CHAPTER 409—NATIONAL INSTANT CRIMINAL BACKGROUND CHECK SYSTEM

        

SUBCHAPTER I—TRANSMITTAL OF RECORDS

        

SUBCHAPTER II—FOCUSING FEDERAL ASSISTANCE ON THE IMPROVEMENT OF RELEVANT RECORDS

        

SUBCHAPTER III—GRANTS TO STATE COURT SYSTEMS FOR THE IMPROVEMENT IN AUTOMATION AND TRANSMITTAL OF DISPOSITION RECORDS

        

§40901. Establishment

(a) Determination of timetables

Not later than 6 months after November 30, 1993, the Attorney General shall—

(1) determine the type of computer hardware and software that will be used to operate the national instant criminal background check system and the means by which State criminal records systems and the telephone or electronic device of licensees will communicate with the national system;

(2) investigate the criminal records system of each State and determine for each State a timetable by which the State should be able to provide criminal records on an on-line capacity basis to the national system; and

(3) notify each State of the determinations made pursuant to paragraphs (1) and (2).

(b) Establishment of system

(1) In general

Not later than 60 months after November 30, 1993, the Attorney General shall establish a national instant criminal background check system that any licensee may contact, by telephone or by other electronic means in addition to the telephone, for information, to be supplied immediately, on whether receipt of a firearm by a prospective transferee would violate section 922 of title 18 or State law.

(2) Voluntary background checks

(A) In general

Not later than 90 days after June 25, 2022, the Attorney General shall promulgate regulations allowing licensees to use the national instant criminal background check system established under this section for purposes of voluntarily conducting an employment background check relating to a current or prospective employee. The Attorney General may not collect a fee for an employment background check under this subparagraph.

(B) Notice

Before conducting an employment background check relating to a current or prospective employee under subparagraph (A), a licensee shall—

(i) provide written notice to the current or prospective employee that the licensee intends to conduct the background check; and

(ii) obtain consent to conduct the background check from the current or prospective employee in writing.

(C) Exemption

An employment background check conducted by a licensee under subparagraph (A) shall not be governed by the Fair Credit Reporting Act (15 U.S.C. 1681 et seq.).

(D) Appeal

Any individual who is the subject of an employment background check conducted by a licensee under subparagraph (A) the result of which indicates that the individual is prohibited from possessing a firearm or ammunition pursuant to subsection (g) or (n) of section 922 of title 18 may appeal the results of the background check in the same manner and to the same extent as if the individual had been the subject of a background check relating to the transfer of a firearm.

(c) Expedited action by the Attorney General

The Attorney General shall expedite—

(1) the upgrading and indexing of State criminal history records in the Federal criminal records system maintained by the Federal Bureau of Investigation;

(2) the development of hardware and software systems to link State criminal history check systems into the national instant criminal background check system established by the Attorney General pursuant to this section; and

(3) the current revitalization initiatives by the Federal Bureau of Investigation for technologically advanced fingerprint and criminal records identification.

(d) Notification of licensees

On establishment of the system under this section, the Attorney General shall notify each licensee and the chief law enforcement officer of each State of the existence and purpose of the system and the means to be used to contact the system.

(e) Administrative provisions

(1) Authority to obtain official information

(A) In general

Notwithstanding any other law, the Attorney General may secure directly from any department or agency of the United States such information on persons for whom receipt of a firearm would violate subsection (g) or (n) of section 922 of title 18 or State law, as is necessary to enable the system to operate in accordance with this section.

(B) Request of attorney general

On request of the Attorney General, the head of such department or agency shall furnish electronic versions of the information described under subparagraph (A) to the system.

(C) Quarterly submission to Attorney General

If a Federal department or agency under subparagraph (A) has any record of any person demonstrating that the person falls within one of the categories described in subsection (g) or (n) of section 922 of title 18, the head of such department or agency shall, not less frequently than quarterly, provide the pertinent information contained in such record to the Attorney General.

(D) Information updates

The Federal department or agency, on being made aware that the basis under which a record was made available under subparagraph (A) does not apply, or no longer applies, shall—

(i) update, correct, modify, or remove the record from any database that the agency maintains and makes available to the Attorney General, in accordance with the rules pertaining to that database; and

(ii) notify the Attorney General that such basis no longer applies so that the National Instant Criminal Background Check System is kept up to date.

The Attorney General upon receiving notice pursuant to clause (ii) shall ensure that the record in the National Instant Criminal Background Check System is updated, corrected, modified, or removed within 30 days of receipt.

(E) Annual report

The Attorney General shall submit an annual report to Congress that describes the compliance of each department or agency with the provisions of this paragraph.

(F) Semiannual certification and reporting

(i) In general

The head of each Federal department or agency shall submit a semiannual written certification to the Attorney General indicating whether the department or agency is in compliance with the record submission requirements under subparagraph (C).

(ii) Submission dates

The head of a Federal department or agency shall submit a certification to the Attorney General under clause (i)—

(I) not later than July 31 of each year, which shall address all relevant records, including those that have not been transmitted to the Attorney General, in possession of the department or agency during the period beginning on January 1 of the year and ending on June 30 of the year; and

(II) not later than January 31 of each year, which shall address all relevant records, including those that have not been transmitted to the Attorney General, in possession of the department or agency during the period beginning on July 1 of the previous year and ending on December 31 of the previous year.

(iii) Contents

A certification required under clause (i) shall state, for the applicable period—

(I) the total number of records of the Federal department or agency demonstrating that a person falls within one of the categories described in subsection (g) or (n) of section 922 of title 18;

(II) for each category of records described in subclause (I), the total number of records of the Federal department or agency that have been provided to the Attorney General; and

(III) the efforts of the Federal department or agency to ensure complete and accurate reporting of relevant records, including efforts to monitor compliance and correct any reporting failures or inaccuracies.

(G) Implementation plan

(i) In general

Not later than 1 year after March 23, 2018, the head of each Federal department or agency, in coordination with the Attorney General, shall establish a plan to ensure maximum coordination and automated reporting or making available of records to the Attorney General as required under subparagraph (C), and the verification of the accuracy of those records, including the pre-validation of those records, where appropriate, during a 4-year period specified in the plan. The records shall be limited to those of an individual described in subsection (g) or (n) of section 922 of title 18.

(ii) Benchmark requirements

Each plan established under clause (i) shall include annual benchmarks to enable the Attorney General to assess implementation of the plan, including—

(I) qualitative goals and quantitative measures;

(II) measures to monitor internal compliance, including any reporting failures and inaccuracies;

(III) a needs assessment, including estimated compliance costs; and

(IV) an estimated date by which the Federal department or agency will fully comply with record submission requirements under subparagraph (C).

(iii) Compliance determination

Not later than the end of each fiscal year beginning after the date of the establishment of a plan under clause (i), the Attorney General shall determine whether the applicable Federal department or agency has achieved substantial compliance with the benchmarks included in the plan.

(H) Accountability

The Attorney General shall publish, including on the website of the Department of Justice, and submit to the Committee on the Judiciary and the Committee on Appropriations of the Senate and the Committee on the Judiciary and the Committee on Appropriations of the House of Representatives a semiannual report that discloses—

(i) the name of each Federal department or agency that has failed to submit a required certification under subparagraph (F);

(ii) the name of each Federal department or agency that has submitted a required certification under subparagraph (F), but failed to certify compliance with the record submission requirements under subparagraph (C);

(iii) the name of each Federal department or agency that has failed to submit an implementation plan under subparagraph (G);

(iv) the name of each Federal department or agency that is not in substantial compliance with an implementation plan under subparagraph (G);

(v) a detailed summary of the data, broken down by department or agency, contained in the certifications submitted under subparagraph (F);

(vi) a detailed summary of the contents and status, broken down by department or agency, of the implementation plans established under subparagraph (G); and

(vii) the reasons for which the Attorney General has determined that a Federal department or agency is not in substantial compliance with an implementation plan established under subparagraph (G).

(I) Noncompliance penalties

For each of fiscal years 2019 through 2022, each political appointee of a Federal department or agency that has failed to certify compliance with the record submission requirements under subparagraph (C), and is not in substantial compliance with an implementation plan established under subparagraph (G), shall not be eligible for the receipt of bonus pay, excluding overtime pay, until the department or agency—

(i) certifies compliance with the record submission requirements under subparagraph (C); or

(ii) achieves substantial compliance with an implementation plan established under subparagraph (G).

