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[Senate Report 113-86]
[From the U.S. Government Publishing Office]

                                                       Calendar No. 164
113th Congress                                                   Report
                                 SENATE
 1st Session                                                     113-86

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                VETERANS SECOND AMENDMENT PROTECTION ACT

                                _______
                                

               September 4, 2013.--Ordered to be printed

  Filed, under authority of the order of the Senate of August 1, 2013.

                                _______
                                

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

                              R E P O R T

                         [To accompany S. 572]

    The Committee on Veterans' Affairs (hereinafter, ``the 
Committee''), to which was referred the bill (S. 572), 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, having considered the same, 
reports favorably thereon without amendment and recommends that 
the bill do pass.

                              Introduction

    On March 14, 2013, Committee Ranking Minority Member 
Richard Burr introduced S. 572, which would 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''). Committee Members John Boozman and 
Jerry Moran are original cosponsors, as are Senators Saxby 
Chambliss, Mike Crapo, Michael B. Enzi, James M. Inhofe, James 
E. Risch, Pat Roberts, John Thune, David Vitter, and Roger F. 
Wicker. Senators Thad Cochran and Jeff Sessions were later 
added as cosponsors. The bill was referred to the Committee.

                           Committee Hearing

    On June 12, 2013, the Committee held a hearing on 
legislation pending before the Committee at which testimony on 
S. 572, among other bills, was offered by Curtis L. Coy, Deputy 
Under Secretary for Economic Opportunity, Veterans Benefits 
Administration, Department of Veterans Affairs; Ryan Gallucci, 
Deputy Director, National Legislative Service, Veterans of 
Foreign Wars of the United States; and Ian De Planque, Deputy 
Director, National Legislative Commission, The American Legion.

                           Committee Meeting

    On July 24, 2013, the Committee met in open session to 
consider legislation pending before the Committee. Among the 
measures so considered was S. 572. The Committee voted, without 
dissent, to report favorably S. 572 to the Senate.

                     Summary of S. 572 as Reported

    S. 572 consists of two sections, summarized below:

    Section 1 would provide a short title.
    Section 2 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 and Discussion

Sec. 2. Conditions for treatment of certain persons as adjudicated 
        mentally incompetent for certain purposes.

    Section 2 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 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 any mental institution.'' Section 
478.11 of title 27, Code of Federal Regulations, defines 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 prospective 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 in 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 section 3.353 
of title 38, Code of Federal Regulations. Determinations of 
incompetency under section 3.353 result in an appointment of a 
fiduciary.
    The evidence gathered to support a finding of incompetency, 
under section 3.353 of VA's regulations, is used to inform a 
judgment about whether a beneficiary is capable of managing his 
or her VA benefit payments. No evidence is gathered as part of 
this process to inform a judgment about whether a beneficiary 
presents a danger to himself, herself, or others or whether the 
individual 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.
    According to VA, as of April 2013, there were 143,580 VA 
beneficiaries who require a fiduciary on the NICS list, 
including 83,764 veterans, 42,636 surviving spouses, 2,733 
minor children, and 86 dependent parents. Although the NICS 
reporting requirements apply to all federal agencies, over 99 
percent of all names submitted by the federal government to the 
NICS by reason of mental health have been submitted by VA. That 
is true despite the fact that other federal agencies, such as 
the Social Security Administration, appoint representatives to 
manage benefit payments for their beneficiaries in a manner 
similar to VA's process.
    Committee Bill. S. 572 would amend chapter 55 of title 38, 
United States Code, 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 himself, 
herself, or others.

