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United States Government Accountability Office: 
GAO: 

Report to Congressional Requesters: 

July 2012: 

Gun Control: 

Sharing Promising Practices and Assessing Incentives Could Better 
Position Justice to Assist States in Providing Records for Background 
Checks: 

GAO-12-684: 

GAO Highlights: 

Highlights of GAO-12-684, a report to congressional requesters. 

Why GAO Did This Study: 

The 2007 Virginia Tech shootings raised questions about how the gunman 
was able to obtain firearms given his history of mental illness. In 
the wake of this tragedy, the NICS Improvement Amendments Act of 2007 
was enacted to, among other things, provide incentives for states to 
make more records available for use during firearm-related background 
checks. GAO was asked to assess the extent to which (1) states have 
made progress in making mental health records available for use during 
NICS checks and related challenges, (2) states have made progress in 
making unlawful drug records available and related challenges, (3) DOJ 
is administering provisions in the act to reward and penalize states 
based on the amount of records they provide, and (4) states are 
providing a means for individuals with a precluding mental health 
adjudication or commitment to seek relief from the associated federal 
firearms prohibition. GAO reviewed laws and regulations, analyzed 
Federal Bureau of Investigation data from 2004 to 2011 on mental 
health and unlawful drug use records, interviewed officials from a 
nongeneralizable sample of 6 states (selected because they provided 
varying numbers of records) to obtain insights on challenges, and 
interviewed officials from all 16 states that had legislation as of 
May 2012 that allows individuals to seek relief from their federal 
firearms prohibition. 

What GAO Found: 

From 2004 to 2011, the total number of mental health records that 
states made available to the National Instant Criminal Background 
Check System (NICS) increased by approximately 800 percent—-from about 
126,000 to 1.2 million records-—although a variety of challenges 
limited states’ ability to share such records. This increase largely 
reflects the efforts of 12 states. However, almost half of all states 
increased the number of mental health records they made available by 
fewer than 100 over this same time period. Technological, legal, and 
other challenges limited the states’ ability to share mental health 
records. To help address these challenges, the Department of Justice 
(DOJ) provides assistance to states, such as grants and training, 
which the 6 states GAO reviewed reported as helpful. DOJ has begun to 
have states share their promising practices at conferences, but has 
not distributed such practices nationally. By disseminating practices 
that states used to overcome barriers to sharing mental health 
records, DOJ could further assist states efforts. 

The states’ overall progress in making unlawful drug use records 
available to NICS is generally unknown because of how these records 
are maintained. The vast majority of records made available are 
criminal records-—such as those containing arrests or convictions for 
possession of a controlled substance-—which cannot readily be 
disaggregated from other records in the databases checked by NICS. 
Most states are not providing noncriminal records, such as those 
related to positive drug test results for persons on probation. On May 
1, 2012, DOJ data showed that 30 states were not making any 
noncriminal records available. Four of the 6 states GAO reviewed 
raised concerns about providing records outside an official court 
decision. Two states also noted that they did not have centralized 
databases that would be needed to collect these records. DOJ has 
issued guidance for providing noncriminal records to NICS. 

DOJ has not administered the reward and penalty provisions of the NICS 
Improvement Amendments Act of 2007 because of limitations in state 
estimates of the number of records they possess that could be made 
available to NICS. DOJ officials were unsure if the estimates, as 
currently collected, could reach the level of precision needed to 
serve as the basis for implementing the provisions. The 6 states GAO 
reviewed had mixed views on the extent to which the reward and penalty 
provisions—-if implemented as currently structured-—would provide 
incentives for them to make more records available. DOJ had not 
obtained the states’ views. Until DOJ establishes a basis for 
administering these provisions—which could include revising its 
current methodology for collecting estimates or developing a new basis—
and determining the extent to which the current provisions provide 
incentives to states, the department cannot provide the incentives to 
states that were envisioned by the act. 

Nineteen states have received federal certification of their programs 
that allow individuals with a precluding mental health adjudication or 
commitment to seek relief from the associated firearms prohibition. 
Having such a program is required to receive grants under the 2007 
NICS act. Officials from 10 of the 16 states we contacted said that 
grant eligibility was a strong incentive for developing the program. 
Reductions in grant funding could affect incentives moving forward. 

What GAO Recommends: 

GAO recommends that DOJ share promising practices in making mental 
health records available and assess the effectiveness of rewards and 
penalties and how to best implement them. DOJ agreed with the results. 

View [hyperlink, http://www.gao.gov/products/GAO-12-684]. For more 
information, contact Carol Cha at (202) 512-4456 or chac@gao.gov. 

[End of section] 

Contents: 

Letter: 

Background: 

Most States Have Made Limited Progress in Providing Mental Health 
Records and Could Benefit from DOJ Sharing Promising Practices: 

States Generally Are Not Sharing Unlawful Drug Use Records That Are 
Not Associated with an Arrest or Conviction: 

DOJ Has Not Administered Reward and Penalty Provisions; Sample States 
Had Mixed Views on whether Provisions Provided an Incentive: 

Nineteen States Have Programs to Relieve Federal Firearms Prohibitions 
for People with Precluding Mental Health Adjudications or Commitments: 

Conclusions: 

Recommendations for Executive Action: 

Agency Comments: 

Appendix I: Objectives, Scope, and Methodology: 

Appendix II: State Options for Conducting Background Checks using the 
National Instant Criminal Background Check System: 

Appendix III: Minimum Criteria for Certification of Qualifying State 
Relief from Disabilities Programs: 

Appendix IV: Federal and State Efforts to Ensure the Accuracy and 
Timeliness of Records Used by the National Instant Criminal Background 
Check System: 

Appendix V: Comments from the Department of Justice: 

Appendix VI: GAO Contacts and Staff Acknowledgments: 

Tables: 

Table 1: Relief from Disabilities Applications Received, Approved, and 
Denied, as Reported from September 2011 to May 2012: 

Table 2: States with Federal Relief Programs and NARIP Grant Awards by 
State, Fiscal Year 2009 to Fiscal Year 2011: 

Figures: 

Figure 1: Total Number of State Mental Health Records Made Available 
to the NICS Index, October 2004 to October 2011: 

Figure 2: Point of Contact States as of October 2011: 

Abbreviations: 

ATF: Bureau of Alcohol, Tobacco, Firearms and Explosives: 

BJS: Bureau of Justice Statistics: 

CJIS: Criminal Justice Information Services: 

DOJ: Department of Justice: 

FBI: Federal Bureau of Investigation: 

HHS: Department of Health and Human Services: 

HIPAA: Health Insurance Portability and Accountability Act: 

III: Interstate Identification Index: 

JAG: Edward Byrne Memorial Justice Assistance Grants Program: 

NARIP: NICS Act Record Improvement Program: 

NCHIP: National Criminal History Improvement Program: 

NCIC: National Crime Information Center: 

NIAA: NICS Improvement Amendments Act of 2007: 

NICS: National Instant Criminal Background Check System: 

POC: point of contact: 

R.E.A.C.H. Report, Educate, and Associate Criminal Histories: 

SEARCH: National Consortium for Justice Information and Statistics: 

[End of section] 

United States Government Accountability Office: 
Washington, DC 20548: 

July 16, 2012: 

Congressional Requesters: 

The April 2007 Virginia Tech shootings raised questions about how the 
gunman in this incident was able to obtain firearms despite a national 
background check process and his history of mental illness. Under the 
Brady Handgun Violence Prevention Act[Footnote 1] and implementing 
regulations, the Federal Bureau of Investigation (FBI) and designated 
state and local criminal justice agencies use the FBI's National 
Instant Criminal Background Check System (NICS) to conduct background 
checks on individuals seeking to purchase firearms from federally 
licensed firearm dealers or obtain permits to possess, acquire, or 
carry firearms. Persons are prohibited from possessing firearms under 
federal law if they, among other things, have been convicted of a 
felony, have been involuntarily committed to a mental institution, or 
are unlawful users of or addicted to any controlled substance. Most of 
the records in the databases checked by NICS originate with states, 
which are not required to submit records to NICS, but do so 
voluntarily for public safety and other law enforcement purposes. In 
previous reports, we noted that states had made progress in automating 
records and making them nationally available for law enforcement 
purposes, but that continued progress would involve a partnering of 
federal, state, and local resources and long-term commitments from all 
governmental levels.[Footnote 2] 

In the wake of the Virginia Tech tragedy, the NICS Improvement 
Amendments Act of 2007 (NIAA) was enacted into law to, among other 
things, help states make more records available for use during NICS 
background checks.[Footnote 3] For example, the act provides for 
certain financial incentives, such as rewards and penalties, based on 
the percentage of records each individual state makes available. The 
act also requires the Department of Justice (DOJ) to make NICS Act 
Record Improvement Program (NARIP) grants available to states to 
improve their ability to provide records. To be eligible for a grant, 
a state must (1) provide DOJ with a reasonable estimate of the number 
of NICS-related records it possesses and (2) establish a program that 
allows individuals who have been prohibited from possessing firearms 
due to a mental health-related adjudication or commitment to seek 
relief from the associated federal firearms prohibition. 

In this context, you requested that we assess the progress DOJ and 
states have made in implementing key provisions of the NIAA. 
Accordingly, this report addresses the extent to which: 

* states have made progress in making mental health records available 
for use during NICS background checks and DOJ could take actions to 
help states overcome any challenges in providing these records, 
[Footnote 4] 

* states have made progress in making unlawful drug use records 
available for use during NICS background checks, and DOJ could take 
actions to help states overcome any challenges in providing these 
records, 

* DOJ has administered the reward and penalty provisions provided for 
in the act and whether selected states report that these provisions 
provide incentives to make records available to the FBI, and: 

* states have established programs that allow individuals who have a 
precluding mental health adjudication or commitment to seek relief 
from the associated federal firearm prohibition. 

To determine state progress in making mental health and unlawful drug 
use records available, we analyzed FBI data from fiscal years 2004 
through 2011--about 4 years before and after the enactment of NIAA--on 
the number of such records that states made available. To assess the 
reliability of these data, we questioned knowledgeable officials about 
the data and the systems that produced the data, reviewed relevant 
documentation, examined data for obvious errors, and (when possible) 
corroborated the data among the different agencies. We determined that 
the data were sufficiently reliable for the purposes of this report. 
To assess the extent to which DOJ is providing assistance to help 
states overcome challenges in making records available, we reviewed 
guidance DOJ provided to states and attended a DOJ-hosted regional 
NIAA conference. Additionally, we analyzed all NARIP grant 
applications from 2009 to 2011 submitted by states, territories, and 
tribal entities to identify challenges that 28 unique applicants 
reported facing in making records available and the amount of funding 
these applicants believed was necessary to overcome their challenges. 
Further, we interviewed officials from a nonprobability sample of 6 
states (Idaho, Minnesota, New Mexico, New York, Texas, and Washington) 
to discuss challenges they faced in sharing mental health and unlawful 
drug use records. We selected these states to represent a range of 
factors, including the number of mental health records and unlawful 
drug use records made available for NICS checks and whether the state 
received a NARIP grant. We also interviewed officials from various DOJ 
components with responsibility for managing and maintaining NICS 
records, including the Bureau of Justice Statistics (BJS), the FBI's 
Criminal Justice Information Services (CJIS) Division and NICS 
Section, and the Bureau of Alcohol, Tobacco, Firearms and Explosives 
(ATF). 

To determine the extent to which DOJ has administered the reward and 
penalty provisions of the act and whether these provisions provide 
incentives for states to share records, we assessed state record 
estimates for 2009, 2010, and 2011 and two reports from the National 
Center for State Courts that evaluated these estimates.[Footnote 5] We 
reviewed the scope, methodology, and findings of the reports and 
conducted related interviews with center officials. We determined that 
the scope and methodology were sufficient for us to rely on the 
results. We also interviewed officials from our 6 selected states on 
the process they used for completing the estimates and related 
challenges, and the effect of the act's reward and penalty provisions 
on record sharing. Further, we interviewed officials with the National 
Center for State Courts and the National Consortium for Justice 
Information and Statistics (SEARCH) who were responsible for 
collecting state record estimates and evaluating their reasonableness. 
[Footnote 6] From these interviews, we learned more about the 
reasonableness of the estimates, changes to the estimate methodology 
over time, and next steps for the estimates. 

To determine the extent to which states are providing a means for 
individuals with a precluding mental health adjudication or commitment 
to seek relief from the associated federal firearms prohibition, we 
interviewed officials in each of the 16 states that had a federally 
certified relief program as of May 2012 to identify why they developed 
a program and related challenges, the extent of federal assistance 
received, and data on the number of relief applicants to 
date.[Footnote 7] We also interviewed officials from the 6 sample 
states and DOJ components to learn about states' motivation to 
establish relief programs, challenges to doing so, and DOJ resources 
available to help states. Additionally, we interviewed groups with an 
interest in, among other things, relief from disability programs and 
firearm background checks, including Mayors Against Illegal Guns, the 
National Rifle Association, and Gun Owners of America. Appendix I 
contains a more detailed discussion of our objectives, scope, and 
methodology. 

We conducted this performance audit from August 2011 to July 2012 in 
accordance with generally accepted government auditing standards. 
Those standards require that we plan and perform the audit to obtain 
sufficient, appropriate evidence to provide a reasonable basis for our 
findings and conclusions based on our audit objectives. We believe 
that the evidence obtained provides a reasonable basis for our 
findings and conclusions based on our audit objectives. 

Background: 

The permanent provisions of the Brady Handgun Violence Prevention Act 
(Brady Act) took effect on November 30, 1998. Under the Brady Act, 
before a federally licensed firearms dealer can transfer a firearm to 
an unlicensed individual, the dealer must request a background check 
through NICS to determine whether the prospective firearm transfer 
would violate federal or state law.[Footnote 8] The Brady Act's 
implementing regulations also provide for conducting NICS checks on 
individuals seeking to obtain permits to possess, acquire, or carry 
firearms. Under federal law, there are 10 categories of individuals 
who are prohibited from receiving or possessing a firearm.[Footnote 9] 
During a NICS check, descriptive data provided by an individual, such 
as name and date of birth, are to be used to search three national 
databases containing criminal history and other relevant records to 
determine whether or not the person is disqualified by law from 
receiving or possessing firearms. 

