34 USC 40901 - Establishment

U.S Code last checked for updates: Nov 22, 2024

§ 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

(1)

In general

(2)

Voluntary background checks

(A)

In general

(B)

Notice

Before conducting an employment background check relating to a current or prospective employee under subparagraph (A), a licensee shall—

(i)

provide written notice to the current or prospective employee that the licensee intends to conduct the background check; and

(ii)

obtain consent to conduct the background check from the current or prospective employee in writing.

(C)

Exemption

(D)

Appeal

(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

(e)

Administrative provisions

(1)

Authority to obtain official information

(A)

In general

(B)

Request of attorney general

(C)

Quarterly submission to 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

(F)

Semiannual certification and reporting

(i)

In general

(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

(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

(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

(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

(f)

Written reasons provided on request

(g)

Correction of erroneous system information

(h)

Regulations

(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

(2)

Other terms

(k)

Authorization of appropriations

(l)

Requirements relating to background checks for persons under age 21

If a licensee contacts the system established under this section regarding a proposed transfer of a firearm to a person less than 21 years of age in accordance with subsection (t) of section 922 of title 18, the system shall—

(1)

immediately contact—

(A)

the criminal history repository or juvenile justice information system, as appropriate, of the State in which the person resides for the purpose of determining whether the person has a possibly disqualifying juvenile record under subsection (d) of such section 922;

(B)

the appropriate State custodian of mental health adjudication records in the State in which the person resides to determine whether the person has a possibly disqualifying juvenile record under subsection (d) of such section 922; and

(C)

a local law enforcement agency of the jurisdiction in which the person resides for the purpose of determining whether the person has a possibly disqualifying juvenile record under subsection (d) of such section 922;

(2)

as soon as possible, but in no case more than 3 business days, after the licensee contacts the system, notify the licensee whether cause exists to further investigate a possibly disqualifying juvenile record under subsection (d) of such section 922; and

(3)

if there is cause for further investigation, as soon as possible, but in no case more than 10 business days, after the licensee contacts the system, notify the licensee whether—

(A)

transfer of a firearm to the person would violate subsection (d) of such section 922; or

(B)

receipt of a firearm by the person would violate subsection (g) or (n) of such section 922, or State, local, or Tribal law.

(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; Pub. L. 117–159, div. A, title II, §§ 12001(a)(2), (3), 12004(h)(1), June 25, 2022, 136 Stat. 1323, 1324, 1330.)

cite as: 34 USC 40901