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§ 40901. Establishment

Version history — every release point where this text changed

Release point 115-185 · current through 06/18/2018

115-196 is not ingested; this is Title 34 as published at 115-185 (2018-06-18), which is the latest release point at or before it that carries this title.

§ 40901.

Establishment

(a)

Determination of timetables

Not later than 6 months after

November 30, 1993
, the Attorney General shall—

(1)

determine the type of computer hardware and software that will be used to operate the national instant criminal background check system and the means by which State criminal records systems and the telephone or electronic device of licensees will communicate with the national system;

(2)

investigate the criminal records system of each State and determine for each State a timetable by which the State should be able to provide criminal records on an on-line capacity basis to the national system; and

(3)

notify each State of the determinations made pursuant to paragraphs (1) and (2).

(b)

Establishment of system

Not later than 60 months after
November 30, 1993
, the Attorney General shall establish a national instant criminal background check system that any licensee may contact, by telephone or by other electronic means in addition to the telephone, for information, to be supplied immediately, on whether receipt of a firearm by a prospective transferee would violate section 922 of title 18 or State law.

(c)

Expedited action by the Attorney General

The Attorney General shall expedite—

(1)

the upgrading and indexing of State criminal history records in the Federal criminal records system maintained by the Federal Bureau of Investigation;

(2)

the development of hardware and software systems to link State criminal history check systems into the national instant criminal background check system established by the Attorney General pursuant to this section; and

(3)

the current revitalization initiatives by the Federal Bureau of Investigation for technologically advanced fingerprint and criminal records identification.

(d)

Notification of licensees

On establishment of the system under this section, the Attorney General shall notify each licensee and the chief law enforcement officer of each State of the existence and purpose of the system and the means to be used to contact the system.

(e)

Administrative provisions

(1)

Authority to obtain official information

(A)
In general

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 or State law, as is necessary to enable the system to operate in accordance with this section.

(B)
Request of attorney general

On request of the Attorney General, the head of such department or agency shall furnish electronic versions of the information described under subparagraph (A) to the system.

(C)
Quarterly submission to Attorney General

If a Federal 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, 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 Federal department or 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; and

(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.

The Attorney General upon receiving notice pursuant to clause (ii) shall ensure that the record in the National Instant Criminal Background Check System is updated, corrected, modified, or removed within 30 days of receipt.

(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.

(F)
Semiannual certification and reporting
(i)
In general

The head of each Federal department or agency shall submit a semiannual written certification to the Attorney General indicating whether the department or agency is in compliance with the record submission requirements under subparagraph (C).

(ii)
Submission dates

The head of a Federal department or agency shall submit a certification to the Attorney General under clause (i)—

(I)

not later than July 31 of each year, which shall address all relevant records, including those that have not been transmitted to the Attorney General, in possession of the department or agency during the period beginning on January 1 of the year and ending on June 30 of the year; and

(II)

not later than January 31 of each year, which shall address all relevant records, including those that have not been transmitted to the Attorney General, in possession of the department or agency during the period beginning on July 1 of the previous year and ending on December 31 of the previous year.

(iii)
Contents

A certification required under clause (i) shall state, for the applicable period—

(I)

the total number of records of the Federal department or agency demonstrating that a person falls within one of the categories described in subsection (g) or (n) of section 922 of title 18;

(II)

for each category of records described in subclause (I), the total number of records of the Federal department or agency that have been provided to the Attorney General; and

(III)

the efforts of the Federal department or agency to ensure complete and accurate reporting of relevant records, including efforts to monitor compliance and correct any reporting failures or inaccuracies.

(G)
Implementation plan
(i)
In general

Not later than 1 year after
March 23, 2018
, the head of each Federal department or agency, in coordination with the Attorney General, shall establish a plan to ensure maximum coordination and automated reporting or making available of records to the Attorney General as required under subparagraph (C), and the verification of the accuracy of those records, including the pre-validation of those records, where appropriate, during a 4-year period specified in the plan. The records shall be limited to those of an individual described in subsection (g) or (n) of section 922 of title 18.

(ii)
Benchmark requirements

Each plan established under clause (i) shall include annual benchmarks to enable the Attorney General to assess implementation of the plan, including—

(I)

qualitative goals and quantitative measures;

(II)

measures to monitor internal compliance, including any reporting failures and inaccuracies;

(III)

a needs assessment, including estimated compliance costs; and

(IV)

an estimated date by which the Federal department or agency will fully comply with record submission requirements under subparagraph (C).

