34 USC 40912 - Requirements to obtain waiver

Collapse to view only § 40912. Requirements to obtain waiver

§ 40911. Enhancement of requirement that Federal departments and agencies provide relevant information to the National Instant Criminal Background Check System
§ 40912. Requirements to obtain waiver
§ 40913. Implementation assistance to States
§ 40914. Penalties for noncompliance
§ 40915. Relief from disabilities program required as condition for participation in grant programs
§ 40916. Illegal immigrant gun purchase notification
§ 40917. Implementation plan

§ 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 general

(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.

(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 general

(ii) Process

(iii) Judicial review

(B) Relief from disabilities

(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 date

(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.)

§ 40912. Requirements to obtain waiver

(a) In general

(b) State estimates

(1) Initial state estimate

(A) In general

(B) Failure to provide initial estimate

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

(3) Clarification

(1) Requirements for eligibility

(A) In general

(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.

(D) Inclusion of all records

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

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

(d) Privacy protections

(e) Attorney General report

(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.)

§ 40913. Implementation assistance to States

(a) Authorization

(1) In general

(2) Grants to Indian tribes

(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.

(d) Condition

(e) Authorization of appropriations

(1) In general

(2) Domestic Abuse and Violence Prevention Initiative

(A) Establishment

(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 fee

(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.

(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.)

§ 40914. Penalties for noncompliance

(a) Attorney General report

(1) In general

(2) Authorization of appropriations

(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

(3) Waiver by Attorney General

(d) Methodology

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

§ 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

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

§ 40916. Illegal immigrant gun purchase notification

(a) In general

(b) Regulations

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

§ 40917. Implementation plan

(a) In general

(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.

(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) Incentives

(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.)