[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1415 Introduced in House (IH)]






109th CONGRESS
  1st Session
                                H. R. 1415

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


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             March 17, 2005

 Mrs. McCarthy (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.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 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.

SEC. 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.

SEC. 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.

                    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.

    (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.

SEC. 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).

SEC. 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.

SEC. 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.

 TITLE II--FOCUSING FEDERAL ASSISTANCE ON THE IMPROVEMENT OF RELEVANT 
                                RECORDS

SEC. 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.

    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.

    (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.

                          TITLE IV--GAO AUDIT

SEC. 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).
                                 <all>