* Interstate Identification Index (III)--Managed by the FBI, III is a 
system for the interstate exchange of criminal history records. III 
records include information on persons who are indicted for, or have 
been convicted of, a crime punishable by imprisonment for a term 
exceeding 1 year or have been convicted of a misdemeanor crime of 
domestic violence. 

* National Crime Information Center (NCIC)--An automated, nationally 
accessible database of criminal justice and justice-related records, 
which contains, among other things, information on wanted persons 
(fugitives) and persons subject to restraining orders. 

* NICS Index--Maintained by the FBI, this database was created for 
presale background checks of firearms purchasers and contains 
information on persons predetermined to be prohibited from possessing 
or receiving a firearm. 

According to DOJ, approximately 16 million background checks were run 
through NICS during 2011, of which about half were processed by the 
FBI's NICS Section and half by designated state and local criminal 
justice agencies. States may choose among three options for performing 
NICS checks, which include the state conducting all of its own 
background checks, the state and DOJ sharing responsibility for 
background checks, or DOJ conducting all background checks for a 
state. See appendix II for further discussion of these differences. 

The Gun Control Act of 1968,[Footnote 10] as amended, and ATF 
regulations[Footnote 11] establish the definitions of the mental 
health and unlawful drug use prohibiting categories and, therefore, 
the scope of relevant records to be made available to the FBI by 
states and territories. As defined in ATF regulations, mental health 
records that would preclude an individual from possessing or receiving 
a firearm include (1) persons who have been adjudicated as "a mental 
defective," including a finding of insanity by a court in a criminal 
case, incompetent to stand trial, or not guilty by reason of insanity, 
[Footnote 12] and (2) individuals involuntarily committed to a mental 
institution by a lawful authority.[Footnote 13] The prohibitor--that 
is, the condition or factor that prohibits an individual from 
possessing or receiving firearms--does not cover persons in a mental 
institution for observation or a voluntary admission to a mental 
institution. Mental health records are found within two databases 
checked during a NICS background check, the III, and the NICS Index. 

Federal law prohibits individuals who are unlawful users of or 
addicted to any controlled substance from possessing or receiving a 
firearm. ATF regulations define an unlawful user of or addicted to any 
controlled substance as a person who uses a controlled substance and 
has lost the power of self-control with reference to the use of the 
controlled substance and any person who is a current user of a 
controlled substance in a manner other than as prescribed by a 
licensed physician. In general, under these regulations, use of such 
substances is not limited to the precise time the person seeks to 
acquire or receives a firearm; instead, inference of current use may 
be drawn from evidence of recent use or pattern of use through 
convictions, multiple arrests, and failed drug tests, among other 
situations. ATF regulations further provide examples upon which an 
inference of current use may be drawn, including a conviction for use 
or possession of a controlled substance within the past year or 
multiple arrests related to controlled substances within the past 5 
years if the most recent arrest occurred within the past year. 
[Footnote 14] Unlawful drug use records associated with a criminal 
arrest or conviction are generally found in the III and those that are 
not associated with an arrest or conviction are entered into the NICS 
Index. FBI officials reported that states submit the vast majority of 
their unlawful drug use records to the III. 

Since state submission of records to NICS is voluntary, the NIAA 
strives to increase the availability of state records through a series 
of financial incentives. To reward states for submitting records, the 
NIAA provides that beginning in January 2011, a state shall be 
eligible to receive a waiver of the 10 percent matching requirement 
for DOJ's National Criminal History Improvement Program (NCHIP) grants 
if the state provides at least 90 percent of its records relevant to 
the determination of whether a person is disqualified from possessing 
or receiving a firearm.[Footnote 15] NIAA penalty provisions provide 
that during the period January 8, 2011, to January 8, 2013, the U.S. 
Attorney General may withhold up to 3 percent of the amount that would 
otherwise be allocated to a state under DOJ Edward Byrne Memorial 
Justice Assistance (JAG) Program formula grants if the state provides 
less than 50 percent of the records requested under the NIAA.[Footnote 
16] This discretionary penalty may be increased to 4 percent through 
2018 and to a mandatory 5 percent penalty thereafter if a state 
provides less than 90 percent of records requested under the act. 
[Footnote 17] 

Additionally, the NIAA establishes the NARIP grant program to assist 
states in providing records to NICS. In order to be eligible for such 
grants, states must meet two conditions. First, states are to provide 
DOJ with estimates, pursuant to a methodology provided by the Attorney 
General, of their numbers of potentially NICS-applicable records. 
Second, states must establish a program that allows individuals who 
have been prohibited from possessing firearms due to a mental health 
adjudication or commitment to seek relief from the associated federal 
firearms prohibition (disability). The NIAA refers to such programs as 
"relief from disabilities" programs. ATF is responsible for 
determining whether a state's relief program satisfies the conditions 
of the NIAA and has developed minimum criteria for certifying a 
state's program. For example, the program has to be established by 
state statute--or administrative regulation or order pursuant to state 
law--and include due process requirements that allow persons seeking 
relief the opportunity to submit evidence to the lawful authority 
considering the relief application.[Footnote 18] 

Most States Have Made Limited Progress in Providing Mental Health 
Records and Could Benefit from DOJ Sharing Promising Practices: 

States increased the number of mental health records available for use 
during NICS background checks from 200,000 in October 2004 to 1.2 
million in October 2011, but this progress largely reflects the 
efforts of 12 states, and most states have made little or no progress 
in providing these records.[Footnote 19] DOJ and state officials 
identified technological, legal, and other challenges that hinder 
states' ability to make these records available. DOJ has made several 
forms of assistance available to help states provide records--
including grants, conferences, and training--and the 6 states we met 
with generally reported finding these helpful. DOJ has begun to have 
states share their promising practices during regional meetings, but 
DOJ has not shared these practices nationally. 

Mental Health Records Have Increased since NIAA Enactment, but 
Progress Largely Reflects Efforts of 12 States: 

The total number of mental health records that states made available 
to the NICS Index increased by approximately 800 percent--from about 
126,000 records in October 2004 to about 1.2 million records in 
October 2011--according to FBI data.[Footnote 20] As shown in figure 
1, there was a marked increase in the number of mental health records 
made available by states since 2008, when the NIAA was enacted. This 
increase largely reflects the efforts of 12 states that had each made 
at least 10,000 mental health records available by October 2011. 

Figure 1: Total Number of State Mental Health Records Made Available 
to the NICS Index, October 2004 to October 2011: 

[Refer to PDF for image: vertical bar graph] 

Number of State Mental Health Records: 

Year: 2004. 
12 states that have provided at least 10,000 mental health records by 
2011: 125,858; 
All other states: 
Total: 61. 

Year: 2005; 
12 states that have provided at least 10,000 mental health records by 
2011: 139,632; 
All other states: 
Total: 99. 

Year: 2006; 
12 states that have provided at least 10,000 mental health records by 
2011: 154,692; 
All other states: 
Total: 123. 

Year: 2007; 
12 states that have provided at least 10,000 mental health records by 
2011: 188,520; 
All other states: 
Total: 2,322. 

Year: 2008; 
12 states that have provided at least 10,000 mental health records by 
2011: 467,004; 
All other states: 
Total: 7,685. 

Year: 2009; 
12 states that have provided at least 10,000 mental health records by 
2011: 791,379; 
All other states: 
Total: 10,287. 

Year: 2010; 
12 states that have provided at least 10,000 mental health records by 
2011: 923,140; 
All other states: 
Total: 18,813. 

Year: 2011; 
12 states that have provided at least 10,000 mental health records by 
2011: 1,101,369; 
All other states: 
Total: 54,500. 

Source: GAO analysis of FBI data. 

Note: Data are as of October 1 each year. 

[End of figure] 

From October 2004 to October 2011, 3 states increased the number of 
mental health records they made available by over 150,000 each. On the 
other hand, during this same time period, almost half of the states 
increased the number of mental health records they made available by 
less than 100 records. As of October 2011, 17 states and all five U.S. 
territories had made fewer than 10 mental health records available to 
the NICS Index.[Footnote 21] 

Factors other than the NIAA could have also contributed to the 
increase in mental health records made available to NICS, including 
state efforts already under way before the act, changes in state 
funding or leadership, and increases in the number of individuals with 
mental health records that would preclude them from receiving or 
possessing a firearm. In addition, in August 2008, the FBI's NICS 
Section requested that states move certain records they had previously 
submitted to a "denied persons" category in the NICS Index to more 
specific categories of prohibitors, including the mental health 
category. According to NICS Section officials, the majority of records 
in the mental health category were new records submitted by states and 
not transferred from the denied persons category. 

The increase in available mental health records could be a factor in 
the increasing number of firearm transactions that have been denied 
based on these records. According to FBI data, the number of firearm 
transactions that were denied based on mental health records increased 
from 365 (or 0.5 percent of 75,990 total gun purchase denials) in 2004 
to 2,124 (or 1.7 percent of 123,432 total gun purchase denials) in 
2011.[Footnote 22] According to NICS Section officials, the vast 
majority of these denials were based on mental health records in the 
NICS Index, but that a small number could have been based on 
prohibiting information contained in other databases checked by NICS 
(e.g., criminal history records in the III noting a court finding of 
incompetence to stand trial). 

DOJ and States Reported That Technological, Legal, and Coordination 
Challenges Hindered States' Ability to Make Mental Health Records 
Available: 

Technological Challenges: 

DOJ and state officials we met with identified technological 
challenges to making mental health records available to NICS, such as 
updating aging computer systems and integrating existing record 
systems. DOJ officials noted that technological challenges are 
particularly salient for mental health records because these records 
originate from numerous sources within the state--such as courts, 
private hospitals, and state offices of mental health--and are not 
typically captured by any single state agency. For example, records 
that involve involuntary commitments to a mental institution typically 
originate in entities located throughout a state and outside the scope 
of law enforcement, and therefore a state may lack processes to 
automatically make these records available to the FBI. 

In addition, 6 of the 16 states that applied for NARIP grant funding 
in 2011 cited technology barriers as a reason for requesting funding 
in their grant applications. For example, Virginia received a NARIP 
grant to, among other things, equip district courts with an automated 
means to transmit mental health records to the FBI and replace its 
previous manual and labor-intensive process. Five of the 6 states we 
reviewed also noted that technological challenges impaired their 
ability to identify, collect, and provide mental health records to 
NICS. Minnesota officials said that it is difficult to share 
historical records involving involuntary commitments to a mental 
institution since they are paper records that cannot be automatically 
transmitted. The 1 state in our sample that did not cite technology as 
a challenge, Texas, already had an automated system in place that to 
facilitate the transmission of mental health records. DOJ officials 
were aware that states faced technological barriers to making mental 
health records available and cited that NARIP grants help states 
address these challenges. Additionally, BJS has made improving the 
submission of mental health records, including efforts to automate the 
reporting of such information, a funding priority of the NARIP grant 
program for 2011 and 2012. 

Legal Challenges: 

Addressing state privacy laws is a legal challenge that some states 
reported facing in making mental health records available to NICS. 
Specifically, officials from 3 of the 6 states we reviewed said that 
the absence of explicit state-level statutory authority to share 
mental health records was an impediment to making such records 
available to NICS. For example, Idaho officials reported deferring to 
the protection of individual privacy until clear state statutory 
authority was established to allow state agencies to make mental 
health records available. Idaho enacted a law in 2010 requiring, among 
other things, that the state's Bureau of Criminal Identification 
obtain and transmit information relating to eligibility to receive or 
possess a firearm to NICS, and the state was preparing to submit its 
first set of mental health records to the NICS Index in the first 
quarter of 2012.[Footnote 23] Overall, 20 states have been identified 
by the FBI as having enacted statutes that require or permit agencies 
to share their mental health records, and some of these states in our 
sample reported an increase in record availability as a result. For 
example, Texas enacted a law in 2009 requiring court clerks to prepare 
and forward certain types of mental health records to the state record 
repository within 30 days of specified court determinations.[Footnote 
24] Following the passage of the law, Texas officials said that the 
number of mental health records provided to NICS increased by about 
190,000 records. 

States that have not enacted laws requiring state agencies to share 
their mental health records could also face challenges to reporting 
such information based on the applicability of the federal Health 
Insurance Portability and Accountability Act (HIPAA) Privacy Rule to 
their particular circumstances.[Footnote 25] The HIPAA Privacy Rule 
establishes certain requirements for the treatment of protected health 
information and applies to "covered entities" including health care 
providers like hospitals and could also cover certain types of state 
agencies (e.g., departments of mental health). According to Department 
of Health and Human Services (HHS) officials, the Privacy Rule strikes 
a balance between permitting important uses and disclosures of 
individuals' health information and protecting the privacy of patients 
who seek care by requiring covered entities to, among other things, 
use or disclose protected health information only as permitted by the 
rule. The Privacy Rule allows covered entities to disclose protected 
health information without written authorization of the individual 
under certain specified circumstances, such as where the disclosure is 
required by law.[Footnote 26] Within this context, officials from 3 of 
the 6 states in our sample reported that the absence of explicit state 
statutory authority to share mental health records was an impediment 
to making such records available to NICS. To help address these types 
of challenges as they relate to HIPAA, DOJ has asked HHS to consider a 
potential change to the Privacy Rule that would specifically allow 
disclosure of mental health records for NICS reporting purposes. 
According to a senior HHS health information privacy policy 
specialist, HHS is in the process of reviewing this issue and has not 
yet made a decision to pursue a proposed change to the Privacy Rule. 

