
generated under these [interim] provi- sions were paper, not computer
records [like the NICS]  capable of instant destruction," the NRA
asserts that "[i]t is  impossible to comprehend Congress intending to
allow ...  federal employees who could destroy computerized records 
with the push of a button to keep them for six months."  Appellants'


The answer to the NRA's argument is that Congress has  given the
Attorney General far more responsibility for over- sight and
implementation of the background check system  than it had given CLEOs
who performed interim checks.  CLEOs were required to search "whatever
State and local  recordkeeping systems [were already] available and
... a  national system designated by the Attorney General." 18  U.S.C.
s 922(s)(2). By comparison, section 103(b) required  the Attorney
General to establish a background check system  capable of supplying
information immediately. Brady Act  s 103(b), 107 Stat. at 1541. The
Brady Act gave CLEOs no  affirmative oversight responsibilities. By
comparison, section  103(h) required the Attorney General to
"prescribe regula- tions to ensure the privacy and security of the
information of  the system." Brady Act s 103(h), 107 Stat. at 1542.
Per- forming these additional section 103(b) and 103(h) duties is 
precisely why the Attorney General claims a need temporarily  to
retain NICS records. Having found the Attorney Gener- al's
interpretation of these two provisions reasonable, we  think it not at
all "impossible to comprehend" that she would  have authority to


The cases relied on by our dissenting colleague do not  require a
different result. In American Petroleum Institute  v. EPA, 52 F.3d
1113 (D.C. Cir. 1995), we invalidated a  regulation that implemented a
statutory directive to reduce  air pollution caused by reformulated
gasoline. The regulation  required use of "renewable oxygenates,"
which, though con- serving fossil energy resources and perhaps
providing global  warming benefits, "might possibly make air quality
worse."  Id. at 1119. For authority to require use of renewable 
oxygenates, the agency relied only on the reformulated gaso- line
statute and a general provision permitting it to "pre- scribe such
regulations as are necessary to carry out [its]  functions." 42 U.S.C.


Finding that the agency's fossil fuel and global warming  objectives
exceeded its authority, we observed that "[t]he sole  purpose of the
[reformulated gasoline] program is to reduce  air pollution." API, 52
F.3d at 1119. Although, as EPA  argued, the reformulated gasoline
provision nowhere express-


ly prohibited the renewable oxygenate requirement, the dis- positive
fact was that nothing in the statute authorized it:


In effect, EPA argues that because Congress has not  explicitly limited
its authority to promulgate a renewable  oxygenate requirement, its
interpretation of section  7545(k)(1) thus passes Chevron's first
step, and this court  must then defer to its expansive interpretation
of the  section under Chevron's second step. To suggest, how- ever,
"that Chevron step two is implicated any time a  statute does not
expressly negate the existence of a  claimed administrative power
(i.e. when the statute is not  written in 'thou shalt not' terms), is
both flatly unfaithful  to the principles of administrative law ...,
and refuted  by precedent." Thus, we will not presume a delegation  of
power based solely on the fact that there is not an  express
withholding of such power.


Id. at 1120 (quoting Railway Labor Executives' Ass'n v.  National
Mediation Bd., 29 F.3d 655, 671 (D.C. Cir.1994) (en  banc) (first
alteration in original)).


This case differs from API in two critical respects. First,  the
Attorney General claims no authority for the Audit Log  regulation
from the absence of an explicit limitation, such as  the fact that the
word "immediately" does not appear in  section 922(t)(2)(C). Instead,
she relies on sections 103(b)  and 103(h), and it is her
interpretation of those affirmative  grants of authority--not the
statute's failure to "expressly  negate the existence of a claimed
administrative power"--that  implicates Chevron two. Thus, we do not
"presume a delega- tion of power based solely on the fact that there
is not an  express withholding of such power." API, 52 F.3d at 1120. 
Instead, we conclude that the Attorney General has reason- ably
interpreted sections 103(b) and 103(h) to authorize NICS  auditing--a
question we could not even have reached without  first determining
whether section 922(t)(2)(C) expressly pro- hibits auditing.


