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

[T.D. ATF-391; Ref: 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: Final rule, Treasury decision.

-----------------------------------------------------------------------

SUMMARY: The Bureau of Alcohol, Tobacco and Firearms (ATF) is amending

the regulations to provide definitions for the categories of persons

prohibited from receiving or possessing firearms. The definitions will

facilitate the implementation of the national instant criminal

background check system (NICS) required under the Brady Handgun

Violence Prevention Act.

DATES: The final regulations are effective on August 26, 1997.

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, Pub. L. 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''), as an interim measure, 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

licensee wait for up to 5 days before making the transfer while the

chief law

[[Page 34635]]

enforcement officer makes 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 interim

provisions of the law became effective on February 28, 1994, and will

cease to apply on November 30, 1998.

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.

Brady requires that NICS be established not later than November 30,

1998.

Section 922(g) of the GCA prohibits certain persons from shipping

or transporting any firearm in interstate or foreign commerce, or

receiving any firearm which has been shipped or transported in

interstate or foreign commerce, or possessing any firearm in or

affecting commerce. These prohibitions apply to any person who--

(1) 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 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 U.S.

citizenship;

(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; or

(9) Has been convicted in any court of a misdemeanor crime of

domestic violence.

Section 922(n) of the GCA makes it unlawful for any person who is

under indictment for a crime punishable by imprisonment for a term

exceeding one year to ship or transport any firearm in interstate or

foreign commerce, or receive any firearm which has been shipped or

transported in interstate or foreign commerce.

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 about 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

will be included in the national system. For example, records on

fugitives are needed from State and Federal law enforcement agencies.

To ensure that the information provided to the national system is

accurate, the categories of prohibited persons must be defined in the

regulations as clearly as possible.

Notice of Proposed Rulemaking

On September 6, 1996, ATF published in the Federal Register a

notice proposing to amend the regulations to provide definitions for

the various categories of persons who are prohibited from receiving or

possessing firearms (Notice No. 839; 61 FR 47095). In some instances,

the proposed definition merely clarified an existing regulation. In

other cases, the proposed definitions were new. A definition for

``crime punishable by imprisonment for a term exceeding 1 year'' was

not proposed since that term is already defined in the regulations. A

definition for the last category of persons prohibited from receiving

or possessing firearms, i.e., persons who have been convicted in any

court of a misdemeanor crime of domestic violence, is being addressed

in a separate rulemaking proceeding.

The comment period for Notice No. 839 closed on December 5, 1996.

Analysis of Comments

ATF received 11 comments in response to Notice No. 839. Six

comments were submitted by Federal agencies including two comments from

agencies within the U.S. Department of Justice (DOJ) (the Immigration

and Naturalization Service and the Office of Policy Development), the

U.S. Department of State (Office of Passport Policy and Advisory

Services), the U.S. Department of Veterans Affairs, the U.S. Department

of Defense, and the U.S. Department of Health & Human Services

(Substance Abuse and Mental Health Services Administration). Five

comments were submitted on behalf of State agencies.

A number of commenters expressed concern about the disclosure of

personal information to NICS by States and Federal agencies. Commenters

also expressed doubt that agencies can retrieve relevant data based

upon the definitions in this regulation. For example, one agency noted

that the definition of fugitive from justice requires that the person

has left the State. While the State system may indicate the person is a

``fugitive,'' the State system may not have any data indicating the

person has fled the jurisdiction.

This regulation is limited to defining the various categories of

prohibited persons under the Gun Control Act. It does not address, nor

can it resolve, issues related to the retrieval of information on

persons under firearms disabilities from agencies' records or issues of

confidentiality. It is recognized, however, that any disclosure of

information to NICS must comply with all applicable Federal and State

privacy laws.

In the subsequent paragraphs, ATF will restate the proposed

definition for each of the categories of prohibited persons and discuss

the comments received concerning the proposed definition.

Persons Who Are Under Indictment for a Crime Punishable by Imprisonment

for a Term Exceeding 1 Year

The term ``indictment,'' as proposed in Notice No. 839, is defined

as follows:

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.