Coordination Challenges: 

DOJ and state officials we met with said that states often faced 
challenges in getting relevant state agencies to collaborate, 
particularly because many mental health records reside in entities--
such as hospitals and departments of mental health--that are typically 
not connected to the law enforcement agencies that make the majority 
of records available to NICS. For example, according to the State of 
Illinois' Office of the Auditor General, approximately 114,000 mental 
health records were maintained in state nursing homes, private 
hospitals, state mental health facilities, and circuit courts in 
2010.[Footnote 27] However, because of coordination and other 
challenges, only about 5,000 records (or 4.4 percent) were made 
available to the FBI. In addition, 2 of the 6 states in our sample 
reported that deciding which state agency would act as the liaison to 
the FBI was challenging because of limited staff resources and 
technological requirements needed to make records available. New 
Mexico, for instance, has not yet assigned responsibility to an agency 
to be the primary entity for making mental health records available to 
the FBI, despite discussions surrounding this issue over the past 4 
years. New Mexico's Administrative Office of the Courts has recently 
provided records on approximately 6,000 individuals who were committed 
to a mental institution directly to the FBI for NICS checks, but state 
officials have not yet coordinated their efforts and decided 
collectively on what entity will be responsible for providing such 
records in the future because of the resources needed to do so. 

DOJ acknowledged that complete reporting of state records to national 
databases can best be achieved through the cooperative efforts of all 
entities that create the records. Underscoring the importance of 
collaboration, BJS has recommended that NARIP grant recipients use a 
portion of grant funds to establish NICS Record Improvement Task 
Forces, to include representatives from the central record repository 
and other agencies. According to DOJ, task forces with wide 
representation can provide a forum for exploring possible options for 
improving the quality, completeness, and availability of NICS records. 
Idaho officials, for example, noted that forming such a 
multijurisdictional working group was extremely helpful for learning 
which state entities housed relevant mental health records. 

DOJ officials also said that several states overcame coordination 
challenges by conducting outreach to entities involved with providing 
mental health records and educating them about the importance of 
making such records available to NICS. Texas Department of Public 
Safety officials reported collaborating closely with courts by 
distributing training and guidance documents to ensure that the courts 
understood the types of mental health records that should be made 
available to NICS. The guidance materials also include an outline of 
the importance of mental health records for background checks, the 
types of cases to report, instructions on how to input relevant 
records into Texas's record system, and a frequently asked questions 
document for reference. 

States Generally Found DOJ Assistance with Providing Mental Health 
Records Helpful: 

Grants: 

NARIP grants were established to improve the completeness, automation, 
and transmittal of records used during NICS background checks. Since 
its inception 3 years ago, the grant program has awarded approximately 
$40 million to 14 states.[Footnote 28] DOJ has placed an emphasis on 
increasing the submission of mental health records as part of the 2011 
and 2012 grant solicitations. Of the 16 NARIP grant applicants in 
2011, 11 applicants requested funding for mental health record-related 
activities. In addition, 6 of the 16 NARIP grant applicants in 2011 
requested funds for technology-related improvements to increase the 
submission of mental health records, including updating information 
system hardware and automating the record submission process. 

Officials from 2 of the 3 states in our sample that received NARIP 
grants reported using a portion of the funds to address technological 
barriers to submitting mental health records. For example, Idaho 
officials reported using NARIP grant funds it received in 2010 to 
create a new transmission protocol to provide relevant data related to 
state mental health records. State officials said these grants were 
instrumental in funding the programming, testing, and software 
upgrades needed to create the database. State officials have also 
reported using NARIP grants to research which state agencies house 
mental health records that could be used during NICS background 
checks. Specifically, 6 of the 16 NARIP grant applicants in 2011 
requested funding to conduct assessments to identify where relevant 
mental health records reside within the state in order to improve 
their efforts to provide such records for a NICS check. 

In addition to NARIP grants, DOJ administers the National Criminal 
History Improvement Program and JAG Program, which can also be used to 
support state efforts to improve mental health records, among other 
things. For example, in 2008, we reported that from fiscal years 2000 
through 2007, almost $940,000 in NCHIP grants were specifically 
targeted to improve the availability of mental health record for use 
during NICS background checks.[Footnote 29] All 6 states in our sample 
have received NCHIP grants, but officials in all of these states said 
they did not use the funding to improve the submission of mental 
health records. Rather, these states used NCHIP funds for activities 
regarding criminal history records in state repositories. For example, 
1 state in our sample used 2011 NCHIP funds to reconcile approximately 
60,000 open arrest records with their corresponding dispositions. The 
JAG Program also supports information-sharing programs in criminal 
justice entities. For example, in 2009, states spent $89.6 million (7 
percent of total funds for that year) on information-sharing projects, 
such as initiatives to increase records provided to NICS. An 
additional $33 million (3 percent) was spent on criminal records 
management upgrades and other technology for information sharing. 
[Footnote 30] 

Training: 

DOJ also offers in-state training sessions to educate state agencies 
about NIAA-related topics, including issues related to the submission 
of mental health records. For example, since enactment of NIAA, the 
NICS Section has reported conducting presentations to law enforcement 
officials responsible for providing records to NICS. Specifically, DOJ 
reported conducting in-state trainings and presentations in 7 states. 
These presentations covered the definition of the mental health 
prohibitor and how to enhance state plans regarding the submission of 
mental health records. Further, 3 of the 6 states in our sample 
reported using these training presentations to provide information 
about the mental health prohibitor. For instance, at Texas's request, 
the NICS Section held presentations for judges, clerks, and other 
relevant parties to answer questions about the types of mental health 
records requested under NIAA. Additionally, Washington state officials 
were complimentary of the NICS Section personnel that travel once a 
year to eight different locations within the state to provide training 
on the federal prohibitors to their law enforcement agencies. 

Conferences: 

DOJ also hosts and sponsors conferences in which relevant DOJ 
components present information on numerous topics, including those 
related to making more mental health records available. For example, 
DOJ's first conference regarding NIAA provisions--the NIAA 
Implementation Conference--was held in 2009, and DOJ officials 
reported that officials from almost every state attended. The NICS 
Section also sponsors annual Report, Educate, Associate Criminal 
Histories (R.E.A.C.H.) conferences, which focus on improving 
information sharing between the NICS Section and external agencies. 
The NICS Section also sponsors annual NICS User Conferences for states 
that conduct their own NICS checks, which covers topics such as the 
federal firearm prohibitors and how to submit records to the NICS 
Index. Officials from all 6 states in our sample had attended at least 
one DOJ-sponsored conference and generally found these events to be 
helpful for learning about various aspects of the NIAA, such as how to 
make certain mental health records available to the FBI. Additionally, 
an official from 1 of the 6 states in our sample said that the 
documents distributed by DOJ were particularly useful and officials in 
their state referenced them regularly. 

Beginning in 2011, DOJ began sponsoring annual regional NIAA 
conferences, in conjunction with the National Center for State Courts 
and SEARCH. These events are intended to provide a forum for states to 
share their experiences in identifying, collecting, automating, and 
submitting records. For example, at the December 2011 regional NIAA 
meeting, Oregon officials shared their state's experience in 
developing a system to share mental health records, including an 
explanation of which state agencies collaborated to share such records 
and how the state used NARIP grant funds to automate and transmit 
records. Two of the 6 states in our sample also reported benefiting 
from learning about other states' experiences in collecting and 
submitting mental health records. Specifically, officials in Idaho and 
Washington noted that hearing about other states' experiences during a 
regional conference provided them with technical advice on how to 
create linkages between existing mental health record systems and 
helped them determine where relevant records resided. In some cases, 
the sharing of experiences with mental health records led to sustained 
relationships and networks among states. For example, following their 
presentation to several northeastern states at a 2011 NIAA regional 
conference, New York officials reported sharing best practices and 
lessons learned with Connecticut and New Jersey officials. According 
to DOJ officials, five regional conferences have been held, with a 
total of 38 states attending one of these meetings. 

DOJ Has Not Identified and Disseminated Promising Practices of 
Successful States Nationally: 

Although hearing about the experiences of other states during regional 
conferences has been helpful for some states in making mental health 
records available to NICS, DOJ has not yet identified promising 
practices employed by all states or shared this information 
nationally.[Footnote 31] Officials from all 6 states in our sample 
noted that the sharing of promising practices among states may be 
helpful to, among other things, guide future policy decisions and spur 
ideas on how to improve reporting efforts. Further, BJS officials 
acknowledged that there are benefits to sharing such practices and 
said that learning about the experiences of other states can introduce 
state officials to new ways of approaching challenges, such as how to 
address technology challenges, legal barriers, and coordination issues. 

The NIAA requires BJS to submit an annual report to Congress and those 
states participating in NCHIP that outlines best practices of those 
states regarding the collection, maintenance, automation, and 
transmittal of information for use in a NICS check once the agency 
considers certain actions to be best practices. BJS officials said 
that they have not yet reported on best practices because they were 
uncertain whether there were enough practices in place that could be 
considered best practices. However, the officials noted that they 
recognized the value of states learning about the experiences of other 
states and that this information would be useful for those states that 
were presently making few records available. Further, internal control 
standards note that agency management should ensure that pertinent 
information is identified, captured, and distributed in a form and 
time frame that permits people to perform their duties efficiently. 
[Footnote 32] Identifying and distributing promising practices 
nationally could better position DOJ to assist states in the early 
phases of their efforts to make mental health records available and 
address barriers they face in providing these records. 

States Generally Are Not Sharing Unlawful Drug Use Records That Are 
Not Associated with an Arrest or Conviction: 

States' overall progress in providing unlawful drug use records--which 
encompasses both criminal and noncriminal records--is generally 
unknown; however, available data indicate that most states are not 
providing noncriminal records.[Footnote 33] DOJ's overall efforts to 
improve criminal history records have assisted state efforts to 
provide unlawful drug use records. DOJ has issued guidance related to 
the unlawful drug use records that are noncriminal, but states in our 
sample raised concerns about providing these kinds of records. 

State Progress in Providing Unlawful Drug Use Records Is Generally 
Unknown; Available Data Suggest Most States Are Not Providing 
Noncriminal Records: 

The states' progress in providing unlawful drug use records--which 
encompasses both criminal and noncriminal records--is generally 
unknown, but available data suggest that most states are not providing 
the noncriminal records. According to NICS Section officials, the 
majority of unlawful drug use records that states make available for 
NICS checks are criminal records--such as those containing convictions 
for use or possession of a controlled substance--and are made 
available to NICS through the III. The officials noted, however, that 
these criminal records cannot readily be disaggregated from the over 
60 million other criminal history records in the database because 
there is no automatic process to identify subsets of records within 
the III in each prohibited category.[Footnote 34] Three of the 6 
states in our sample--Idaho, Washington, and New York--were able to 
provide data on the number of criminal drug use records they made 
available to NICS, which showed 14,480 records, 553,433 records, and 
1,659,907 records as of January 2012, January 2012, and December 2011, 
respectively. 

The states' progress in sharing unlawful drug use records that are 
noncriminal is also generally unknown because, per regulation, these 
records are retained in the NICS Index for only 1 year after the date 
of the operative event (e.g., the date of the most recent drug-related 
arrest in the case of an individual with multiple drug-related 
arrests). According to NICS Section officials, because these records 
are routinely added and deleted from the NICS Index, the overall trend 
in the states' efforts to provide these records is difficult to 
discern. Available data suggest, however, that most states are not 
making these records available. According to FBI data, on May 1, 2012, 
the NICS Index contained a total of 3,753 unlawful drug use records 
that are noncriminal, of which about 2,200 came from Connecticut. 
[Footnote 35] On the other hand, also on that date, 30 states, the 
District of Columbia, and all five U.S. territories had not made any 
of these records available. DOJ officials agreed that most states 
generally are not making these records available. 

From 2004 to 2011, an increasing number (but a lower percentage) of 
firearm transactions were denied based on unlawful drug use records 
that states make available to NICS. According to FBI data, the number 
of firearm transactions that were denied based on unlawful drug use 
records (both criminal and noncriminal) increased from 5,806 in 2004 
(7.6 percent of 75,990 total denials) to 7,526 in 2011 (6.1 percent of 
123,432 total denials).[Footnote 36] The FBI did not have data on the 
number of firearm transactions that were denied based on criminal 
versus noncriminal drug use records, but NICS Section officials noted 
that the vast majority of denials have been based on criminal records. 

DOJ's Efforts Assist States in Providing Unlawful Drug Use Records: 

DOJ efforts to help states address challenges in providing criminal 
drug use records have increased the ability of states to provide such 
records. Officials from the states in our sample identified several 
challenges related to criminal drug use records. For example, 
officials from 3 of the 6 states noted that having drug-related 
records without fingerprints was a challenge because fingerprints are 
needed to send these records to state repositories and the III. 
Additionally, officials from 3 of the 6 states reported that it was 
difficult to match arrest records from drug offenses to their 
corresponding dispositions, making it sometimes challenging to 
determine if an individual should be prohibited under federal law from 
receiving or possessing a firearm. 

DOJ has engaged in various efforts to address state challenges in 
providing criminal history records--including unlawful drug use 
records--and officials from the states in our sample were generally 
satisfied with the assistance they have received. Using NCHIP grants--
which are intended to help states enhance the quality, completeness, 
and accessibility of criminal history records--states have purchased 
systems to automate criminal history records, researched arrest 
records to reconcile them with their corresponding dispositions, and 
performed audits of local law enforcement agencies' criminal history 
record systems. Further, during a NIAA conference, officials from 1 
state reported using NARIP grants to develop software that 
automatically linked arrests to their corresponding dispositions, 
which allowed the state to move away from paper-based files and 
ultimately resulted in the state making more criminal records 
available for NICS checks. Additionally, the National Center for State 
Courts, under a DOJ grant, is managing a project to nationally 
disseminate guidance, information, and state best practices to help 
ensure the completeness of criminal history records located in state 
repositories. Specifically, the center is designing an online 
repository of resources for states to improve their reporting of 
criminal dispositions and arrests, including those that involve 
unlawful drug use. A center official reported that the project is 
scheduled to be completed by April 2013. NARIP funding has also been 
used to address challenges to providing criminal drug use records. For 
example, Idaho state officials reported using NARIP grants to replace 
aging fingerprint-scanning technology in order to make fingerprints 
more readily available for criminal disposition records. 