                      Committee Bill 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 Congressional Budget Office 
(hereinafter, ``CBO''), estimates that enactment of S. 572 
would, relative to current law, have no significant budgetary 
impact. Enactment of S. 572 would not affect the budget of 
state, local, or tribal governments.
    The cost estimate provided by CBO follows:

                               Congressional Budget Office,
                                    Washington, DC, August 8, 2013.
Hon. Bernard Sanders,
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. 572, the Veterans 
Second 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. 572--Veterans Second Amendment Protection Act

    S. 572 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. 572 would have no significant budgetary impact.
    Under current law, 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 the 
Department of Justice (DOJ). Such individuals are then added to 
the list of those prohibited from purchasing or possessing 
firearms. Under S. 572, a judicial authority would have to 
determine that veterans are dangerous before VA would be 
required to report them to DOJ. CBO expects that such a 
requirement would have an insignificant impact on VA's 
workload.
    Enacting S. 572 would not affect direct spending or 
revenues; therefore, pay-as-you-go procedures do not apply.
    S. 572 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.
    On May 13, 2013, CBO transmitted a cost estimate for 
H.R. 602, the Veterans 2nd Amendment Protection Act, as ordered 
reported by the House Committee on Veterans' Affairs on May 8, 
2013. That bill's language is similar to the text of S. 572 and 
CBO similarly estimated no significant budgetary impact for 
H.R. 602.
    The CBO staff contact for this estimate is Dwayne M. 
Wright. The estimate was approved by Peter H. Fontaine, 
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 S. 572. The Committee finds 
that S. 572 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 July 24, 2013, meeting. On that date, 
the Committee considered and ordered reported S. 572, a bill 
providing that VA beneficiaries 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 bill, S. 572, was agreed to by a 
voice vote.

                             Agency Report

    On June 12, 2013, Curtis Coy, Deputy Under Secretary for 
Economic Opportunity, Veterans Benefits Administration, 
Department of Veterans Affairs, appeared before the Committee 
on Veterans' Affairs and submitted testimony on, among other 
things, S. 572. Excerpts from this statement are reprinted 
below:

     STATEMENT OF CURTIS COY, DEPUTY UNDER SECRETARY FOR ECONOMIC 
   OPPORTUNITY, VETERANS BENEFITS ADMINISTRATION, U.S. DEPARTMENT OF 
VETERANS AFFAIRS

           *       *       *       *       *       *       *

                                 s. 572

    S. 572, the ``Veterans Second Amendment Protection Act,'' 
would provide that a person who is mentally incapacitated, 
deemed mentally incompetent, or unconscious for an extended 
period will not be considered adjudicated as a ``mental 
defective'' for purposes of the Brady Handgun Violence 
Prevention Act in the absence of an order or finding by a 
judge, magistrate, or other judicial authority that such person 
is a danger to himself, herself, or others. The bill would, in 
effect, exclude VA determinations of incompetency from the 
coverage of the Brady Handgun Violence Prevention Act. VA does 
not support this bill.
    VA determinations of mental incompetency are based 
generally on whether a person, because of injury or disease, 
lacks the mental capacity to manage his or her own financial 
affairs. We believe adequate protections can be provided to 
these Veterans under current statutory authority. Under the 
[National Instant Criminal Background Check System] NICS 
Improvement Amendments Act of 2007, individuals whom VA has 
determined to be incompetent can have their firearms rights 
restored in two ways: First, a person who has been adjudicated 
by VA as unable to manage his or her own affairs can reopen the 
issue based on new evidence and have the determination 
reversed. When this occurs, VA is obligated to notify the 
Department of Justice to remove the individual's name from the 
roster of those barred from possessing and purchasing firearms. 
Second, even if a person remains adjudicated incompetent by VA 
for purposes of handling his or her own finances, he or she is 
entitled to petition VA to have firearms rights restored on the 
basis that the individual poses no threat to public safety. VA 
has relief procedures in place, and we are fully committed to 
continuing to conduct these procedures in a timely and 
effective manner to fully protect the rights of our 
beneficiaries.
    Also, the reliance on an administrative incompetency 
determination as a basis for prohibiting an individual from 
possessing or obtaining firearms under Federal law is not 
unique to VA or Veterans. Under the applicable Federal 
regulations implementing the Brady Handgun Violence Prevention 
Act, any person determined by a lawful authority to lack the 
mental capacity to manage his or her own affairs is subject to 
the same prohibition. By exempting certain VA mental health 
determinations that would otherwise prohibit a person from 
possessing or obtaining firearms under Federal law, the bill 
would create a different standard for Veterans and their 
survivors than that applicable to the rest of the population 
and could raise public safety issues.
    The enactment of S. 572 would not impose any costs on VA.
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