H.R. 1415 (109th): NICS Improvement Act of 2005

109th Congress, 2005–2006. Text as of Mar 17, 2005 (Introduced).

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I

109th CONGRESS

1st Session

H. R. 1415

IN THE HOUSE OF REPRESENTATIVES

March 17, 2005

(for herself and Mr. Dingell) introduced the following bill; which was referred to the Committee on the Judiciary

A BILL

To improve the National Instant Criminal Background Check System, and for other purposes.

1.

Short title; table of contents

(a)

Short title

This Act may be cited as the NICS Improvement Act of 2005.

(b)

Table of contents

The table of contents for this Act is as follows:

Sec. 1. Short title; table of contents

Sec. 2. Findings

Sec. 3. Definitions

Title I—Transmittal of records

Sec. 101. Enhancement of requirement that Federal departments and agencies provide relevant information to the National Instant Criminal Background Check System

Sec. 102. Requirements to obtain waiver

Sec. 103. Implementation assistance to States

Sec. 104. Penalties for noncompliance

Title II—Focusing Federal assistance on the improvement of relevant records

Sec. 201. Continuing evaluations

Title III—Grants to State court systems for the improvement in automation and transmittal of disposition records

Sec. 301. Disposition records automation and transmittal improvement grants

Title IV—GAO audit

Sec. 401. GAO audit

2.

Findings

Congress finds the following:

(1)

Approximately 790,000 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, 2003.

(2)

From November 30, 1998, through December 31, 2003, over 40,800,000 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)

Approximately 24,000,000 criminal records are either not automated or not accessible by NICS and another 16,000,000 criminal records that are automated and accessible are missing critical data, such as arrest dispositions.

(5)

The primary cause of delay in NICS background checks is the failure of the States to—

(A)

update and make available criminal disposition records; and

(B)

provide 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)

The failure of the States to provide automated access to this information is principally caused by the States’ failure to—

(A)

computerize information relating to criminal history, criminal dispositions, mental illness, restraining orders, and misdemeanor convictions for domestic violence; or

(B)

make 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)

Twenty-three States have failed to automate all of their felony criminal conviction records.

(9)

Only forty-five percent of the criminal history records in the Interstate Identification Index, maintained by the FBI and used by the NICS, have disposition information included.

(10)

Many States do not submit fingerprint-based records of misdemeanor convictions that may disqualify a person from possessing or receiving a firearm under section 922(g)(9) of title 18, United States Code.

(11)

Forty States do not automate or make accessible disqualifying mental health records.

(12)

Only ten States have provided disqualifying mental health records to NICS. Of this group, 8 States have provided less than 40 such records, 1 State has provided approximately 1,600 such records, and only 1 State has provided close to complete records by having submitted more than 50,000 such records.

(13)

Five States and 4 territories do not automate or make accessible domestic violence restraining order records to NICS.

(14)

Of the States that provide domestic violence restraining orders to NICS, records from 18 States are not complete and accurate.

(15)

Fourteen States do not automate or make accessible domestic violence misdemeanor conviction records.

(16)

Of the States that provide domestic violence misdemeanor conviction records to NICS, records from 29 States are not complete or accurate.

(17)

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 lack of information sharing enabling 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.

3.

Definitions

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

(1)

Court order

The term court order includes—

(A)

a court order (as described in section 922(g)(8) of title 18, United States Code); and

(B)

a protection order (as defined in section 2266(5) of title 18, United States Code).

(2)

Mental health terms

The terms adjudicated as a mental defective, committed to a mental institution, and related terms have the meanings given those terms in regulations implementing section 922(g)(4) of title 18, United States Code, as in effect on the date of the enactment of this Act.

(3)

Misdemeanor crime of domestic violence

The term misdemeanor crime of domestic violence

(A)

has the meaning given the term in section 921(a)(33) of title 18, United States Code;

(B)

includes any Federal, State, or local offense that—

(i)

is a misdemeanor under Federal, State, local, or tribal law or, in a State that does not classify offenses as misdemeanors, is an offense punishable by imprisonment for a term of 1 year or less or punishable only by a fine regardless of whether or not the State statute specifically defines the offense as a crime of domestic violence;

(ii)

has, as an element of the offense, the use or attempted use of physical force, such as assault and battery, or the threatened use of a deadly weapon; and

(iii)

was committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or a person similarly situated to a spouse, parent, or guardian of the victim; and

(C)

does not include a crime described under subparagraph (A) if—

(i)

the person was not convicted by the jurisdiction in which the proceeding was held;

(ii)

the person was not represented by counsel in the case and did not knowingly or intelligently waive the right to counsel in the case;

(iii)

in the case of a prosecution for which a person was entitled to a jury trial in the jurisdiction in which the case was tried—

(I)

the case was not tried by a jury; and

(II)

the person did not knowingly or intelligently waive the right to have the case tried by a jury, by guilty plea, or otherwise; or

(iv)

the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored unless—

(I)

the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms; or

(II)

the person is otherwise prohibited by the law of the jurisdiction in which the proceedings were held from receiving or possessing any firearms.

