[Federal Register Volume 61, Number 174 (Friday, September 6, 1996)]
[Proposed Rules]
[Pages 47095-47099]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-22827]


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DEPARTMENT OF THE TREASURY

Bureau of Alcohol, Tobacco and Firearms

27 CFR Part 178

[Notice No. 839]
RIN 1512-AB41


Definitions for the Categories of Persons Prohibited From 
Receiving Firearms (95R-051P)

AGENCY: Bureau of Alcohol, Tobacco and Firearms (ATF), Department of 
the Treasury.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Bureau of Alcohol, Tobacco and Firearms (ATF) is proposing 
to amend the regulations to provide definitions for the categories of 
persons prohibited from receiving or possessing firearms. The proposed 
definitions will facilitate the implementation of the national instant 
criminal background check system (NICS) required under the Brady 
Handgun Violence Prevention Act.

DATES: Written comments must be received on or before December 5, 1996.

ADDRESSES: Send written comments to: Chief, Regulations Branch; Bureau 
of Alcohol, Tobacco and Firearms; P.O. Box 50221; Washington, DC 20091-
0221; ATTN: Notice No. 839.

FOR FURTHER INFORMATION CONTACT: James P. Ficaretta, Regulations 
Branch, Bureau of Alcohol, Tobacco and Firearms, 650 Massachusetts 
Avenue, NW., Washington, DC 20226 (202-927-8230).

SUPPLEMENTARY INFORMATION:

Background

    On November 30, 1993, Public Law 103-159 (107 Stat. 1536) was 
enacted, amending the Gun Control Act of 1968 (GCA), as amended (18 
U.S.C. Chapter 44). Title I of Pub. L. 103-159, the ``Brady Handgun 
Violence Prevention Act'' (hereafter, ``Brady'' or ``Brady law''), 
imposed a waiting period of 5 days before a licensed importer, licensed 
manufacturer, or licensed dealer may transfer a handgun to a 
nonlicensed individual (interim provision). Brady requires that the 
chief law enforcement officer within 5 business days make a reasonable 
effort to determine whether the nonlicensed individual (transferee) is 
prohibited by law from receiving or possessing the handgun sought to be 
purchased. The waiting period provisions of the law became effective on 
February 28, 1994, and will cease to apply on November 30, 1998.

[[Page 47096]]

    Brady also provides for the establishment of a national instant 
criminal background check system (NICS) that a firearms licensee must 
contact before transferring any firearm to nonlicensed individuals 
(permanent provision). Brady requires that NICS be established not 
later than November 30, 1998.
    Section 922(g) of the GCA prohibits certain persons from receiving, 
possessing, shipping, or transporting any firearm. These prohibitions 
apply to any person who--
    (1) Is under indictment for, or has been convicted in any court of, 
a crime punishable by imprisonment for a term exceeding one year;
    (2) Is a fugitive from justice;
    (3) Is an unlawful user of or addicted to any controlled substance;
    (4) Has been adjudicated as a mental defective or who has been 
committed to a mental institution;
    (5) Is an alien illegally or unlawfully in the United States;
    (6) Has been discharged from the Armed Forces under dishonorable 
conditions;
    (7) Having been a citizen of the United States, has renounced his 
citizenship; or
    (8) Is subject to a court order that restrains the person from 
harassing, stalking, or threatening an intimate partner or child of 
such intimate partner.
    To implement NICS, Brady authorizes the development of hardware and 
software systems to link State criminal history check systems into the 
national system. It also authorizes the Attorney General to obtain 
official information from any U.S. department or agency on persons for 
whom receipt of a firearm would be in violation of the law.
    In order to establish NICS in such a way that it incorporates the 
information needed for all the categories of prohibited persons 
mentioned above, records systems from both Federal and State agencies 
must be included in the national system. For example, records on 
fugitives are needed from State and Federal law enforcement agencies. 
Records on aliens who are illegally or unlawfully in the United States 
are needed from the Immigration and Naturalization Service, and records 
on citizenship renunciates are needed from the Department of State. To 
ensure that the information provided to the national system is 
accurate, the categories of prohibited persons must be clearly defined 
in the regulations.
    The current regulations already provide a definition for ``crime 
punishable by imprisonment for a term exceeding 1 year.'' In the 
following paragraphs ATF is proposing additional regulations for the 
various categories of persons who are prohibited from receiving or 
possessing firearms. In some instances, the proposed definition merely 
clarifies an existing regulation. In other cases, the proposed 
definitions are new.

