[House Report 107-748]
[From the U.S. Government Publishing Office]
107th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 107-748
======================================================================
OUR LADY OF PEACE ACT
_______
October 15, 2002.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the
following
R E P O R T
[To accompany H.R. 4757]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 4757) to improve the national instant criminal
background check system, and for other purposes, having
considered the same, reports favorably thereon with an
amendment and recommends that the bill as amended do pass.
CONTENTS
Page
The Amendment.................................................... 1
Purpose and Summary.............................................. 5
Background and Need for the Legislation.......................... 5
Hearings......................................................... 7
Committee Consideration.......................................... 8
Vote of the Committee............................................ 8
Committee Oversight Findings..................................... 8
Performance Goals and Objectives................................. 9
New Budget Authority and Tax Expenditures........................ 9
Congressional Budget Office Cost Estimate........................ 9
Constitutional Authority Statement............................... 11
Section-by-Section Analysis and Discussion....................... 11
Changes in Existing Law Made by the Bill, as Reported............ 13
Markup Transcript................................................ 14
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Our Lady of Peace Act''.
SEC. 2. FINDINGS.
The Congress finds the following:
(1) Since 1994, more than 689,000 individuals have been
denied a gun for failing a background check.
(2) States that fail to computerize their criminal and
mental illness records are the primary cause of delays for
background checks. Helping States automate their records will
reduce delays for law-abiding gun owners.
(3) 25 States have automated less than 60 percent of their
felony criminal conviction records.
(4) 33 States do not automate or share disqualifying mental
health records.
(5) In 13 States, domestic violence restraining orders are
not automated or accessible by the national instant criminal
background check system.
(6) In 15 States, no domestic violence misdemeanor records
are automated or accessible by the national instant criminal
background check system.
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 inserting ``electronically'' before ``furnish''; and
(2) by adding at the end the following: ``The head of each
department or agency shall ascertain whether the department or
agency has any records relating to any person described in
subsection (g) or (n) of section 922 of title 18, United States
Code and on being made aware that the department or agency has
such a record, shall make the record available to the Attorney
General for inclusion in the system to the extent the Attorney
General deems appropriate. The head of each department or
agency, on being made aware that the basis under which a record
was made available under this section does not apply or no
longer applies, shall transmit a certification identifying the
record (and any name or other relevant identifying information)
to the Attorney General for removal from the system. The
Attorney General shall notify the Congress on an annual basis
as to whether the Attorney General has obtained from each such
department or agency the information requested by the Attorney
General under this subsection.''.
(b) Immigration Records.--The Commissioner of the Immigration and
Naturalization Service shall cooperate in providing information
regarding all relevant records of persons disqualified from acquiring a
firearm under Federal law, including but not limited to, illegal
aliens, visitors to the United States on student visas, and visitors to
the United States on tourist visas, to the Attorney General for
inclusion in the national instant criminal background check system.
SEC. 102. REQUIREMENTS TO OBTAIN WAIVER.
(a) In General.--Beginning 5 years after the date of the 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 if the
State provides at least 95 percent of the information described in
subsection (b). The length of such a waiver shall not exceed 5 years.
(b) Eligibility of State Records for Submission to the National
Instant Criminal Background Check System.--
(1) Requirements for eligibility.--The State shall make
available the following information established either through
its own database or provide information to the Attorney
General:
(A) The name of and other relevant identifying
information relating to each person disqualified from
acquiring a firearm under subsection (g) or (n) of
section 922 of title 18, United States Code, and each
person disqualified from acquiring a firearm under
applicable State law.
(B) 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 transmit a certification identifying the record
(and any name or other relevant identifying
information) to the Attorney General for removal from
the system.
(C) Any information provided to the Attorney
General under subparagraph (A) may be accessed only for
background check purposes under section 922(t) of title
18, United States Code.
(D) The State shall certify to the Attorney General
that at least 95 percent of all information descibed in
subparagraph (A) has been provided to the Attorney
General in accordance with subparagraph (A).
(2) Application to persons convicted of misdemeanor crimes
of domestic violence.--(A) For purposes of paragraph (1), a
person disqualified from acquiring a firearm as referred to in
that paragraph includes a person who has been convicted in any
court of any Federal, State, or local offense that--
(i) is a misdemeanor under Federal or State 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 by only a
fine);
(ii) has, as an element of the offense, the use or
attempted use of physical force (for example, 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 cohabitating with or has cohabitated with the
victim as a spouse, parent, or guardian, (for example,
the equivalent of ``common-law marriage'' even if such
relationship is not recognized under the law), or a
person similarly situated to a spouse, parent, or
guardian of the victim (for example, two persons who
are residing at the same location in an intimate
relationship with the intent to make that place their
home would be similarly situated to a spouse).
(B) A person shall not be considered to have been convicted
of such an offense for purposes of subparagraph (A) unless--
(i) the person is considered to have been convicted
by the jurisdiction in which the proceeding was held;
(ii) the person was represented by counsel in the
case, or knowingly and intelligently waived the right
to counsel in the case; and
(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 tried by a jury; or
(II) the person knowingly and intelligently
waived the right to have the case tried by a
jury, by guilty plea, or otherwise.
(C) A person shall not be considered to have been convicted
of such an offense for purposes of subparagraph (A) if 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 (if the law of the jurisdiction in which the
proceedings were held provides for the loss of civil rights
upon conviction of such an offense) unless the pardon,
expungement, or restoration of civil rights expressly provides
that the person may not ship, transport, possess, or receive
firearms, and the person is not otherwise prohibited by the law
of the jurisdiction in which the proceedings were held from
receiving or possessing any firearms.
