USC Subchapter I

USC Subchapter I
in effect

34 U.S.C. § 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 SecurityThe 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 generalNot 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 definedIn 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 JusticeThe 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 generalNo 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 generalEach 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) ProcessEach 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 reviewRelief 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 disabilitiesIn 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 requirementEffective 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 dateExcept 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.

34 U.S.C. § 40912 Requirements to obtain waiver

(a) In generalBeginning 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 generalTo 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 estimateA 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 definedFor 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) ScopeThe 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) ClarificationNotwithstanding 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 generalFrom 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 updatesThe 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) CertificationTo 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 recordsFor 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 violenceThe 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 institutionThe 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 protectionsFor 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 reportNot 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).

34 U.S.C. § 40913 Implementation assistance to States

(a) Authorization(1) In generalFrom 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 tribesUp 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 amountsGrants 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) EligibilityTo 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) ConditionAs 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 generalThere 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) EstablishmentFor 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) FundingThe 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 feeThe Federal Bureau of Investigation shall not charge a user fee for background checks pursuant to section 922(t) of title 18. (g) Technical assistanceThe 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.

34 U.S.C. § 40914 Penalties for noncompliance

(a) Attorney General report(1) In generalNot 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 appropriationsThere 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 reductionAfter 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 GeneralThe 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) ReallocationAny 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) MethodologyThe 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.

34 U.S.C. § 40915 Relief from disabilities program required as condition for participation in grant programs

(a) Program describedA 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 firearmsIf, 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.

34 U.S.C. § 40916 Illegal immigrant gun purchase notification

(a) In generalNotwithstanding 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) RegulationsThe 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.

34 U.S.C. § 40917 Implementation plan

(a) In generalNot 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 11 So in original. Probably should be followed by a period. (b) Benchmark requirementsEach 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 determinationNot 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) AccountabilityThe 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) IncentivesFor 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.

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