(J) Technical assistance

The Attorney General may use funds made available for the national instant criminal background check system established under subsection (b) to provide technical assistance to a Federal department or agency, at the request of the department or agency, in order to help the department or agency comply with the record submission requirements under subparagraph (C).

(K) Application to Federal courts

For purposes of this paragraph—

(i) the terms "department or agency of the United States" and "Federal department or agency" include a Federal court; and

(ii) the Director of the Administrative Office of the United States Courts shall perform, for a Federal court, the functions assigned to the head of a department or agency.

(2) Other authority

The Attorney General shall develop such computer software, design and obtain such telecommunications and computer hardware, and employ such personnel, as are necessary to establish and operate the system in accordance with this section.

(f) Written reasons provided on request

If the national instant criminal background check system determines that an individual is ineligible to receive a firearm and the individual requests the system to provide the reasons for the determination, the system shall provide such reasons to the individual, in writing, within 5 business days after the date of the request.

(g) Correction of erroneous system information

If the system established under this section informs an individual contacting the system that receipt of a firearm by a prospective transferee would violate subsection (g) or (n) of section 922 of title 18 or State law, the prospective transferee may request the Attorney General to provide the prospective transferee with the reasons therefor. Upon receipt of such a request, the Attorney General shall immediately comply with the request. The prospective transferee may submit to the Attorney General information to correct, clarify, or supplement records of the system with respect to the prospective transferee. After receipt of such information, the Attorney General shall immediately consider the information, investigate the matter further, and correct all erroneous Federal records relating to the prospective transferee and give notice of the error to any Federal department or agency or any State that was the source of such erroneous records. For purposes of the preceding sentence, not later than 60 days after the date on which the Attorney General receives such information, the Attorney General shall determine whether or not the prospective transferee is the subject of an erroneous record and remove any records that are determined to be erroneous. In addition to any funds made available under subsection (k), the Attorney General may use such sums as are necessary and otherwise available for the salaries and expenses of the Federal Bureau of Investigation to comply with this subsection.

(h) Regulations

After 90 days' notice to the public and an opportunity for hearing by interested parties, the Attorney General shall prescribe regulations to ensure the privacy and security of the information of the system established under this section.

(i) Prohibition relating To establishment of registration systems with respect to firearms

No department, agency, officer, or employee of the United States may—

(1) require that any record or portion thereof generated 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; or

(2) use the system established under this section to establish any system for the registration of firearms, firearm owners, or firearm transactions or dispositions, except with respect to persons, prohibited by section 922(g) or (n) of title 18 or State law, from receiving a firearm.

(j) Definitions

As used in this section:

(1) Licensee

The term "licensee" means a licensed importer (as defined in section 921(a)(9) of title 18), a licensed manufacturer (as defined in section 921(a)(10) of that title), or a licensed dealer (as defined in section 921(a)(11) of that title).

(2) Other terms

The terms "firearm", "handgun", "licensed importer", "licensed manufacturer", and "licensed dealer" have the meanings stated in section 921(a) of title 18, as amended by subsection (a)(2).

(k) Authorization of appropriations

There are authorized to be appropriated such sums as are necessary to enable the Attorney General to carry out this section.

(l) Requirements relating to background checks for persons under age 21

If a licensee contacts the system established under this section regarding a proposed transfer of a firearm to a person less than 21 years of age in accordance with subsection (t) of section 922 of title 18, the system shall—

(1) immediately contact—

(A) the criminal history repository or juvenile justice information system, as appropriate, of the State in which the person resides for the purpose of determining whether the person has a possibly disqualifying juvenile record under subsection (d) of such section 922;

(B) the appropriate State custodian of mental health adjudication records in the State in which the person resides to determine whether the person has a possibly disqualifying juvenile record under subsection (d) of such section 922; and

(C) a local law enforcement agency of the jurisdiction in which the person resides for the purpose of determining whether the person has a possibly disqualifying juvenile record under subsection (d) of such section 922;

(2) as soon as possible, but in no case more than 3 business days, after the licensee contacts the system, notify the licensee whether cause exists to further investigate a possibly disqualifying juvenile record under subsection (d) of such section 922; and

(3) if there is cause for further investigation, as soon as possible, but in no case more than 10 business days, after the licensee contacts the system, notify the licensee whether—

(A) transfer of a firearm to the person would violate subsection (d) of such section 922; or

(B) receipt of a firearm by the person would violate subsection (g) or (n) of such section 922, or State, local, or Tribal law.

(Pub. L. 103–159, title I, §103, Nov. 30, 1993, 107 Stat. 1541; Pub. L. 103–322, title XXI, §210603(b), Sept. 13, 1994, 108 Stat. 2074; Pub. L. 104–294, title VI, §603(h), (i)(1), Oct. 11, 1996, 110 Stat. 3504; Pub. L. 110–180, title I, §101(a), Jan. 8, 2008, 121 Stat. 2561; Pub. L. 115–141, div. S, title VI, §602, Mar. 23, 2018, 132 Stat. 1132; Pub. L. 117–159, div. A, title II, §§12001(a)(2), (3), 12004(h)(1), June 25, 2022, 136 Stat. 1323, 1324, 1330.)

Amendment of Subsection (l)

For repeal of amendment by section 12001(a)(3) of Pub. L. 117–159, see Termination Date of 2022 Amendment note below.

Editorial Notes

References in Text

The Fair Credit Reporting Act, referred to in subsec. (b)(2)(C), is title VI of Pub. L. 90–321, as added by Pub. L. 91–508, title VI, §601, Oct. 26, 1970, 84 Stat. 1127, which is classified generally to subchapter III (§1681 et seq.) of chapter 41 of Title 15, Commerce and Trade. For complete classification of this Act to the Code, see Short Title note set out under section 1601 of Title 15 and Tables.

Codification

Section was enacted as part of the Brady Handgun Violence Prevention Act, and not as part of the NICS Improvement Amendments Act of 2007 which comprises this chapter.

Section was formerly classified as a note under section 922 of Title 18, Crimes and Criminal Procedure, prior to editorial reclassification and renumbering as this section.

Amendments

2022—Subsec. (b). Pub. L. 117–159, §12004(h)(1), designated existing provisions as par. (1), inserted heading, and added par. (2).

Subsec. (l). Pub. L. 117–159, §12001(a)(2), (3), temporarily added subsec. (l). See Termination Date of 2022 Amendment note below.

2018—Subsec. (e)(1)(F) to (K). Pub. L. 115–141, §602(1), added subpars. (F) to (K).

Subsec. (g). Pub. L. 115–141, §602(2), inserted at end "For purposes of the preceding sentence, not later than 60 days after the date on which the Attorney General receives such information, the Attorney General shall determine whether or not the prospective transferee is the subject of an erroneous record and remove any records that are determined to be erroneous. In addition to any funds made available under subsection (k), the Attorney General may use such sums as are necessary and otherwise available for the salaries and expenses of the Federal Bureau of Investigation to comply with this subsection."

2008—Subsec. (e)(1). Pub. L. 110–180 designated first and second sentences as subpars. (A) and (B), respectively, inserted subpar. headings, substituted "furnish electronic versions of the information described under subparagraph (A)" for "furnish such information" in subpar. (B), and added subpar. (C).

1996—Subsecs. (e)(1), (g). Pub. L. 104–294, §603(h), made technical amendment to reference in original act which appears in text as reference to subsection (g) or (n) of section 922 of title 18.

Subsec. (i)(2). Pub. L. 104–294, §603(h), made technical amendment to reference in original act which appears in text as reference to section 922(g) or (n) of title 18.

Subsec. (k). Pub. L. 104–294, §603(i)(1), amended directory language of Pub. L. 103–322, §210603(b). See 1994 Amendment note below.

1994—Subsec. (k). Pub. L. 103–322, §210603(b), as amended by Pub. L. 104–294, §603(i)(1), struck out ", which may be appropriated from the Violent Crime Reduction Trust Fund established by section 1115 of title 31" after "authorized to be appropriated".

Statutory Notes and Related Subsidiaries

Termination Date of 2022 Amendment

Amendment by section 12001(a)(2) of Pub. L. 117–159 repealed effective Sept. 30, 2032, and section restored as if such amendment had not been enacted, see section 12001(a)(3) of Pub. L. 117–159, set out as an Effective and Termination Dates of 2022 Amendment note under section 922 of Title 18, Crimes and Criminal Procedure.