(3) Application to persons who have been adjudicated as a
mental defective or committed to a mental institution.--
(A) For purposes of paragraph (1), an adjudication
as a mental defective occurs when a court, board,
commission, or other government entity determines that
a person, as a result of marked subnormal intelligence,
or mental illness, incompetency, condition, or
disease--
(i) is a danger to himself or to others; or
(ii) lacks the mental capacity to contract
or manage his own affairs.
(B) The term ``adjudicated as a mental defective''
includes--
(i) a finding of insanity by a court in a
criminal case; and
(ii) a finding that a person is incompetent
to stand trial or is not guilty by reason of
lack of mental responsibility pursuant to
articles 50a and 72b of the Uniform Code of
Military Justice (10 U.S.C. 850a, 876b).
(C) Exceptions.--This paragraph does not apply to--
(i) a person--
(I) in a mental institution for
observation; or
(II) voluntarily committed to a
mental institution; or
(ii) information protected by doctor-
patient privilege.
(4) Privacy protections.--For any information provided
under the national instant criminal background check system,
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. In the event of a conflict
between a provision of this Act and a provision of State law
relating to privacy protection, the provision of State law
shall control.
(5) State authority.--Notwithstanding any other provision
of this subsection, a State may designate that records
transmitted under this subsection shall be used only to
determine eligibility to purchase or possess a firearm.
(c) 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
providing that information pursuant to the requirements of such
subsection.
SEC. 103. IMPLEMENTATION GRANTS TO STATES.
(a) In General.--From amounts made available to carry out this
section, the Attorney General shall make grants to each State, in a
manner consistent with the national criminal history improvement
program, which shall be used by the State, in conjunction with units of
local government and State and local courts, to establish or upgrade
information and identification technologies for firearms eligibility
determinations.
(b) Use of Grant Amounts.--Grants under this section may only be
awarded for the following purposes:
(1) Building databases that are directly related to checks
under the national instant criminal background check system
(NICS), including court disposition and corrections records.
(2) Assisting States in establishing or enhancing their own
capacities to perform NICS background checks.
(3) Improving final dispositions of criminal records.
(4) Supplying mental health records to NICS.
(5) Supplying court-ordered domestic restraining orders and
records of domestic violence misdemeanors (as defined in
section 102 of this Act) for inclusion in NICS.
(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 section shall be liable to the Attorney General for
the full amount granted.
(d) Authorization of Appropriations.--There is authorized to be
appropriated to carry out this section $250,000,000 for each of fiscal
years 2004, 2005, and 2006.
(e) 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.
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 shall study and evaluate the operations of the national
instant criminal background check system. Such study and evaluation
shall include, but not be limited to, compilations and analyses of the
operations and record systems of the agencies and organizations
participating in such system.
(b) Report on Grants.--Not later than January 31 of each year, the
Director shall submit to Congress a report on the implementation of
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 identifying information
relating to individuals described in subsection (g) or (n) of section
922 of title 18, United States Code, 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.
TITLE III--GRANTS TO STATE COURTS FOR THE IMPROVEMENT IN AUTOMATION AND
TRANSMITTAL OF DISPOSITION RECORDS
SEC. 301. GRANTS AUTHORIZED.
(a) In General.--From amounts made available to carry out this
section, the Attorney General shall make grants to each State for use
by the chief judicial officer of the State to improve the handling of
proceedings related to criminal history dispositions and restraining
orders.
(b) Use of Funds.--Amounts granted under this section shall be used
by the chief judicial officer only as follows:
(1) For fiscal year 2004, such amounts shall be used to
carry out assessments of the capabilities of the courts of the
State for the automation and transmission to State and Federal
record repositories the arrest and conviction records of such
courts.
(2) For fiscal years after 2004, such amounts shall be used
to implement policies, systems, and procedures for the
automation and transmission to State and Federal record
repositories the arrest and conviction records of such courts.
(c) Authorization of Appropriations.--There are authorized to be
appropriated to the Attorney General to carry out this section
$125,000,000 for each of fiscal years 2004, 2005, and 2006.
Purpose and Summary
H.R. 4757, the ``Our Lady Of Peace Act,'' provides States
with the tools to comply with the 1968 Gun Control Act by
giving States additional funds to automate and share criminal,
mental health, and domestic violence restraining orders with
the Federal Bureau of Investigation (FBI) National Instant
Criminal Background Check System (NICS) database.
Under this legislation, all Federal agencies will transmit
relevant records relating to persons disqualified from
acquiring a firearm under Federal law to the Attorney General
for inclusion in NICS, including all records related to
immigration status.
To comply with the grants under this legislation, States
will provide more thorough and up-to-date information relating
to persons disqualified from acquiring a firearm under Federal
law to the Attorney General for inclusion in the NICS. The
Attorney General will award grants to States to improve
computer systems and ensure accurate reporting, especially with
regard to domestic violence and mental health records.
Additionally, the legislation establishes a grant program
for State courts to assess and improve handling of proceedings
related to criminal history dispositions, and temporary
restraining orders, as they relate to disqualification from
firearms ownership under State and Federal laws.
Background and Need for the Legislation
In 1998, the Brady Act required the persons holding Federal
Firearms Licenses (FFL) to initiate a background check on all
persons who attempt to purchase a firearm. The Federal Bureau
of Investigation (FBI) established the NICS operation center to
enforce the provisions of the Brady Act and to manage, operate,
and support NICS.
The NICS mission is to ensure the timely transfer of
firearms to individuals who are not specifically prohibited
under Federal law and deny the transfer to those who are
prohibited from possessing or receiving a firearm.