ATF received four comments on the proposed definition, two from

Federal agencies and two from State agencies. The U.S. Department of

Defense (DOD) states that in the military the proposed definition

equates indictment to referral to any court-martial. This would include

referral to a special court-martial for an offense which carries a

maximum punishment of over 1 year, but for which the maximum punishment

that could be imposed could not exceed 6 months. Consequently, DOD

recommends that the definition be amended to limit the prohibition as

it applies in military cases to any offense punishable by imprisonment

for a term exceeding 1 year which has been referred to a general court-

martial. ATF finds that DOD's suggested change clarifies the meaning of

the term ``indictment'' with respect to the military and this final

rule amends the definition accordingly.

In addition, at the request of the DOJ Office of Policy

Development, the definition has been revised to include an information,

which is a formal accusation of a crime but differs from an indictment

because it is made by a prosecuting attorney rather than a grand jury.

The definition would not cover a mere criminal complaint.

[[Page 34636]]

One State agency requested clarification whether an indictment for

a crime classified as a misdemeanor, but punishable by a term of

imprisonment exceeding 1 year, would fall within the definition.

Section 921(a)(20) of the GCA provides that the term ``crime punishable

by imprisonment for a term exceeding one year'' does not include any

State offense classified by the laws of the State as a misdemeanor and

punishable by a term of imprisonment of 2 years or less. The definition

of indictment is being clarified in the regulations by adding a

reference to the definition of ``crime punishable by imprisonment for a

term exceeding one year.''

Persons Who Are Fugitives From Justice

As proposed in Notice No. 839, the term ``fugitive from justice''

is defined as follows:

Fugitive from justice. Any person who has fled from any State to

avoid 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.

Two Federal agencies and three State agencies commented on the

proposed definition. One Federal agency stated that the term is defined

in the statute (18 U.S.C. 921(a)(15)) and, as such, any expansion of

the definition would require legislative action. ATF is not proposing

to ``expand'' the definition of fugitive from justice. Rather, the

proposed definition is intended to clarify the meaning of the term. As

mentioned in the preamble of Notice No. 839, the legislative history of

section 921(a)(15), defining ``fugitive,'' indicates that the term

includes both felonies and misdemeanors, but makes no specific

reference to misdemeanors. In addition, the statute does not spell out

that to be a fugitive from justice it is not necessary that the person

left a State with the intent of fleeing the charges. Rather, a person

is a fugitive from justice if the individual, knowing that charges are

pending, purposefully leaves the State of prosecution and does not

appear before the prosecuting tribunal. Accordingly, ATF's proposed

regulatory definition merely clarifies the statutory definition by

covering these points.

DOD stated that the proposed definition should be tailored to the

military setting whereby an individual in the military, without

authority, absents himself or herself to avoid a military prosecution.

DOD recommends that the following be added to the definition of the

term:

The term also includes any member of the Armed Forces who knows

that court-martial charges are pending against such member, and

without authority, leaves military control; or any member of the

Armed Forces who, without authority, leaves military control to

avoid giving testimony in any court-martial or any pretrial hearing

or deposition conducted under the Uniform Code of Military Justice

(10 U.S.C. chap. 47).

ATF is not adopting DOD's proposed amendment into the final

regulations. Under military law, a person is considered a fugitive when

the person, knowing that charges are pending, leaves military control.

Under the GCA, such a person would not be a fugitive unless the person

left the State. Because the definition at issue is for purposes of

enforcement of the GCA, DOD's proposed definition could not be adopted.

One State agency expressed concern regarding ATF's statement in the

preamble of Notice No. 839 that a person is not a fugitive from justice

merely because he or she has outstanding traffic citations. The

commenter asked whether this includes criminal as well as civil traffic

citations. The commenter also believed that the proposed definition

should be amended to include individuals with outstanding traffic

warrants. To be a fugitive from justice under the statute, a person

must have left the State where criminal charges are pending against the

person. A person who has an outstanding civil traffic citation or who

has not left the State, does not meet the statutory definition. The

statute and the final regulation make it clear that ``fugitive from

justice'' does not include a person having only civil traffic

citations.

Another State agency expressed the concern that it may have

difficulty retrieving information from its records to show that a

person with pending charges in a State actually left the State or was

aware of the charges. It is recognized that agencies may have

difficulty identifying this information. However, the definition in the

regulation cannot eliminate elements required by the statute.

Persons Who Are Unlawful Users of or Addicted to Any Controlled

Substance

As proposed in Notice No. 839, the terms ``controlled substance''

and ``unlawful user of or addicted to any controlled substance'' are

defined as follows:

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.