Effective Date of 1996 Amendment

Amendment by section 603(i)(1) of Pub. L. 104–294 effective as if the amendment had been included in section 210603(b) of Pub. L. 103–322 on Sept. 13, 1994, see section 603(i)(2) of Pub. L. 104–294, set out as a note under section 40302 of this title.

Short Title

For short title of Pub. L. 110–180, which is classified to this chapter, as the "NICS Improvement Amendments Act of 2007", see section 1(a) of Pub. L. 110–180, set out as a Short Title of 2008 Act note under section 10101 of this title.

Statutory Construction; Evidence

Nothing in amendment made by section 12004(h)(1) of Pub. L. 117–159 to be construed to create a cause of action against any person licensed as an importer, manufacturer, or dealer of firearms under chapter 44 of Title 18, Crimes and Criminal Procedure, or any other person for any civil liability or to establish any standard of care, with additional provision relating to nonadmissibility of evidence, see section 12004(h)(4) of Pub. L. 117–159, set out as a note under section 534 of Title 28, Judiciary and Judicial Procedure.

Nothing in amendment made by section 12004(h)(1) of Pub. L. 117–159 to be construed to allow the establishment of a Federal system of registration of firearms, firearms owners, or firearms transactions or dispositions, see section 12004(k) of Pub. L. 117–159, set out as a Rule of Construction note under section 922 of Title 18, Crimes and Criminal Procedure.

Report on Removing Outdated, Expired, or Erroneous Records

Pub. L. 117–159, div. A, title II, §12001(b), June 25, 2022, 136 Stat. 1324, provided that:

"(1) In general.—On an annual basis for each fiscal year through fiscal year 2032, each State and Federal agency responsible for the submission of disqualifying records under subsection (d), (g), or (n) of section 922 of title 18, United States Code, to the national instant criminal background check system established under section 103 of the Brady Handgun Violence Prevention Act (34 U.S.C. 40901) shall submit to the Committee on the Judiciary and the Committee on Appropriations of the Senate and the Committee on the Judiciary and the Committee on Appropriations of the House of Representatives a report detailing the removal from the system of records that no longer prohibit an individual from lawfully acquiring or possessing a firearm under such subsection (d), (g), or (n).

"(2) Contents.—Each report submitted by a State or Federal agency under paragraph (1) shall include pertinent information on—

"(A) the number of records that the State or Federal agency removed from the national instant criminal background check system established under section 103 of the Brady Handgun Violence Prevention Act (34 U.S.C. 40901) during the reporting period;

"(B) why the records were removed; and

"(C) for each record removed, the nature of the disqualifying characteristic outlined in subsection (d), (g), or (n) of section 922 of title 18, United States Code, that caused the State or Federal agency to originally submit the record to the system."

Destruction of Identifying Information for Persons Not Prohibited From Possessing or Receiving Firearms

Pub. L. 112–55, div. B, title V, §511, Nov. 18, 2011, 125 Stat. 632, provided that: "Hereafter, none of the funds appropriated pursuant to this Act [div. B of Pub. L. 112–55, see Tables for classification] or any other provision of law may be used for—

"(1) the implementation of any tax or fee in connection with the implementation of subsection [sic] 922(t) of title 18, United States Code; and

"(2) any system to implement subsection [sic] 922(t) of title 18, United States Code, that does not require and result in the destruction of any identifying information submitted by or on behalf of any person who has been determined not to be prohibited from possessing or receiving a firearm no more than 24 hours after the system advises a Federal firearms licensee that possession or receipt of a firearm by the prospective transferee would not violate subsection (g) or (n) of section 922 of title 18, United States Code, or State law."

Similar provisions were contained in the following prior appropriation acts:

Pub. L. 106–58, title VI, §634, Sept. 29, 1999, 113 Stat. 473.

Pub. L. 105–277, div. A, §101(h) [title VI, §655], Oct. 21, 1998, 112 Stat. 2681–480, 2681-530.

Identification of Felons and Other Persons Ineligible To Purchase Handguns

Pub. L. 100–690, title VI, §6213, Nov. 18, 1988, 102 Stat. 4360, provided that:

"(a) Identification of Felons Ineligible To Purchase Handguns.—The Attorney General shall develop a system for immediate and accurate identification of felons who attempt to purchase 1 or more firearms but are ineligible to purchase firearms by reason of section 922(g)(1) of title 18, United States Code. The system shall be accessible to dealers but only for the purpose of determining whether a potential purchaser is a convicted felon. The Attorney General shall establish a plan (including a cost analysis of the proposed system) for implementation of the system. In developing the system, the Attorney General shall consult with the Secretary of the Treasury, other Federal, State, and local law enforcement officials with expertise in the area, and other experts. The Attorney General shall begin implementation of the system 30 days after the report to the Congress as provided in subsection (b).

"(b) Report to Congress.—Not later than 1 year after the date of the enactment of this Act [Nov. 18, 1988], the Attorney General shall report to the Congress a description of the system referred to in subsection (a) and a plan (including a cost analysis of the proposed system) for implementation of the system. Such report may include, if appropriate, recommendations for modifications of the system and legislation necessary in order to fully implement such system.

"(c) Additional Study of Other Persons Ineligible To Purchase Firearms.—The Attorney General in consultation with the Secretary of the Treasury shall conduct a study to determine if an effective method for immediate and accurate identification of other persons who attempt to purchase 1 or more firearms but are ineligible to purchase firearms by reason of section 922(g) of title 18, United States Code. In conducting the study, the Attorney General shall consult with the Secretary of the Treasury, other Federal, State, and local law enforcement officials with expertise in the area, and other experts. Such study shall be completed within 18 months after the date of the enactment of this Act [Nov. 18, 1988] and shall be submitted to the Congress and made available to the public. Such study may include, if appropriate, recommendations for legislation.

"(d) Definitions.—As used in this section, the terms 'firearm' and 'dealer' shall have the meanings given such terms in section 921(a) of title 18, United States Code."

Executive Documents

Tracing of Firearms in Connection With Criminal Investigations

Memorandum of President of the United States, Jan. 16, 2013, 78 F.R. 4301, provided:

Memorandum for the Heads of Executive Departments and Agencies

Reducing violent crime, and gun-related crime in particular, is a top priority of my Administration. A key component of this effort is ensuring that law enforcement agencies at all levels—Federal, State, and local—utilize those tools that have proven most effective. One such tool is firearms tracing, which significantly assists law enforcement in reconstructing the transfer and movement of seized or recovered firearms. Responsibility for conducting firearms tracing rests with the Department of Justice's Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). Over the years, firearms tracing has significantly assisted law enforcement in solving violent crimes and generating thousands of leads that may otherwise not have been available.

Firearms tracing provides two principal benefits. First, tracing is an important investigative tool in individual cases, providing law enforcement agents with critical information that may lead to the apprehension of suspects, the recovery of other guns used in the commission of crimes, and the identification of potential witnesses, among other things. Second, analysis of tracing data in the aggregate provides valuable intelligence about local, regional, and national patterns relating to the movement and sources of guns used in the commission of crimes, which is useful for the effective deployment of law enforcement resources and development of enforcement strategies. Firearms tracing is a particularly valuable tool in detecting and investigating firearms trafficking, and has been deployed to help combat the pernicious problem of firearms trafficking across the Southwest border.

The effectiveness of firearms tracing as a law enforcement intelligence tool depends on the quantity and quality of information and trace requests submitted to ATF. In fiscal year 2012, ATF processed approximately 345,000 crime-gun trace requests for thousands of domestic and international law enforcement agencies. The Federal Government can encourage State and local law enforcement agencies to take advantage of the benefits of tracing all recovered firearms, but Federal law enforcement agencies should have an obligation to do so. If Federal law enforcement agencies do not conscientiously trace every firearm taken into custody, they may not only be depriving themselves of critical information in specific cases, but may also be depriving all Federal, State, and local agencies of the value of complete information for aggregate analyses.

Maximizing the effectiveness of firearms tracing, and the corresponding impact on combating violent crimes involving firearms, requires that Federal law enforcement agencies trace all recovered firearms taken into Federal custody in a timely and efficient manner.

Therefore, by the authority vested in me as President by the Constitution and the laws of the United States of America, I hereby direct the following:

Section 1. Firearms Tracing. (a) Federal law enforcement agencies shall ensure that all firearms recovered after the date of this memorandum in the course of criminal investigations and taken into Federal custody are traced through ATF at the earliest time practicable. Federal law enforcement agencies, as well as other executive departments and agencies, are encouraged, to the extent practicable, to take steps to ensure that firearms recovered prior to the date of this memorandum in the course of criminal investigations and taken into Federal custody are traced through ATF.