To conduct a background check, a Federal Firearms Licensee
(FFL) calls the National Instant Check System call center and
gives the customer service representative the data provided by
the customer on a Bureau of Alcohol, Tobacco, and Firearms
(ATF) form. The system searches the name in three databases,
which include:
(1)
Lthe NICS Index that contains information on
individuals who have been:
(a)
Lidentified specifically as being prohibited
from purchasing a firearm;
(b)
Ldishonorably discharged from the U.S.
military;
(c)
Lidentified as a U.S. citizen renunciant; or
(d)
Lidentified as mentally disadvantaged or
controlled substance abusers or illegal/unlawful
aliens.
(2)
Lthe National Crime Information Center (NCIC) 2000
that contains information on wanted persons,
outstanding restraining orders, deported felons, and
foreign fugitives.
(3)
Lthe Interstate Identification Index (III), which
contains criminal history records.
If there is no match, the transaction will proceed within
30 seconds after the information is entered. Approximately 72
out of every 100 checks are ``immediate proceeds,'' which means
that the firearms transaction may proceed immediately.
If there is a match, the transaction is delayed. The
transaction goes into a delay queue where the NICS examiners
receive the information and perform the necessary research. In
approximately 23 of the 28 delayed transactions a decision is
made within 2 hours. The remaining 5 may take days. If the
transaction is delayed for more than 3 days, Federal law allows
the transaction to proceed before the background check is
concluded.
In February and April 2000, the General Accounting Office
(GAO) reported the following:
(1)
LDuring a 1-year period, about 72 percent of the
requests received a proceed response within minutes and
28 percent were initially delayed of the 28 percent, 23
percent of the checks are concluded within 2 hours and
5 percent amy take days.
(2)
LWhile the establishment of the newly created NICS
Index database provides centralized access to data that
was not previously available to State and local
agencies, the Index does not contain all potentially
disqualifying records.
(3)
LBecause State agencies have access to additional
data and have a better understanding of State records
and laws, they are generally better positioned to
perform NICS background checks than the FBI.
(4)
LIn the first 10 months of the NICS implementation,
2,519 individuals who were sold guns were later
determined by the FBI to be prohibited from owning
them. These transactions were completed because the FBI
had not completed the background checks within 3
business days. GAO stated that according to the FBI
officials, these transactions occur primarily due to a
lack of arrest dispositions in the automated State
criminal history records.
The legislation makes certain findings regarding the
current NICS system and requires that states update their
systems in those areas using additional Federal grants. The
bill finds that states are lacking in the following areas:
(1)
Lmany States have not completely computerized
criminal records;
(2)
Lmany do not have a database for involuntary mental
commitments; and
(3)
Lin many States domestic violence crimes and
protective orders are not computerized.
Many States have failed to computerize all of their
criminal records; however, progress has been made in this area
through grant funds provided to the States from the Office of
Justice Programs by the National Criminal History Improvement
Program (NCHIP). The NCHIP program received $35 million in
FY2001 plus an additional $8.6 million from general Crime
Identification Technology Act (CITA) funds. The Administration
has requested $60 million for this program for FY2003,
including $25 million to improve court records. This
legislation provides additional grants to the States to
expedite this process, penalizing States for failure to comply
by allowing the Attorney General to reduce grant funding.
With regard to computerization of mental health records,
the Department of Justice indicates that the information
contained in the NICS Index Mental Defectives/Commitments File
contains information from the Department of Defense and the
Department of Veterans Affairs on persons who have been
adjudicated as mentally defective or have been committed to a
mental institution. This legislation would require all States
to submit records of persons who have been adjudicated as
mentally defective or those committed by a court, board,
commission, or other authority for mental illness, alcoholism/
addiction, or other reasons. Because States generally have laws
in place to protect mental health records from disclosure, even
to the Federal Government, this legislation will ensure that
State privacy laws are not preempted by providing information
to NICS.
Fifteen States currently do not enter protection orders
into National Crime Information Center (NCIC), possibly because
entering these records into the system requires that they have
someone on staff 7 days a week to verify them. In many
counties, this information is entered by court personnel and
the staff are not available at all times. This legislation
provides grants to the courts to address this and other
problems with reporting dispositions to NICS.
The other problem with domestic violence reporting is that
domestic violence is defined differently by many States than it
is under the Brady Act. Many States do not label certain
convictions as domestic violence convictions and other States
have more expansive definitions of domestic violence than are
required under Brady Act. This creates problems with
computerizing and reporting and these records often require
followup phone calls. This legislation codifies the definition
of a ``misdemeanor crime of domestic violence.''
Hearings
No hearings were held on H.R. 4757.
Committee Consideration
On July 23, 2002, the Committee on the Judiciary met in
open session and ordered favorably reported the bill, H.R.
4757, with an amendment, by a recorded vote of 30 to 2, a
quorum being present.
Vote of the Committee
Final Passage. The motion to report favorably the bill H.R.
4757, was adopted. The motion to report was agreed to by a
rollcall vote of 30-2.
ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Gekas....................................................... X
Mr. Coble....................................................... X
Mr. Smith (Texas)............................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Chabot......................................................
Mr. Barr........................................................ X
Mr. Jenkins..................................................... X
Mr. Cannon...................................................... X
Mr. Graham...................................................... X
Mr. Bachus...................................................... X
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller...................................................... X
Mr. Issa........................................................ X
Ms. Hart........................................................ X
Mr. Flake....................................................... X
Mr. Pence.......................................................
Mr. Forbes...................................................... X
Mr. Conyers..................................................... X
Mr. Frank....................................................... X
Mr. Berman...................................................... X
Mr. Boucher.....................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Meehan...................................................... X
Mr. Delahunt....................................................