Second, the Attorney General does not rely on a general  provision
empowering her to prescribe regulations necessary 


to carry out her statutory functions. She issued the Audit  Log
regulation to perform functions expressly authorized by  sections
103(b) and 103(h). Far from "tak[ing] on additional  powers," Slip Op.
at 3 (Sentelle, J., dissenting), the Attorney  General has merely
carried out the tasks that Congress  expressly delegated to her.


Equally distinguishable, Halverson v. Slater, 129 F.3d 180  (D.C. Cir.
1997), involved a challenge to a Department of  Transportation
regulation delegating certain responsibilities  under the Great Lakes
Pilotage Act to the Saint Lawrence  Seaway Development Corporation.
For authority to issue  the regulation, the Secretary had relied on
general statutory  authority to delegate secretarial responsibilities.
The Secre- tary argued that a different statute, one that expressly
autho- rized delegation of Pilotage Act responsibilities to Coast 
Guard officials, did not prohibit the delegation to the Corpo- ration
because nothing in that statute "expressly prohibit[ed]  delegation of
[these] powers and duties to a non-Coast Guard  official." Id. at 186.
Invalidating the delegation, we conclud- ed that "the absence of an
express proscription ... provides  no green light to ignore the
proscription necessarily implied  by the limiting language of [the
Coast Guard statute]." Id. at  187.


Our dissenting colleague, arguing that this case also in- volves "a
statute conferring specific powers upon a cabinet  officer,"--i.e.,
"assign," "provide," and "destroy"--concludes  that the Audit Log
regulation exceeds Congress' grant of  authority. Slip Op. at 4
(Sentelle, J., dissenting). This case  and Halverson, however, are
quite different. The two stat- utes at issue in Halverson regulated
precisely the same  secretarial function--delegation of authority.
Obviously the  more specific statute controlled. But here, section
922(t)(2)  and the two provisions relied on by the Attorney General 
concern entirely different functions. We thus have no reason  to
believe that section 922(t)(2)'s "assign," "provide," and  "destroy"
directives implicitly restrict the Attorney General's  authority to
implement sections 103(b) and 103(h).


The Supreme Court recently faced a similar situation in  Christensen v.
Harris County, No. 98-1167, Slip Op. (U.S. 


2000). There, county employees challenged a county policy  requiring
them to schedule paid leave as compensation for  overtime in lieu of
cash compensation. They argued that a  provision of the Fair Labor
Standards Act requiring that  eligible employees be granted paid leave
within a reasonable  time of requesting it "provide[d] the exclusive
means of  utilizing accrued time." Id. at 4. In other words, because 
the FLSA did not expressly allow employers to require leave  in lieu
of cash compensation, the employees argued, the  County could not do
so. The Supreme Court disagreed.  Acknowledging that " '[w]hen a
statute limits a thing to be  done in a particular mode, it includes a
negative of any other  mode,' " the Court found that the "thing to be
done" by the  relevant provision was not the same task accomplished by
the  challenged policy. Id. at 6-7 (quoting Raleigh & Gaston R.  Co.
v. Reid, 13 Wall. 269, 270 (1872) (alteration in original)).  The
statutory provision does not "se[t] forth the exclusive  method" of
implementing FLSA's compensatory leave provi- sions; it is instead
"more properly read as a minimal guaran- tee" that employees may
receive compensatory leave upon  request. Id. at 7.


So too here. Section 922(t)(2) does not "set forth the  exclusive
method" by which the Attorney General may satisfy  her statutory
obligations; it is "more properly read as a  minimal guarantee" that
transaction numbers will be provided  for approved transfers and that
records relating to those  transfers will be destroyed. Id. at 7. This
the Attorney  General has done. As to our dissenting colleague's
discussion  of Christensen, we do not rely on the case for the
proposition  that "legislative silence empowered a federal agency to
act."  Slip Op. at 5 n. 1 (Sentelle, J., dissenting); see supra at 10,