I

Transmittal of records

101.

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

(a)

In general

Section 103(e)(1) of the Brady Handgun Violence Prevention Act (18 U.S.C. 922 note) is amended—

(1)

by striking Notwithstanding and inserting the following:

(A)

In general

Notwithstanding

;

(2)

by striking On request and inserting the following:

(B)

Request of Attorney General

On request

;

(3)

by striking furnish such information and inserting furnish electronic versions of the information described under subparagraph (A); and

(4)

by adding at the end the following:

(C)

Quarterly submission to Attorney General

If a 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, United States Code, 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 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; or

(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.

(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.

.

(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, United States Code, 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, United States Code, for removal, when applicable, from the National Instant Criminal Background Check System.

(2)

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 mentally defective or committed to a mental institution.

102.

Requirements to obtain waiver

(a)

In general

Beginning 3 years after the date of enactment of this Act, a State shall be eligible to receive a waiver of the 10 percent matching requirement for National Criminal History Improvement Grants under the Crime Identification Technology Act of 1988 (42 U.S.C. 14601) if the State 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)

In general

To assist the Attorney General in making a determination under subsection (a) of this section, and under section 104, 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 104, each State shall provide the Attorney General with a reasonable estimate, as calculated by a method determined by the Attorney General, of the number of—

(A)

criminal history records for misdemeanors and felonies;

(B)

State criminal history records with disposition information;

(C)

active court orders in the State; and

(D)

State records of persons adjudicated mentally defective or committed to a mental institution.

(2)

Scope

The Attorney General, in determining the compliance of a State under this section or section 104 of this Act 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 30 years, which would disqualify a person from possessing a firearm under subsection (g) or (n) of section 922 of title 18, United States Code.

(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, United States Code, 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 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, United States Code, 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; or

(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.

(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 information described in subparagraph (A) has been made electronically available to the Attorney General in accordance with subparagraph (A).

(D)

Inclusion of all records

The State shall make every effort to 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 mentally defective or those committed to mental institutions to assist the Attorney General in enforcing section 922(g)(4) of title 18, United States Code.

(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, United States Code, 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).

103.

Implementation assistance to States

(a)

Authorization

(1)

In general

From amounts made available to carry out this section, 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.

(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;

(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, United States Code, 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; and

(6)

collect and analyze data needed to demonstrate levels of State compliance with this Act.

(c)

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.

(d)

Authorization of appropriations

There are authorized to be appropriated to carry out this section $250,000,000 for each of the fiscal years 2006 through 2008.

(e)

User fee

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

104.

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 102 and 103, and in providing that information pursuant to the requirements of sections 102 and 103.

(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

During the 2-year period beginning 3 years after the date of enactment of this Act, the Attorney General may withhold not more than 3 percent of the amount that would otherwise be allocated to a State under section 506 of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3756) if the State provides less than 60 percent of the information required to be provided under sections 102 and 103.

(2)

Mandatory reduction

After the expiration of the period 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 506 of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3756), if the State provides less than 90 percent of the information required to be provided under sections 102 and 103.

(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 102 and 103.

(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 title shall be reallocated to States that meet such requirements.

II

Focusing Federal assistance on the improvement of relevant records

201.

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 102(b).

(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 2006 through 2008 to complete the studies, evaluations, and reports required under this section.

III

Grants to State court systems for the improvement in automation and transmittal of disposition records

301.

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 102 and 103 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)

Authorization of appropriations

There are authorized to be appropriated to the Attorney General to carry out this section $125,000,000 for each of the fiscal years 2006 through 2008.

IV

GAO audit

401.

GAO audit

(a)

In general

The Comptroller General of the United States shall conduct an audit of the expenditure of all funds appropriated for criminal records improvement pursuant to section 106(b) of the Brady Handgun Violence Prevention Act (Public Law 103–159) to determine if the funds were expended for the purposes authorized by the Act and how those funds were expended for those purposes or were otherwise expended.

(b)

Report

Not later than 6 months after the date of enactment of this Act, the Comptroller General shall submit a report to Congress describing the findings of the audit conducted pursuant to subsection (a).