(b) Within 30 days of the date of this memorandum, ATF will issue guidance to Federal law enforcement agencies on submitting firearms trace requests.

(c) Within 60 days of the date of this memorandum, Federal law enforcement agencies shall ensure that their operational protocols reflect the requirement to trace recovered firearms through ATF.

(d) Within 90 days of the date of this memorandum, each Federal law enforcement agency shall submit a report to the Attorney General affirming that its operational protocols reflect the requirements set forth in this memorandum.

(e) For purposes of this memorandum, "Federal law enforcement agencies" means the Departments of State, the Treasury, Defense, Justice, the Interior, Agriculture, Energy, Veterans Affairs, and Homeland Security, and such other agencies and offices that regularly recover firearms in the course of their criminal investigations as the President may designate.

Sec. 2. General Provisions. (a) Nothing in this memorandum shall be construed to impair or otherwise affect the authority granted by law to a department or agency, or the head thereof.

(b) This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Sec. 3. Publication. The Attorney General is authorized and directed to publish this memorandum in the Federal Register.

Barack Obama.      

Promoting Smart Gun Technology

Memorandum of President of the United States, Jan. 4, 2016, 81 F.R. 719, provided:

Memorandum for the Secretary of Defense[,] the Attorney General[, and] the Secretary of Homeland Security

For more than 20 years, the Federal Government has worked to keep guns out of the wrong hands through background checks. This critical effort in addressing gun violence has prevented more than two million prohibited firearms purchases from being completed. But tens of thousands of people are still injured or killed by firearms every year—in many cases by guns that were sold legally but then stolen, misused, or discharged accidentally. Developing and promoting technology that would help prevent these tragedies is an urgent priority.

In 2013, I directed the Department of Justice to review the availability and most effective use of new gun safety technologies, such as devices requiring a scan of the owner's fingerprint before a gun can fire. In its report, the Department made clear that technological advancements in this area could help reduce accidental deaths and the use of stolen guns in criminal activities.

Millions of dollars have already been invested to support research into a broad range of concepts for improving gun safety. We must all do our part to continue to advance this research and encourage its practical application, and it is possible to do so in a way that makes the public safer and is consistent with the Second Amendment. The Federal Government has a unique opportunity to do so, as it is the single largest purchaser of firearms in the country. Therefore, by the authority vested in me as President by the Constitution and the laws of the United States of America, I hereby direct the following:

Section 1. Research and Development. The Department of Defense, the Department of Justice, and the Department of Homeland Security (departments) shall, to the extent practicable and permitted by law, conduct or sponsor research into gun safety technology that would reduce the frequency of accidental discharge or unauthorized use of firearms, and improve the tracing of lost or stolen guns. Not later than 90 days after the date of this memorandum, the Secretary of Defense, the Attorney General, and the Secretary of Homeland Security shall prepare jointly a report outlining a research and development strategy designed to expedite the real-world deployment of such technology for use in practice.

Sec. 2. Department Consideration of New Technology. The departments shall, to the extent permitted by law, regularly (a) review the availability of the technology described in section 1, and (b) explore potential ways to further its use and development to more broadly improve gun safety. In connection with these efforts, the departments shall consult with other agencies that acquire firearms and take appropriate steps to consider whether including such technology in specifications for acquisition of firearms would be consistent with operational needs.

Sec. 3. General Provisions. (a) Nothing in this memorandum shall be construed to impair or otherwise affect:

(i) the authority granted by law to a department or agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This memorandum shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Sec. 4. Publication. The Attorney General is hereby authorized and directed to publish this memorandum in the Federal Register.

Barack Obama.      

§40902. Findings

Congress finds the following:

(1) Approximately 916,000 individuals were prohibited from purchasing a firearm for failing a background check between November 30, 1998, (the date the National Instant Criminal Background Check System (NICS) began operating) and December 31, 2004.

(2) From November 30, 1998, through December 31, 2004, nearly 49,000,000 Brady background checks were processed through NICS.

(3) Although most Brady background checks are processed through NICS in seconds, many background checks are delayed if the Federal Bureau of Investigation (FBI) does not have automated access to complete information from the States concerning persons prohibited from possessing or receiving a firearm under Federal or State law.

(4) Nearly 21,000,000 criminal records are not accessible by NICS and millions of criminal records are missing critical data, such as arrest dispositions, due to data backlogs.

(5) The primary cause of delay in NICS background checks is the lack of—

(A) updates and available State criminal disposition records; and

(B) automated access to information concerning persons prohibited from possessing or receiving a firearm because of mental illness, restraining orders, or misdemeanor convictions for domestic violence.

(6) Automated access to this information can be improved by—

(A) computerizing information relating to criminal history, criminal dispositions, mental illness, restraining orders, and misdemeanor convictions for domestic violence; or

(B) making such information available to NICS in a usable format.

(7) Helping States to automate these records will reduce delays for law-abiding gun purchasers.

(8) On March 12, 2002, the senseless shooting, which took the lives of a priest and a parishioner at the Our Lady of Peace Church in Lynbrook, New York, brought attention to the need to improve information-sharing that would enable Federal and State law enforcement agencies to conduct a complete background check on a potential firearm purchaser. The man who committed this double murder had a prior disqualifying mental health commitment and a restraining order against him, but passed a Brady background check because NICS did not have the necessary information to determine that he was ineligible to purchase a firearm under Federal or State law.

(9) On April 16, 2007, a student with a history of mental illness at the Virginia Polytechnic Institute and State University shot to death 32 students and faculty members, wounded 17 more, and then took his own life. The shooting, the deadliest campus shooting in United States history, renewed the need to improve information-sharing that would enable Federal and State law enforcement agencies to conduct complete background checks on potential firearms purchasers. In spite of a proven history of mental illness, the shooter was able to purchase the two firearms used in the shooting. Improved coordination between State and Federal authorities could have ensured that the shooter's disqualifying mental health information was available to NICS.

(Pub. L. 110–180, §2, Jan. 8, 2008, 121 Stat. 2559.)

Editorial Notes

Codification

Section was formerly classified in a note under section 922 of Title 18, Crimes and Criminal Procedure, prior to editorial reclassification and renumbering as this section.

§40903. Definitions

As used in this chapter, the following definitions shall apply:

(1) Court order

The term "court order" includes a court order (as described in section 922(g)(8) of title 18).

(2) Mental health terms

The terms "adjudicated as a mental defective" and "committed to a mental institution" have the same meanings as in section 922(g)(4) of title 18.

(3) Misdemeanor crime of domestic violence

The term "misdemeanor crime of domestic violence" has the meaning given the term in section 921(a)(33) of title 18.

(Pub. L. 110–180, §3, Jan. 8, 2008, 121 Stat. 2560.)

Editorial Notes

Codification

Section was formerly classified in a note under section 922 of Title 18, Crimes and Criminal Procedure, prior to editorial reclassification and renumbering as this section.

SUBCHAPTER I—TRANSMITTAL OF RECORDS

§40911. Enhancement of requirement that Federal departments and agencies provide relevant information to the National Instant Criminal Background Check System

(a) Omitted

(b) Provision and maintenance of NICS records

(1) Department of Homeland Security

The Secretary of Homeland Security shall make available to the Attorney General—

(A) records, updated not less than quarterly, which are relevant to a determination of whether a person is disqualified from possessing or receiving a firearm under subsection (g) or (n) of section 922 of title 18 for use in background checks performed by the National Instant Criminal Background Check System; and

(B) information regarding all the persons described in subparagraph (A) of this paragraph who have changed their status to a category not identified under section 922(g)(5) of title 18 for removal, when applicable, from the National Instant Criminal Background Check System.

(2) Department of Defense

(A) In general

Not later than 3 business days after the final disposition of a judicial proceeding conducted within the Department of Defense, the Secretary of Defense shall make available to the Attorney General records which are relevant to a determination of whether a member of the Armed Forces involved in such proceeding is disqualified from possessing or receiving a firearm under subsection (g) or (n) of section 922 of title 18 for use in background checks performed by the National Instant Criminal Background Check System.

(B) Judicial proceeding defined

In this paragraph, the term "judicial proceeding" means a hearing—

(i) of which the person received actual notice; and

(ii) at which the person had an opportunity to participate with counsel.

