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                                                        Calendar No. 78
111th Congress                                                   Report
                                 SENATE
 1st Session                                                     111-27

======================================================================



 
                 VETERANS' 2ND AMENDMENT PROTECTION ACT

                                _______
                                

                 June 16, 2009.--Ordered to be printed

                                _______
                                

          Mr. Akaka, from the Committee on Veterans' Affairs,
                        submitted the following

                              R E P O R T

                         [To accompany S. 669]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Veterans' Affairs (hereinafter, 
``Committee''), to which was referred the bill (S.669) to amend 
title 38, United States Code, to clarify the conditions under 
which certain persons may be treated as adjudicated mentally 
incompetent for certain purposes. The bill will amend the 
criteria used by the Department of Veterans Affairs 
(hereinafter, ``VA'') in reporting names of VA beneficiaries to 
the Federal Bureau of Investigation (hereinafter, ``FBI'') for 
entry into the National Instant Criminal Background Check 
System (hereinafter, ``NICS'') so that VA beneficiaries who are 
found in need of a fiduciary to manage their VA benefit 
payments would no longer be included in the NICS unless a 
judge, magistrate or other judicial authority determines that 
they are a danger to themselves or others. The Committee 
reports favorably thereon, and recommends that the bill do 
pass.

                              Introduction

    On March 23, 2009, Committee Ranking Minority Member 
Richard Burr introduced S.669, which would amend the criteria 
used by VA in reporting names of VA beneficiaries to the FBI 
for entry into the NICS. Committee Members Jim Webb, Roger F. 
Wicker, and Lindsey Graham are original cosponsors, as are 
Senators Tom Coburn, Mike Crapo, John Ensign, James M. Inhofe, 
Pat Roberts, David Vitter, Thad Cochran, Jim DeMint, Michael B. 
Enzi, Chuck Grassley, Lisa Murkowski, and John Thune. The bill 
was referred to the Committee.

                           Committee Hearing

    On April 22, 2009, the Committee held a hearing on 
legislation pending before the Committee at which testimony on 
S.669, among other bills, was offered by: Dr. Gerald M. Cross, 
Principal Deputy Under Secretary for Health, Department of 
Veterans Affairs; Mr. Adrian Atizado, Assistant National 
Legislative Director, Disabled American Veterans; Ms. Ammie 
Hilsabeck, RN, American Federation of Government Employees; Ms. 
Hilda Heady, Former President, National Rural Health 
Association; Mr. Ralph Ibson, Health Policy Senior Fellow, 
Wounded Warrior Project; and Mr. Blake Ortner, Senior Associate 
Legislative Director, Paralyzed Veterans of America.

                           Committee Meeting

    On May 21, 2009, the Committee met in open session to 
consider legislation pending before the Committee. Among the 
measures so considered was S.669. The Committee voted, without 
dissent, to report favorably S.669 to the Senate.