(iii)
Compliance determination

Not later than the end of each fiscal year beginning after the date of the establishment of a plan under clause (i), the Attorney General shall determine whether the applicable Federal department or agency has achieved substantial compliance with the benchmarks included in the plan.

(H)
Accountability

The Attorney General shall publish, including on the website of the Department of Justice, and submit to the Committee on the Judiciary and the Committee on Appropriations of the Senate and the Committee on the Judiciary and the Committee on Appropriations of the House of Representatives a semiannual report that discloses—

(i)

the name of each Federal department or agency that has failed to submit a required certification under subparagraph (F);

(ii)

the name of each Federal department or agency that has submitted a required certification under subparagraph (F), but failed to certify compliance with the record submission requirements under subparagraph (C);

(iii)

the name of each Federal department or agency that has failed to submit an implementation plan under subparagraph (G);

(iv)

the name of each Federal department or agency that is not in substantial compliance with an implementation plan under subparagraph (G);

(v)

a detailed summary of the data, broken down by department or agency, contained in the certifications submitted under subparagraph (F);

(vi)

a detailed summary of the contents and status, broken down by department or agency, of the implementation plans established under subparagraph (G); and

(vii)

the reasons for which the Attorney General has determined that a Federal department or agency is not in substantial compliance with an implementation plan established under subparagraph (G).

(I)
Noncompliance penalties

For each of fiscal years 2019 through 2022, each political appointee of a Federal department or agency that has failed to certify compliance with the record submission requirements under subparagraph (C), and is not in substantial compliance with an implementation plan established under subparagraph (G), shall not be eligible for the receipt of bonus pay, excluding overtime pay, until the department or agency—

(i)

certifies compliance with the record submission requirements under subparagraph (C); or

(ii)

achieves substantial compliance with an implementation plan established under subparagraph (G).

(J)
Technical assistance

The Attorney General may use funds made available for the national instant criminal background check system established under subsection (b) to provide technical assistance to a Federal department or agency, at the request of the department or agency, in order to help the department or agency comply with the record submission requirements under subparagraph (C).

(K)
Application to Federal courts

For purposes of this paragraph—

(i)

the terms “department or agency of the United States” and “Federal department or agency” include a Federal court; and

(ii)

the Director of the Administrative Office of the United States Courts shall perform, for a Federal court, the functions assigned to the head of a department or agency.

(2)

Other authority

The Attorney General shall develop such computer software, design and obtain such telecommunications and computer hardware, and employ such personnel, as are necessary to establish and operate the system in accordance with this section.

(f)

Written reasons provided on request

If the national instant criminal background check system determines that an individual is ineligible to receive a firearm and the individual requests the system to provide the reasons for the determination, the system shall provide such reasons to the individual, in writing, within 5 business days after the date of the request.

(g)

Correction of erroneous system information

If the system established under this section informs an individual contacting the system that receipt of a firearm by a prospective transferee would violate subsection (g) or (n) of section 922 of title 18 or State law, the prospective transferee may request the Attorney General to provide the prospective transferee with the reasons therefor. Upon receipt of such a request, the Attorney General shall immediately comply with the request. The prospective transferee may submit to the Attorney General information to correct, clarify, or supplement records of the system with respect to the prospective transferee. After receipt of such information, the Attorney General shall immediately consider the information, investigate the matter further, and correct all erroneous Federal records relating to the prospective transferee and give notice of the error to any Federal department or agency or any State that was the source of such erroneous records. For purposes of the preceding sentence, not later than 60 days after the date on which the Attorney General receives such information, the Attorney General shall determine whether or not the prospective transferee is the subject of an erroneous record and remove any records that are determined to be erroneous. In addition to any funds made available under subsection (k), the Attorney General may use such sums as are necessary and otherwise available for the salaries and expenses of the Federal Bureau of Investigation to comply with this subsection.

(h)

Regulations

After 90 days’ notice to the public and an opportunity for hearing by interested parties, the Attorney General shall prescribe regulations to ensure the privacy and security of the information of the system established under this section.

(i)

Prohibition relating To establishment of registration systems with respect to firearms

No department, agency, officer, or employee of the United States may—

(1)

require that any record or portion thereof generated by the system established under this section be recorded at or transferred to a facility owned, managed, or controlled by the United States or any State or political subdivision thereof; or

(2)

use the system established under this section to establish any system for the registration of firearms, firearm owners, or firearm transactions or dispositions, except with respect to persons, prohibited by section 922(g) or (n) of title 18 or State law, from receiving a firearm.