To sum up, keeping in mind Chevron two's highly deferen- tial standard,
we find that the Audit Log regulation repre- sents a "permissible
construction" of sections 103(b) and  103(h). Chevron, 467 U.S. at
843. We think it "common  sense"--Brown & Williamson's Chevron one
words that  seem equally applicable at Chevron two--that Congress,
hav- ing directed the Attorney General to establish a system for 
preventing disqualified persons from purchasing firearms, 


would expect the Attorney General to ensure that the system  produces
accurate information and guards against misuse.  Indeed, by limiting
retention of NICS information to "the  minimum reasonable period for
performing audits on the  system," the Attorney General has obeyed the
"destroy"  command of section 922(t)(2)(C) while fulfilling her
section  103(b) and 103(h) responsibilities. NICS Regulation, 63 Fed. 
Reg. at 58304.


IV.


We turn to the NRA's final argument: that the Attorney  General has
improperly exempted state agencies from the  Brady Act's record
destruction requirement. Because state  and local agencies may serve
as "points of contact" (POCs)  for the purpose of processing NICS
queries, see 28 C.F.R.  s 25.2, gun dealers in POC states must submit
NICS inqui- ries to the relevant state agency, not to the FBI. See id.


The Attorney General has determined that the Brady Act's  destruction
requirement does not apply to information re- tained by state
governments that is "part of a record system  created and maintained
pursuant to independent state law."  Id. s 25.9(d)(1), (d)(2). The NRA
argues that the Attorney  General lacks authority to create this
exemption. But be- cause "[t]he NRA does not contend that states may
not have  their own background check systems (with their own record 
destruction or retention requirements) or that federal law  preempts
state law on this subject," Appellants' Reply Br. at  16, we
understand the NRA to be claiming only that the  Attorney General has
no authority to exempt POCs from the  Brady Act's destruction
requirement with regard to informa- tion not maintained pursuant to


If the regulation permitted retention of data not gathered  pursuant to
state law, we would agree with the NRA that it  would violate the
Brady Act's destruction requirement. But  that is not how the Attorney
General interprets the regula- tion. As she sees it, the regulation
merely clarifies that state 


record retention requirements are not preempted by federal  law:


The reason for this clarification is to avoid interfering  with state
regulation of firearms. If a state is perform- ing a gun eligibility
check under state law, and state law  requires or allows the retention
of the records of those  checks, the state's retention of records of
the concurrent  performance of a NICS check would not add any more 
information about gun ownership than the state already  retains under
its own law.


NICS Regulation, 63 Fed. Reg. at 58304. So long as the  Attorney
General interprets the regulation as permitting  POCs to retain only
data that would be kept pursuant to state  law, the regulation does
not conflict with the Brady Act. See  Buffalo Crushed Stone, Inc. v.
Surface Transp. Bd., 194 F.3d  125, 128 (D.C. Cir. 1999) ("An agency's
interpretation of its  own regulation merits even greater deference
than its inter- pretation of the statute that it administers.").


The judgment of the district court is affirmed.


So ordered.


Sentelle, Circuit Judge, dissenting: In 1993, as part of  the Brady
Handgun Violence Prevention Act, Pub. L. No.  103-159, 107 Stat. 1536
(1993) ("Brady Act"), Congress em- powered the Attorney General to
"establish a national instant  criminal background check system"
("NICS") for determining  whether purchasers of firearms from federal
licensees are  lawfully entitled to make such purchases. Id. s 103(b),
107  Stat. at 1541. Under the authorizing statute, with respect to 
legal transfers of firearms, the "system" initiated by the  Attorney
General is to "(A) assign a unique identification  number to the
transfer; (B) provide the licensee with the  number; and (C) destroy
all records of the system with  respect to the call (other than the
identifying number and the  date the number was assigned) and all
records of the system  relating to the person or the transfer." 18
U.S.C. s 922(t)(2)  (1994). In purported reliance on the statutory
provision, the  Attorney General has promulgated regulations which
require  the Federal Bureau of Investigation ("FBI") to maintain an 
automated audit log of all incoming and outgoing transactions  passing
through the system including records of the "type of  transaction ...,
line number, time, date of inquiry, header,  message key, ORI
[originating agency identification number],  and inquiry/response data
(including the name and other  identifying information about the
prospective transferee and  the NTN [NICS transaction number])," inter
alia. 28 C.F.R.  s 25.9(b)(1) (1999). In the case of lawful transfers,
the  regulations require the FBI to retain such records in the  audit
log for six months after the date of each such transfer.  See id. The
National Rifle Association, the Law Enforcement  Alliance of America,
and various John and Jane Does (collec- tively "the NRA") sued to
enjoin the operation of these  regulations. The District Court granted
summary judgment  in favor of the Attorney General. Because the
Attorney  General in the promulgation of these regulations has not
only  exceeded the authority granted her under the cited section of 
the statute, but has also violated express prohibitions of other 