Persons Who Are Under Indictment for a Crime Punishable by Imprisonment 
for a Term Exceeding 1 Year

    The definition of ``indictment'' is based on 18 U.S.C. Sec. 922(n) 
which makes it unlawful for any person who is under indictment for a 
crime punishable by imprisonment for a term exceeding one year to ship, 
transport, or receive firearms in interstate commerce. The proposed 
definition includes any formal accusation of a crime made by a 
prosecuting attorney (e.g., information), as distinguished from an 
``indictment'' issued by a grand jury. In addition, the proposed 
definition includes criminal charges referred to a court-martial.

Persons Who Are Fugitives From Justice

    The definition of ``fugitive from justice'' in the GCA includes any 
person who has fled from any State to avoid prosecution for a crime or 
to avoid giving testimony in any criminal proceeding. 18 U.S.C. 
Sec. 921(a)(15). The legislative history of this provision indicates 
that the term includes both felonies and misdemeanors. The Omnibus 
Crime Control and Safe Streets Act of 1968, Pub. L. 90-351, Title IV, 
Sec. 921(a)(14), 82 Stat. 226 (1968), limited the definition to crimes 
``punishable by imprisonment for a term exceeding one year.'' However, 
the GCA amended Title IV to include any crime. To be a fugitive from 
justice, it is not necessary that the person left a State with the 
intent of fleeing the charges. See, e.g., United States v. Spillane, 
913 F.2d 1079 (4th Cir. 1990). Rather, a person is a fugitive from 
justice if the person, knowing that charges are pending, purposefully 
leaves the State of prosecution and does not appear before the 
prosecuting tribunal. On the other hand, the definition does not 
include persons who are charged with crimes and there is no evidence 
that they left the State. For example, a person is not a fugitive from 
justice merely because he or she has outstanding traffic citations.

Persons Who Are Unlawful Users of or Addicted to Any Controlled 
Substance

    With respect to the definition of ``unlawful user of any controlled 
substance,'' Federal law, 18 U.S.C. Sec. 802, defines a controlled 
substance as a drug or other substance, or immediate precursor, 
included in schedules I-V. For example, opium and cocaine are 
controlled substances, whereas alcoholic beverages and tobacco are 
specifically excluded from the definition.
    Moreover, under the proposed definition, a person must be a current 
user of a controlled substance to be prohibited by the GCA from 
acquiring or possessing firearms. Although there is no statutory 
definition of current use, applicable case law indicates that a person 
need not have been using drugs at the precise moment that he or she 
acquired or possessed a firearm to be under firearms disabilities with 
respect to acquiring or possessing a firearm as an unlawful user of a 
controlled substance. In United States v. Corona, 849 F.2d 562 (11th 
Cir. 1988), a defendant purchased nine firearms from a dealer on six 
different occasions during a 3-year period. The Government proved 
unlawful use during the entire 3-year period with testimony of an 
acquaintance of the defendant who had used cocaine with the defendant, 
testimony of a psychiatrist that he treated the defendant for 2 years 
and that the defendant admitted drug use, and records of a 
rehabilitation center. The court noted that it was not necessary to 
show that the person was an illegal user or addict at the precise 
moment that the firearms were purchased. Furthermore, in United States 
v. Ocequeda, 564 F.2d 1363 (9th Cir. 1977), the Government proved the 
firearms disability by evidence of prolonged use of heroin before, 
during, and after the firearms purchases.
    The proposed definition is also consistent with the definition of 
``current drug user'' applied by the Department of Labor in its 
administration of the Americans with Disabilities Act (ADA), 42 U.S.C. 
Secs. 12101-12213. Regulations issued pursuant to the ADA indicate that 
the term ``current user'' is not intended to be 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 occurred recently enough to indicate 
that the individual is actively engaged in such conduct. 29 CFR Part 
1630, Appendix.
    Similarly, the definition of ``addicted to any controlled 
substance'' is based on Federal law, 21 U.S.C. Sec. 802, and defines an 
``addict'' as an individual who uses any narcotic drug and who has lost 
the power of self- control with respect to the use of the narcotic 
drug.