(j)

Definitions

As used in this section:

(1)

Licensee

The term “licensee” means a licensed importer (as defined in section 921(a)(9) of title 18), a licensed manufacturer (as defined in section 921(a)(10) of that title), or a licensed dealer (as defined in section 921(a)(11) of that title).

(2)

Other terms

The terms “firearm”, “handgun”, “licensed importer”, “licensed manufacturer”, and “licensed dealer” have the meanings stated in section 921(a) of title 18, as amended by subsection (a)(2).

(k)

Authorization of appropriations

There are authorized to be appropriated such sums as are necessary to enable the Attorney General to carry out this section.

Source(Pub. L. 103–159, title I, § 103,
Nov. 30, 1993
, 107 Stat. 1541; Pub. L. 103–322, title XXI, § 210603(b),
Sept. 13, 1994
, 108 Stat. 2074; Pub. L. 104–294, title VI, § 603(h), (i)(1),
Oct. 11, 1996
, 110 Stat. 3504; Pub. L. 110–180, title I, § 101(a),
Jan. 8, 2008
, 121 Stat. 2561; Pub. L. 115–141, div. S, title VI, § 602,
Mar. 23, 2018
, 132 Stat. 1132.)
Notes

Codification

Section was enacted as part of the Brady Handgun Violence Prevention Act, and not as part of the NICS Improvement Amendments Act of 2007 which comprises this chapter.
Section was formerly classified as a note under section 922 of Title 18, Crimes and Criminal Procedure, prior to editorial reclassification and renumbering as this section.

Amendments

2018—Subsec. (e)(1)(F) to (K). Pub. L. 115–141, § 602(1), added subpars. (F) to (K).
Subsec. (g). Pub. L. 115–141, § 602(2), inserted at end “For purposes of the preceding sentence, not later than 60 days after the date on which the Attorney General receives such information, the Attorney General shall determine whether or not the prospective transferee is the subject of an erroneous record and remove any records that are determined to be erroneous. In addition to any funds made available under subsection (k), the Attorney General may use such sums as are necessary and otherwise available for the salaries and expenses of the Federal Bureau of Investigation to comply with this subsection.”
2008—Subsec. (e)(1). Pub. L. 110–180 designated first and second sentences as subpars. (A) and (B), respectively, inserted subpar. headings, substituted “furnish electronic versions of the information described under subparagraph (A)” for “furnish such information” in subpar. (B), and added subpar. (C).
1996—Subsecs. (e)(1), (g). Pub. L. 104–294, § 603(h), made technical amendment to reference in original act which appears in text as reference to subsection (g) or (n) of section 922 of title 18.
Subsec. (i)(2). Pub. L. 104–294, § 603(h), made technical amendment to reference in original act which appears in text as reference to section 922(g) or (n) of title 18.
Subsec. (k). Pub. L. 104–294, § 603(i)(1), amended directory language of Pub. L. 103–322, § 210603(b). See 1994 Amendment note below.
1994—Subsec. (k). Pub. L. 103–322, § 210603(b), as amended by Pub. L. 104–294, § 603(i)(1), struck out “, which may be appropriated from the Violent Crime Reduction Trust Fund established by section 1115 of title 31” after “authorized to be appropriated”.

Effective Date of 1996 Amendment

Amendment by section 603(i)(1) of Pub. L. 104–294 effective as if the amendment had been included in section 210603(b) of Pub. L. 103–322 on
Sept. 13, 1994
, see section 603(i)(2) of Pub. L. 104–294, set out as a note under section 40302 of this title.

Destruction of Identifying Information for Persons Not Prohibited From Possessing or Receiving Firearms

Pub. L. 112–55, div. B, title V, § 511,
Nov. 18, 2011
, 125 Stat. 632, provided that:
“Hereafter, none of the funds appropriated pursuant to this Act [div. B of Pub. L. 112–55, see Tables for classification] or any other provision of law may be used for—
“(1)

the implementation of any tax or fee in connection with the implementation of subsection [sic] 922(t) of title 18, United States Code; and

“(2)

any system to implement subsection [sic] 922(t) of title 18, United States Code, that does not require and result in the destruction of any identifying information submitted by or on behalf of any person who has been determined not to be prohibited from possessing or receiving a firearm no more than 24 hours after the system advises a Federal firearms licensee that possession or receipt of a firearm by the prospective transferee would not violate subsection (g) or (n) of section 922 of title 18, United States Code, or State law.”