I. Statutory Authorization


The Attorney General's authority to deal with the subject  matter of
preclearance of handgun purchasers depends en-


tirely upon congressional grant. She does not and cannot  claim any
inherent power over the subject matter from  constitutional or other
sources. Therefore, unless the Brady  Act empowers her to do what she
has done, the regulations  are invalid. Cf. American Petroleum Inst.
v. United States  Envtl. Protection Agency, 52 F.3d 1113, 1119-20
(D.C. Cir.  1995) ("API"); Railway Labor Executives' Ass'n v. National
 Mediation Bd., 29 F.3d 655, 670-71 (D.C. Cir. 1994) (en banc).  The
statute is unambiguously limited in the extent of the  grant of
authority to the Attorney General, and authority to  be delegated to
the NICS over transfers to citizens lawfully  entitled to receive
firearms. That authority is set forth in 18  U.S.C. s 922(t)(2) which,
as expressed above, requires that  the NICS "shall ... assign a unique
identification number  ... [;] provide the licensee with the number;
and ...  destroy all records of the system with respect to the call 
(other than [the assigned number and the date])" along with  "all
records of the system relating to the person or the  transfer." 18
U.S.C. s 922(t)(2) (emphasis added). Nothing  in the Brady Act
empowers the Attorney General to do more  than these three things with
respect to lawful transfers of  firearms: (1) assign, (2) provide, and
(3) destroy. When she,  or the system to which she has delegated the
authority, adds  to those three by retaining instead of destroying,
she and the  system exceed the statutory grant of authority. The
regula- tion requiring the retention in the "audit log" is such an 
excess; it is unlawful; and it should be enjoined.


The Attorney General's claimed authority for her unlawful  accretion of
power to the FBI and the NICS in the regulation  is her
"responsibility for administering the National Instant  Criminal
Background Check system." Br. for Appellee at 11.  This reliance on
general authority to administer an area of  statutory regulation
cannot sustain a federal actor's reaching  beyond congressionally
granted authority. We have re- peatedly held that federal agencies
cannot seize additional  powers by substituting their own
determination of the appro- priate means for accomplishing statutory
goals in place of  that determined by the Congress.


For example, in API, the Environmental Protection Agency  had been
empowered by Congress to promulgate regulations  for reformulated
gasoline for use in "nonattainment areas."  See 52 F.3d at 1115
(quoting 42 U.S.C. s 7545(k)(1) (1988 &  Supp. V 1993)). The
empowering statute provided that the  regulations were to "require the
greatest reduction in emis- sions of ozone forming volatile organic
compounds ..., taking  into consideration the cost of achieving such
emission reduc- tions, any nonair-quality and other air-quality
related health  and environmental impacts and energy requirements." 42
 U.S.C. s 7545(k)(1). The EPA included in its regulations the  mandate
for the inclusion of "renewable oxygenates" in the  reformulated
gasoline. As justification for this additional  assertion of
regulatory authority EPA asserted its duty to  achieve other goals
under the Clean Air Act. We struck  down the challenged regulations,
holding that the broad  general grant of authority did not "authorize
EPA to mandate  the manner of compliance or the precise formula for
compli- ance without additional explicit authority." API, 52 F.3d at 
1121. Just so here. Congress has explicitly authorized the  Attorney
General to regulate the activities of citizens in a  certain fashion.
Her general authority to administer the  statutory programs created by
the Brady Act do not empow- er her to take on additional powers over
citizens not delegat- ed to her by the legislature.