(3) Department of Justice

The Attorney General shall—

(A) ensure that any information submitted to, or maintained by, the Attorney General under this section is kept accurate and confidential, as required by the laws, regulations, policies, or procedures governing the applicable record system;

(B) provide for the timely removal and destruction of obsolete and erroneous names and information from the National Instant Criminal Background Check System; and

(C) work with States to encourage the development of computer systems, which would permit electronic notification to the Attorney General when—

(i) a court order has been issued, lifted, or otherwise removed by order of the court; or

(ii) a person has been adjudicated as a mental defective or committed to a mental institution.

(c) Standard for adjudications and commitments related to mental health

(1) In general

No department or agency of the Federal Government may provide to the Attorney General any record of an adjudication related to the mental health of a person or any commitment of a person to a mental institution if—

(A) the adjudication or commitment, respectively, has been set aside or expunged, or the person has otherwise been fully released or discharged from all mandatory treatment, supervision, or monitoring;

(B) the person has been found by a court, board, commission, or other lawful authority to no longer suffer from the mental health condition that was the basis of the adjudication or commitment, respectively, or has otherwise been found to be rehabilitated through any procedure available under law; or

(C) the adjudication or commitment, respectively, is based solely on a medical finding of disability, without an opportunity for a hearing by a court, board, commission, or other lawful authority, and the person has not been adjudicated as a mental defective consistent with section 922(g)(4) of title 18, except that nothing in this section or any other provision of law shall prevent a Federal department or agency from providing to the Attorney General any record demonstrating that a person was adjudicated to be not guilty by reason of insanity, or based on lack of mental responsibility, or found incompetent to stand trial, in any criminal case or under the Uniform Code of Military Justice.

(2) Treatment of certain adjudications and commitments

(A) Program for relief from disabilities

(i) In general

Each department or agency of the United States that makes any adjudication related to the mental health of a person or imposes any commitment to a mental institution, as described in subsection (d)(4) and (g)(4) of section 922 of title 18 shall establish, not later than 120 days after January 8, 2008, a program that permits such a person to apply for relief from the disabilities imposed by such subsections.

(ii) Process

Each application for relief submitted under the program required by this subparagraph shall be processed not later than 365 days after the receipt of the application. If a Federal department or agency fails to resolve an application for relief within 365 days for any reason, including a lack of appropriated funds, the department or agency shall be deemed for all purposes to have denied such request for relief without cause. Judicial review of any petitions brought under this clause shall be de novo.

(iii) Judicial review

Relief and judicial review with respect to the program required by this subparagraph shall be available according to the standards prescribed in section 925(c) of title 18. If the denial of a petition for relief has been reversed after such judicial review, the court shall award the prevailing party, other than the United States, a reasonable attorney's fee for any and all proceedings in relation to attaining such relief, and the United States shall be liable for such fee. Such fee shall be based upon the prevailing rates awarded to public interest legal aid organizations in the relevant community.

(B) Relief from disabilities

In the case of an adjudication related to the mental health of a person or a commitment of a person to a mental institution, a record of which may not be provided to the Attorney General under paragraph (1), including because of the absence of a finding described in subparagraph (C) of such paragraph, or from which a person has been granted relief under a program established under subparagraph (A) or (B), or because of a removal of a record under section 40901(e)(1)(D) of this title, the adjudication or commitment, respectively, shall be deemed not to have occurred for purposes of subsections (d)(4) and (g)(4) of section 922 of title 18. Any Federal agency that grants a person relief from disabilities under this subparagraph shall notify such person that the person is no longer prohibited under 922(d)(4) or 922(g)(4) of title 18 on account of the relieved disability for which relief was granted pursuant to a proceeding conducted under this subparagraph, with respect to the acquisition, receipt, transfer, shipment, transportation, or possession of firearms.

(3) Notice requirement

Effective 30 days after January 8, 2008, any Federal department or agency that conducts proceedings to adjudicate a person as a mental defective under 922(d)(4) or 922(g)(4) of title 18 shall provide both oral and written notice to the individual at the commencement of the adjudication process including—

(A) notice that should the agency adjudicate the person as a mental defective, or should the person be committed to a mental institution, such adjudication, when final, or such commitment, will prohibit the individual from purchasing, possessing, receiving, shipping or transporting a firearm or ammunition under section 922(d)(4) or section 922(g)(4) of title 18;

(B) information about the penalties imposed for unlawful possession, receipt, shipment or transportation of a firearm under section 924(a)(2) of title 18; and

(C) information about the availability of relief from the disabilities imposed by Federal laws with respect to the acquisition, receipt, transfer, shipment, transportation, or possession of firearms.

(4) Effective date

Except for paragraph (3), this subsection shall apply to names and other information provided before, on, or after January 8, 2008. Any name or information provided in violation of this subsection (other than in violation of paragraph (3)) before, on, or after such date shall be removed from the National Instant Criminal Background Check System.

(Pub. L. 110–180, title I, §101, Jan. 8, 2008, 121 Stat. 2561; Pub. L. 116–283, div. A, title V, §544, Jan. 1, 2021, 134 Stat. 3613.)

Editorial Notes

Codification

Section is comprised of section 101 of Pub. L. 110–180. Subsec. (a) of section 101 amended section 103 of Pub. L. 103–159, which is classified as section 40901 of this title.

Section was formerly classified in a note under section 922 of Title 18, Crimes and Criminal Procedure, prior to editorial reclassification and renumbering as this section.

Amendments

2021—Subsec. (b)(2), (3). Pub. L. 116–283 added par. (2) and redesignated former par. (2) as (3).

Executive Documents

Improving Availability of Relevant Executive Branch Records to the National Instant Criminal Background Check System

Memorandum of President of the United States, Jan. 16, 2013, 78 F.R. 4297, provided:

Memorandum for the Heads of Executive Departments and Agencies

Since it became operational in 1998, the National Instant Criminal Background Check System (NICS) has been an essential tool in the effort to ensure that individuals who are prohibited under Federal or State law from possessing firearms do not acquire them from Federal Firearms Licensees (FFLs). The ability of the NICS to determine quickly and effectively whether an individual is prohibited from possessing or receiving a firearm depends on the completeness and accuracy of the information made available to it by Federal, State, and tribal authorities.

The NICS Improvement Amendments Act of 2007 (NIAA) (Public Law 1107–180 [110–180]) was a bipartisan effort to strengthen the NICS by increasing the quantity and quality of relevant records from Federal, State, and tribal authorities accessible by the system. Among its requirements, the NIAA mandated that executive departments and agencies (agencies) provide relevant information, including criminal history records, certain adjudications related to the mental health of a person, and other information, to databases accessible by the NICS. Much progress has been made to identify information generated by agencies that is relevant to determining whether a person is prohibited from receiving or possessing firearms, but more must be done. Greater participation by agencies in identifying records they possess that are relevant to determining whether an individual is prohibited from possessing a firearm and a regularized process for submitting those records to the NICS will strengthen the accuracy and efficiency of the NICS, increasing public safety by keeping guns out of the hands of persons who cannot lawfully possess them.

Therefore, by the authority vested in me as President by the Constitution and the laws of the United States of America, I hereby direct the following:

Section 1. Improving the Availability of Records to the NICS. (a) Within 45 days of the date of this memorandum, and consistent with the process described in section 3 of this memorandum, the Department of Justice (DOJ) shall issue guidance to agencies regarding the identification and sharing of relevant Federal records and their submission to the NICS.

(b) Within 60 days of issuance of guidance pursuant to subsection (a) of this section, agencies shall submit a report to DOJ advising whether they possess relevant records, as set forth in the guidance, and setting forth an implementation plan for making information in those records available to the NICS, consistent with applicable law.

(c) In accordance with the authority and responsibility provided to the Attorney General by the Brady Handgun Violence Prevention Act (Public Law 103–159), as amended, the Attorney General, consistent with the process described in section 3 of this memorandum, shall resolve any disputes concerning whether agency records are relevant and should be made available to the NICS.

(d) To the extent they possess relevant records, as set forth in the guidance issued pursuant to subsection (a) of this section, agencies shall prioritize making those records available to the NICS on a regular and ongoing basis.