DOJ Has Issued Guidance on Noncriminal Unlawful Drug Use Records, but 
States Have Concerns about Providing These Records: 

DOJ has taken steps to help clarify the regulatory definition of 
unlawful drug use records that are noncriminal for states. For 
example, DOJ has made copies of the regulation that identifies the 
scope of these records for NICS checks available on its websites. DOJ 
officials have also conducted presentations at NIAA regional 
conferences that illustrated examples of records that fall within the 
scope of the definition of noncriminal drug use records. Also, in 
January 2011, the NICS Section provided written guidance to the 13 
states that conduct their own federal firearm background checks. This 
guidance identifies a variety of scenarios from which an inference of 
current unlawful drug use may be drawn, thereby constituting a 
prohibition. Although the majority of the document focuses on 
inferences that can be drawn from criminal history records, there are 
records outside a criminal history itself that can support such an 
inference--for example, a positive drug test for persons on active 
probation. 

Despite this guidance, states generally are not making noncriminal 
drug use records available to NICS. For example, officials from 4 of 
the 6 states in our sample reported that they were uncomfortable with 
the amount of judgment law enforcement officials were being asked to 
make outside of an official court decision regarding an individual's 
potentially prohibited status.[Footnote 37] Officials from 2 of these 
4 states also noted that making these kinds of judgments could present 
a legal risk to the state and could result in lawsuits from 
individuals prohibited from receiving or possessing a firearm who had 
not been convicted of crimes. For example, Minnesota officials 
explained that drug tests and other ways to infer drug use or 
possession could be inaccurate and individuals could be prohibited 
from receiving or possessing firearms based on the wrong information 
and without due process. 

Officials from 5 of the 6 states we reviewed reported other challenges 
in making the noncriminal subset of unlawful drug use records 
available to NICS. For example, officials from New Mexico and 
Minnesota were unaware of certain types of records that could be made 
available under the ATF regulatory language regarding making an 
inference of current drug use, such as records indicating a failed 
drug test for a controlled substance. Officials from Texas and 
Minnesota reported that their states did not have centralized 
databases that would be needed to collect these records. For example, 
officials from Minnesota noted that failed drug test results for 
individuals on active probation are kept at each individual's 
supervisory agency and there is no centralized system to gather these 
and provide them to NICS. Officials from Texas and Washington noted 
that new state laws permitting agencies to share these types of 
records would need to be established in order to overcome conflicts 
with their state privacy laws. 

DOJ officials agreed that states generally are not making unlawful 
drug use records that are noncriminal available to NICS. Pursuant to 
ATF regulations, these records may be utilized only before their 
period of potential use "expires"--that is, if they relate to an 
operative event, like an arrest, if the event occurred within the past 
year. DOJ officials noted that making records available--particularly 
those that are removed from the system 1 year after the date of the 
operative event--is challenging and would require a great deal of 
effort, time, and resources on the part of both states and the federal 
government. The officials added that capturing these records has not 
been a priority for DOJ or the states because current efforts have 
focused primarily on collecting mental health records and records on 
misdemeanor crimes of domestic violence, records that do not expire. 
DOJ officials also stated that despite the department's efforts to 
train states and provide guidance, the scope of unlawful drug use 
records that are noncriminal is difficult for states to interpret. 

DOJ Has Not Administered Reward and Penalty Provisions; Sample States 
Had Mixed Views on whether Provisions Provided an Incentive: 

DOJ has not administered NIAA reward and penalty provisions because of 
limitations in state record estimates, which are to serve as the basis 
for implementing the provisions. Officials from the states in our 
sample had mixed views on the extent to which the act's reward and 
penalty provisions--if implemented as currently structured--would 
provide incentives for the state to make more records available to 
NICS. 

States Face Challenges Developing Record Estimates, Limiting Their 
Usefulness as a Basis to Implement Rewards and Penalties: 

Limitations in state record estimates--which are estimates of the 
number of applicable records states possess that are or could be made 
available for use during NICS checks--have hindered DOJ's ability to 
administer the NIAA reward and penalty provisions. These provisions 
are intended to provide incentives for states to share greater numbers 
of records by rewarding states that provide most or all of their 
records and penalizing states that provide few of their records. The 
act further specifies that the basis for the rewards and penalties 
should be state record estimates and directs DOJ to develop a 
methodology for determining the percentages of records states are 
making available. 

The National Center for State Courts--with which BJS contracted to 
review the reasonableness of the state record estimates--identified 
numerous limitations with the estimates.[Footnote 38] For example, the 
center found that states often lacked technology to query data for the 
record estimates and could not access many records because they were 
lost, in a legacy system that was no longer available for making 
inquiries, or were paper files that were not stored in a manner 
practical for searching.[Footnote 39] The center also found that many 
states lacked the ability to report certain records--such as mental 
health adjudications--because of state statutory issues, could not 
distinguish criminal unlawful drug use records from other records, or 
had deleted relevant records. 

According to BJS officials, states face challenges in accurately 
estimating both the total number of unique records that reside at 
agencies around their states and the total number of these records 
that are made available electronically to NICS. The officials added 
that most state data systems were created and operate for the primary 
purpose of generating an individual's record of arrests and 
prosecutions. Therefore, these systems do not have basic file analysis 
capabilities--such as the ability to search text fields for key terms--
which would allow the states to search for and count certain types or 
categories of records. The officials noted that it is very hard to 
affect or change the design limitations of existing data systems and 
that making these kinds of changes is costly. Further, they said that 
changing state data systems for the purpose of counting or estimating 
records was not something states would need or want since most of the 
technical improvements states make to their systems relate to data 
input--such as increasing the automation of criminal records. 

BJS officials were not certain the challenges with developing record 
estimates could be overcome, and the department is not collecting 
record estimates for 2012.[Footnote 40] Although BJS has not finished 
analyzing the third year of state record estimates, the officials said 
they did not know if the state record estimates, as currently 
collected, would ever reach the level of precision that would be 
needed to administer the NIAA reward and penalty provisions. The 
officials noted that estimates in some of the categories--such as 
felony convictions and mental health--were possibly usable as the 
basis for rewards and penalties and that these data are more reliable 
than data collected in other categories. 

DOJ and officials from 1 of the states in our sample said that there 
were some benefits to completing the record estimates. For example, 
based in part on New York's efforts to estimate the number of records 
on misdemeanor crimes of domestic violence, New York officials 
reported that the state passed a statute to recognize such crimes as 
their own category of misdemeanor, which could allow the courts to 
distinguish such crimes for submission to NICS. Nonetheless, in its 
most recent analysis of state record estimates, the National Center 
for State Courts reported that much remains unknown about whether this 
data collection exercise actually generated any benefits, such as 
heightened cooperation or improvements in the number of records states 
make available to NICS. The officials noted that after BJS finishes 
reviewing the state record estimates that it collected in 2011, BJS 
plans to convene focus groups with states and other stakeholders to 
determine which aspects of the record estimate data collection process 
have been useful for states and which have not. BJS will also consider 
what, if any, additional data it will collect from states in the 
future and whether it can develop a workable estimate methodology. 
However, until BJS establishes a basis on which rewards and penalties 
can be implemented, the agency will be limited in its ability to carry 
out these provisions of the NIAA. 

Sample States Had Mixed Views on whether Rewards and Penalties Provide 
Incentives to Submit More Records: 

Officials from the 6 states in our sample provided mixed views on the 
extent to which the NIAA reward and penalty provisions, if implemented 
as currently structured, would provide incentives for their states to 
make more records available for NICS checks. With respect to the NIAA 
reward provision, officials from 1 state, for example, said that the 
waiver of the 10 percent matching requirement for NCHIP grants would 
be helpful and added that there have been years when the state has not 
applied for NCHIP funds because of the cost match.[Footnote 41] With 
respect to the NIAA penalty provision, the officials added that the 
penalty--which in their state would have been over $100,000 in JAG 
Program funding in 2011--would also motivate them to make more records 
available. Officials from another state agreed that the potential 
impact of the penalty initially was an incentive to share more 
records, but added that this has become less of a motivator since DOJ 
has not yet administered the penalty provision. Officials from the 
remaining 4 states were either generally unaware of the NIAA reward 
and penalty provisions or how they would affect state efforts to make 
more records available, or reported that they were a moderate to no 
incentive. 

BJS officials reported that they believed the NIAA reward and penalty 
provisions provided little to some incentive for states to make 
records available. For instance, BJS officials said the reward 
provision (i.e., the waiver of the 10 percent NCHIP match) likely 
provided little incentive for states to make more records available 
because states could use or apply personnel costs (something they have 
to pay for regardless) to satisfy the cost match requirement. Based on 
the amount of the 2011 grant awards, the waiver of NCHIP's 10 percent 
matching requirement would have resulted in an average savings of 
$29,000 in matching funds per state. In terms of penalties, BJS 
officials said the penalty provision (i.e., percent reduction of JAG 
Program funding) could provide an incentive to states to some extent, 
but that states faced significant obstacles in making records 
available. Specifically, the penalty of 3 to 4 percent of JAG Program 
funding could have resulted in an average grant reduction of up to 
about $131,000 to up to about $176,000 per state in 2011.[Footnote 42] 

Overall, BJS officials believed that public safety interests were what 
motivated states to make records available, but had not yet determined 
the extent to which the rewards and penalties, if administered as 
currently structured, could provide incentives to states. When asked 
whether different incentives would better motivate states, the 
officials suggested that relaxing the restrictions on which states are 
eligible to receive NARIP grant funding could make funds available to 
more states and in turn encourage more record sharing. The officials 
said that given the financial condition of most state governments, 
positive financial incentives (such as increasing the amount of NIAA 
grant funding) were the best way to encourage states to take action. 
The NIAA reward and penalty provisions are intended to provide 
incentives for states to make more records available to NICS, but the 
provisions--as currently structured--might not provide the incentives 
that were envisioned by the act. Our prior work shows that having the 
right incentives in place is crucial for operational success.[Footnote 
43] An effective system of rewards and penalties could ultimately 
provide better incentives for states to make records available for 
NICS checks. 

Nineteen States Have Programs to Relieve Federal Firearms Prohibitions 
for People with Precluding Mental Health Adjudications or Commitments: 

Nineteen states have received ATF certification of their program that 
allows individuals who have been prohibited from possessing firearms 
due to a mental health adjudication or commitment to seek relief from 
the associated federal firearms prohibition (disability). Grant 
eligibility was the primary motivation for states to develop these 
relief programs, but reduced funding may result in fewer new programs. 

Nineteen States Allow Individuals to Seek Relief from Their Firearms 
Prohibition, Making These States Eligible for Grant Funding: 

From January 2009 through June 2012, ATF certified programs in 19 
states that allow individuals with a precluding mental health 
adjudication or commitment to seek relief from the associated federal 
firearms prohibition, thus making these states eligible to receive 
NARIP grant funding.[Footnote 44] ATF certifies such relief from 
disabilities programs based on the requirements contained in the NIAA. 
[Footnote 45] ATF developed a minimum criteria checklist that 
specifies nine conditions that a state's relief program must satisfy 
and certifies states' programs based on these requirements. For 
example, a state's program must be pursuant to state statute and 
include due process requirements that allow persons seeking relief the 
opportunity to submit evidence to the lawful authority considering the 
relief application. This is to include the circumstances of the 
original firearms disability (the circumstances that resulted in the 
individual being prohibited from possessing firearms), the applicant's 
mental health record and criminal history records, and the applicant's 
reputation as developed through character witness statements, 
testimony, or other character evidence. The reviewing authority must 
find that the applicant will not be likely to act in a manner 
dangerous to public safety and that granting relief would not be 
contrary to the public interest. 

State data collected from September 2011 through May 2012 show that 6 
of the 16 states that had a certified relief from disabilities program 
as of May 2012 reported that they had received applications from 
individuals seeking relief from their firearms disability.[Footnote 
46] As shown in table 1, these states reported receiving 60 
applications, 26 of which were approved. 

Table 1: Relief from Disabilities Applications Received, Approved, and 
Denied, as Reported from September 2011 to May 2012: 

Virginia: 
Applications Received: 26; 
Approved: 9; 
Denied: 6; 
Dismissed or Pending[A]: 11; 
Year Program Enacted: 2011; 
Date data collected: Dec. 2011. 

New York: 
Applications Received: 15; 
Approved: 0; 
Denied: 6; 
Dismissed or Pending[A]: 9; 
Year Program Enacted: 2009; 
Date data collected: Dec. 2011. 

Kentucky: 
Applications Received: 9; 
Approved: 8; 
Denied: 1; 
Dismissed or Pending[A]: [Empty]; 
Year Program Enacted: 2011; 
Date data collected: May 2012. 

Iowa: 
Applications Received: 8; 
Approved: 6; 
Denied: 2; 
Dismissed or Pending[A]: [Empty]; 
Year Program Enacted: 2011; 
Date data collected: Jan. 2012. 

Oregon: 
Applications Received: 2; 
Approved: 2; 
Denied: [Empty]; 
Dismissed or Pending[A]: [Empty]; 
Year Program Enacted: 2009; 
Date data collected: Feb. 2012. 

New Jersey[B]: 
Applications Received: Unknown; 
Approved: 1; 
Denied: Unknown; 
Dismissed or Pending[A]: [Empty]; 
Year Program Enacted: 2010; 
Date data collected: May 2012. 

Arizona[B]: 
Applications Received: Unknown; 
Approved: [Empty]; 
Denied: [Empty]; 
Dismissed or Pending[A]: [Empty]; 
Year Program Enacted: 2011; 
Date data collected: Dec. 2011. 

Florida[B]: 
Applications Received: Unknown; 
Approved: [Empty]; 
Denied: [Empty]; 
Dismissed or Pending[A]: [Empty]; 
Year Program Enacted: 2010; 
Date data collected: Dec. 2011. 

Connecticut: 
Applications Received: 0; 
Approved: [Empty]; 
Denied: [Empty]; 
Dismissed or Pending[A]: [Empty]; 
Year Program Enacted: 2011; 
Date data collected: Dec. 2011. 