Also, in Halverson v. Slater, 129 F.3d 180 (D.C. Cir. 1997),  we
considered the claimed authority of the Secretary of the  Department
of Transportation to delegate certain responsibil- ities under the
Great Lakes Pilotage Act of 1960, 46 U.S.C.  s 9301 et seq., to the
St. Lawrence Seaway Development  Corporation. By statute, the
Secretary was empowered to  "delegate the duties and powers conferred
by [the relevant]  subtitle to any officer, employee, or member of the
Coast  Guard...." 46 U.S.C. s 2104(a) (1994). That statute did not 
empower the Secretary to delegate such duties and powers to  anyone
outside the Coast Guard. The Secretary relied upon  a general
delegation grant in 49 U.S.C. s 322(b) to assert the  authority to
delegate that power to any officer or employee of  the department.
Once more, we held that general statutory 


goals and grants cannot "override the limiting language" of a  statute
specifically empowering a federal agency to act. Hal- verson, 129 F.3d
at 186, 187. Again, in the present controver- sy, we have before us a
statute conferring specific powers  upon a cabinet officer (the
Attorney General), and an agency  (the NICS) under that officer.
General goals cannot add  limitless power to the limited power
delegated by Congress.


The Attorney General attempts to bolster her claim of  power beyond the
statutory grant by a repair to the analytical  framework of Chevron
U.S.A. Inc. v. Natural Resources  Defense Council, Inc., 467 U.S. 837
(1984). Under the famil- iar rubric of that decision, when we review
an agency's  interpretation of a statute entrusted to the agency's
adminis- tration, we undertake a two step analysis. We first "deter-
mine whether Congress has spoken to the precise question at  issue."
Halverson, 129 F.3d at 184 (quoting Natural Re- sources Defense
Council, Inc. v. Browner, 57 F.3d 1122, 1125  (D.C. Cir. 1995)
(applying Chevron)). If so "that interpreta- tion must be given
effect." Id. If not, that is, "[i]f ... the  statute is silent or
ambiguous with respect to the specific  issue, then the court will
defer to a permissible agency  construction of the statute." Id. The
Attorney General  contends that, under the second step of Chevron, we
should  uphold her assertion of the power to establish and retain 
records on lawful conduct of citizens where the words of the  statute
do not grant that power on the theory that her  interpretation of the
statute is a permissible one, that is to  say a reasonable one. In
fact, however, we should not even  reach the second stage of Chevron.
The absence of a grant of  statutory power is not an ambiguity or
silence on the question  of whether Congress has granted such a power.
We have  disposed of that line of argument repeatedly in the past. As 
we stated in Railway Labor Executives' Association:


To suggest, as the [government actor] effectively does,  that Chevron
step two is implicated any time a statute  does not expressly negate
the existence of a claimed  administrative power (i.e. when the
statute is not written 


in 'thou shall not' terms), is both flatly unfaithful to the 
principles of administrative law ... and refuted by pre- cedent....
Were courts to presume a delegation of  power absent an express
withholding of such power,  agencies would enjoy virtually limitless
hegemony, a  result plainly out of keeping with Chevron and quite 
likely with the Constitution as well.


29 F.3d at 671 (citations omitted); see also Natural Re- sources
Defense Council v. Reilly, 983 F.2d 259, 266 (D.C.  Cir. 1993) ("[I]t
is only legislative intent to delegate such  authority that entitles
an agency to advance its own statutory  construction for review under
the deferential second prong of  Chevron.") (emphasis added) (quoting
Kansas City v. Depart- ment of Housing and Urban Dev., 923 F.2d 188,
191-92 (D.C.  Cir. 1991)); API, 52 F.3d at 1120.1


The statute is not ambiguous on whether it grants the  Attorney General
the power to retain the records which the  statute empowers her to
destroy. The statute simply does  not grant her that power. Indeed,
the denial of power is even  stronger than that considered in the
cited cases. Those  statutes did not include "thou shall not"
provisions. The  Brady Act does. In the cases discussed above, the
federal  agency was seizing power not granted by Congress. Here,  the
Attorney General is not only making such an unautho- rized power grab,
but is taking action expressly forbidden by  Congress.