[[Page 47097]]

Persons Who Have Been Adjudicated as Mental Defectives or Been 
Committed to a Mental Institution

    Under the GCA, it is unlawful for any person who has been 
adjudicated a mental defective or committed to a mental institution to 
ship, transport, receive, or possess firearms. The legislative history 
of the GCA makes it clear that a formal adjudication or commitment by a 
court, board, commission or similar legal authority is necessary before 
firearms disabilities are incurred. H.R. Rep. 1956, 90th Cong., 2d 
Sess. 30 (1968). The plain language of the statute makes it clear that 
a formal commitment, for any reason, e.g., drug use, gives rise to 
firearms disabilities. However, the mere presence of a person in a 
mental institution for observation or a voluntary commitment to a 
mental hospital does not result in firearms disabilities.
    With respect to the term ``adjudicated as a mental defective,'' ATF 
has examined the legislative history of the term, applicable case law, 
and the interpretation of the term by other Federal agencies. The 
legislative history makes it clear that Congress would broadly apply 
the prohibition against the ownership of firearms by ``mentally 
unstable'' or ``irresponsible'' persons. 114 Cong. Rec. 21780, 21791, 
21832, and 22270 (1968).
    The legislative history of the GCA is reviewed in detail in 
Huddleston v. United States, 415 U.S. 814 (1974). The Court stated that 
``the principal purposes of the federal gun control legislation * * * 
was to curb crime by keeping `firearms out of the hands of those not 
legally entitled to possess them, because of age, criminal background, 
or incompetency.' '' 415 U.S. at 824 (citation omitted). Citing remarks 
by Congressman Cellar, the Court added that ``* * * no person can 
dispute the need to prevent persons with a history of mental 
disturbances from buying, owning or possessing firearms.'' Huddleston, 
415 U.S. at 828. See also S. Rep. No. 1097, 90th Cong., 2d Sess. 2 
(1968), U.S. Code Cong & Ad.News 1968, pp. 2113-2114.
    The Supreme Court also addressed the disability in Barrett v. 
United States, 423 U.S. 212 (1976). As the Court observed, the GCA 
demonstrated that Congress sought to keep firearms away from those 
persons Congress classified as potentially irresponsible and dangerous. 
``These persons are comprehensively barred by the Act from acquiring 
firearms by any means.'' Barrett 413 U.S. at 218.
    Another case held that the GCA is designed to prohibit the receipt 
and possession of firearms by individuals who are potentially 
dangerous, including those individuals who are mentally incompetent or 
are afflicted with mental illness. U.S. v. Waters, 23 F.3d 29, 35 (2d 
Cir. 1994), cert. den. 115 S. Ct. 185 (1994). In addition, the 
disability has been held to apply to persons in criminal cases who are 
found not guilty by reason of insanity. See Buffaloe v. United States, 
449 F.2d 779 (4th Cir. 1971).
    ATF has also examined the definition of ``mental incompetent'' used 
by the Department of Veterans Affairs. That definition covers persons 
who because of injury or disease lack the mental capacity to contract 
or manage their own affairs. 38 CFR Sec. 3.353.
    Based on the above, the proposed regulation will define 
``adjudicated as a mental defective'' as a determination by lawful 
authority that persons are of marked subnormal intelligence, mentally 
ill, or mentally incompetent AND are found to be either a danger to 
themselves or to others as a result of mental disease or illness or 
because of injury or disease lack the mental capacity to contract or 
manage their own affairs. The term shall also include defendants in 
criminal cases who are determined by a verdict to be insane. It will 
not include persons who suffer from mental illness but have not been 
adjudicated by a lawful authority or committed to a mental institution. 
It would also not include persons who have been adjudicated to be 
suffering from a mental illness but who are not a danger to themselves 
or to others or do not lack the capacity to contract or manage their 
own affairs.
    For purposes of this disability, the proposed regulations define 
``mental institution'' to include mental health facilities, mental 
hospitals, sanitariums, psychiatric facilities, and other facilities 
that provide diagnoses by licensed professionals of mental retardation 
or mental illness, including a psychiatric ward in a general hospital.