Mr. Wexler...................................................... X
Ms. Baldwin..................................................... X
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 30 2
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Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee reports that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
Performance Goals and Objectives
H.R. 4757, the ``Our Lady of Peace Act'' authorizes funding
in the amount of $375 million for each of FY 2003, 2004, and
2005. The legislation requires evaluation of the NICS system
and also a compilation of the best practices of States in
collection, maintenance and transmittal of criminal history
records.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of House rule XIII is inapplicable because
this legislation does not provide new budgetary authority or
increased tax expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.R. 4757, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, August 21, 2002.
Hon. F. James Sensenbrenner, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 4757, the Our Lady
of Peace Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mark
Grabowicz, who can be reached at 226-2860.
Sincerely,
Dan L. Crippen, Director.
Enclosure
cc:
Honorable John Conyers, Jr.
Ranking Member
H.R. 4757--Our Lady of Peace Act.
SUMMARY
H.R. 4757 would authorize the appropriation of $250 million
for each of the fiscal years 2004 through 2006 for the Attorney
General to make grants to States to improve criminal databases
used to determine individuals' eligibility to purchase
firearms. The bill also would authorize the appropriation of
$125 million annually over the 2004-2006 period for grants to
State courts to improve the automation and transmittal of
criminal records. In addition, H.R. 4757 would direct the
Attorney General to prepare several annual reports on the
progress of Federal and State agencies toward improving
criminal records.
Assuming appropriation of the authorized amounts, CBO
estimates that implementing H.R. 4757 would cost $957 million
over the 2003-2007 period. This legislation would not affect
direct spending or receipts, so pay-as-you-go procedures would
not apply.
H.R. 4757 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA)
and would benefit State and local governments.
ESTIMATED COST TO THE FEDERAL GOVERNMENT
For this estimate, CBO assumes that the amounts authorized
in H.R. 4757 will be appropriated by the start of each fiscal
year and that outlays will follow historical spending patterns
for similar grant programs. We estimate that the annual reports
required by the bill would cost less than $500,000 annually,
subject to the availability of appropriations. The estimated
budgetary impact of H.R. 4757 is shown in the following table.
The costs of this legislation fall within budget function 750
(administration of justice).
By Fiscal Year, in Millions of Dollars
------------------------------------------------------------------------
2003 2004 2005 2006 2007
------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Authorization Level 0 375 375 375 0
Estimated Outlays 0 83 225 356 293
------------------------------------------------------------------------
PAY-AS-YOU-GO CONSIDERATIONS:
None.
ESTIMATED IMPACT ON STATE, LOCAL, AND TRIBAL GOVERNMENTS
H.R. 4757 contains no intergovernmental mandates as defined
in the Unfunded Mandates Reform Act. The bill would benefit
State and local governments by establishing grant programs to
establish or upgrade information collection systems for
determining individuals' eligibility to purchase firearms and
to improve court procedures related to the disposition of
criminal history records and restraining orders. Any costs
incurred to receive or administer such grants would be
voluntary.
ESTIMATED IMPACT ON THE PRIVATE-SECTOR
H.R. 4757 contains no new private-sector mandates as
defined in UMRA.
ESTIMATE PREPARED BY:
Federal Costs: Mark Grabowicz (226-2860)
Impact on State, Local, and Tribal Governments: Angela Seitz
(225-3220)
Impact on the Private Sector: Paige Piper/Bach (226-2949)
ESTIMATE APPROVED BY:
Robert A. Sunshine
Assistant Director for Budget Analysis
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the Committee finds the authority for
this legislation in article I, section 8, clause 1 and 18 of
the Constitution.
Section-by-Section Analysis and Discussion
Section 1. Short Title.
This Act may be cited as the ``Our Lady of Peace Act.''
Section 2. Findings.
The legislation makes the following findings:
(1) L95 percent of background checks are completed
within 2 hours; 72 percent within several minutes,
while the remaining 5 percent are 20 times more likely
to uncover a prohibited buyer;
(2) LSince 1994, more than 689,000 individuals have
been denied a gun for failing a background check;
(3) LStates that fail to computerize their criminal and
mental illness records are the primary cause of delays
for background checks. Helping States automate their
records will reduce delays for law abiding gun owners.
(4) L25 States have automated less than 60 percent of
their felony criminal conviction records.
(5) L33 States do not automate or share disqualifying
mental health records.
(6) LIn 13 States, domestic violence restraining orders
are not automated or accessible by NICS.
(7) LIn 15 States, no domestic violence misdemeanor
records are automated or accessible by NICS.
Section 101. Enhancement of Requirement That Federal Departments and
Agencies Provide Relevant Information to the National Instant
Criminal Background Check System.
This section requires Federal agencies to transmit relevant
records related to persons disqualified under the 1968 Gun
Control Act to possess a firearm. Specifically, the
Commissioner of the INS shall make any relevant records
available to the Attorney General for inclusion in NICS.
Section 102. Transmittal of State Records to the National Instant
Criminal Background Check System.
This section requires the States to make all relevant
information available regarding persons who are disqualified
from possessing a firearm under Federal law. States who choose
to obtain grants under this program must certify that it has
provided at least 95 percent of the information regarding
disqualification in its possession.
This section also clarifies the meaning of the domestic
violence conviction disqualification in current law based on
the definition currently used by the NICS system and contained
in the Code of Federal Regulations.
Section 103. Transmittal of State Mental Health Records to the National
Instant Criminal Background Check System.
This section requires that States who participate in this
program provide relevant information regarding persons who have
been adjudicated as mental defective or committed to a mental
institution to the Attorney General for inclusion in NICS.
This section clarifies the definition of mental defective
and also clarifies that this section does not apply to persons
in a mental institution for observation or voluntarily
committed to a mental institution.
