National Rifle Ass'n of America, Inc. v. Reno

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 complaint.

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 (3) the "Interstate

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 operation by reviewing

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, 10264

(proposed March 3, 1999).

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 103(h),

107 Stat. at 1542.

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

922(t)(2):

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 information "to be supplied

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 immediate." Appellants' Br. at 21.

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 "assign" and "provide."

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 imposed criminal penalties on

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.

s 5(b).

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 appear in section 103(i):

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 generated by the NICS.

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), it

did so intentionally.

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." Chevron, 467 U.S. at 843.

"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 marks omitted).

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 bit unsettling.

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 General's judgment.

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 Amendment.

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' Br. at 22.

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 retain information longer than CLEOs.

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. s 7601(a)(1).

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,

15, 23.

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.

s 25.6(d).

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 state law.

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

statutory sections, I would reverse.

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.

__________

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 had to

stop right now."

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.