Persons Who Are Aliens and Are Illegally or Unlawfully in the United 
States

    Another category of prohibited persons under the GCA includes 
aliens who are illegally or unlawfully in the United States. Based on 
the statutory language and relevant case law, the proposed definition 
of ``alien illegally or unlawfully in the United States'' includes any 
alien: who has entered the country illegally; nonimmigrant whose 
authorized period of admission has expired; student who has failed to 
maintain status as a student; alien under order of deportation whether 
or not he or she has left the United States. The definition does not 
include aliens who are in ``immigration parole'' status in the United 
States pursuant to the Immigration and Naturalization Act. The proposed 
definition will provide that aliens who enter the country illegally and 
have not applied for legal status are subject to firearms disabilities. 
United States v. Garcia, 875 F.2d 257 (9th Cir. 1989). Further, 
students who enter the country legally but fail to maintain the student 
status required by their visas are illegal aliens subject to Federal 
firearms disabilities. United States v. Bazargan, 992 F.2d 844 (8th 
Cir. 1993).

Persons Who Have Been Discharged From the Armed Forces Under 
Dishonorable Conditions

    The GCA makes it unlawful for persons who have been discharged from 
the Armed Forces under dishonorable conditions to receive or possess 
firearms. The legislative history of this provision shows that the 
prohibition originally applied to persons discharged under ``other than 
honorable conditions.'' The Omnibus Crime and Safe Streets Act of 1968, 
Pub. L. 90-351, Title VII, Sec. 1202(2), 82 Stat. 226 (1968). However, 
Title VII was amended by the GCA to limit the prohibition to persons 
discharged under ``dishonorable conditions.'' Therefore, the proposed 
definition makes it clear that the prohibition applies only to persons 
discharged under dishonorable conditions but not to include persons 
separated from the Armed Forces as a result of other types of 
discharges, e.g., a bad conduct discharge.

Persons Who Have Renounced Their United States Citizenship

    With respect to persons who have renounced their United States 
citizenship, Federal law provides that renunciation can only occur in a 
formal manner before a diplomatic or consular officer of the United 
States in a foreign state or before an officer designated by the 
Attorney General when the United States is in a state of war. 8 U.S.C. 
Sec. 1481(a) (5) and (6).

Persons Who Are Subject to a Court Order Restraining Them From 
Committing Domestic Violence

    ATF is proposing a definition of ``actual notice'' with respect to 
persons subject to court-issued restraining orders (Sec. 178.32). The 
Violent Crime Control and Law Enforcement Act of 1994 (the Act), Public 
Law 103-322, 108 Stat. 2014, September 13, 1994, amended the GCA to 
make it unlawful for persons subject to an order

[[Page 47098]]

restraining a person from harassing, stalking, or threatening an 
intimate partner of the person (e.g., spouse) to receive, ship, 
transport, or possess firearms. The Act provides that such restraining 
orders must have been issued after a hearing of which actual notice was 
given to the person and at which the person had an opportunity to 
participate. However, the Act does not define ``actual notice.'' The 
proposed definition of actual notice conforms with the generally 
recognized legal definition of that term, i.e., notice that is either 
expressly and actually given or inferred from an examination of 
surrounding facts and circumstances. The definition would not include 
publication of notice in a newspaper.

