[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