Similar provisions were contained in the following prior appropriation acts:
Pub. L. 106–58, title VI, § 634,
Sept. 29, 1999
, 113 Stat. 473.
Pub. L. 105–277, div. A, § 101(h) [title VI, § 655],
Oct. 21, 1998
, 112 Stat. 2681–480, 2681–530.

Identification of Felons and Other Persons Ineligible To Purchase Handguns

Pub. L. 100–690, title VI, § 6213,
Nov. 18, 1988
, 102 Stat. 4360, provided that:
“(a)

Identification of Felons Ineligible To Purchase Handguns.—

The Attorney General shall develop a system for immediate and accurate identification of felons who attempt to purchase 1 or more firearms but are ineligible to purchase firearms by reason of section 922(g)(1) of title 18, United States Code. The system shall be accessible to dealers but only for the purpose of determining whether a potential purchaser is a convicted felon. The Attorney General shall establish a plan (including a cost analysis of the proposed system) for implementation of the system. In developing the system, the Attorney General shall consult with the Secretary of the Treasury, other Federal, State, and local law enforcement officials with expertise in the area, and other experts. The Attorney General shall begin implementation of the system 30 days after the report to the Congress as provided in subsection (b).

“(b)

Report to Congress.—

Not later than 1 year after the date of the enactment of this Act [

Nov. 18, 1988
], the Attorney General shall report to the Congress a description of the system referred to in subsection (a) and a plan (including a cost analysis of the proposed system) for implementation of the system. Such report may include, if appropriate, recommendations for modifications of the system and legislation necessary in order to fully implement such system.

“(c)

Additional Study of Other Persons Ineligible To Purchase Firearms.—

The Attorney General in consultation with the Secretary of the Treasury shall conduct a study to determine if an effective method for immediate and accurate identification of other persons who attempt to purchase 1 or more firearms but are ineligible to purchase firearms by reason of section 922(g) of title 18, United States Code. In conducting the study, the Attorney General shall consult with the Secretary of the Treasury, other Federal, State, and local law enforcement officials with expertise in the area, and other experts. Such study shall be completed within 18 months after the date of the enactment of this Act [

Nov. 18, 1988
] and shall be submitted to the Congress and made available to the public. Such study may include, if appropriate, recommendations for legislation.

“(d)

Definitions.—

As used in this section, the terms ‘firearm’ and ‘dealer’ shall have the meanings given such terms in section 921(a) of title 18, United States Code.”