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.

The DOJ Office of Policy Development inquired whether the proposed

definition includes persons found through a drug test to use a

controlled substance unlawfully, provided the test was administered

within the past year. In response, ATF agrees that this information

would give rise to an inference of unlawful drug use. Accordingly, the

final regulations are being amended to identify these persons in the

definition as an example of unlawful drug user.

DOD commented that the examples should be expanded to include

illegal drug use as evidenced by nonjudicial or administrative

proceedings. DOD believes that it would be helpful to add the following

at the end of the proposed definition:

For a current or former member of the Armed Forces, an inference

of current use may be drawn from recent disciplinary or other

administrative action based on confirmed drug use, e.g., court-

martial conviction, nonjudicial punishment, or an administrative

discharge based on drug use or drug rehabilitation failure.

ATF finds that the Defense Department's proposed language helps to

clarify the definition with respect to the military and is adopting the

proposed amendment into the final regulations.

[[Page 34637]]

Persons Who Have Been Adjudicated as Mental Defectives or Been

Committed to a Mental Institution

The terms ``adjudicated as a mental defective,'' ``committed to a

mental institution,'' and ``mental institution,'' as proposed in Notice

No. 839, are defined as follows:

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.

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.

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.

Four Federal agencies and three State agencies commented on ATF's

proposed definitions. Two State agencies questioned the meaning of

``lawful authority'' as used in the proposed regulations. In ATF's

view, ``lawful authority'' as used in the proposed regulations clearly

means a government entity having the legal authority to make

adjudications or commitments, other than courts, boards, or commissions

which are specifically mentioned. Therefore, the final regulations do

not further define ``lawful authority.''

Another State agency asked whether the proposed definition of

``adjudicated as a mental defective'' must include a court finding of

insanity in all cases. The proposed definition includes a determination

that a person, as a result of mental illness, is a danger to himself or

to others. The term also includes a finding of insanity by a court in a

criminal case. These are separate and distinct definitions. Therefore,

a determination of mental illness under the first part of the

definition would give rise to firearms disabilities and would not

require a court finding of insanity.

DOD commented that the Uniform Code of Military Justice was

recently amended to include procedures for the commitment of military

personnel for reason of a lack of mental responsibility. Consequently,

DOD recommends that the following be added to the definition of

``adjudicated as a mental defective'':

The definition * * * shall also include those persons found

incompetent to stand trial or found not guilty by reason of lack of

mental responsibility pursuant to articles 50a and 72b of the

Uniform Code of Military Justice, 10 U.S.C. 850a, 876b.

DOD's proposed amendment will clarify the meaning of the term

``adjudicated as a mental defective'' with respect to the military and

ATF is adopting the suggested change into the final regulations.

In its comment, the U.S. Department of Veterans Affairs correctly

interpreted the proposed definition of ``adjudicated as a mental

defective'' to mean that any person who is found incompetent by the

Veterans Administration under 38 CFR 3.353 will be considered to have

been adjudicated as a mental defective for purposes of the GCA. Section

3.353 provides that a mentally incompetent person is one who, because

of injury or disease, lacks the mental capacity to contract or manage

his or her own affairs.

Persons Who Are Aliens and Are Illegally or Unlawfully in the

United States

As proposed in Notice No. 839, the term ``alien illegally or

unlawfully in the United States'' is defined as follows:

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).

The Immigration and Naturalization Service (INS) suggested that the

definition be modified to better reflect the terminology used in the

Immigration and Nationality Act (INA). The commenter states that the

INA uses specific legal terms to refer to the status of aliens in the

United States. Therefore, INS recommends that the proposed definition

be amended to read as follows:

Alien illegally or unlawfully in the United States. Aliens who

are unlawfully in the United States are not in valid immigrant,

nonimmigrant or parole status. The term includes any alien--

(a) Who unlawfully entered the United States without inspection

and authorization by an immigration officer and who has not been

paroled into the United States under section 212(d)(5) of the

Immigration and Nationality Act (INA);

(b) Nonimmigrant whose authorized period of stay has expired or

who has violated the terms of the nonimmigrant category in which he

or she was admitted;

(c) Paroled under INA section 212(d)(5) whose authorized period

of parole has expired or whose parole status has been terminated; or

(d) Under an order of deportation, exclusion, or removal, or

under an order to depart the United States voluntarily, whether or

not he or she has left the United States.