               Summary of the Committee Bill as Reported

    The Committee bill would clarify the conditions under which 
VA beneficiaries may be treated as adjudicated mentally 
defective for purposes of reporting their names to the FBI for 
entry into the NICS.
    Background. The Federal Gun Control Act of 1968 
(hereinafter, ``GCA''), Public Law 90-618, and subsequent 
amendments established categories of persons who are prohibited 
from receiving or possessing firearms. Included among the 
categories is any person who has been ``adjudicated as a mental 
defective or who has been committed to a mental institution.'' 
Part 478.11 of title 27, Code of Federal Regulations, defines 
the meaning of the phrase ``adjudicated as a mental defective'' 
as follows:
    (a) 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 to others; or
          (2) lacks the mental capacity to contract or manage 
        his own affairs.
    The Brady Handgun Violence Prevention Act of 1993 
(hereinafter, the ``Brady Act''), Public Law 103-159, required 
the Attorney General to establish a system to assist federally 
licensed gun dealers in determining whether a gun buyer is 
prohibited under the GCA from purchasing a firearm. The system 
developed pursuant to the Brady Act, NICS, is a computerized 
database operated by the FBI NICS Section. The NICS can be 
queried by gun dealers to determine whether the name of a 
prospective buyer is on the list and, therefore, legally 
prohibited from purchasing a firearm.
    The Brady Act also requires Federal agencies, upon the 
request of the Attorney General, to submit to the FBI 
information on persons prohibited from purchasing a firearm. 
The Attorney General made such a request to VA in 1998. Under a 
Memorandum of Understanding entered into between the FBI and 
VA, VA agreed to make available for inclusion on the NICS 
database information about VA beneficiaries who are determined 
to be mentally incompetent on account of their inability to 
contract or manage their own affairs pursuant to part 3.353 of 
title 38, Code of Federal Regulations. Determinations of 
incompetency under part 3.353 result in an appointment of a 
fiduciary.
    The evidence gathered to support a finding of incompetency, 
under part 3.353 of VA's regulations, is used to inform a 
judgment about whether a beneficiary is capable of managing 
their VA benefit payments. No evidence is gathered as part of 
this process to inform a judgment about whether a beneficiary 
presents a danger to themselves or others, or whether they 
should be prohibited from purchasing, possessing, or operating 
a firearm. Furthermore, although beneficiaries are entitled to 
a hearing once notified that it is proposed they will be 
determined incompetent, the initial hearing is before VA 
personnel, not an independent authority.
    From the date of the initial request of the Attorney 
General through October, 2007, VA has shared information with 
NICS on over 116,000 individuals for whom it has appointed a 
fiduciary. VA was unable to provide the Committee with updated 
information about how many additional names have been added or 
removed from NICS since October 2007. Despite the fact that 
other agencies, such as the Social Security Administration, 
appoint fiduciaries to manage benefit payments for their 
beneficiaries in a manner similar to VA's process, VA 
beneficiaries constitute the overwhelming majority of 
individuals referred to the FBI by the Federal government.
    U.S. States and territories may also submit information to 
the NICS about individuals who have been adjudicated mentally 
defective under the GCA. In total, 435,520 names have been 
submitted as of April 30, 2008, although only eight states are 
responsible for 99.5 percent of the submissions. California, 
Virginia, and Michigan alone have sent 87 percent of the total. 
A quick survey of the process used by some states to submit the 
names of individuals to the NICS is illustrative of the 
variation involved. For instance, in Michigan a court must 
enter an order declaring someone a mental defective or 
incompetent. In Texas, the NICS process is triggered after a 
criminal court reports incompetency. California sends 
information to the NICS on those who have been involuntarily 
committed to a mental institution, afforded a hearing, and who 
are held for a 3-day period at a mental institution.
    The Committee is concerned that the Justice Departments of 
both the prior Administration (in connection with official 
views on a substantively similar bill considered by the 
Committee during the 110th Congress) and the current 
Administration did not respond to official requests from 
Chairman Akaka for views on the Veterans' 2nd Amendment 
Protection Act. Such views would have been helpful to the 
Committee's understanding of the impact the legislation may 
have. The Committee encourages the Department of Justice to 
provide the requested views as soon as possible so that the 
full Senate may have the benefit of the Administration's 
opinion.
    Committee Bill. S.669 would amend Chapter 55 of title 38 by 
adding a new section, to clarify that in any case arising out 
of VA's administration of benefits under title 38, a VA 
beneficiary who is mentally incapacitated, deemed mentally 
incompetent, or experiencing an extended loss of consciousness, 
shall not be considered adjudicated as a mental defective under 
the GCA without the order or finding of a judge, magistrate, or 
other judicial authority of competent jurisdiction that such 
individual is a danger to him- or herself or others.

               Congressional Budget Office Cost Estimate

    In compliance with paragraph 11(a) of rule XXVI of the 
Standing Rules of the Senate, the Committee, based on 
information supplied by the CBO, estimates that enactment of 
the Committee bill would, relative to current law, have no 
significant budgetary impact. Enactment of the Committee bill 
would not affect the budget of state, local, or tribal 
governments.
    The cost estimate provided by CBO follows:

                               Congressional Budget Office,
                                     Washington, DC, June 16, 2009.
Hon. Daniel K. Akaka,
Chairman,
Committee on Veterans' Affairs,
U.S. Senate, Washington, DC.