Idaho: 
Applications Received: 0; 
Approved: [Empty]; 
Denied: [Empty]; 
Dismissed or Pending[A]: [Empty]; 
Year Program Enacted: 2010; 
Date data collected: Jan. 2012. 

Illinois: 
Applications Received: 0; 
Approved: [Empty]; 
Denied: [Empty]; 
Dismissed or Pending[A]: [Empty]; 
Year Program Enacted: 2010; 
Date data collected: March 2012. 

Kansas: 
Applications Received: 0; 
Approved: [Empty]; 
Denied: [Empty]; 
Dismissed or Pending[A]: [Empty]; 
Year Program Enacted: 2011; 
Date data collected: Feb. 2012. 

North Dakota: 
Applications Received: 0; 
Approved: [Empty]; 
Denied: [Empty]; 
Dismissed or Pending[A]: [Empty]; 
Year Program Enacted: 2011; 
Date data collected: Dec. 2011. 

Nevada:
Applications Received: 0; 
Approved: [Empty]; 
Denied: [Empty]; 
Dismissed or Pending[A]: [Empty]; 
Year Program Enacted: 2009; 
Date data collected: Feb. 2012. 

Texas: 
Applications Received: 0; 
Approved: [Empty]; 
Denied: [Empty]; 
Dismissed or Pending[A]: [Empty]; 
Year Program Enacted: 2010; 
Date data collected: Sept. 2011. 

Wisconsin: 
Applications Received: 0; 
Approved: [Empty]; 
Denied: [Empty]; 
Dismissed or Pending[A]: [Empty]; 
Year Program Enacted: 2010; 
Date data collected: Jan. 2012. 

Total; 
Applications Received: 60; 
Approved: 26; 
Denied: 15; 
Dismissed or Pending[A]: 20. 

Source: GAO analysis of state data. 

Notes: In June 2012, following completion of our audit work, three 
additional states--Indiana, Nebraska, and West Virginia--received 
certification of their relief from disabilities programs. These 
states' data are not included in this report. 

[A] According to Virginia officials, dismissed refers to applications 
that were closed with no action taken in the matter. Pending refers to 
applications that were under consideration but had not been approved, 
denied, or dismissed. 

[B] The state did not know how many applications it had received 
because its court system was not centralized in a way that would allow 
the state to readily know this information. Officials noted, however, 
that they would be aware of approved applications. 

[End of table] 

Grant Eligibility Was an Incentive to Develop Relief Programs, but 
Reduced Funding May Result in Fewer New Programs: 

DOJ officials reported that most states that develop relief from 
disability programs do so to be eligible for NARIP funding, and 
officials from 10 of the 16 states that had ATF-approved relief 
programs as of May 2012 reported that eligibility to receive NARIP 
funds greatly motivated their state to pursue developing such a 
program. Officials from 5 of the remaining states said NARIP 
eligibility was some incentive or a moderate incentive, and officials 
from 1 state said it was no incentive. Given the reduced amount of 
NARIP funding for fiscal year 2012 (from $16.1 million in 2011 to $5 
million in 2012), it is not clear how much of an incentive NARIP 
funding will be for the remaining states to pursue passing such 
legislation. Table 2 provides NARIP grant awards by state from fiscal 
year 2009 to fiscal year 2011.[Footnote 47] 

Table 2: States with Federal Relief Programs and NARIP Grant Awards by 
State, Fiscal Year 2009 to Fiscal Year 2011: 

State: New York; Division of Criminal Justice Services; 
FY 2009 Award: $937,411; 
FY 2010 Awards: $5,994,588; 
FY 2011 Award: $3,198,502; 
Award Total 2009-2011: $10,130,501; 
Award Total as Percentage of Total NARIP funds: 25.6%. 

State: Florida; Department of Law Enforcement; 
FY 2009 Award: [Empty]; 
FY 2010 Awards: $3,159,228; 
FY 2011 Award: $2,574,915; 
Award Total 2009-2011: $5,734,143; 
Award Total as Percentage of Total NARIP funds: 14.5%. 

State: Oregon; Oregon State Police; 
FY 2009 Award: $770,849; 
FY 2010 Awards: $2,000,000; 
FY 2011 Award: $1,131,260; 
Award Total 2009-2011: $3,902,109; 
Award Total as Percentage of Total NARIP funds: 9.9%. 

State: New Jersey; State Administrative Office of the Courts; 
FY 2009 Award: [Empty]; 
FY 2010 Awards: $860,331; 
FY 2011 Award: $2,772,560; 
Award Total 2009-2011: $3,632,891; 
Award Total as Percentage of Total NARIP funds: 9.2%. 

State: Wisconsin; Office of Justice Assistance; 
FY 2009 Award: [Empty]; 
FY 2010 Awards: $981,372; 
FY 2011 Award: $2,500,000; 
Award Total 2009-2011: $3,481,372; 
Award Total as Percentage of Total NARIP funds: 8.8%. 

State: Connecticut; Office of Policy and Management; 
FY 2009 Award: [Empty]; 
FY 2010 Awards: [Empty]; 
FY 2011 Award: $3,250,000; 
Award Total 2009-2011: $3,250,000; 
Award Total as Percentage of Total NARIP funds: 8.2%. 

State: Idaho; Idaho State Police; 
FY 2009 Award: [Empty]; 
FY 2010 Awards: $1,949,578; 
FY 2011 Award: $1,206,010; 
Award Total 2009-2011: $3,155,588; 
Award Total as Percentage of Total NARIP funds: 8.0%. 

State: Kentucky; Justice and Public Safety Cabinet; 
FY 2009 Award: [Empty]; 
FY 2010 Awards: [Empty]; 
FY 2011 Award: $1,390,181; 
Award Total 2009-2011: $1,390,181; 
Award Total as Percentage of Total NARIP funds: 3.5%. 

State: Texas; (1) Department of Public Safety; (2) Office of Court 
Administration; 
FY 2009 Award: [Empty]; 
FY 2010 Awards: $751,537; 
FY 2011 Award: $547,039; 
Award Total 2009-2011: $1,298,576; 
Award Total as Percentage of Total NARIP funds: 3.3%. 

State: Illinois; Criminal Justice Information Authority; 
FY 2009 Award: [Empty]; 
FY 2010 Awards: $1,209,500; 
FY 2011 Award: [Empty]; 
Award Total 2009-2011: $1,209,500; 
Award Total as Percentage of Total NARIP funds: 3.1%. 

State: Nevada; Department of Public Safety; 
FY 2009 Award: $798,471; 
FY 2010 Awards: [Empty]; 
FY 2011 Award: [Empty]; 
Award Total 2009-2011: $798,471; 
Award Total as Percentage of Total NARIP funds: 2.0%. 

State: Virginia; Department of State Police; 
FY 2009 Award: [Empty]; 
FY 2010 Awards: [Empty]; 
FY 2011 Award: $764,100; 
Award Total 2009-2011: $764,100; 
Award Total as Percentage of Total NARIP funds: 1.9%. 

State: Arizona; Criminal Justice Commission; 
FY 2009 Award: [Empty]; 
FY 2010 Awards: [Empty]; 
FY 2011 Award: $582,932; 
Award Total 2009-2011: $582,932; 
Award Total as Percentage of Total NARIP funds: 1.5%. 

State: North Dakota; Office of Attorney General; 
FY 2009 Award: [Empty]; 
FY 2010 Awards: [Empty]; 
FY 2011 Award: $205,973; 
Award Total 2009-2011: $205,973; 
Award Total as Percentage of Total NARIP funds: 0.5%. 

State: Iowa[A];
FY 2009 Award: [Empty]; 
FY 2010 Awards: [Empty]; 
FY 2011 Award: [Empty]; 
Award Total 2009-2011: $0; 
Award Total as Percentage of Total NARIP funds: [Empty]. 

State: Kansas[B]; 
FY 2009 Award: [Empty]; 
FY 2010 Awards: [Empty]; 
FY 2011 Award: [Empty]; 
Award Total 2009-2011: $0; 
Award Total as Percentage of Total NARIP funds: [Empty]. 

Source: DOJ: 

Notes: In June 2012, following completion of our audit work, three 
additional states--Indiana, Nebraska, and West Virginia--received 
certification of their relief from disabilities programs. These 
states' data are not included in this report. 

[A] Iowa, though eligible to receive NARIP funding, had not applied 
through the 2011 grant round. 

[B] Kansas applied for funding in 2009 but did not meet the 
eligibility requirements that year, and has not applied since. 

[End of table] 

Three of the 6 states we reviewed did not have a certified relief from 
disabilities program. Officials in 1 of these states (whose relief 
program did not meet the federal standard for certification) said that 
NARIP funding was an incentive to establish a relief program but that 
the smaller amount of NARIP funding available for fiscal year 2012 is 
one reason why the state was not willing to extend the effort to 
revise its relief program to meet the federal standard in the future. 
Officials in the second state whose program was pending ATF review 
said that NARIP grant eligibility was a little incentive to develop a 
relief from disabilities programs. Officials in the third state 
reported that they were not aware of the NARIP grant program, and 
accordingly, it did not affect any decisions regarding developing a 
relief from disabilities program. 

After the passage of the NIAA, DOJ sent a letter to every state's 
governor explaining the relief from disabilities program provision and 
the minimum criteria a state's program would have to meet for ATF 
certification. DOJ officials also gave presentations at state 
conferences and regional meetings where they discussed the relief 
program criteria, explained that a certified relief from disabilities 
program is a requirement to be eligible to receive NARIP grant 
funding, and provided points of contact for states to call if they 
needed technical assistance with their draft legislation. State 
officials generally had positive feedback regarding the technical 
assistance they received from ATF. For example, officials in Arizona 
said that ATF assisted the state with drafting language to amend a 
state statute and that this was precisely the assistance the state 
needed. New Jersey officials added that throughout the development of 
their draft relief provision legislation, ATF reviewed proposed 
amendments and ensured that they complied with the NIAA standards 
prior to the state advancing such legislation through the state 
legislature. 

State officials reported various challenges in developing relief from 
disabilities programs, including managing the concerns of advocacy 
groups and modifying state judicial processes to meet the federal 
standard, such as the requirement to provide for de novo judicial 
review.[Footnote 48] Officials from a state that had submitted draft 
relief legislation to ATF and were awaiting a determination said that 
managing the competing interests of various advocacy groups required a 
great deal of time and negotiation and was a challenge to their 
efforts to pass relief legislation. The officials noted that if ATF 
did not approve their legislation, they were not sure they would 
propose a new program in a future legislative session. Officials from 
2 states that had successfully developed relief programs said that 
competing pressures came from groups representing the families of 
victims of gun violence, gun rights advocacy groups, and groups from 
the mental health community that had privacy and other concerns. Other 
officials from a state without a relief from disabilities program did 
not believe it was politically feasible in their state to have such a 
program and had therefore not sought to develop one. 

Officials from 6 of the 16 states that had ATF-approved relief from 
disabilities programs as of May 2012 noted that managing the competing 
interests of advocacy groups was a challenge. For instance, officials 
from 1 state reported that the National Rifle Association, other gun 
rights advocacy groups, and members of the mental health community 
were all part of the process of drafting relief legislation, which 
took considerable time and effort to meet the federal criteria. The 
officials added that other states seeking to develop relief from 
disabilities programs should ensure buy-in with the various interested 
parties before the relief provision gets to the legislative stages. 

Conclusions: 

Sustained federal and state efforts to increase the comprehensiveness, 
timeliness, and automation of records that support NICS background 
checks are critical to helping enhance public safety and helping to 
prevent tragedies such as the Virginia Tech shootings. The national 
system of criminal background checks relies first and foremost on the 
efforts of state and local governments to provide complete and 
accurate records to the FBI. While many states have made little 
progress providing critical records for gun background checks, the 
substantial increase in mental health records coming mostly from 12 
states serves to demonstrate the great untapped potential within the 
remaining states and territories. States reported finding DOJ's 
guidance, grants, and technical assistance useful, but DOJ has 
opportunities to provide additional support by identifying and sharing 
information on promising practices on what worked for the states that 
have made progress sharing mental health records as well as what 
lessons they have learned. By identifying and distributing promising 
practices nationally, DOJ would be better positioned to assist states 
in the early phases of their efforts to make mental health records 
available, address barriers, and identify solutions to challenges 
those states face in this effort. 

The NIAA reward and penalty provisions are intended to provide 
incentives for states to make more records available to NICS, but our 
review suggests that the provisions might not be providing the 
incentives that were envisioned by the act. Given that record sharing 
with NICS on the part of states is voluntary, it is important that DOJ 
devise an effective implementation of the incentives, including a 
reasonable basis upon which to base those incentives. By obtaining 
state views, DOJ could determine the extent to which the current NIAA 
provisions provide incentives to states, whether modifications to the 
provisions would provide better incentives, or if alternative means 
for providing incentives could be developed and implemented. Further, 
DOJ would need to establish a basis on which these provisions or any 
future rewards and penalties approaches could be administered. 
Carrying changes to the state record estimates, as they are defined in 
the NIAA, may require DOJ to develop and submit a legislative proposal 
to Congress to consider any alternatives. Nonetheless, an effective 
system of rewards and penalties could ultimately result in states 
providing more records for NICS background checks. 

Recommendations for Executive Action: 

To help ensure effective implementation of the NIAA, we recommend that 
the Attorney General take the following two actions. 

* To further assist states in their efforts to make mental health 
records available for use during NICS background checks, work with 
states to identify and disseminate promising state practices 
nationally so that states in the early phases of their efforts to make 
such records available can address barriers and identify solutions to 
challenges faced in this effort. 