Nothing in this section or this act is intended to preempt
State medical privacy laws. The Attorney General is required to
work with the States, local law enforcement, and the mental
health community to ensure State privacy laws are protected and
specific protocols for protection of these rights are put in
place in transmitting this information.
Section 104. Incentive Grants for Compliance.
This section provides an additional incentive grant for
States who comply with the requirements and provide 95 percent
of the necessary information to the Attorney General for
inclusion in NICS.
Section 105. Implementation Grants to States.
This section provides for the distribution of grants to
States to allow them to implement the provisions of this
legislation. It also specifies the purposes that the States may
use grants for under this program. States must specify what
project grant funds are used for and how much will be used.
The legislation authorizes $250 million for grants for each
of FY 2003, 2004, and 2005. This section also specifies that
all background checks performed under the NICS system will be
considered law enforcement checks.
Section 201. Continuing Evaluations.
The Director of the Bureau of Justice Statistics is
authorized to conduct studies and evaluations of the operations
of NICS. Such studies and evaluations shall include
compilations and analyses of the operations and record systems
of participants in the NICS system. This section also requires
the Director to compile a report annually of the best practices
of the States regarding the collection, maintenance,
automation, and transmittal of Criminal History records to be
submitted to the Congress and provided to the States.
Section 301. Grants Authorized.
This section authorizes appropriations in the amount of
$125 million to establish a program to allow grants to State
courts to assess and improve handling of proceedings related to
criminal history dispositions and temporary restraining orders
as they relate to disqualification from firearms ownership
under State and Federal law for FY 2004, 2005, and 2006. The
grants would be provided to perform assessments of records
systems in place and provide funds to improve the automation
and transmission of such records.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (new matter is
printed in italics and existing law in which no change is
proposed is shown in roman):
SECTION 103 OF THE BRADY HANDGUN VIOLENCE PREVENTION ACT
SEC. 103. NATIONAL INSTANT CRIMINAL BACKGROUND CHECK SYSTEM.
(a) * * *
* * * * * * *
(e) Administrative Provisions.--
(1) Authority to obtain official information.--
Notwithstanding any other law, the Attorney General may
secure directly from any department or agency of the
United States such information on persons for whom
receipt of a firearm would violate subsection (g) or
(n) of section 922 of title 18, United States Code, or
State law, as is necessary to enable the system to
operate in accordance with this section. On request of
the Attorney General, the head of such department or
agency shall electronically furnish such information to
the system. The head of each department or agency shall
ascertain whether the department or agency has any
records relating to any person described in subsection
(g) or (n) of section 922 of title 18, United States
Code and on being made aware that the department or
agency has such a record, shall make the record
available to the Attorney General for inclusion in the
system to the extent the Attorney General deems
appropriate. The head of each department or agency, on
being made aware that the basis under which a record
was made available under this section does not apply or
no longer applies, shall transmit a certification
identifying the record (and any name or other relevant
identifying information) to the Attorney General for
removal from the system. The Attorney General shall
notify the Congress on an annual basis as to whether
the Attorney General has obtained from each such
department or agency the information requested by the
Attorney General under this subsection.
* * * * * * *
Markup Transcript
BUSINESS MEETING
TUESDAY, JULY 23, 2002
House of Representatives,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:00 a.m., in
Room 2141, Rayburn House Office Building, Hon. F. James
Sensenbrenner, Jr. [Chairman of the Committee] presiding.
* * * * * * *
Now, pursuant to notice, I call up the bill H.R. 4757, the
``Our Lady of Peace Act,'' for purposes of markup and move its
favorable recommendation to the House. Without objection, the
bill will be considered as read and open for amendment at any
point.
[The bill, H.R. 4757, follows:]
Chairman Sensenbrenner. And the Chair recognizes himself
for 5 minutes to explain the bill.
This bill was proposed by Representative McCarthy and
Representative Dingell, focusing on some legitimate failings in
our current National Instant Check System for gun purchases.
However, as originally drafted, the legislation's approach to
these issues created concerns regarding protections for
federalism and privacy. I have worked with both the authors to
put forth a substitute amendment which addresses these concerns
and which has broad bipartisan support.
The legislation makes certain findings regarding the
current NICS system and the failure of States to provide
current information regarding individuals who may be
disqualified from purchasing a firearm. The bill finds that
States are lacking in the following areas: Many have not
completely computerized their criminal records. Many do not
have a database for involuntary mental commitments. And in many
States, domestic violence crimes and protective orders are not
computerized.
These failings by the States to provide complete and
accurate information to allow for thorough background checks
under NICS has resulted in delays in processing background
checks for firearm purchases. Helping States to improve their
recordkeeping and to automate their systems will help reduce
delays for law-abiding gun purchasers.
Many States and county courthouses continue to resist
pressure to automate their records, either because it's a
difficult task or because it will require funds they do not
have. This legislation provides additional funds for the States
to update and improve their records.
The original legislation penalized the States for not
participating in the program. The substitute I am offering
today removes the penalties in favor of incentive grants.
Essentially, the substitute removes the stick in favor of a
carrot. States that chose to take advantage of the funds
offered to implement these changes will receive additional
funds to keep their records up-to-date.
The incentive grant allows the Attorney General to waive
all matching requirements for grants provided to a State under
the National Criminal History Improvement Program. If after 5
years the State has met the requirements of this legislation by
automating its systems to make records available for NICS
checks, it will receive additional funds in the form of a
waiver of the required State match for participation in NCHIP
for 5 years. This will allow a participant State to continue to
keep its own criminal history records up-to-date for other law
enforcement purposes.