Sec. 2. Measuring Progress. (a) By October 1, 2013, and annually thereafter, agencies that possess relevant records shall submit a report to the President through the Attorney General describing:

(i) the relevant records possessed by the agency that can be shared with the NICS consistent with applicable law;

(ii) the number of those records submitted to databases accessible by the NICS during each reporting period;

(iii) the efforts made to increase the percentage of relevant records possessed by the agency that are submitted to databases accessible by the NICS;

(iv) any obstacles to increasing the percentage of records that are submitted to databases accessible by the NICS;

(v) for agencies that make qualifying adjudications related to the mental health of a person, the measures put in place to provide notice and programs for relief from disabilities as required under the NIAA;

(vi) the measures put in place to correct, modify, or remove records accessible by the NICS when the basis under which the record was made available no longer applies; and

(vii) additional steps that will be taken within 1 year of the report to improve the processes by which records are identified, made accessible, and corrected, modified, or removed.

(b) If an agency certifies in its annual report that it has made available to the NICS its relevant records that can be shared consistent with applicable law, and describes its plan to make new records available to the NICS and to update, modify, or remove existing records electronically no less often than quarterly as required by the NIAA, such agency will not be required to submit further annual reports. Instead, the agency will be required to submit an annual certification to DOJ, attesting that the agency continues to submit relevant records and has corrected, modified, or removed appropriate records.

Sec. 3. NICS Consultation and Coordination Working Group. To ensure adequate agency input in the guidance required by section 1(a) of this memorandum, subsequent decisions about whether an agency possesses relevant records, and determinations concerning whether relevant records should be provided to the NICS, there is established a NICS Consultation and Coordination Working Group (Working Group), to be chaired by the Attorney General or his designee.

(a) Membership. In addition to the Chair, the Working Group shall consist of representatives of the following agencies:

(i) the Department of Defense;

(ii) the Department of Health and Human Services;

(iii) the Department of Transportation;

(iv) the Department of Veterans Affairs;

(v) the Department of Homeland Security;

(vi) the Social Security Administration;

(vii) the Office of Personnel Management;

(viii) the Office of Management and Budget; and

(ix) such other agencies or offices as the Chair may designate.

(b) Functions. The Working Group shall convene regularly and as needed to allow for consultation and coordination between DOJ and agencies affected by the Attorney General's implementation of the NIAA, including with respect to the guidance required by section 1(a) of this memorandum, subsequent decisions about whether an agency possesses relevant records, and determinations concerning whether relevant records should be provided to the NICS. The Working Group may also consider, as appropriate:

(i) developing means and methods for identifying agency records deemed relevant by DOJ's guidance;

(ii) addressing obstacles faced by agencies in making their relevant records available to the NICS;

(iii) implementing notice and relief from disabilities programs; and

(iv) ensuring means to correct, modify, or remove records when the basis under which the record was made available no longer applies.

(c) Reporting. The Working Group will review the annual reports required by section 2(a) of this memorandum, and member agencies may append to the reports any material they deem appropriate, including an identification of any agency best practices that may be of assistance to States in supplying records to the NICS.

Sec. 4. General Provisions. (a) Nothing in this memorandum shall be construed to impair or otherwise affect:

(i) the authority granted by law to a department or agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This memorandum shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

(d) Independent agencies are strongly encouraged to comply with the requirements of this memorandum.

Sec. 5. Publication. The Attorney General is hereby authorized and directed to publish this memorandum in the Federal Register.

Barack Obama.      

§40912. Requirements to obtain waiver

(a) In general

Beginning 3 years after January 8, 2008, a State shall be eligible to receive a waiver of the 10 percent matching requirement for National Criminal History Improvement Grants under section 40301 of this title if the State is in compliance with an implementation plan established under subsection (b) or provides at least 90 percent of the information described in subsection (c). The length of such a waiver shall not exceed 2 years.

(b) State estimates

(1) Initial state estimate

(A) In general

To assist the Attorney General in making a determination under subsection (a) of this section, and under section 40914 of this title, concerning the compliance of the States in providing information to the Attorney General for the purpose of receiving a waiver under subsection (a) of this section, or facing a loss of funds under section 40914 of this title, by a date not later than 180 days after January 8, 2008, each State shall provide the Attorney General with a reasonable estimate, as calculated by a method determined by the Attorney General and in accordance with section 40914(d) of this title, of the number of the records described in subparagraph (C) applicable to such State that concern persons who are prohibited from possessing or receiving a firearm under subsection (g) or (n) of section 922 of title 18.

(B) Failure to provide initial estimate

A State that fails to provide an estimate described in subparagraph (A) by the date required under such subparagraph shall be ineligible to receive any funds under section 40913 of this title, until such date as it provides such estimate to the Attorney General or has established an implementation plan under section 40917 of this title.

(C) Record defined

For purposes of subparagraph (A), a record is the following:

(i) A record that identifies a person who has been convicted in any court of a crime punishable by imprisonment for a term exceeding 1 year.

(ii) A record that identifies a person for whom an indictment has been returned for a crime punishable by imprisonment for a term exceeding 1 year that is valid under the laws of the State involved or who is a fugitive from justice, as of the date of the estimate, and for which a record of final disposition is not available.

(iii) A record that identifies a person who is an unlawful user of, or addicted to a controlled substance (as such terms "unlawful user" and "addicted" are respectively defined in regulations implementing section 922(g)(3) of title 18 as in effect on January 8, 2008) as demonstrated by arrests, convictions, and adjudications, and whose record is not protected from disclosure to the Attorney General under any provision of State or Federal law.

(iv) A record that identifies a person who has been adjudicated as a mental defective or committed to a mental institution, consistent with section 922(g)(4) of title 18 and whose record is not protected from disclosure to the Attorney General under any provision of State or Federal law.

(v) A record that is electronically available and that identifies a person who, as of the date of such estimate, is subject to a court order described in section 922(g)(8) of title 18.

(vi) A record that is electronically available and that identifies a person convicted in any court of a misdemeanor crime of domestic violence, as defined in section 921(a)(33) of title 18.

(2) Scope

The Attorney General, in determining the compliance of a State under this section or section 40914 of this title for the purpose of granting a waiver or imposing a loss of Federal funds, shall assess the total percentage of records provided by the State concerning any event occurring within the prior 20 years, which would disqualify a person from possessing a firearm under subsection (g) or (n) of section 922 of title 18.

(3) Clarification

Notwithstanding paragraph (2), States shall endeavor to provide the National Instant Criminal Background Check System with all records concerning persons who are prohibited from possessing or receiving a firearm under subsection (g) or (n) of section 922 of title 18, regardless of the elapsed time since the disqualifying event.

(c) Eligibility of State records for submission to the National Instant Criminal Background Check System

(1) Requirements for eligibility

(A) In general

From the information collected by a State, the State shall make electronically available to the Attorney General records relevant to a determination of whether a person is disqualified from possessing or receiving a firearm under subsection (g) or (n) of section 922 of title 18 or applicable State law.

(B) NICS updates

The State, on being made aware that the basis under which a record was made available under subparagraph (A) does not apply, or no longer applies, shall, as soon as practicable—

(i) update, correct, modify, or remove the record from any database that the Federal or State government maintains and makes available to the National Instant Criminal Background Check System, consistent with the rules pertaining to that database; and

(ii) notify the Attorney General that such basis no longer applies so that the record system in which the record is maintained is kept up to date.

The Attorney General upon receiving notice pursuant to clause (ii) shall ensure that the record in the National Instant Criminal Background Check System is updated, corrected, modified, or removed within 30 days of receipt.

(C) Certification

To remain eligible for a waiver under subsection (a), a State shall certify to the Attorney General, not less than once during each 2-year period, that at least 90 percent of all records described in subparagraph (A) has been made electronically available to the Attorney General in accordance with subparagraph (A).

(D) Inclusion of all records

For purposes of this paragraph, a State shall identify and include all of the records described under subparagraph (A) without regard to the age of the record.

(2) Application to persons convicted of misdemeanor crimes of domestic violence

The State shall make available to the Attorney General, for use by the National Instant Criminal Background Check System, records relevant to a determination of whether a person has been convicted in any court of a misdemeanor crime of domestic violence. With respect to records relating to such crimes, the State shall provide information specifically describing the offense and the specific section or subsection of the offense for which the defendant has been convicted and the relationship of the defendant to the victim in each case.

(3) Application to persons who have been adjudicated as a mental defective or committed to a mental institution

The State shall make available to the Attorney General, for use by the National Instant Criminal Background Check System, the name and other relevant identifying information of persons adjudicated as a mental defective or those committed to mental institutions to assist the Attorney General in enforcing section 922(g)(4) of title 18.