Tracing of Firearms in Connection With Criminal Investigations

Memorandum of President of the United States,
Jan. 16, 2013
, 78 F.R. 4301, provided:
Memorandum for the Heads of Executive Departments and Agencies
Reducing violent crime, and gun-related crime in particular, is a top priority of my Administration. A key component of this effort is ensuring that law enforcement agencies at all levels—Federal, State, and local—utilize those tools that have proven most effective. One such tool is firearms tracing, which significantly assists law enforcement in reconstructing the transfer and movement of seized or recovered firearms. Responsibility for conducting firearms tracing rests with the Department of Justice’s Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). Over the years, firearms tracing has significantly assisted law enforcement in solving violent crimes and generating thousands of leads that may otherwise not have been available.
Firearms tracing provides two principal benefits. First, tracing is an important investigative tool in individual cases, providing law enforcement agents with critical information that may lead to the apprehension of suspects, the recovery of other guns used in the commission of crimes, and the identification of potential witnesses, among other things. Second, analysis of tracing data in the aggregate provides valuable intelligence about local, regional, and national patterns relating to the movement and sources of guns used in the commission of crimes, which is useful for the effective deployment of law enforcement resources and development of enforcement strategies. Firearms tracing is a particularly valuable tool in detecting and investigating firearms trafficking, and has been deployed to help combat the pernicious problem of firearms trafficking across the Southwest border.
The effectiveness of firearms tracing as a law enforcement intelligence tool depends on the quantity and quality of information and trace requests submitted to ATF. In fiscal year 2012, ATF processed approximately 345,000 crime-gun trace requests for thousands of domestic and international law enforcement agencies. The Federal Government can encourage State and local law enforcement agencies to take advantage of the benefits of tracing all recovered firearms, but Federal law enforcement agencies should have an obligation to do so. If Federal law enforcement agencies do not conscientiously trace every firearm taken into custody, they may not only be depriving themselves of critical information in specific cases, but may also be depriving all Federal, State, and local agencies of the value of complete information for aggregate analyses.
Maximizing the effectiveness of firearms tracing, and the corresponding impact on combating violent crimes involving firearms, requires that Federal law enforcement agencies trace all recovered firearms taken into Federal custody in a timely and efficient manner.
Therefore, by the authority vested in me as President by the Constitution and the laws of the United States of America, I hereby direct the following:
Section 1. Firearms Tracing. (a) Federal law enforcement agencies shall ensure that all firearms recovered after the date of this memorandum in the course of criminal investigations and taken into Federal custody are traced through ATF at the earliest time practicable. Federal law enforcement agencies, as well as other executive departments and agencies, are encouraged, to the extent practicable, to take steps to ensure that firearms recovered prior to the date of this memorandum in the course of criminal investigations and taken into Federal custody are traced through ATF.
(b) Within 30 days of the date of this memorandum, ATF will issue guidance to Federal law enforcement agencies on submitting firearms trace requests.
(c) Within 60 days of the date of this memorandum, Federal law enforcement agencies shall ensure that their operational protocols reflect the requirement to trace recovered firearms through ATF.
(d) Within 90 days of the date of this memorandum, each Federal law enforcement agency shall submit a report to the Attorney General affirming that its operational protocols reflect the requirements set forth in this memorandum.
(e) For purposes of this memorandum, “Federal law enforcement agencies” means the Departments of State, the Treasury, Defense, Justice, the Interior, Agriculture, Energy, Veterans Affairs, and Homeland Security, and such other agencies and offices that regularly recover firearms in the course of their criminal investigations as the President may designate.
Sec. 2. General Provisions. (a) Nothing in this memorandum shall be construed to impair or otherwise affect the authority granted by law to a department or agency, or the head thereof.
(b) This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
Sec. 3. Publication. The Attorney General is authorized and directed to publish this memorandum in the Federal Register.
Barack Obama.

Promoting Smart Gun Technology

Memorandum of President of the United States,
Jan. 4, 2016
, 81 F.R. 719, provided:
Memorandum for the Secretary of Defense[,] the Attorney General[, and] the Secretary of Homeland Security
For more than 20 years, the Federal Government has worked to keep guns out of the wrong hands through background checks. This critical effort in addressing gun violence has prevented more than two million prohibited firearms purchases from being completed. But tens of thousands of people are still injured or killed by firearms every year—in many cases by guns that were sold legally but then stolen, misused, or discharged accidentally. Developing and promoting technology that would help prevent these tragedies is an urgent priority.
In 2013, I directed the Department of Justice to review the availability and most effective use of new gun safety technologies, such as devices requiring a scan of the owner’s fingerprint before a gun can fire. In its report, the Department made clear that technological advancements in this area could help reduce accidental deaths and the use of stolen guns in criminal activities.
Millions of dollars have already been invested to support research into a broad range of concepts for improving gun safety. We must all do our part to continue to advance this research and encourage its practical application, and it is possible to do so in a way that makes the public safer and is consistent with the Second Amendment. The Federal Government has a unique opportunity to do so, as it is the single largest purchaser of firearms in the country. Therefore, by the authority vested in me as President by the Constitution and the laws of the United States of America, I hereby direct the following:
Section 1. Research and Development. The Department of Defense, the Department of Justice, and the Department of Homeland Security (departments) shall, to the extent practicable and permitted by law, conduct or sponsor research into gun safety technology that would reduce the frequency of accidental discharge or unauthorized use of firearms, and improve the tracing of lost or stolen guns. Not later than 90 days after the date of this memorandum, the Secretary of Defense, the Attorney General, and the Secretary of Homeland Security shall prepare jointly a report outlining a research and development strategy designed to expedite the real-world deployment of such technology for use in practice.
Sec. 2. Department Consideration of New Technology. The departments shall, to the extent permitted by law, regularly (a) review the availability of the technology described in section 1, and (b) explore potential ways to further its use and development to more broadly improve gun safety. In connection with these efforts, the departments shall consult with other agencies that acquire firearms and take appropriate steps to consider whether including such technology in specifications for acquisition of firearms would be consistent with operational needs.
Sec. 3. General Provisions. (a) Nothing in this memorandum shall be construed to impair or otherwise affect:
(i) the authority granted by law to a department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This memorandum shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
Sec. 4. Publication. The Attorney General is hereby authorized and directed to publish this memorandum in the Federal Register.
Barack Obama.

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