* To help ensure that incentives exist for states to make records 
available for use during NICS background checks and that DOJ has a 
sound basis upon which to base incentives, determine (1) if the NIAA 
reward and penalty provisions, if they were to be implemented, are 
likely to act as incentives for states to share more records, and (2) 
if, given limitations in current state estimates, whether DOJ can 
develop a revised estimate methodology whereby states are able to 
generate reliable estimates as a basis for DOJ to administer the NIAA 
reward and penalty provisions. If DOJ determines either (1) that the 
reward and penalty provisions are not likely to provide incentives for 
states to share more records or (2) that it is unable to establish a 
revised methodology upon which to administer the reward and penalty 
provisions, DOJ should assess if there are other feasible alternatives 
for providing incentives or administering the provisions and, if so, 
develop and submit to Congress a legislative proposal to consider 
these alternatives, as appropriate. 

Agency Comments: 

We provided a draft of this report for review and comment to DOJ. The 
department provided written comments, which are summarized below and 
reprinted in appendix V. DOJ agreed with both of our recommendations 
and identified actions it plans to take to implement them. DOJ also 
provided us with technical comments, which we incorporated as 
appropriate. 

DOJ agreed with our recommendation that the department identify and 
disseminate the promising practices of states in making mental health 
records available for use during NICS background checks. The 
department noted that BJS is collaborating with other relevant DOJ 
components to identify state promising practices. DOJ added that once 
these practices have been identified, BJS will disseminate this 
information to the states through electronic mailing lists, the BJS 
website, other partner agency sites, and at relevant meetings and 
conferences. 

DOJ also agreed with our recommendation that the department (1) ensure 
that the NIAA reward and penalty provisions are likely to act as an 
incentive for states to share more records and (2) develop a 
methodology upon which to administer the reward and penalty 
provisions. In its response, DOJ noted that BJS has determined that 
the current methodology for reporting estimates of available records 
does not result in sufficiently reliable estimates on with to base 
rewards and penalties. In light of this conclusion, BJS decided to not 
collect a fourth year of estimates but instead focus its efforts on 
identifying whether there are solutions that would allow BJS to use 
the estimates in the way the NIAA intended. BJS plans to convene a 
focus group of states to determine whether a better methodology can be 
developed and, if so, what attributes the revised methodology would 
entail. BJS also plans to use this same focus group to explore states' 
reactions to the reward and penalty provisions and to assess whether 
those provisions are likely to provide suitable incentives for the 
states to increase record sharing. 

We are sending copies of this report to the appropriate congressional 
committees, the Department of Justice, and other interested parties. 
In addition, this report is available at no charge on the GAO Web site 
at [hyperlink, http://www.gao.gov]. 

If you or your staff members have any questions about this report, 
please contact Carol Cha at (202) 512-4456 or chac@gao.gov, or Eileen 
Larence at (202) 512-6510 or larencee@gao.gov. Contact points for our 
Offices of Congressional Relations and Public Affairs may be found on 
the last page of this report. GAO staff who made major contributions 
to this report are listed in appendix VI. 

Signed by: 

Carol Cha: 
Acting Director, Homeland Security and Justice Issues: 

Signed by: 

Eileen Larence: 
Director, Homeland Security and Justice Issues: 

List of Requesters: 

The Honorable Lamar S. Smith:
Chairman, Committee on the Judiciary:
House of Representatives: 

The Honorable Lois Capps:
House of Representatives: 

The Honorable John D. Dingell:
House of Representatives: 

The Honorable Carolyn McCarthy:
House of Representatives: 

[End of section] 

Appendix I: Objectives, Scope, and Methodology: 

We assessed the progress the Department of Justice (DOJ) and states 
have made in implementing key provisions of the National Instant 
Criminal Background Check System (NICS) Improvement Amendments Act of 
2007 (NIAA). Namely, the extent to which: 

* states have made progress in making mental health records available 
for use during NICS background checks and DOJ could take actions to 
help states overcome challenges in providing these records, 

* states have made progress in making unlawful drug use records 
available for use during NICS background checks and DOJ could take 
actions to help states overcome challenges in providing these records, 

* DOJ has administered the reward and penalty provisions provided for 
in the act and whether selected states report that these provisions 
provide incentives to make records available to the Federal Bureau of 
Investigation (FBI), and: 

* states are providing a means for individuals with a precluding 
mental health adjudication or commitment to seek relief from the 
associated federal firearm prohibition. 

To determine state progress in providing mental health and unlawful 
drug use records, we analyzed FBI data from fiscal years 2004 through 
2011--about 4 years before and after the enactment of NIAA--on the 
number of such records that states made available for NICS background 
checks and on the number of gun purchase denials based on these 
records. To assess the reliability of these data, we questioned 
knowledgeable officials about the data and the systems that produced 
the data, reviewed relevant documentation, examined data for obvious 
errors, and (when possible) corroborated the data among the different 
agencies, including the Bureau of Justice Statistics (BJS) and the 
FBI's NICS Section. We determined that the data were sufficiently 
reliable for the purposes of this report. 

To assess the extent to which DOJ is providing assistance to help 
states overcome challenges in sharing records, we reviewed guidance 
DOJ provided to states and attended a DOJ-hosted regional conference 
on the NIAA held in December 2011 in DuPont, Washington. Additionally, 
we analyzed all NICS Act Record Improvement Program (NARIP) grant 
applications to identify any limitations that states reported facing 
when providing records and the amount of funding states believed were 
necessary to overcome these limitations. We analyzed grant 
applications from 2009, 2010, and 2011--funded and unfunded--submitted 
by states, territories, and tribal entities. From this, we were able 
to identify areas of need for which 28 states, territories, and tribal 
entities requested funding. To assess the accuracy of mental health 
and unlawful drug use records made available for NICS checks, we 
analyzed the most recent round of triennial audits conducted by the 
FBI's Criminal Justice Information Services (CJIS) Audit Unit and the 
most recent set of proactive validation processes completed by the 
states. The most recent set of proactive validation processes involved 
23 states and occurred from October 2010 through September 2011, and 
the audits were conducted in 42 states from 2008 through 2011. 

Further, we interviewed officials from a nonprobability sample of 6 
states to discuss any challenges they faced in sharing mental health 
and unlawful drug use records and their experiences with DOJ 
assistance received to address those challenges. The states selected 
were Idaho, Minnesota, New Mexico, New York, Texas, and Washington. We 
selected these states to reflect a range of factors, including the 
number of mental health records and unlawful drug use records made 
available for NICS checks, trends in making mental health records 
available to NICS over the past 3 years, whether the state received a 
grant under the NIAA, and whether the state has provided a state 
record estimate to the Bureau of Justice Statistics. While the results 
of these interviews cannot be generalized to all states, they provided 
insight into state challenges and state experience addressing those 
challenges. We also interviewed officials from various DOJ components 
with responsibility for managing and maintaining NICS records, which 
included the Bureau of Justice Statistics and the FBI's CJIS division 
and NICS Section. We interviewed these officials to determine, among 
other things, the progress states made submitting mental health and 
unlawful drug use records, challenges states face in doing so, and the 
forms of assistance DOJ is providing to help states address these 
challenges. 

To determine the extent to which DOJ has administered the reward and 
penalty provisions of the act and whether these provisions provide 
incentives for state efforts to share records, we reviewed copies of 
state record estimates for 2009, 2010, and 2011 and analyzed two 
reports from the National Center for State Courts evaluating these 
estimates. We interviewed center officials about, among other things, 
the scope, methodology, and findings of the reports. We determined 
that the scope and methodology were sufficient for us to rely on the 
results. We also interviewed officials from the 6 states in our sample 
regarding (1) their incentives to make the requested records available 
to the FBI; (2) the extent to which the reward and penalty provisions 
of the act have incentivized their efforts; (3) their thoughts on 
whether the reward and penalty provisions would change their actions 
if they were carried out by DOJ; (4) if the current reward and penalty 
provisions do not provide incentives, what would; and (5) the impact, 
if any, of DOJ not carrying out the reward and penalty provisions. We 
also interviewed the Bureau of Justice Statistics about its efforts to 
administer the reward and penalty provisions provided for in the act 
and the basis for its decisions. Additionally, we discussed the Bureau 
of Justice Statistics' position on the process for completing the 
state record estimates, challenges therein, and the effect of the 
act's reward and penalty provisions on record sharing. Further, we 
interviewed officials with the National Center for State Courts and 
the National Consortium for Justice Information and Statistics 
(SEARCH) who were responsible for collecting state record estimates 
and evaluating their reasonableness. From these interviews, we learned 
more about the reasonableness of the estimates, changes to the 
estimate methodology over time, and next steps for the estimates. 

To determine the extent to which states are providing a means for 
individuals with a precluding mental health adjudication or commitment 
to seek relief from the associated federal firearms prohibition, we 
reviewed documentation on the minimum criteria for certification of a 
relief from disabilities program and the relief program requirements 
detailed in the NIAA. We also reviewed examples of state statutes that 
established relief from disability programs. Further, we interviewed 
officials in each of the 16 states with approved relief from 
disability programs as of May 2012 to learn about the challenges they 
faced developing their programs, motivation for developing the 
program, federal assistance they received, and information on the 
number of relief applicants to date, including how many applications 
had been received, approved, denied, or dismissed.[Footnote 49] We 
also relied on data collected through interviews with the previously 
mentioned 6 sample states, the Bureau of Alcohol, Tobacco, Firearms 
and Explosives (ATF), and other DOJ components to learn about, among 
other things, the motivation to establish relief programs, barriers to 
doing so, and DOJ resources available to help states. Three of the 6 
states in our sample did not have certified relief from disability 
programs, and we asked officials in these states why they had not 
pursued developing a relief program; what barriers there were to 
establishing a relief program; and what, if any, federal assistance 
they would like for establishing a relief program. Additionally, we 
interviewed groups with an interest in relief from disability programs 
and NICS data more broadly, including the Brady Campaign, Gun Owners 
of America, Mayors Against Illegal Guns, and the National Rifle 
Association. We interviewed these groups to learn their positions on 
relief from disability programs, among other things. 

[End of section] 

Appendix II: State Options for Conducting Background Checks using the 
National Instant Criminal Background Check System: 

States have three options for conducting NICS checks, referred to as 
full point of contact (full POC), non-POC, and partial POC. As 
detailed in a 2008 report funded by DOJ, in full-POC states, Federal 
Firearms Licensees first query the NICS databases and related state 
files through one or more state organizations, such as local or state 
law enforcement agencies--known as points of contact--and then, if 
necessary, the staff of the POCs carry out any required follow-up 
research.[Footnote 50] In non-POC states, Federal Firearm Licensees 
contact the NICS Operations Center directly by telephone or via the 
Internet and any required follow-up research is performed by the 
NICS's FBI staff. In partial POC states, Federal Firearm Licensees 
query NICS and state files through a point of contact for handgun 
purchases or permits but query NICS directly for long gun purchases, 
such as shotguns or rifles. Figure 2 shows the distribution of POC 
states, partial-POC, and non-POC states. 

Figure 2: Point of Contact States as of October 2011: 

[Refer to PDF for image: illustrated U.S. map] 

Non-point-of-contact states-—states in which the FBI conducts checks 
using the National Instant Criminal Background Check System for 
firearm transactions: 
Alabama: 
Alaska: 
Arizona: 
Arkansas: 
Connecticut: 
Delaware: 
District of Columbia: 
Georgia: 
Idaho: 
Indiana: 
Kansas: 
Kentucky: 
Louisiana: 
Maine: 
Massachusetts: 
Minnesota: 
Mississippi: 
Missouri: 
Montana: 
New Mexico: 
New York: 
North Dakota: 
Ohio: 
Oklahoma: 
Rhode Island: 
South Carolina: 
South Dakota: 
Texas: 
Vermont: 
West Virginia: 
Wyoming: 

Point-of-contact states—-states that conduct checks using the National 
Instant Criminal Background Check System for all firearm transactions: 
California: 
Colorado: 
Florida: 
Hawaii: 
Illinois: 
Nevada: 
New Jersey: 
Oregon: 
Pennsylvania: 
Tennessee: 
Utah: 
Virginia: 

Partial point-of-contact states-—states in which the FBI conducts 
checks using the National Instant Criminal Background Check System for 
long gun transactions and state conducts checks using the National 
Instant Criminal Background Check System for all other firearm 
transactions: 
Iowa: 
Maryland: 
Michigan: 
Nebraska: 
New Hampshire: 
North Carolina: 
Washington: 
Wisconsin: 

Source: GAO analysis of DOJ data; Map Resources (map). 

[End of figure] 

According to the DOJ-funded report, states elect POC or non-POC status 
for various reasons, such as a state's attitude toward gun ownership, 
since many POC states have prohibiting legislation that is stricter 
than federal regulations. For example, Oregon has five statutorily 
prohibiting categories of misdemeanor convictions in addition to 
domestic violence--which is the only prohibiting misdemeanor required 
under federal law. Additionally, there may be an economic incentive 
for states to elect non-POC status, since implementing and operating a 
POC may cost a state more money than it can collect in fees charged to 
Federal Firearm Licensees for conducting background checks. For 
example, the authors reported that Idaho elected not to become a full-
POC state because of the added expense of performing background checks 
for long gun purchases. 

[End of section] 

Appendix III: Minimum Criteria for Certification of Qualifying State 
Relief from Disabilities Programs: 

ATF provides guidance for states to follow in certifying that they 
have established a qualifying mental health relief from firearms 
disabilities program that satisfies certain minimum criteria under the 
NIAA. ATF officials said that they review states' programs according 
to the following minimum criteria. 

1. State law: The relief program has been established by state 
statute, or administrative regulation or order pursuant to state law. 

2. Application: The relief program allows a person who has been 
formally adjudicated as a "mental defective"[Footnote 51] or committed 
involuntarily to a mental institution[Footnote 52] to apply or 
petition for relief from the Federal firearms prohibitions 
(disabilities) imposed under 18 U.S.C. § 922 (d) (4) and (g) (4). 

3. Lawful authority: A state court, board, commission, or other lawful 
authority (per state law) considers the applicant's petition for 
relief. The lawful authority may only consider applications for relief 
due to mental health adjudications or commitments that occurred in the 
applicant state. 