(d) Privacy protections

For any information provided to the Attorney General for use by the National Instant Criminal Background Check System, relating to persons prohibited from possessing or receiving a firearm under section 922(g)(4) of title 18, the Attorney General shall work with States and local law enforcement and the mental health community to establish regulations and protocols for protecting the privacy of information provided to the system. The Attorney General shall make every effort to meet with any mental health group seeking to express its views concerning these regulations and protocols and shall seek to develop regulations as expeditiously as practicable.

(e) Attorney General report

Not later than January 31 of each year, the Attorney General shall submit to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives a report on the progress of States in automating the databases containing the information described in subsection (b) and in making that information electronically available to the Attorney General pursuant to the requirements of subsection (c).

(Pub. L. 110–180, title I, §102, Jan. 8, 2008, 121 Stat. 2564; Pub. L. 115–141, div. S, title VI, §603(a), Mar. 23, 2018, 132 Stat. 1135.)

Editorial Notes

Codification

Section was formerly classified in a note under section 922 of Title 18, Crimes and Criminal Procedure, prior to editorial reclassification and renumbering as this section.

Amendments

2018—Subsec. (a). Pub. L. 115–141, §603(a)(1), substituted "section 40301 of this title" for "the Crime Identification Technology Act of 1988 (42 U.S.C. 14601)" and inserted "is in compliance with an implementation plan established under subsection (b) or" before "provides at least 90 percent of the information described in subsection (c)".

Subsec. (b)(1)(B). Pub. L. 115–141, §603(a)(2), inserted "or has established an implementation plan under section 40917 of this title" after "the Attorney General".

§40913. Implementation assistance to States

(a) Authorization

(1) In general

From amounts made available to carry out this section and subject to section 40912(b)(1)(B) of this title, the Attorney General shall make grants to States and Indian tribal governments, in a manner consistent with the National Criminal History Improvement Program, which shall be used by the States and Indian tribal governments, in conjunction with units of local government and State and local courts, to establish or upgrade information and identification technologies for firearms eligibility determinations. Not less than 3 percent, and no more than 10 percent of each grant under this paragraph shall be used to maintain the relief from disabilities program in accordance with section 40915 of this title.

(2) Grants to Indian tribes

Up to 5 percent of the grant funding available under this section may be reserved for Indian tribal governments, including tribal judicial systems.

(b) Use of grant amounts

Grants awarded to States or Indian tribes under this section may only be used to—

(1) create electronic systems, which provide accurate and up-to-date information which is directly related to checks under the National Instant Criminal Background Check System (referred to in this section as "NICS"), including court disposition and corrections records;

(2) assist States in establishing or enhancing their own capacities to perform NICS background checks;

(3) supply accurate and timely information to the Attorney General concerning final dispositions of criminal records to databases accessed by NICS, including through increased efforts to pre-validate the contents of those records to expedite eligibility determinations;

(4) supply accurate and timely information to the Attorney General concerning the identity of persons who are prohibited from obtaining a firearm under section 922(g)(4) of title 18 to be used by the Federal Bureau of Investigation solely to conduct NICS background checks;

(5) supply accurate and timely court orders and records of misdemeanor crimes of domestic violence for inclusion in Federal and State law enforcement databases used to conduct NICS background checks;

(6) collect and analyze data needed to demonstrate levels of State compliance with this chapter; and

(7) maintain the relief from disabilities program in accordance with section 40915 of this title, but not less than 3 percent, and no more than 10 percent of each grant shall be used for this purpose.

(c) Eligibility

To be eligible for a grant under this section, a State shall certify, to the satisfaction of the Attorney General, that the State has implemented a relief from disabilities program in accordance with section 40915 of this title.

(d) Condition

As a condition of receiving a grant under this section, a State shall specify the projects for which grant amounts will be used, and shall use such amounts only as specified. A State that violates this subsection shall be liable to the Attorney General for the full amount of the grant received under this section.

(e) Authorization of appropriations

(1) In general

There are authorized to be appropriated to carry out this section $125,000,000 for fiscal year 2009, $250,000,000 for fiscal year 2010, $250,000,000 for fiscal year 2011, $125,000,000 for fiscal year 2012, $125,000,000 for fiscal year 2013, and $125,000,000 for each of fiscal years 2018 through 2022.

(2) Domestic Abuse and Violence Prevention Initiative

(A) Establishment

For each of fiscal years 2018 through 2022, the Attorney General shall create a priority area under the NICS Act Record Improvement Program (commonly known as "NARIP") for a Domestic Abuse and Violence Prevention Initiative that emphasizes the need for grantees to identify and upload all felony conviction records and domestic violence records.

(B) Funding

The Attorney General—

(i) may use not more than 50 percent of the amounts made available under this subsection for each of fiscal years 2018 through 2022 to carry out the initiative described in subparagraph (A); and

(ii) shall give a funding preference under NARIP to States that—

(I) have established an implementation plan under section 40917 of this title; and

(II) will use amounts made available under this subparagraph to improve efforts to identify and upload all felony conviction records and domestic violence records described in clauses (i), (v), and (vi) of section 40912(b)(1)(C) of this title by not later than September 30, 2022.

(f) User fee

The Federal Bureau of Investigation shall not charge a user fee for background checks pursuant to section 922(t) of title 18.

(g) Technical assistance

The Attorney General shall direct the Office of Justice Programs, the Bureau of Alcohol, Tobacco, Firearms, and Explosives, and the Federal Bureau of Investigation to—

(1) assist States that are not currently eligible for grants under this section to achieve compliance with all eligibility requirements; and

(2) provide technical assistance and training services to grantees under this section.

(Pub. L. 110–180, title I, §103, Jan. 8, 2008, 121 Stat. 2567; Pub. L. 115–141, div. S, title VI, §603(b), Mar. 23, 2018, 132 Stat. 1135.)

Editorial Notes

Codification

Section was formerly classified in a note under section 922 of Title 18, Crimes and Criminal Procedure, prior to editorial reclassification and renumbering as this section.

Amendments

2018—Subsec. (b)(3). Pub. L. 115–141, §603(b)(1), inserted before semicolon at end ", including through increased efforts to pre-validate the contents of those records to expedite eligibility determinations".

Subsec. (e)(1). Pub. L. 115–141, §603(b)(2)(A), struck out "and" after "2012," and inserted before period at end ", and $125,000,000 for each of fiscal years 2018 through 2022".

Subsec. (e)(2). Pub. L. 115–141, §603(b)(2)(B), added par. (2) and struck out former par. (2) which related to allocations for fiscal years 2009 to 2013.

Subsec. (g). Pub. L. 115–141, §603(b)(3), added subsec. (g).

§40914. Penalties for noncompliance

(a) Attorney General report

(1) In general

Not later than January 31 of each year, the Attorney General shall submit to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives a report on the progress of the States in automating the databases containing information described under sections 40912 and 40913 of this title, and in providing that information pursuant to the requirements of sections 40912 and 40913 of this title.

(2) Authorization of appropriations

There are authorized to be appropriated to the Department of Justice, such funds as may be necessary to carry out paragraph (1).

(b) Penalties

(1) Discretionary reduction

(A) During the 2-year period beginning 3 years after January 8, 2008, the Attorney General may withhold not more than 3 percent of the amount that would otherwise be allocated to a State under section 10156 of this title if the State provides less than 50 percent of the records required to be provided under sections 40912 and 40913 of this title.

(B) During the 5-year period after the expiration of the period referred to in subparagraph (A), the Attorney General may withhold not more than 4 percent of the amount that would otherwise be allocated to a State under section 10156 of this title if the State provides less than 70 percent of the records required to be provided under sections 40912 and 40913 of this title.

(2) Mandatory reduction

After the expiration of the periods referred to in paragraph (1), the Attorney General shall withhold 5 percent of the amount that would otherwise be allocated to a State under section 10156 of this title, if the State provides less than 90 percent of the records required to be provided under sections 40912 and 40913 of this title.

(3) Waiver by Attorney General

The Attorney General may waive the applicability of paragraph (2) to a State if the State provides substantial evidence, as determined by the Attorney General, that the State is making a reasonable effort to comply with the requirements of sections 40912 and 40913 of this title, including an inability to comply due to court order or other legal restriction.

(c) Reallocation

Any funds that are not allocated to a State because of the failure of the State to comply with the requirements of this chapter shall be reallocated to States that meet such requirements.

