34 U.S.C. § 40911 — Enhancement of requirement that Fed-

Page 627 TITLE 34—CRIME CONTROL AND LAW ENFORCEMENT § 40911 (1) Approximately 916,000 individuals were prohibited from purchasing a firearm for fail- ing a background check between November 30, 1998, (the date the National Instant Criminal Background Check System (NICS) began oper- ating) and December 31, 2004. (2) From November 30, 1998, through Decem- ber 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 ar- rest dispositions, due to data backlogs. (5) The primary cause of delay in NICS back- ground checks is the lack of— (A) updates and available State criminal disposition records; and (B) automated access to information con- cerning persons prohibited from possessing or receiving a firearm because of mental ill- ness, 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, men- tal illness, restraining orders, and mis- demeanor 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 pur- chasers. (8) On March 12, 2002, the senseless shooting, which took the lives of a priest and a parish- ioner 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 enforce- ment agencies to conduct a complete back- ground check on a potential firearm pur- chaser. 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 nec- essary 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 shoot- ing, the deadliest campus shooting in United States history, renewed the need to improve information-sharing that would enable Fed- eral and State law enforcement agencies to conduct complete background checks on po- tential firearms purchasers. In spite of a prov- en 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 en- sured 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 sec- tion 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 defini- tions 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 defec- tive’’ and ‘‘committed to a mental institu- tion’’ 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 sec- tion 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 Fed- eral departments and agencies provide rel- evant 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 quar- terly, which are relevant to a determination of whether a person is disqualified from pos- sessing or receiving a firearm under sub- section (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 para- graph who have changed their status to a category not identified under section 922(g)(5) of title 18 for removal, when appli- cable, from the National Instant Criminal Background Check System. Page 628 TITLE 34—CRIME CONTROL AND LAW ENFORCEMENT § 40911 (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 De- fense, 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 in- volved 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 pro- ceeding’’ means a hearing— (i) of which the person received actual notice; and (ii) at which the person had an oppor- tunity 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 con- fidential, as required by the laws, regula- tions, policies, or procedures governing the applicable record system; (B) provide for the timely removal and de- struction of obsolete and erroneous names and information from the National Instant Criminal Background Check System; and (C) work with States to encourage the de- velopment 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 Gen- eral any record of an adjudication related to the mental health of a person or any commit- ment of a person to a mental institution if— (A) the adjudication or commitment, re- spectively, has been set aside or expunged, or the person has otherwise been fully re- leased or discharged from all mandatory treatment, supervision, or monitoring; (B) the person has been found by a court, board, commission, or other lawful author- ity 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 rehabili- tated through any procedure available under law; or (C) the adjudication or commitment, re- spectively, is based solely on a medical find- ing 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 Fed- eral department or agency from providing to the Attorney General any record dem- onstrating that a person was adjudicated to be not guilty by reason of insanity, or based on lack of mental responsibility, or found in- competent 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 re- lated to the mental health of a person or imposes any commitment to a mental in- stitution, as described in subsection (d)(4) and (g)(4) of section 922 of title 18 shall es- tablish, not later than 120 days after Janu- ary 8, 2008, a program that permits such a person to apply for relief from the disabil- ities imposed by such subsections. (ii) Process Each application for relief submitted under the program required by this sub- paragraph shall be processed not later than 365 days after the receipt of the appli- cation. 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 with- out 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 stand- ards 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 commit- ment of a person to a mental institution, a record of which may not be provided to the Attorney General under paragraph (1), in- cluding because of the absence of a finding described in subparagraph (C) of such para- graph, 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 Page 629 TITLE 34—CRIME CONTROL AND LAW ENFORCEMENT § 40911 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 adju- dicate 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 indi- vidual from purchasing, possessing, receiv- ing, shipping or transporting a firearm or ammunition under section 922(d)(4) or sec- tion 922(g)(4) of title 18; (B) information about the penalties im- posed for unlawful possession, receipt, ship- ment 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 Fed- eral laws with respect to the acquisition, re- ceipt, 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 viola- tion 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 sec- tion 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 Depart- ments and Agencies Since it became operational in 1998, the National In- stant Criminal Background Check System (NICS) has been an essential tool in the effort to ensure that indi- viduals 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 quan- tity and quality of relevant records from Federal, State, and tribal authorities accessible by the system. Among its requirements, the NIAA mandated that ex- ecutive 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 identi- fying records they possess that are relevant to deter- mining whether an individual is prohibited from pos- sessing a firearm and a regularized process for submit- ting those records to the NICS will strengthen the ac- curacy 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 memo- randum, and consistent with the process described in section 3 of this memorandum, the Department of Jus- tice (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 ap- plicable law. (c) In accordance with the authority and responsi- bility 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 data- bases accessible by the NICS during each reporting pe- riod; Page 630 TITLE 34—CRIME CONTROL AND LAW ENFORCEMENT § 40912 (iii) the efforts made to increase the percentage of relevant records possessed by the agency that are sub- mitted 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, modi- fied, 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 sub- mit further annual reports. Instead, the agency will be required to submit an annual certification to DOJ, at- testing that the agency continues to submit relevant records and has corrected, modified, or removed appro- priate records. SEC. 3. NICS Consultation and Coordination Working Group. To ensure adequate agency input in the guid- ance required by section 1(a) of this memorandum, sub- sequent 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 Co- ordination 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 regu- larly and as needed to allow for consultation and co- ordination between DOJ and agencies affected by the Attorney General’s implementation of the NIAA, in- cluding with respect to the guidance required by sec- tion 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 an- nual reports required by section 2(a) of this memo- randum, and member agencies may append to the re- ports 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 memo- randum shall be construed to impair or otherwise af- fect: (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 Man- agement and Budget relating to budgetary, administra- tive, or legislative proposals. (b) This memorandum shall be implemented con- sistent with applicable law and subject to the avail- ability of appropriations. (c) This memorandum is not intended to, and does not, create any right or benefit, substantive or proce- dural, 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 com- pliance with an implementation plan established under subsection (b) or provides at least 90 per- cent 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 Gen- eral for the purpose of receiving a waiver under subsection (a) of this section, or fac- ing 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 esti- mate, 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 subpara- graph (C) applicable to such State that con- cern persons who are prohibited from pos- sessing or receiving a firearm under sub- section (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 re- quired under such subparagraph shall be in- eligible to receive any funds under section 40913 of this title, until such date as it pro- vides 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 ex- ceeding 1 year.