The legislation provides funds to help the States ensure
that firearms do not fall into the wrong hands and has the
added bonus of helping States improve their criminal history
databases.
I urge all Members to support the substitute and to report
the bill favorably.
The Chair recognizes the gentleman from Michigan, Mr.
Conyers.
Mr. Conyers. Thank you, Mr. Chairman.
Members, a major problem with the instant check system has
been the incomplete records of State and local governments. Our
Federal law requires that a gun sale proceed after 3 business
days even if a background check is inconclusive. A number of
felons, fugitives, stalkers receive guns that we later have to
go back and retrieve, if we can.
Now, 95 percent of all background checks are completed
within 24 hours. Because of incomplete records, the remaining 5
percent take more time. Those 5 percent are 20 times more
likely to be the application by a felon, fugitive, or stalker.
I asked the GAO to study this, with particular reference to
domestic violence. And I learned that nearly 3,000 convicted
batterers, child abusers, were able to purchase firearms
between the years 1998 and 2001, notwithstanding Federal laws
designed to prevent this. Nearly 10 percent of the annual
homicides involved the killing of a spouse or partner, almost
all of the victims women and most were killed by a firearm.
Now, one obvious part of the solution is to allow more time
for background checks. But another part of the solution is this
bill. It will provide incentives for States to provide more
complete records to the Federal Government. This will result in
faster and smarter background checks.
My thanks to my colleague from New York, Ms. McCarthy, the
dean of the House, John Dingell, and others who have worked
with us on this bill. And I think their willingness to take
constructive suggestions have made this a better piece of
legislation, which I recommend to the Committee.
Thank you.
Chairman Sensenbrenner. The gentleman yields back the
balance of his time.
Are there any amendments?
The Chair has an amendment in the nature of a substitute.
The clerk will report the amendment.
The Clerk. Amendment in the nature of a substitute to H.R.
4757, offered by Mr. Sensenbrenner. Strike all after the
enacting clause and insert the following: Section 1, short
title. This act may be cited----
Chairman Sensenbrenner. Without objection, the amendment in
the nature of a substitute is considered as read.
[The amendment follows:]
Chairman Sensenbrenner. The Chair will recognize himself
for a brief 5 minutes.
I discussed most of the features of the amendment in the
nature of a substitute during the course of my opening
statement. Let me state that the major change is that it turns
the penalty into an incentive grant to have States bring their
criminal justice records up-to-date and compatible with NICS
checks. It also addresses some concerns from immigration groups
relative to visa information being stored in the records and
contains some provisions that mental health advocacy groups
were concerned about relative to the privacy of involuntary
commitment records.
I believe that this has bipartisan support. It makes a good
bill better, and I would hope that it is adopted. And I yield
to the gentleman from Michigan.
Mr. Conyers. Thank you. I merely wanted to concur with the
improvements that have been brought to the bill by your
substitute. Thank you.
Mr. Scott. Mr. Chairman?
Chairman Sensenbrenner. The Chair yields back the balance
of his time.
The gentleman from Virginia, Mr. Scott.
Mr. Scott. Move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Scott. Mr. Chairman, we have a dual goal in dealing
with this issue. One is to provide security, national security,
by identifying those who are disqualified from buying firearms.
We want to do that with providing as little aggravation to
those can lawfully purchase firearms. This bill and the
substitute make sure that those disqualified are in fact
identified and disqualified.
It has the added advantage of reducing the aggravation to
those who can legally purchase firearms. That's why those on
both sides of the gun issue support the legislation. It does
this by helping States give the Federal Government information
so that they can comply with the law. The information collected
is information by law that is supposed to be collected already.
I want to thank the sponsors of the bill and, Mr. Chairman,
your work in meticulously balancing the legislation so it
tracks present law without igniting new debates on gun control.
By passing this bill and the substitute, we can increase
security and reduce aggravation. I hope that we would support
the substitute and the bill.
I yield back.
Mr. Hostettler. Mr. Chairman?
Chairman Sensenbrenner. For what purpose does the gentleman
from Indiana seek recognition?
Mr. Hostettler. Mr. Chairman, I move to strike the last
word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Hostettler. Mr. Chairman, I appreciate the opportunity
and want to speak on the bill overall and the amendment in the
nature of a substitute.
In the findings of the bill, we see that--are stated, since
1994, more than 689,000 individuals have been denied a gun for
failing a background check. And we are to believe, which we
can't, that there have been 689,000 arrests with a significant
portion of that being followed by indictments or convictions.
The reason being is that, in order to get to a period of a
purchase of a gun, to go through the instacheck system, you
have to have already filled out a form. In that form that has
been present for decades, certain information is requested of
the potential purchaser, such as a criminal history, history of
mental illness, history of domestic violence, and the like.
If they answer affirmatively to any of those questions,
then there's no need to do an instacheck system. They fail the
process, and they are denied the purchase of a gun.
However, if they falsely fill out that form, they then are
subject to the NICS check, and then it is found out from some
that they in fact have lied on the form.
Well, they have committed a Federal offense by falsely
filling out that form. So the system is not working as such,
because we haven't seen that.
It is working to deny, however, hundreds of law-abiding
citizens in my District the ability to purchase a gun. For
example, they may have the same name as an individual who has
been convicted of a crime. They may have a last name or first
name that is similar to the name of an individual who has been
convicted of a crime or a domestic violence offense. And so the
name has been incorrectly put into the database. And so they
are denied the purchase of a gun.
And in fact, in the findings, we don't know how many of the
689,000 individuals are actually criminals and how many are
actually law-abiding citizens that have been denied purchase of
a gun.
It's been long known that gun control laws don't work,
because criminals don't follow them. That's why we generally
call them criminals.
