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

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