ATF agrees with the INS that the wording of the definition for this

particular category of prohibited persons should reflect the

terminology used in the Immigration and Nationality Act. Accordingly,

ATF is adopting INS' proposed definition into the final regulations.

The DOJ Office of Policy Development asked whether the proposed

definition of illegal aliens would cover asylum applicants. According

to the INS, asylum applicants are not lawfully in the United States and

would fall within the definition.

Persons Who Have Been Discharged From the Armed Forces Under

Dishonorable Conditions

As proposed in Notice No. 839, the term ``discharged under

dishonorable conditions'' is defined as follows:

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.

Section 922(g)(6) of the GCA makes it unlawful for persons who have

been discharged from the Armed Forces under dishonorable conditions to

receive or possess firearms. As ATF stated in Notice No. 839, 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 provides that the prohibition applies only to persons

discharged under dishonorable conditions, but not to persons separated

from the Armed Forces as a result of other types of discharges, such as

a bad conduct discharge or a dismissal.

[[Page 34638]]

DOD was the only commenter to address ATF's proposed definition.

DOD believes that the proposed definition should be expanded to include

commissioned officers, cadets, midshipmen, and warrant officers who

have been sentenced to dismissal from the service by a general court-

martial. DOD states that a dismissal is a punitive discharge to

characterize the separation of an officer under conditions of dishonor

(see Rules for Courts-Martial, 1003(c)(2)(A)(iv)). DOD also makes

reference to the Military Judges Benchbook, DA Pam 27-9 (September

1996) which provides the following instruction for court members

concerning the decision on whether to adjudge a dismissal as part of a

sentence:

* * * a sentence to dismissal * * * is, in general, the

equivalent of a dishonorable discharge. * * * A dismissal deprives

one of substantially all benefits administered by the Veteran's

Administration and the Army establishment. It should be reserved for

those who, in the opinion of the court, should be separated under

conditions of dishonor after conviction of serious offenses of a

civil or military nature warranting such severe punishment * * *

In addition, DOD advises that Federal law construes a dismissal as

equivalent to a dishonorable discharge for purposes of eligibility for

veteran's benefits. (See 38 U.S.C. 530(a)). Finally, DOD believes that

defining the term ``under dishonorable conditions'' to include only

dishonorable discharges could lead to an unfair application of the

statute between officers and enlisted service members convicted of the

same offenses.

Based on the DOD's comments, ATF reexamined the legislative history

of the GCA and has determined that the term ``under dishonorable

conditions'' can be interpreted to include a dismissal. Accordingly,

this final rule amends the definition of ``under dishonorable

conditions'' to include a ``dismissal adjudged by a general court-

martial.''

Persons Who Have Renounced Their United States Citizenship

As proposed in Notice No. 839, the term ``renounced U.S.

citizenship'' is defined as follows:

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. 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.

Two Federal agencies commented on ATF's proposed definition, the

Office of Passport Policy and Advisory Services (Department of State)

and the Office of Policy Development (DOJ). The Office of Passport

Policy and Advisory Services commented that the definition should be

written to exclude renunciations that have been reversed on

administrative or judicial appeals and renunciations by persons who

subsequently regain citizenship through naturalization. ATF agrees that

a reversal of a renunciation would remove the person's Federal firearms

disabilities. This is consistent with the removal of disabilities

resulting from a felony conviction that has been reversed on appeal.

Therefore, the definition will include an exception for reversed

renunciations.

On the other hand, a person who has renounced his or her

citizenship and has subsequently regained citizenship through

naturalization would remain under firearms disabilities. Section

922(g)(7) of the Act makes it unlawful for any person ``who * * * has

renounced his citizenship'' to possess firearms and there is no

exception for subsequent naturalization. A similarly worded disability

was addressed by the Supreme Court in Dickerson v. New Banner, 460 U.S.

103, 116 (1983), where the Supreme Court held that a person who ``has

been'' committed to a mental institution, but later cured and released,

continues to have firearms disabilities.

The DOJ Office of Policy Development suggests that the statutory

citation which appears at the end of paragraph (a), 8 U.S.C. 1481(a)

(5) and (6), be moved to the end of paragraph (b). ATF is amending

paragraph (b) of the proposed definition by moving the statutory cite,

8 U.S.C. 1481(a)(6), to paragraph (b).

Persons Who Are Subject to a Court Order Restraining Them From

Committing Domestic Violence

ATF did not receive any comments addressing the proposed definition

of ``actual notice.'' Therefore, the definition is included in the

final regulations without change.