Executive Order 12866

    It has been determined that this proposed rule is not a significant 
regulatory action as defined in E.O. 12866, because the economic 
effects flow directly from the underlying statute and not from this 
notice of proposed rulemaking. Accordingly, this proposal is not 
subject to the analysis required by this Executive order.

Regulatory Flexibility Act

    It is hereby certified that this proposed regulation will not have 
a significant economic impact on a substantial number of small 
entities. This notice proposes definitions for the categories of 
persons prohibited from receiving or possessing firearms. The proposed 
definitions are necessary to implement the national instant criminal 
background check system required under the Brady law. This notice does 
not propose any reporting or recordkeeping requirements on firearms 
licensees. Accordingly, a regulatory flexibility analysis is not 
required.

Paperwork Reduction Act

    The provisions of the Paperwork Reduction Act of 1980, Public Law 
96-511, 44 U.S.C. Chapter 35, and its implementing regulations, 5 CFR 
Part 1320, do not apply to this notice of proposed rulemaking because 
no requirement to collect information is proposed.

Public Participation

    ATF requests comments on the proposed regulations from all 
interested persons. Comments received on or before the closing date 
will be carefully considered. Comments received after that date will be 
given the same consideration if it is practical to do so, but assurance 
of consideration cannot be given except as to comments received on or 
before the closing date.
    ATF will not recognize any material in comments as confidential. 
Comments may be disclosed to the public. Any material which the 
commenter considers to be confidential or inappropriate for disclosure 
to the public should not be included in the comment. The name of the 
person submitting a comment is not exempt from disclosure.
    Any interested person who desires an opportunity to comment orally 
at a public hearing should submit his or her request, in writing, to 
the Director within the 90-day comment period. The Director, however, 
reserves the right to determine, in light of all circumstances, whether 
a public hearing is necessary.

Disclosure

    Copies of this notice and the written comments will be available 
for public inspection during normal business hours at: ATF Public 
Reading Room, Room 6480, 650 Massachusetts Avenue, NW., Washington, DC.

    Drafting Information. The author of this document is James P. 
Ficaretta, Regulations Branch, Bureau of Alcohol, Tobacco and 
Firearms.

List of Subjects in 27 CFR Part 178

    Administrative practice and procedure, Arms and ammunition, 
Authority delegations, Customs duties and inspection, Exports, Imports, 
Military personnel, Penalties, Reporting requirements, Research, 
Seizures and forfeitures, and Transportation.

Authority and Issuance

    27 CFR Part 178--COMMERCE IN FIREARMS AND AMMUNITION is amended as 
follows:
    Paragraph 1. The authority citation for 27 CFR Part 178 continues 
to read as follows:

    Authority: 5 U.S.C. 552(a); 18 U.S.C. 847, 921-930; 44 U.S.C. 
3504(h).

    Par. 2. Section 178.11 is amended by revising the definitions for 
``discharged under dishonorable conditions'', ``fugitive from 
justice'', and ``indictment'', and by adding definitions for ``addicted 
to any controlled substance'', ``adjudicated as a mental defective'', 
``alien illegally or unlawfully in the United States'', ``committed to 
a mental institution'', ``controlled substance'', ``mental 
institution'', ``renounced U.S. citizenship'', and ``unlawful user of 
any controlled substance'' to read as follows:


Sec. 178.11  Meaning of terms.