    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S.669, the Veterans 2nd 
Amendment Protection Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Dwayne M. 
Wright.
            Sincerely,
                                      Douglas W. Elmendorf,
                                                          Director.

  Enclosure

S.669, Veterans 2nd Amendment Protection Act
    S.669 would modify an existing requirement that certain 
individuals determined to be mentally incompetent by the 
Department of Veterans Affairs (VA) be prohibited from 
purchasing or possessing legal firearms. CBO expects that 
implementing S.669 would have no significant budgetary impact.
    Under current law, the Department of Justice (DOJ) 
considers individuals who are found to be a danger to 
themselves or others as mentally defective and includes those 
names in databases managed by the Federal Bureau of 
Investigation and the Federal Bureau of Alcohol, Tobacco, and 
Firearms. Once the names are included in the databases, a 
background check conducted through the National Instant 
Criminal Background Check System will identify those 
individuals as being prohibited from purchasing firearms.
    When VA deems individuals to be mentally incapacitated, 
mentally incompetent, experiencing an extended loss of 
consciousness, or otherwise unable to manage their own affairs, 
it is required to provide that information to DOJ. Such 
individuals are then added to the list of those prohibited from 
purchasing or possessing firearms.
    Under S.669, veterans would have to be determined by 
judicial authority to be dangerous before VA would be required 
to report them to DOJ.
    S.669 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would not affect the budgets of state, local, or tribal 
governments.
    The CBO staff contact for this estimate is Dwayne M. 
Wright. The estimate was approved by Theresa Gullo, Deputy 
Assistant Director for Budget Analysis.

                      Regulatory Impact Statement

    In compliance with paragraph 11(b) of rule XXVI of the 
Standing Rules of the Senate, the Committee on Veterans' 
Affairs has made an evaluation of the regulatory impact that 
would be incurred in carrying out the Committee bill. The 
Committee finds that S.669 would not entail any regulation of 
individuals or businesses or result in any impact on the 
personal privacy of any individuals and that the paperwork 
resulting from enactment would be minimal.

                 Tabulation of Votes Cast in Committee

    In compliance with paragraph 7 of rule XXVI of the Standing 
Rules of the Senate, the following is a tabulation of votes 
cast in person or by proxy by Members of the Committee on 
Veterans' Affairs at its May 21, 2009, meeting. On that date, 
the Committee considered and ordered reported S.669, a bill 
providing that veterans who are found in need of a fiduciary to 
handle their VA benefits will no longer be included in the NICS 
unless a judge, magistrate or other judicial authority 
determines that they are a danger to themselves or others. The 
Committee bill was agreed to by a vote of 14 to 0.


----------------------------------------------------------------------------------------------------------------
                Yeas                                 Senator                                 Nays
----------------------------------------------------------------------------------------------------------------
                      X (by proxy)   Mr. Rockefeller
                                 X   Mrs. Murray
                      X (by proxy)   Mr. Sanders
                                 X   Mr. Brown
                                 X   Mr. Webb
                                 X   Mr. Tester
                                 X   Mr. Begich
                                 X   Mr. Burris
                      X (by proxy)   Mr. Specter
                                 X   Mr. Burr
                                 X   Mr. Isakson
                      X (by proxy)   Mr. Wicker
                                 X   Mr. Johanns
                                     Mr. Graham
                                 X   Mr. Akaka, Chairman
----------------------------------------------------------------------------------------------------------------
                                14   TALLY                                                                    0
----------------------------------------------------------------------------------------------------------------


                             Agency Report

    On April 22, 2009, Gerald M. Cross, M.D., FAPP, the then-
Principal Deputy Under Secretary for Health, Department of 
Veterans Affairs, appeared before the Committee on Veterans' 
Affairs and submitted testimony on, among other things, S.669. 
Excerpts from this statement are reprinted below:

STATEMENT OF DR. GERALD M. CROSS, PRINCIPAL UNDER SECRETARY FOR HEALTH, 
                     DEPARTMENT OF VETERANS AFFAIRS

    Good Afternoon Mr. Chairman and Members of the Committee: 
Thank you for inviting me here today to present the 
Administration's views on a number of bills that would affect 
Department of Veterans Affairs (VA) programs of benefits and 
services. With me today are Walter A. Hall, Assistant General 
Counsel and Joleen Clark, Chief Workforce Management and 
Consulting Officer for VHA.