And it's also been suggested that violent crime is down
because of gun control laws like the Brady Act or the so-called
assault weapon ban. But in fact, studies have proven that
violent crime is down not because some criminals have become
more selective in their adherence to certain laws, but because
violent criminals are remaining in prison longer and,
therefore, not able to repeat.
And, Mr. Chairman, I heard that there has been a
coalition--we heard it already this morning--that has been
created in support of this bill. While I have received a letter
from a group that refers to itself as Americans for Gun Safety,
founded by a former board member of Handgun Control, Inc.--he
realized that the gun control issue was not working for them
politically, so they decided to change their name and keep the
same players. They're called Americans for Gun Safety, in
support of this bill.
Mr. Chairman, do you know if there is any group that
generally opposes such gun control provisions as this who are
part of the coalition who support this bill?
Chairman Sensenbrenner. If the gentleman will yield, I have
in my hand a letter from the National Rifle Association
supporting the legislation----
Mr. Hostettler. I thank the gentleman.
Chairman Sensenbrenner.--for which I ask unanimous consent
to be inserted in the record. And without objection, it will be
inserted in the record.
[The material referred to follows:]
Mr. Hostettler. I thank the gentleman.
And seeing that the National Rifle Association and former
board members of Handgun Control, Inc. are now supporting the
legislation, I appreciate the information and yield back the
balance of my time.
Mr. Conyers. Would the gentleman yield?
Mr. Hostettler. Yes, I will yield.
Mr. Conyers. I thank the gentleman.
You know, this is another example of the NRA going soft. I
mean, for goodness' sake, what are these guys out here for? I
mean, here you and the gentleman from Georgia have bills
repealing every known gun law, and where are they on this kind
of situation, where you're standing up for your constituents
who have been denied the right to a gun for 1 or 2 days?
Mr. Hostettler. No, sir. Not only do I not have bills
pending that would, in your words, repeal all known gun control
laws, but they have been denied for more. They have simply
walked out on the purchase of a gun. The gentleman doesn't know
what the circumstances under which I'm talking, and I do.
And the simple fact of the matter is that they have been
denied, and they don't purchase the gun.
Chairman Sensenbrenner. The gentleman's time has expired.
Mr. Cannon. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from Utah, Mr.
Cannon.
Mr. Cannon. Thank you, Mr. Chairman. I move to strike the
last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Cannon. Mr. Chairman, I think we generally agree that
keeping better and more accessible records of those
disqualified by current law from owing a firearm is a good
thing. But I've long been concerned about the Department of
Justice and other agencies keeping records of law-abiding
Americans who pass such background checks even after they have
been approved.
In the new era of homeland security and consolidation of
information, we all ought to be concerned about this issue,
whatever one's view of gun control and second amendment rights
might be.
I had planned to introduce language that previously passed
this Committee in other legislation as an amendment today.
Instead, I would just like to ask you, Mr. Chairman, to work
with me on report language clarifying that this bill and the
National Instant Check System generally does not encourage or
give license to collection, centralization, and retention of
information by the Federal Government on law-abiding citizens
who are not disqualified from owning a firearm.
Chairman Sensenbrenner. Does the gentleman yield?
Mr. Cannon. Certainly.
Chairman Sensenbrenner. Title II of the Brady law, which
established the NICS system, requires the destruction of
records as soon as practicable after the background check has
taken place, thus preventing the NICS system from becoming a
backdoor gun registration law.
This bill does not change that provision of the Brady law.
Mr. Cannon. Thank you, Mr. Chairman. I would just point out
that in testimony we have heard in this Committee, records are
being kept a great deal longer, I think, and I think most
Americans would think, are practicable.
Chairman Sensenbrenner. If the gentleman will yield?
Mr. Cannon. Yes.
Chairman Sensenbrenner. The Attorney General issued
regulations speeding up the destruction of those records, for
which he was criticized in some quarters.
Again, this legislation does not speak to the underlying
law and the regulations relative to the destruction of records.
Mr. Cannon. Thank you, Mr. Chairman.
Also, there's another pressing issue of inaccurate records
that Members should be aware of. These are the records held by
the ATF on specialty firearms. Yesterday, Representative Jim
Gibbons and I introduced legislation, the Veterans' Heritage
Firearms Act, to remedy part of this problem by allowing a re-
registration period of these weapons for qualified veterans and
their family members.
Many existing specialty firearms were enemy weapons brought
back from World War II, Korea, and Vietnam by returning
veterans. And these weapons brought back before 1968 have a
high monetary and historic value, but are subject to
confiscation and destruction by the ATF, usually because of
errors and inaccuracies in the ATF's own database, as
documented by the inspector general.
I just wanted to take this opportunity to make Members of
the Committee aware of these two other important issues of our
work together today to improve recordkeeping and keep guns out
of the hands of dangerous criminals and those who are otherwise
incompetent.
I thank the Chairman for his indulgence, and I yield back
the balance of my time.
Chairman Sensenbrenner. The question is one the----
Ms. Jackson Lee. Mr. Chairman? Mr. Chairman?
Chairman Sensenbrenner. The gentlewoman from Texas, Ms.
Jackson Lee.
Ms. Jackson Lee. Thank you very much, Mr. Chairman.
I just want to acknowledge that this legislation will help
to aid in the prevention of gun use as it relates to those with
mental illness, as noted by an act that this church was named
after. A disturbed gunman under a restraining order with a
history of mental health problems, which went unaccounted
during a background check, fatally shot Reverend Larry Penzes
and Eileen Tosner during mass. And I believe this legislation,
as it now changes and comports with the law, will help us save
lives.
And I yield back my time.