* * * * *
    Adjudicated as a mental defective. (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.
    (b) The term shall include a finding of insanity by a court in a 
criminal case.
    Alien illegally or unlawfully in the United States. (a) Aliens who 
are unlawfully in the United States or are not in a valid nonimmigrant 
or immigrant status. The term includes any alien--
    (1) Who has entered the country illegally;
    (2) Nonimmigrant whose authorized period of admission has expired;
    (3) Student who has failed to maintain status as a student; or
    (4) Under an order of deportation, whether or not he or she has 
left the United States.
    (b) The term does not include aliens who are in ``immigration 
parole'' status in the United States pursuant to the Immigration and 
Naturalization Act (INA).
* * * * *
    Committed to a mental institution. A formal commitment of a person 
to a mental institution by a court, board, commission, or other legal 
authority. The term includes a commitment to a mental institution 
involuntarily. The term includes a commitment for mental defectiveness 
or mental illness. It also 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.
    Controlled substance. A drug or other substance, or immediate 
precursor, as defined in section 102 of the Controlled Substances Act, 
21 U.S.C. 802. The term includes, but is not limited to, marijuana, 
depressants, stimulants, and narcotic drugs. The term does not include 
distilled spirits, wine, malt beverages, or tobacco, as those terms are 
defined or used in Subtitle E of the Internal Revenue Code of 1986, as 
amended.
* * * * *
    Discharged under dishonorable conditions. Separation from the U.S. 
Armed Forces resulting from a Dishonorable Discharge. The term does not 
include separation from the Armed Forces resulting from any other 
discharge, e.g., a bad conduct discharge or a dismissal.
* * * * *
    Fugitive from justice. Any person who has fled from any State to 
avoid

[[Page 47099]]

prosecution for a felony or a misdemeanor; or any person who leaves the 
State to avoid giving testimony in any criminal proceeding. The term 
also includes any person who knows that misdemeanor or felony charges 
are pending against such person and who leaves the State of 
prosecution.
* * * * *
    Indictment. Includes an indictment or any formal accusation of a 
crime made by a prosecuting attorney, in any court under which a crime 
punishable by imprisonment for a term exceeding 1 year may be 
prosecuted or where a case has been referred to court-martial if the 
person is in the military.
* * * * *
    Mental institution. Includes mental health facilities, mental 
hospitals, sanitariums, psychiatric facilities, and other facilities 
that provide diagnoses by licensed professionals of mental retardation 
or mental illness, including a psychiatric ward in a general hospital.
* * * * *
    Renounced U.S. citizenship. A person has renounced his U.S. 
citizenship if the person, having been a citizen of the United States, 
has renounced citizenship either--
    (a) Before a diplomatic or consular officer of the United States in 
a foreign state pursuant to 8 U.S.C. Sec. 1481(a)(5) and (6); or
    (b) Before an officer designated by the Attorney General when the 
United States is in a state of war.
* * * * *
    Unlawful user of or addicted to any controlled substance. 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. 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. 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, or multiple 
arrests for such offenses within the past five years if the most recent 
arrest occurred within the past year.
* * * * *
    Par. 3. Section 178.32(e) is added to read as follows:


Sec. 178.32  Prohibited shipment, transportation, possession, or 
receipt of firearms and ammunition by certain persons.

* * * * *
    (e) The actual notice required by paragraphs (a)(8)(i) and 
(d)(8)(i) of this section is notice expressly and actually given, and 
brought home to the party directly, including service of process 
personally served on the party and service by mail. Actual notice also 
includes proof of facts and circumstances that raise the inference that 
the party received notice including, but not limited to, proof that 
notice was left at the party's dwelling house or usual place of abode 
with some person of suitable age and discretion residing therein; or 
proof that the party signed a return receipt for a hearing notice which 
had been mailed to the party. It does not include notice published in a 
newspaper.

    Signed: May 29, 1996.
John W. Magaw,
Director.

    Approved: June 6, 1996.

John P. Simpson,
Deputy Assistant Secretary, (Regulatory, Tariff and Trade Enforcement).
[FR Doc. 96-22827 Filed 9-5-96; 8:45 am]
BILLING CODE 4810-31-P