4. Due process: The petition for relief is considered by the lawful 
authority in accordance with principles of due process, as follows: 

a. The applicant has the opportunity to submit his or her own evidence 
to the lawful authority considering the relief application. 

b. An independent decision maker--someone other than the individual 
who gathered the evidence for the lawful authority acting on the 
application--reviews the evidence. 

c. A record of the matter is created and maintained for review. 

5. Proper record: In determining whether to grant relief, the lawful 
authority receives evidence concerning and considers the: 

a. Circumstances regarding the firearms disabilities imposed by 18 
U.S.C. § 922 (g) (4); 

b. Applicant's record, which must include, at a minimum, the 
applicant's mental health and criminal history records; and: 

c. Applicant's reputation, developed, at a minimum, through character 
witness statements, testimony, or other character evidence. 

6. Proper findings: In granting relief, the lawful authority issues 
findings that: 

a. The applicant will not be likely to act in a manner dangerous to 
public safety; and: 

b. Granting the relief will not be contrary to the public interest. 

7. De novo judicial review of a denial: The state provides for the de 
novo judicial review of relief application denials that includes the 
following principles: 

a. If relief is denied, the applicant may petition the state court of 
appropriate jurisdiction to review the denial, including the record of 
the denying court, board, commission or other lawful authority. 

b. In cases of denial by a lawful authority other than a state court, 
the reviewing court as the discretion to receive additional evidence 
necessary to conduct an adequate review. 

c. Judicial review is de novo in that the reviewing court may, but is 
not required to, give deference to the decision of the lawful 
authority that denied the application for relief. 

8. Required updates to state and federal records: Pursuant to § 102(c) 
of the NIAA, the state, on being made aware that the basis under which 
the record was made available does not apply, or no longer applies: 

a. Updates, corrects, modifies, or removes the record from any 
database that the federal or state government maintains and makes 
available to NICS, consistent with the rules pertaining to the 
database; and: 

b. Notifies the Attorney General that such basis no longer applies so 
that the record system in which the record is maintained is kept up to 
date. 

9. Recommended procedure: It is recommended (not required) that the 
state have a written procedure (e.g., state law, regulation, or 
administrative order) to address the update requirements. 

[End of section] 

Appendix IV: Federal and State Efforts to Ensure the Accuracy and 
Timeliness of Records Used by the National Instant Criminal Background 
Check System: 

Accuracy: 

Under DOJ regulations, the FBI is to be responsible for validating and 
maintaining data integrity of records in NICS--including mental health 
and unlawful drug use records--and does so through triennial on-site 
audits and proactive validation processes in each state that uses or 
contributes to the NICS Index. According to officials from the FBI's 
CJIS Division, the CJIS Audit Unit conducts the on-site audits every 3 
years and the validation processes are held between each audit. The 
CJIS officials explained that the two other databases searched during 
a NICS background check--the Interstate Identification Index (III) and 
National Crime Information Center (NCIC)--are also audited by the CJIS 
Audit Unit as part of its audit processes. In addition to DOJ's 
efforts, several of the states in our sample reported having their own 
processes in place to ensure the accuracy of records they make 
available for NICS checks. 

FBI Triennial Audits and Proactive Validation Processes: 

During on-site triennial audits, the CJIS Audit Unit reports that it 
examines a random sample of NICS Index records for accuracy, validity, 
and completeness through a review of documentation used to make the 
entry into the database. According to CJIS officials, the accuracy of 
a record is assessed by identifying errors in biographical information 
contained within a record (e.g., name or date of birth). Further, 
validity is ensured by determining if there is proper documentation to 
support the entry of the record into the NICS Index. CJIS officials 
cited that the completeness review is used by the Audit Unit to notify 
states if there is additional information that could be captured in 
their records to increase the likelihood of finding records of 
individuals prohibited from receiving or possessing a firearm within 
the database. According to CJIS officials, CJIS Audit Unit auditors 
make a determination of compliance in the areas of validity and 
accuracy based on a percentage of total records reviewed. At the close 
of each audit, the CJIS officials cited that the Audit Unit provides 
recommendations if there were any findings, as well as follow-up 
guidance, training, and assistance to the state. 

According to DOJ, approximately 7,100 NICS Index records from 42 
states were reviewed in the most recent round of triennial audits. 
[Footnote 53] DOJ officials noted that none of the states were found 
to be out of compliance, but 6 states were found to have records where 
CJIS could not determine whether the records were appropriate for 
entry into the NICS Index. For example, the CJIS auditors could not 
determine whether some mental health records were from voluntary or 
involuntary commitments, which is important, since only involuntary 
commitments would be eligible for submission to the NICS Index. 
Additionally, several mental health records were found inappropriate 
for entry into the NICS Index because they belonged to deceased 
individuals. According to DOJ officials, there were no findings in the 
most recent round of triennial audits explicitly associated with 
unlawful drug use records. Officials noted that the unlawful drug use 
category has very few records overall and is the fourth lowest 
contributing category of the NICS Index. 

During a "proactive validation process," CJIS officials reported that 
they ask states to validate their records in a manner similar to the 
way the CJIS Audit Unit conducts the triennial audits. The FBI NICS 
Section reported that it provides the state with a random sample of 
NICS Index records to validate and expects the state to examine these 
records' documentation for accuracy, completeness, and validity. NICS 
Section does not make any assessments of compliance during the 
proactive validation process and it does not review any documentation 
used to validate the sample of records. 

In the most recent set of proactive validation processes (October 2010 
through September 2011), 13,418 records were validated by 23 states 
and 1,914 records were reported by states to be invalid, resulting in 
an 85.74 percent validity rate. Of the 23 states that conducted these 
processes, 16 states examined records made available to the NICS 
Index's Mental Health file and 2 states examined records provided to 
the Controlled Substance file.[Footnote 54] As with the triennial 
audits, however, the FBI could not disaggregate the audit findings for 
each prohibitor. 

State Efforts to Ensure Accuracy: 

In addition to DOJ's audits, 2 of the states in our sample reported 
taking additional steps to ensure the accuracy of the mental health 
and unlawful drug use records they make available for NICS checks. For 
example, Texas Department of Public Safety officials reported that the 
Texas State Auditor's Office conducts audits of the department's 
criminal history records, including unlawful drug use records, every 5 
years. Additionally, New Mexico officials cited the use of 
fingerprinting technology to automate and ensure the quality of 
fingerprints for criminal unlawful drug use records. None of the 
states in our sample has similar checks for accuracy in place for 
mental health records, but Idaho state officials noted that Idaho 
plans to conduct spot checks for accuracy on mental health records, 
similar to those currently done on criminal history records, once it 
uploads its first batch of these records to NICS. 

Timeliness: 

DOJ does not set goals for states regarding the timeliness of when the 
state makes records, including mental health and unlawful drug use 
records, available to the NICS Index because officials said it is the 
responsibility of states to set their own goals in this area. 
According to the FBI's NICS Section officials, the NIAA does not 
specify any timeliness goals for states and the sharing of state 
records to the NICS Index is entirely voluntary. Therefore, the NICS 
Section neither tracks how quickly states are making records available 
to the NICS Index nor provides any guidance regarding time frames 
between a precluding incident (e.g., involuntary commitment or a 
failed drug test) and when a NICS Index record should be made 
available. NICS Section officials also explained that some states are 
focused on older records that, if made available to the FBI, would 
preclude an individual from purchasing a gun today. Although these 
records may date back 20 years, the NICS Section officials view these 
states' contributions as a positive effort and not a shortcoming. 

Some states have reported setting goals or statutory requirements for 
record timeliness. For example, 4 of the 6 sample states noted having 
state-specific timeliness requirements for the submission of mental 
health records. Texas and Washington state officials reported having 
statutory requirements to making mental health records available to 
the FBI ranging from 3 to 30 days. Idaho and Minnesota cited 
requirements that county clerks submit prohibiting mental health 
records to state repositories as quickly as they can upon completion 
of the hearing or "as soon as is practicable." With regard to unlawful 
drug use records, 2 states reported having state-specific time frames 
for the submission of arrest records to the state repository (10-day 
time frame in Idaho and 1-day time frame in Minnesota). 

[End of section] 

Appendix V: Comments from the Department of Justice: 

U.S. Department of Justice: 
Office of Justice Programs: 
Office of the Assistant Attorney General: 
Washington D.C. 20531: 

June 22, 2012: 

Ms. Carol Cha: 
Acting Director: 
Homeland Security and Justice Issues: 
Government Accountability Office: 
441 G Street, NW: 
Washington, DC 20548: 

Dear Ms. Cha: 

Thank you for the opportunity to review and comment on the draft 
Government Accountability Office (GAO) report entitled, "Gun Control: 
Sharing Promising Practices and Assessing Incentives Could Better 
Position Justice to Assist States in Providing Records for Background
Checks," (GA0-12-684). The U.S. Department of Justice (DOJ) 
appreciates GAO's work on this review. 

The draft GAO report contains two Recommendations for Executive Action 
to the DOJ, which are restated in bold text below and are followed by 
our response. 

To help ensure effective implementation of the NIAA, we recommend that 
the Attorney General take the following two actions. 

1. To further assist states in their efforts to make mental health 
records available for use during NICS background checks, work with 
states to identify and disseminate promising state practices 
nationally so that states in the early phases of their efforts to make 
such records available can address barriers and identify solutions to 
challenges faced in this effort. 

The Office of Justice Programs (OJP) agrees with the Recommendation 
for Executive Action. OJP's Bureau of Justice Statistics (BJS) is 
collaborating with other relevant DOJ components to identify promising 
state practices, which allow records of persons prohibited from 
possessing firearms for mental health and other reasons to be available
at the time of a National Instant Criminal Background Check System 
(NICS) background check. Once these practices have been identified, 
BJS will disseminate this information through listservs, the BJS 
website, other partner agency sites, and at relevant meetings and 
conferences. 

2. To help ensure that incentives exist for states to make records 
available for use during NICS background checks and that DOJ has a 
sound basis upon which to base incentives, determine (1) if the NIAA 
reward and penalty provisions, if they were to be implemented, are 
likely to act as incentives for states to share more records, and (2) 
if, given limitations in current state estimates, whether DOJ can 
develop a revised estimate methodology whereby states are able to 
generate reliable estimates as a basis for DOJ to administer the NIAA 
reward and penalty provisions. If DOJ determines either (1) that the 
reward and penalty provisions are not likely to provide incentives for 
states to share more records or (2) that it is unable to establish a 
revised methodology upon which to administer the reward and penalty 
provisions, DOJ should assess if there are other feasible alternatives 
for providing incentives or administering the provisions and, if so, 
develop and submit to Congress a legislative proposal to consider 
these alternatives, as appropriate. 

OJP agrees with the Recommendation for Executive Action. BJS 
determined that the current methodology for reporting estimates of 
available records does not result in sufficiently reliable estimates 
on which to base the application of the penalty and waiver provisions 
of the NICS Improvement Amendments Act of 2007 (NIAA). In light of 
this conclusion, BJS decided not to collect Year 4 estimates, but will 
focus its attention and resources on identifying whether there are 
solutions that would allow BJS to utilize the estimates in the way the 
NIAA intended. Upon completion of the analysis of Year 3 data, BJS, in 
collaboration with the National Center for State Courts and the SEARCH
Group Inc., will convene a focus group of states to determine whether 
a better methodology can be developed and, if so, what attributes the 
revised methodology would entail. BJS will also use this same focus 
group to explore states' reactions to the reward and penalty 
provisions, and to assess whether those provisions are likely to 
provide suitable incentives for the states to increase record sharing.
If you have any questions regarding this response, you or your staff 
may contact Maureen Henneberg, Director, Office of Audit, Assessment, 
and Management, at (202) 616-3282. 

Sincerely, 

Signed by: 

Mary Lou Leary: 
Acting Assistant Attorney General: 

cc: James H. Burch, II: 
Deputy Assistant Attorney General for Operations and Management: 

Dr. James Lynch: 
Director: 
Bureau of Justice Statistics: 

Leigh Benda: 
Chief Financial Officer: 

Maureen Henneberg: 
Director: 
Office of Audit, Assessment, and Management: 

Louise Duhamel, Ph.D. 
Acting Assistant Director, Audit Liaison Group: 
Internal Review and Evaluation Office: 
Justice Management Division: 

OJP Executive Secretariat: 
Control Number 20120826: 

[End of section] 

Appendix VI: GAO Contacts and Staff Acknowledgments: 

GAO Contacts: 

Carol Cha, (202) 512-4456 or chac@gao.gov: 

Eileen Larence, (202) 512-6510 or larencee@gao.gov: 

Staff Acknowledgments: 

In addition to the contacts above, Eric Erdman (Assistant Director), 
Claudia Becker, Tina Cheng, Katherine Davis, Michele Fejfar, Charlotte 
Gamble, Geoffrey Hamilton, Lara Miklozek, Christine Ramos, and David 
Schneider made key contributions to this report. 

[End of section] 

Footnotes: 

[1] Pub. L. No. 103-159, 107 Stat. 1536 (1993). 

[2] See, for example, GAO, National Criminal History Improvement 
Program: Federal Grants Have Contributed to Progress, [hyperlink, 
http://www.gao.gov/products/GAO-04-364] (Washington, D.C.: Feb 27, 
2004), and Bureau of Justice Statistics Funding to States to Improve 
Criminal Records, [hyperlink, 
http://www.gao.gov/products/GAO-08-898R], (Washington, D.C.: July 8, 
2008). 

[3] Pub. L. No.110-180, 121 Stat. 2559 (2008). 

[4] When states submit mental health records to the NICS Index, they 
provide descriptive information about the prohibited individual (such 
as the individual's name and date of birth), along with a code to 
identify which federal prohibitor applies. States do not share an 
individual's actual treatment records or other health care records, 
nor do they provide specifics related to the individual's prohibiting 
mental health condition. Use of the term "mental health records" in 
this report should be understood to mean the identifying information 
on prohibited persons supplied by states to the NICS Index. 

[5] The National Center for State Courts is an independent, nonprofit 
court improvement organization that conducts research, information 
services, education, and consulting. 