[The prepared statement of Ms. Jackson Lee follows:]
Chairman Sensenbrenner. The question is on the amendment in
the nature of a substitute.
Those in favor will say aye.
Opposed, no.
The ayes appear to have it. The ayes have it, and the
amendment in the nature of a substitute is agreed upon. A
reporting quorum is present.
The question now occurs on the motion to report the bill
H.R. 4757 favorably as amended.
Those in favor will say aye.
Opposed, no.
The ayes appear to have it. The ayes have it, and Chair
will call for a rollcall.
The question is on favorably reporting the bill.
Those in favor will, as your names are called, answer aye.
Those opposed, no.
And the clerk will call the roll.
The Clerk. Mr. Hyde?
[No response.]
The Clerk. Mr. Gekas?
Mr. Gekas. Aye.
The Clerk. Mr. Gekas, aye. Mr. Coble?
Mr. Coble. Aye.
The Clerk. Mr. Coble, aye. Mr. Smith?
Mr. Smith. Aye.
The Clerk. Mr. Smith, aye. Mr. Gallegly?
[No response.]
The Clerk. Mr. Goodlatte?
[No response.]
The Clerk. Mr. Chabot?
[No response.]
The Clerk. Mr. Barr?
Mr. Barr. Aye.
The Clerk. Mr. Barr, aye. Mr. Jenkins?
Mr. Jenkins. No.
The Clerk. Mr. Jenkins, no. Mr. Cannon?
Mr. Cannon. Aye.
The Clerk. Mr. Cannon, aye. Mr. Graham?
[No response.]
The Clerk. Mr. Bachus? Mr. Bachus?
[No response.]
The Clerk. Mr. Hostettler?
Mr. Hostettler. No.
The Clerk. Mr. Hostettler, no. Mr. Green?
Mr. Green. Aye.
The Clerk. Mr. Green, aye. Mr. Keller?
Mr. Keller. Aye.
The Clerk. Mr. Keller, aye. Mr. Issa?
[No response.]
The Clerk. Ms. Hart?
Ms. Hart. Aye.
The Clerk. Ms. Hart, aye. Mr. Flake?
Mr. Flake. Aye.
The Clerk. Mr. Flake, aye. Mr. Pence?
[No response.]
The Clerk. Mr. Forbes?
Mr. Forbes. Aye.
The Clerk. Mr. Forbes, aye. Mr. Conyers?
Mr. Conyers. Aye.
The Clerk. Mr. Conyers, aye. Mr. Frank?
Mr. Frank. Aye.
The Clerk. Mr. Frank, aye. Mr. Berman?
Mr. Berman. Aye.
The Clerk. Mr. Berman, aye. Mr. Boucher?
[No response.]
The Clerk. Mr. Nadler?
Mr. Nadler. Aye.
The Clerk. Mr. Nadler, aye. Mr. Scott?
Mr. Scott. Aye.
The Clerk. Mr. Scott, aye. Mr. Watt?
Mr. Watt. Aye.
The Clerk. Mr. Watt, aye. Ms. Lofgren?
Ms. Lofgren. Aye.
The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?
Ms. Jackson Lee. Aye.
The Clerk. Ms. Jackson Lee, aye. Ms. Waters?
Ms. Waters. Aye.
The Clerk. Ms. Waters, aye. Mr. Meehan?
[No response.]
The Clerk. Mr. Delahunt?
[No response.]
The Clerk. Mr. Wexler?
Mr. Wexler. Aye.
The Clerk. Mr. Wexler, aye. Ms. Baldwin?
Ms. Baldwin. Aye.
The Clerk. Ms. Baldwin, aye. Mr. Weiner?
Mr. Weiner. Aye.
The Clerk. Mr. Weiner, aye. Mr. Schiff?
Mr. Schiff. Aye.
The Clerk. Mr. Schiff, aye. Mr. Chairman?
Chairman Sensenbrenner. Aye.
The Clerk. Mr. Chairman, aye.
Chairman Sensenbrenner. Additional Members in the chamber
who wish to cast or change their vote?
The gentleman from Alabama, Mr. Bachus.
Mr. Bachus. Aye.
The Clerk. Mr. Bachus, aye.
Chairman Sensenbrenner. The gentleman from California, Mr.
Issa.
Mr. Issa. Aye.
The Clerk. Mr. Issa, aye.
Chairman Sensenbrenner. The gentleman from South Carolina,
Mr. Graham.
Mr. Graham. Aye.
The Clerk. Mr. Graham, aye.
Chairman Sensenbrenner. The gentleman from Virginia, Mr.
Goodlatte.
Mr. Goodlatte. Aye.
The Clerk. Mr. Goodlatte, aye.
Chairman Sensenbrenner. The gentleman from California, Mr.
Gallegly.
Mr. Gallegly. Aye.
The Clerk. Mr. Gallegly, aye.
Chairman Sensenbrenner. Additional Members in the chamber
who wish to cast or change their votes?
If not, the clerk will report.
The gentleman from Massachusetts, Mr. Meehan.
Mr. Meehan. Aye.
The Clerk. Mr. Meehan, aye.
Chairman Sensenbrenner. The clerk will report.
The Clerk. Mr. Chairman, there are 30 ayes and two nays.
Chairman Sensenbrenner. And the motion to report favorably
is agreed to.
Without objection, the bill will be reported favorably to
the House in the form of a single amendment in the nature of a
substitute, incorporating the amendment adopted here today.
Without objection, the Chairman is authorized to move to go to
conference pursuant to House rules. Without objection, the
staff is directed to make any technical and conforming changes.
And all Members will be given 2 days, as provided by the rules,
in which to submit additional, dissenting, supplemental, or
minority views.