__________

n 1 Christensen v. Harris County, 120 S. Ct. 1655 (2000), cited by  the
majority, is not to the contrary. Indeed, the majority's analysis 
turns Christensen on its head. The Supreme Court not only did not 
decide that legislative silence empowered a federal agency to act, it 
did quite the opposite. The County, whose ability to control leave 
time scheduling was in question, appeared before the Court as the 
regulated entity asserting a limitation on federal power, not as the 
federal actor asserting a grant of power. See id. at 1659. Because 
the statute in question was silent or ambiguous on the issue, the 
regulated entity did not lose an ability that was inherently its own. 
See id. at 1660-62. That is, the silent or ambiguous statute did not 
empower the federal actor to do that which was not expressly 
forbidden to it. Just so here.


II. "Thou Shall Not"


The Brady Act contains an express provision headed "Pro- hibition
Relating to Establishment of Registration Systems  with Respect to
Firearms." Pub. L. No. 103-159, s 103(i),  107 Stat. at 1542. That
section provides that


No department, agency, officer, or employee of the Unit- ed States
may--


(1) require that any record or portion thereof generat- ed by the
system established under this section be  recorded at or transferred
to a facility owned, managed,  or controlled by the United States or
any State or  political subdivision thereof....


Id. By its clear words, this statute establishes that Congress  has
unambiguously told the Attorney General that she shall  not do what
she is doing in the regulations. That is, she is  forbidden to require
the FBI, the NICS, or any other depart- ment, agency, officer, or
employee of the United States to  require that records generated by
the NICS be recorded at  or transferred to any facility. There is no
exception for an  audit log, and there is no exception for a six-month
grace  period. Congress has simply forbidden her to do it. She is 
doing it anyway. The regulation must fall. There is no  ambiguity
calling for the invocation of Chevron.


The Attorney General argues that "[w]ithout an audit log,  the FBI
would simply be incapable of achieving the level of  oversight deemed
essential by the Attorney General." Br.  for Appellee at 17. I fail to
see the relevance of that  argument. Congress, not the Attorney
General, makes the  laws. Congress did not authorize the maintenance
of an audit  log in violation of its explicit command not to retain
records.  Neither did it empower the Attorney General to take its
place  in the making of law any time she deems essential a level of 
oversight neither required nor permitted by statute.


III. Conclusion


The Attorney General's ultimate fallback argument is that  Congress and
the statute could have but did not include the  adverb "immediately"
before the verb "destroy" when it 


commanded her to "destroy all records of the system" with  respect to
the contact in the case of lawful transfers of  firearms. 18 U.S.C. s
922(t)(2). Specifically, she notes that  it did not adopt an amendment
offered in the House of  Representatives to the effect of including
that word. I fail to  see that this avails her anything. Courts are
reluctant "to  draw inferences from Congress' failure to act,"
Schneidewind  v. ANR Pipeline Co., 485 U.S. 293, 306 (1988). In no
case  has a court held that power has been granted to a federal 
agency by Congress's failure to enact a limitation to a directly 
contradictory statutory command. Congress said, "destroy  all
records." Congress said, do not "require that any record  ... be
recorded." Brady Act s 103(i), 107 Stat. at 1542.  The Attorney
General asserts, "Congress did not say that I  have to destroy the
records immediately. Therefore I am  empowered to retain the records."
The Attorney General's  position strikes me as reminiscent of a
petulant child pulling  her sister's hair. Her mother tells her,
"Don't pull the baby's  hair." The child says, "All right, Mama," but
again pulls the  infant's hair. Her defense is, "Mama, you didn't say


I do not think that the parent's command to the child is  ambiguous,
nor that of Congress to the Attorney General. I  do not find the
child's response reasonable; nor is that of the  Attorney General.


I respectfully dissent from the decision of my colleagues to  uphold
the Attorney General's regulations.