           *       *       *       *       *       *       *

    S.669 would clarify the conditions under which certain 
persons may be treated as adjudicated mentally incompetent for 
certain purposes. Pursuant to section 103(e)(1) of the Brady 
Handgun Violence Prevention Act (P. L. 103-159), VA is required 
to provide the Department of Justice (DOJ) with information 
concerning individuals who, due to a determination by VA, are 
prohibited from purchasing or possessing firearms under the 
standards imposed by 18 U.S.C. Sec. 922(d)(4) and (g)(4), which 
prohibits the purchase or possession of firearms by any person 
``adjudicated as a mental defective.'' Under existing DOJ 
regulations, the phrase ``adjudicated as a mental defective'' 
includes persons found to be a danger to themselves or others 
and persons found to lack the mental capacity to manage their 
own affairs. Pursuant to those requirements, VA's Veterans 
Benefits Administration (VBA) currently provides DOJ with 
information on persons adjudicated by VA under 38 C.F.R. 
Sec. 3.353, as lacking the mental capacity to contract or 
manage their own affairs. This information is then included in 
databases managed by DOJ's Federal Bureau of Investigation and 
Bureau of Alcohol Tobacco and Firearms, and serves to prevent, 
through the National Instant Criminal Background Check System, 
prohibited individuals from purchasing firearms.
    S.669 would provide that a person VA finds to be mentally 
incapacitated, mentally incompetent, or experiencing an 
extended loss of consciousness ``shall not be considered 
adjudicated as a mental defective'' for purposes of 18 U.S.C. 
Sec. 922(d)(4) and (g)(4), unless a ``judge, magistrate, or 
other judicial authority of competent jurisdiction'' concludes 
that the individual is a danger to himself or herself or to 
others.'' This amendment would revise the reporting 
requirements contained in title 18 of the United States Code, 
by adding additional prerequisites to the reporting by VA to 
DOJ, of information pertaining to persons VA adjudicates as 
incompetent. VA takes no position on this bill at this point as 
the Administration is still working with the Department of 
Justice to formulate views.

                        Changes in Existing Law

    In compliance with paragraph 12 of Rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
the Committee bill, as reported, are shown as follows (existing 
law proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, existing law in which no change is 
proposed is shown in roman):

TITLE 38. VETERANS' BENEFITS

           *       *       *       *       *       *       *


PART I. GENERAL PROVISIONS

           *       *       *       *       *       *       *


PART IV. GENERAL ADMINISTRATIVE PROVISIONS

           *       *       *       *       *       *       *


CHAPTER 51. CLAIMS, EFFECTIVE DATES, AND PAYMENTS

           *       *       *       *       *       *       *


           CHAPTER 55. MINORS, INCOMPETENTS, AND OTHER WARDS

SEC.

5501. COMMITMENT ACTIONS.

           *       *       *       *       *       *       *


5510. ANNUAL REPORT.

5511. CONDITIONS FOR TREATMENT OF CERTAIN PERSONS AS ADJUDICATED 
                    MENTALLY INCOMPETENT FOR CERTAIN PURPOSES.

           *       *       *       *       *       *       *


SEC. 5501. COMMITMENT ACTIONS.

           *       *       *       *       *       *       *


SEC. 5511. CONDITIONS FOR TREATMENT OF CERTAIN PERSONS AS ADJUDICATED 
                    MENTALLY INCOMPETENT FOR CERTAIN PURPOSES.

    In any case arising out of the administration by the 
Secretary of laws and benefits under this title, a person who 
is mentally incapacitated, deemed mentally incompetent, or 
experiencing an extended loss of consciousness shall not be 
considered adjudicated as a mental defective under subsection 
(d)(4) or (g)(4) of section 922 of title 18 without the order 
or finding of a judge, magistrate, or other judicial authority 
of competent jurisdiction that such person is a danger to 
himself or herself or others.

           *       *       *       *       *       *       *