Executive Order 12866

It has been determined that this final rule is not a significant

regulatory action as defined in E.O. 12866. Therefore, a Regulatory

Assessment is not required.

Regulatory Flexibility Act

It is hereby certified that this final rule will not have a

significant economic impact on a substantial number of small entities.

This final rule prescribes definitions for the categories of persons

prohibited from receiving or possessing firearms. The definitions are

necessary to implement the national instant criminal background check

system required under the Brady law. No new reporting, recordkeeping or

other administrative requirements are imposed on firearms licensees by

this final rule. Accordingly, a regulatory flexibility analysis is not

required.

Paperwork Reduction Act

The provisions of the Paperwork Reduction Act of 1995, Public Law

104-13, 44 U.S.C. Chapter 35, and its implementing regulations, 5 CFR

part 1320, do not apply to this final rule because no requirement to

collect information is imposed.

Disclosure

Copies of the notice of proposed rulemaking, the written comments,

and this final rule 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

Accordingly, 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

``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 or addicted to 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,

[[Page 34639]]

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--

(1) A finding of insanity by a court in a criminal case; and

(2) Those persons found incompetent to stand trial or found not

guilty by reason of lack of mental responsibility pursuant to articles

50a and 72b of the Uniform Code of Military Justice, 10 U.S.C. 850a,

876b.

Alien illegally or unlawfully in the United States. Aliens who are

unlawfully in the United States are not in valid immigrant,

nonimmigrant or parole status. The term includes any alien--

(a) Who unlawfully entered the United States without inspection and

authorization by an immigration officer and who has not been paroled

into the United States under section 212(d)(5) of the Immigration and

Nationality Act (INA);

(b) Who is a nonimmigrant and whose authorized period of stay has

expired or who has violated the terms of the nonimmigrant category in

which he or she was admitted;

(c) Paroled under INA section 212(d)(5) whose authorized period of

parole has expired or whose parole status has been terminated; or

(d) Under an order of deportation, exclusion, or removal, or under

an order to depart the United States voluntarily, whether or not he or

she has left the United States.

* * * * *

Committed to a mental institution. A formal commitment of a person

to a mental institution by a court, board, commission, or other lawful

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 or dismissal

adjudged by a general court-martial. The term does not include

separation from the Armed Forces resulting from any other discharge,

e.g., a bad conduct discharge.

* * * * *

Fugitive from justice. Any person who has fled from any State to

avoid 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 information in any court,

under which a crime punishable by imprisonment for a term exceeding 1

year (as defined in this section) may be prosecuted, or in military

cases to any offense punishable by imprisonment for a term exceeding 1

year which has been referred to a general court-martial. An information

is a formal accusation of a crime, differing from an indictment in that

it is made by a prosecuting attorney and not a grand jury.

* * * * *

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) A person has renounced his U.S.

citizenship if the person, having been a citizen of the United States,

has renounced citizenship either--

(1) Before a diplomatic or consular officer of the United States in

a foreign state pursuant to 8 U.S.C. 1481(a)(5); or

(2) Before an officer designated by the Attorney General when the

United States is in a state of war pursuant to 8 U.S.C. 1481(a)(6).

(b) The term shall not include any renunciation of citizenship that

has been reversed as a result of administrative or judicial appeal.

* * * * *

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; multiple

arrests for such offenses within the past 5 years if the most recent

arrest occurred within the past year; or persons found through a drug

test to use a controlled substance unlawfully, provided that the test

was administered within the past year. For a current or former member

of the Armed Forces, an inference of current use may be drawn from

recent disciplinary or other administrative action based on confirmed

drug use, e.g., court-martial conviction, nonjudicial punishment, or an

administrative discharge based on drug use or drug rehabilitation

failure.

* * * * *

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.

[[Page 34640]]

Signed: April 21, 1997.

John W. Magaw,

Director.

Approved: May 5, 1997.

John P. Simpson,

Deputy Assistant Secretary, (Regulatory, Tariff and Trade Enforcement).

[FR Doc. 97-16900 Filed 6-26-97; 8:45 am]

BILLING CODE 4810-31-P