[6] SEARCH's primary objective is to identify and help solve the 
information management and information-sharing challenges of state, 
local, and tribal justice and public safety agencies confronted with 
the need to exchange information with other local agencies, state 
agencies, agencies in other states, or the federal government. 

[7] In June 2012, 3 additional states received certification of their 
relief from disabilities programs. We did not interview officials in 
these states. 

[8] Pursuant to ATF regulations, a Federal Firearms License is a 
license that enables an individual to engage in commerce in firearms, 
including dealing in firearms, manufacturing ammunition and firearms, 
and importing firearms. 

[9] Under federal law, persons are prohibited from possessing or 
receiving a firearm if they (1) have been convicted of a felony; (2) 
are a fugitive from justice; (3) are an unlawful user of or addicted 
to any controlled substance; (4) have been involuntarily committed to 
a mental institution or judged to be mentally defective; (5) are 
aliens illegally or unlawfully in the United States, or certain other 
aliens admitted under a nonimmigrant visa; (6) have been dishonorably 
discharged from the military; (7) have renounced their U.S. 
citizenship; (8) are under a qualifying domestic violence restraining 
order; (9) have been convicted of a misdemeanor crime of domestic 
violence. In addition, federal law prohibits persons under felony 
indictment from receiving a firearm. See 18 U.S.C. § 922(g) and § 
922(n). 

[10] Pub. L. No. 90-618, 82 Stat. 1213 (1968). 

[11] 27 C.F.R. § 478.11. 

[12] ATF regulations at 27 C.F.R. § 478.11 defines "adjudicated as a 
mental defective" as a determination by a court, board, commission, or 
other lawful authority that a person, as a result of marked subnormal 
intelligence, or mental illness, incompetency, condition, or disease: 
(1) is a danger to himself or others; or (2) lacks the mental capacity 
to contract or manage his own affairs. The terms shall include--(1) a 
finding of insanity by a court in a criminal case; and (2) those 
persons found incompetent to stand trial or found 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. 

[13] ATF regulations at 27 C.F.R. § 478.11 define the term "committed 
to a mental institution" as a formal commitment of a person to a 
mental institution by a court, board, commission, or other lawful 
authority. The term includes commitments for other reasons, such as 
for drug use. 

[14] More specifically, the ATF regulations provide that "such use is 
not limited to the use of drugs on a particular day, or within a 
matter of days or weeks before, but rather that the unlawful use has 
occurred recently enough to indicate that the individual is actively 
engaged in such conduct. A person may be an unlawful current user of a 
controlled substance even though the substance is not being used at 
the precise time the person seeks to acquire a firearm or receives or 
possesses a firearm." This definition additionally provides that "an 
inference of current use may be drawn from evidence of a recent use or 
possession of a controlled substance or a pattern of use or possession 
that reasonably covers the present time, e.g., a conviction for use or 
possession of a controlled substance within the past year; multiple 
arrests for such offenses within the past 5 years if the most recent 
arrest occurred within the past year; or persons found through a drug 
test to use a controlled substance unlawfully, provided that the test 
was administered within the past year." 27 C.F.R. § 478.11 

[15] The NIAA provides that such disqualification determinations are 
those made under subsection (g) or (n) of section 922 of title 18, 
United States Code, or applicable state law. 

[16] The goal of the NCHIP grant program is to enhance the quality, 
completeness, and accessibility of criminal history record information 
and includes direct financial and technical assistance to states to 
improve their criminal records systems that support background checks. 
Justice Assistance Grants are used broadly for, among other things, 
information sharing, law enforcement, and crime victim and witness 
programs and can fund criminal justice records improvement and 
automated fingerprint identification systems. 

[17] The NIAA additionally provides that the Attorney General may 
waive the application of the mandatory penalty if the state provides 
substantial evidence, as determined by the Attorney General, that the 
state is making a reasonable effort to comply with specified records 
submission provisions of the NIAA. 

[18] See appendix III for a copy of ATF's minimum criteria document. 

[19] Unless otherwise noted, "states" will refer to all 50 states and 
the District of Columbia. 

[20] According to NICS Section officials, the vast majority of mental 
health records that states make available are contained in the NICS 
Index. The officials noted that states submit a small number of mental 
health records--such as those involving a finding by a court of not 
guilty by reason of insanity--to other databases but that these 
records cannot be readily identified. 

[21] See appendix IV for steps DOJ and states have taken to ensure the 
accuracy and timeliness of state mental health records made available 
for use during NICS background checks. 

[22] According to NICS Section officials, the number of denials based 
on mental health records may be underreported, since some states 
conduct their own NICS checks and have not always reported the reason 
for denials to the FBI. 

[23] Idaho Code § 67-3003(1)(i). The 2010 statute also requires Idaho 
state courts finding a defendant incompetent to stand trial to (1) 
make a finding as to whether the defendant is prohibited under federal 
law (18 U.S.C. 922(d)(4) and (g)(4)) from receiving or possessing a 
firearm, and (2) if such a finding is made, forward a copy of the 
order to the Idaho state police to, in turn, forward for inclusion in 
NICS. 

[24] Texas Government Code § 411.052. 

[25] 45 C.F.R. Part 164. 

[26] The Privacy Rule defines the term "required by law" to include, 
among other things, court orders and court-ordered warrants; subpoenas 
or summons issued by a court, grand jury, a governmental or tribal 
inspector general; or an administrative body authorized to require the 
production of information. 

[27] State of Illinois, Office of the Auditor General, Management 
Audit of the Department of State Police's Administration of the 
Firearm Owner's Identification Act (Springfield, Illinois: April 2012). 

[28] Section 103 of the NIAA authorizes appropriations for the NARIP 
grants for fiscal years 2009 through 2013 in the following amounts: 
fiscal year 2009: $125 million; fiscal year 2010: $250 million; fiscal 
year 2011: $250 million; fiscal year 2012: $125 million; fiscal year 
2013: $125 million. Actual appropriations have been as follows: fiscal 
year 2009: $10 million (Pub. L. No. 111-8, 123 Stat. 524 (2009)); 
fiscal year 2010: $20 million (Pub. L. No. 111-117, 123 Stat. 3034 
(2009)); fiscal year 2011: $16.1 million (Pub. L. No. 112-10, 125 
Stat. 38 (2011)); fiscal year 2012: $5 million (Pub. L. No. 112-55, 
125 Stat. 552 (2011)). 

[29] GAO, Bureau of Justice Statistics Funding to States to Improve 
Criminal Records, [hyperlink, http://www.gao.gov/products/GAO-08-898R] 
(Washington, D.C.: July 8, 2008). 

[30] National Criminal Justice Association, Byrne JAG Improves Public 
Safety and Prevents Crime: How States Use the Byrne JAG Formula Grant 
Program to Advance Criminal Justice Information Sharing, 2010. 

[31] Although often used interchangeably, best practices typically 
represent a higher standard of proven effectiveness than promising 
practices. The National Resource Center defines a best practice as a 
program, activity, or strategy that has been shown to work effectively 
and produce successful outcomes and is supported to some degree by 
subjective and objective data sources. On the other hand, a promising 
practice is a program, activity, or strategy that has worked within 
one organization and shows promise during its early stages for 
becoming a best practice with long-term sustainable impact. A 
promising practice must have some objective basis for claiming 
effectiveness and must have the potential for replication among other 
agencies. The National Resource Center, Intermediary Development 
Series: Identifying and Promoting Promising Practices. 2004 

[32] GAO, Standards for Internal Control in the Federal Government, 
[hyperlink, http://www.gao.gov/products/GAO/AIMD-00-21.3.1. 
(Washington, D.C.: Nov. 1999). 

[33] With respect to the statutory unlawful drug use prohibitor, under 
ATF regulations and guidance, unlawful drug use records can include 
both criminal drug use records (those with an associated arrest or 
conviction) and noncriminal drug use records (those without an 
associated arrest or conviction). Noncriminal drug use records, for 
example, can be the basis for an inference of current use or 
possession of a controlled substance and such an inference may be 
drawn from evidence of a recent use such as a drug test found to be 
positive for a controlled substance. 

[34] Search queries in the III are done using names and other 
identifiers. If a match is found, the record requests are made from 
the appropriate state record repository. 

[35] Officials from Connecticut said that they convened multiple state 
agencies over a period of several months to develop a list of 50 
statutes and codes that the state would report to the NICS Index for 
unlawful drug use, which includes misdemeanors for the illegal sale of 
prescription drugs or infractions for the possession of marijuana. The 
officials added that the majority of these records are from cases 
where a person mails in a fine for possessing a small amount of 
marijuana, which in Connecticut does not result in an arrest or court 
appearance. 

[36] As with the denials based on mental health records, NICS Section 
officials noted that the number of denials based on unlawful drug use 
records may be underreported since some states conduct their own NICS 
checks and have not always reported the reason for denials to the FBI. 

[37] With respect to the unlawful drug use prohibitor, ATF regulations 
provide that an inference of current use of a controlled substance may 
be drawn from evidence of a recent use or possession or a pattern of 
use or possession that reasonably covers the present time. 27 C.F.R. § 
478.11. 

[38] These challenges are detailed in two publicly available reports. 
R. Schauffler, S. Strickland, A. Mason, O. Greenspan, D. DeBacco. NICS 
Improvement Amendments Act: State Records Estimates Development and 
Validation Project, Year One Report. National Center for State Courts. 
(September, 2010), and R. Schauffler, S. Strickland, A. Gallegos, O. 
Greenspan, D. DeBacco, A. Webb-Edgington. NICS Improvement Amendments 
Act: State Records Estimates Development and Validation Project, Year 
Two Report. National Center for State Courts. (December, 2011). 

[39] The seven categories of records requested by BJS were felony 
convictions, active indictments, active wants and warrants, unlawful 
drug use, records covering mental health adjudications, protection or 
restraining orders, and convictions for misdemeanor crimes of domestic 
violence. 

[40] BJS officials cited other reasons for not collecting record 
estimates in 2012. For example, BJS officials noted that the NIAA only 
requires an initial estimate from states and therefore states did not 
need to provide an estimate every year. Second, BJS officials reported 
that the Paperwork Reduction Act of 1995 (Pub. L. No. 104-13 (1995)) 
requires DOJ to obtain Office of Management and Budget approval to 
collect information such as the estimates and this approval expired 
September 2011. Therefore, without justifying the need for additional 
data collection, the department could not send a data collection 
instrument out to states for 2012. 

[41] The NCHIP program requires that federal funds awarded not cover 
more than 90 percent of the total costs of the project being funded. 
The applicant must identify the source of the 10 percent nonfederal 
portion of the total project costs and how the match funds will be 
used. Applicants can satisfy the match requirement with either cash or 
in-kind services. NCHIP awards in 2011 ranged from $56,000 to about 
$411,000, which means the corresponding cost match ranged from about 
$6,000 to about $46,000. 

[42] This potential penalty was calculated using the Fiscal Year 2011 
JAG Program state-level grants. JAG Program grants also include a 
local solicitation where eligible local governments can apply for 
funding directly to DOJ. The NIAA penalty language refers generally to 
the JAG Program statute and does not differentiate between the state 
and local solicitations. Therefore, the potential penalty could be 
higher if local JAG Program funding is included. 

[43] [hyperlink, http://www.gao.gov/products/GAO/AIMD-00-21.3.1. 

[44] As mentioned previously, to be eligible for NARIP grants, states 
must also provide DOJ with estimates, pursuant to a methodology 
provided by the Attorney General, of their numbers of potentially NICS-
applicable records. 

[45] In general, the NIAA requires that such state relief from 
disabilities programs (1) permit a person to apply to the state for 
relief; (2) provide that a state court, board, commission, or other 
lawful authority grant the relief pursuant to state law and in 
accordance with the principles of due process, if the circumstances 
regarding the mental health-related disability and the person's record 
and reputation, are such that the person will not be likely to act in 
a manner dangerous to public safety and that the granting of relief 
would not be contrary to the public interest; and (3) permit a person 
whose application for the relief is denied to file a petition with the 
state court of appropriate jurisdiction for a judicial review of the 
denial. 

[46] In June 2012, three additional states--Indiana, Nebraska, and 
West Virginia--received certification of their relief from 
disabilities programs. 

[47] At the time of our review, the fiscal year 2012 grant funds had 
not been awarded. 

[48] In general, de novo judicial review is a review of the matter 
anew; the same as if it had not been heard before and as if no 
decision had been previously rendered. 

[49] In June 2012, 3 additional states received certification of their 
relief from disabilities programs. We did not interview officials in 
these states. 

[50] J. M. Tien, et. al, Cost-Benefit of Point-of-Contact (POC) Versus 
Non-POC Firearm Eligibility Background Checks, 2001-RU-BX-K002 (2008) 

[51] Federal regulations at 27 C.F.R. § 478.11 define the term 
"adjudicated as a mental defective" as a determination by a court, 
board, commission, or other lawful authority that a person, as a 
result of marked subnormal intelligence, or mental illness, 
incompetency, condition, or disease: (1) is a danger to himself or 
others; or (2) lacks the mental capacity to contract or manage his own 
affairs. The terms shall include--(1) a finding of insanity by a court 
in a criminal case; and (2) those persons found incompetent to stand 
trial or found 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. 

[52] Federal regulations at 27 C.F.R. § 478.11 define the term 
"committed to a mental institution" as a formal commitment of a person 
to a mental institution by a court, board, commission, or other lawful 
authority. The term includes commitments for other reasons, such as 
for drug use. The term does not include a person in a mental 
institution for observation or a voluntary admission to a mental 
institution. 

[53] FBI officials stated that they could not disaggregate the audit 
findings for each prohibitor because they purge any documentation of 
records reviewed and errors found in each category by the end of the 
audit because of legal implications of keeping these records in an 
invalid form. Therefore, the only documentation of results the FBI 
maintains following an audit is the aggregate findings documented 
within each state audit report. 

[54] According to NICS Section officials, the NICS Index's Denied 
Persons file may also contain mental health records, among other 
records of individuals federally prohibited from purchasing a firearm. 

[End of section] 

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Washington, DC 20548.