(d) Methodology

The method established to calculate the number of records to be reported, as set forth in section 40912(b)(1)(A) of this title, and State compliance with the required level of reporting under sections 40912 and 40913 of this title shall be determined by the Attorney General. The Attorney General shall calculate the methodology based on the total number of records to be reported from all subcategories of records, as described in section 40912(b)(1)(C) of this title.

(Pub. L. 110–180, title I, §104, Jan. 8, 2008, 121 Stat. 2568.)

Editorial Notes

Codification

Section was formerly classified in a note under section 922 of Title 18, Crimes and Criminal Procedure, prior to editorial reclassification and renumbering as this section.

§40915. Relief from disabilities program required as condition for participation in grant programs

(a) Program described

A relief from disabilities program is implemented by a State in accordance with this section if the program—

(1) permits a person who, pursuant to State law, has been adjudicated as described in subsection (g)(4) of section 922 of title 18 or has been committed to a mental institution, to apply to the State for relief from the disabilities imposed by subsections (d)(4) and (g)(4) of such section by reason of the adjudication or commitment;

(2) provides that a State court, board, commission, or other lawful authority shall grant the relief, pursuant to State law and in accordance with the principles of due process, if the circumstances regarding the disabilities referred to in paragraph (1), and the person's record and reputation, are such that the person will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest; and

(3) permits a person whose application for the relief is denied to file a petition with the State court of appropriate jurisdiction for a de novo judicial review of the denial.

(b) Authority to provide relief from certain disabilities with respect to firearms

If, under a State relief from disabilities program implemented in accordance with this section, an application for relief referred to in subsection (a)(1) of this section is granted with respect to an adjudication or a commitment to a mental institution or based upon a removal of a record under section 40912(c)(1)(B) of this title, the adjudication or commitment, as the case may be, is deemed not to have occurred for purposes of subsections (d)(4) and (g)(4) of section 922 of title 18.

(Pub. L. 110–180, title I, §105, Jan. 8, 2008, 121 Stat. 2569.)

Editorial Notes

Codification

Section was formerly classified in a note under section 922 of Title 18, Crimes and Criminal Procedure, prior to editorial reclassification and renumbering as this section.

§40916. Illegal immigrant gun purchase notification

(a) In general

Notwithstanding any other provision of law or of this chapter, all records obtained by the National Instant Criminal Background Check system relevant to whether an individual is prohibited from possessing a firearm because such person is an alien illegally or unlawfully in the United States shall be made available to U.S. Immigration and Customs Enforcement.

(b) Regulations

The Attorney General, at his or her discretion, shall promulgate guidelines relevant to what records relevant to illegal aliens shall be provided pursuant to the provisions of this chapter.

(Pub. L. 110–180, title I, §106, Jan. 8, 2008, 121 Stat. 2570.)

Editorial Notes

Codification

Section was formerly classified in a note under section 922 of Title 18, Crimes and Criminal Procedure, prior to editorial reclassification and renumbering as this section.

§40917. Implementation plan

(a) In general

Not later than 1 year after March 23, 2018, the Attorney General, in coordination with the States and Indian tribal governments, shall establish, for each State or Indian tribal government, a plan to ensure maximum coordination and automation of the reporting or making available of appropriate records to the National Instant Criminal Background Check System established under section 40901 of this title and the verification of the accuracy of those records during a 4-year period specified in the plan. The records shall be limited to those of an individual described in subsection (g) or (n) of section 922 of title 18 ¹

(b) Benchmark requirements

Each plan established under this section shall include annual benchmarks to enable the Attorney General to assess the implementation of the plan, including—

(1) qualitative goals and quantitative measures; and

(2) a needs assessment, including estimated compliance costs.

(c) Compliance determination

Not later than the end of each fiscal year beginning after the date of the establishment of an implementation plan under this section, the Attorney General shall determine whether each State or Indian tribal government has achieved substantial compliance with the benchmarks included in the plan.

(d) Accountability

The Attorney General—

(1) shall disclose and publish, including on the website of the Department of Justice—

(A) the name of each State or Indian tribal government that received a determination of failure to achieve substantial compliance with an implementation plan under subsection (c) for the preceding fiscal year; and

(B) a description of the reasons for which the Attorney General has determined that the State or Indian tribal government is not in substantial compliance with the implementation plan, including, to the greatest extent possible, a description of the types and amounts of records that have not been submitted; and

(2) if a State or Indian tribal government described in paragraph (1) subsequently receives a determination of substantial compliance, shall—

(A) immediately correct the applicable record; and

(B) not later than 3 days after the determination, remove the record from the website of the Department of Justice and any other location where the record was published.

(e) Incentives

For each of fiscal years 2018 through 2022, the Attorney General shall give affirmative preference to all Bureau of Justice Assistance discretionary grant applications of a State or Indian tribal government that received a determination of substantial compliance under subsection (c) for the fiscal year in which the grant was solicited.

(Pub. L. 110–180, title I, §107, as added Pub. L. 115–141, div. S, title VI, §605(a), Mar. 23, 2018, 132 Stat. 1137.)

¹ So in original. Probably should be followed by a period.

SUBCHAPTER II—FOCUSING FEDERAL ASSISTANCE ON THE IMPROVEMENT OF RELEVANT RECORDS

§40931. Continuing evaluations

(a) Evaluation required

The Director of the Bureau of Justice Statistics (referred to in this section as the "Director") shall study and evaluate the operations of the National Instant Criminal Background Check System. Such study and evaluation shall include compilations and analyses of the operations and record systems of the agencies and organizations necessary to support such System.

(b) Report on grants

Not later than January 31 of each year, the Director shall submit to Congress a report containing the estimates submitted by the States under section 40912(b) of this title.

(c) Report on best practices

Not later than January 31 of each year, the Director shall submit to Congress, and to each State participating in the National Criminal History Improvement Program, a report of the practices of the States regarding the collection, maintenance, automation, and transmittal of information relevant to determining whether a person is prohibited from possessing or receiving a firearm by Federal or State law, by the State or any other agency, or any other records relevant to the National Instant Criminal Background Check System, that the Director considers to be best practices.

(d) Authorization of appropriations

There are authorized to be appropriated such sums as may be necessary for each of the fiscal years 2009 through 2013 to complete the studies, evaluations, and reports required under this section.

(Pub. L. 110–180, title II, §201, Jan. 8, 2008, 121 Stat. 2570.)

Editorial Notes

Codification

Section was formerly classified in a note under section 922 of Title 18, Crimes and Criminal Procedure, prior to editorial reclassification and renumbering as this section.

SUBCHAPTER III—GRANTS TO STATE COURT SYSTEMS FOR THE IMPROVEMENT IN AUTOMATION AND TRANSMITTAL OF DISPOSITION RECORDS

§40941. Disposition records automation and transmittal improvement grants

(a) Grants authorized

From amounts made available to carry out this section, the Attorney General shall make grants to each State, consistent with State plans for the integration, automation, and accessibility of criminal history records, for use by the State court system to improve the automation and transmittal of criminal history dispositions, records relevant to determining whether a person has been convicted of a misdemeanor crime of domestic violence, court orders, and mental health adjudications or commitments, to Federal and State record repositories in accordance with sections 40912 and 40913 of this title and the National Criminal History Improvement Program.

(b) Grants to Indian tribes

Up to 5 percent of the grant funding available under this section may be reserved for Indian tribal governments for use by Indian tribal judicial systems.

(c) Use of funds

Amounts granted under this section shall be used by the State court system only—

(1) to carry out, as necessary, assessments of the capabilities of the courts of the State for the automation and transmission of arrest and conviction records, court orders, and mental health adjudications or commitments to Federal and State record repositories; and

(2) to implement policies, systems, and procedures for the automation and transmission of arrest and conviction records, court orders, and mental health adjudications or commitments to Federal and State record repositories.

(d) Eligibility

To be eligible to receive a grant under this section, a State shall certify, to the satisfaction of the Attorney General, that the State has implemented a relief from disabilities program in accordance with section 40915 of this title.

(e) Authorization of appropriations

There are authorized to be appropriated to the Attorney General to carry out this section $62,500,000 for fiscal year 2009, $125,000,000 for fiscal year 2010, $125,000,000 for fiscal year 2011, $62,500,000 for fiscal year 2012, and $62,500,000 for fiscal year 2013.

(Pub. L. 110–180, title III, §301, Jan. 8, 2008, 121 Stat. 2571.)

Editorial Notes

Codification

Section was formerly classified in a note under section 922 of Title 18, Crimes and Criminal Procedure, prior to editorial reclassification and renumbering as this section.