[Federal Register Volume 63, Number 125 (Tuesday, June 30, 1998)]
[Rules and Regulations]
[Pages 35520-35523]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-17288]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE TREASURY
Bureau of Alcohol, Tobacco and Firearms
27 CFR Part 178
(T.D. ATF-401; Ref: Notice No. 862)
RIN: 1512-AB64
Implementation of Public Law 104208, Omnibus Consolidated
Appropriations Act of 1997 (96R-034P)
AGENCY: Bureau of Alcohol, Tobacco and Firearms (ATF), Department of
the Treasury.
ACTION: Temporary Rule (Treasury decision).
-----------------------------------------------------------------------
SUMMARY: This temporary rule implements the provisions of Public Law
104-208, the Omnibus Consolidated Appropriations Act of 1997, which
amended the Gun Control Act of 1968. Specifically, the new law makes it
unlawful for individuals who have been convicted of a ``misdemeanor
crime of domestic violence'' to ship, transport, receive or possess
firearms and ammunition, and prohibits sales or other dispositions of
firearms and ammunition to such individuals. Further, the law requires
individuals acquiring handguns from Federal firearms licensees under
the Brady law to certify that they have not been convicted of such a
crime. Additionally, it allows all Federal firearms licensees to engage
in the business of dealing in curio or relic firearms with another
licensee away from their licensed premises. This temporary rule will
remain in effect until superseded by final regulations.
In the Proposed Rules section of this Federal Register, ATF is also
issuing a notice of proposed rulemaking inviting comments on the
temporary rule for a 90-day period following the publication date of
this temporary rule.
EFFECTIVE DATE: The temporary regulations are effective June 30, 1998.
ADDRESS: Send written comments to: Chief, Regulations Division, Bureau
of Alcohol, Tobacco and Firearms, P.O. Box 50221, Washington, DC 20091-
0221.
FOR FURTHER INFORMATION CONTACT: Barry Fields, Regulations Division,
Bureau of Alcohol, Tobacco and Firearms, 650 Massachusetts Ave., NW,
Washington, DC 20226; (202-927-8210).
SUPPLEMENTARY INFORMATION:
Background
On September 30, 1996, The Omnibus Consolidated Appropriations Act
of 1997 (hereinafter, ``the Act''), Pub. L. 104-208 (110 Stat. 3009),
was enacted. The Act amended the Gun Control Act of 1968 (GCA), 18
U.S.C. Chapter 44. The amendments became effective upon the date of
enactment. The new statutory provisions and the regulation changes
necessitated by the Act are as follows:
(1) Misdemeanor crime of domestic violence. The Act amended 18
U.S.C. 922(g) to make it unlawful for any person convicted of a
``misdemeanor crime of domestic violence'' to ship, transport, possess,
or receive in or affecting commerce firearms or ammunition. It also
amended 18 U.S.C. 922(d) to make it unlawful for any person to sell or
otherwise dispose of a firearm or ammunition to any person knowing or
having reasonable cause to believe that the recipient has been
convicted of such a misdemeanor.
As defined in the GCA, a ``misdemeanor crime of domestic violence''
means an offense that: (1) Is a misdemeanor under Federal or State law;
(2) has, as an element, the use or attempted use of physical force, or
the threatened use of a deadly weapon; and (3) was committed by a
current or former spouse, parent, or guardian of the victim, by a
person with whom the victim shares a child in common, by a person who
is cohabiting with or has cohabited with the victim as a spouse,
parent, or guardian, or by a person similarly situated to a spouse,
parent, or guardian of the victim.
This definition includes any offense that is classified as a
misdemeanor under Federal or State law. (An example of a Federal
misdemeanor is a conviction in an Indian Court established pursuant to
25 CFR part 11. Misdemeanor convictions in other Indian courts are not
Federal misdemeanors because these courts are not considered Federal or
State courts.) In addition, in States that do not classify offenses as
misdemeanors, the definition includes any State or local offense
punishable by imprisonment for a term of one year or less.
Accordingly, if State A has an offense classified as a State
``domestic violence misdemeanor'' that is punishable by up to five
years imprisonment, it would be a misdemeanor crime of domestic
violence as defined in the GCA.
If State B does not characterize offenses as misdemeanors, but has
a domestic violence offense that is punishable by no more than one year
imprisonment, this offense would be a misdemeanor crime of domestic
violence as defined in the GCA. Therefore, a person convicted of such
an offense would be subject to firearms disabilities under 18 U.S.C.
922(g)(9).
[[Page 35521]]
Moreover, the definition includes offenses that are punishable only
by a fine, as well as offenses that are punishable by a term of
imprisonment. Nothing in the language of the statute limits the term
misdemeanor crime of domestic violence to offenses punishable by
imprisonment. The legislative history of the statute illustrates that
the prohibition on firearm possession by persons convicted of such
offenses was to be as broad as possible, for example, covering
individuals who plead guilty to minor offenses.
The prohibition also applies to persons convicted of such
misdemeanors at any time, even if the conviction occurred prior to the
new law's effective date, September 30, 1996. As of the effective date
of the new law, such a person may no longer lawfully possess a firearm
or ammunition.
Whether a person has been ``convicted'' of a misdemeanor crime of
domestic violence is determined by the law of the jurisdiction where
the proceedings were held. In addition, a conviction would not be
disabling if it has been expunged, set aside, pardoned, or the person
has had his or her civil rights restored (if the law of the applicable
jurisdiction provides for the loss of civil rights upon conviction for
such an offense) AND the person is not otherwise prohibited by the law
of the jurisdiction in which the proceedings were held from receiving
or possessing any firearms.
In addition, a person shall not be considered to have been
convicted of such an offense, unless (1) the person was represented by
counsel in the case, or knowingly and intelligently waived the right to
counsel; and (2) if the person was entitled to a jury trial, the case
was tried by a jury or the person knowingly and intelligently waived
the right to a jury trial by guilty plea or otherwise.
The definition of misdemeanor crime of domestic violence includes
all offenses that have as an element the use or attempted use of
physical force (e.g., assault and battery) if the offense is committed
by one of the defined parties. This is true whether or not the State
statute specifically defines the offense as a domestic violence
misdemeanor. For example, a person convicted of misdemeanor assault and
battery against his or her spouse would be prohibited from receiving or
possessing firearms or ammunition.
A misdemeanor crime of domestic violence includes an offense that
is committed by a current or former spouse, parent or guardian of the
victim, by a person with whom the victim shares a child in common, by a
person who is cohabiting with or has cohabitated with the victim as a
spouse, parent, or guardian, or by a person similarly situated to a
spouse, parent, or guardian of the victim.
The statute does not define the phrase ``a person who is cohabiting
with the victim as a spouse'' or a ``person similarly situated to a
spouse.'' ``Cohabit'' is commonly defined as ``to live together as
husband and wife, especially when not legally married.'' Webster's New
World Dictionary of the American Language, 2nd College Edition, 1974.
Therefore, for purposes of these regulations the phrase ``cohabiting as
a spouse'' means two persons living together in an intimate
relationship who hold themselves out as husband and wife.
Further, the regulations interpret the phrase ``similarly situated
to a spouse'' to mean two persons who share the same domicile in an
intimate relationship. A ``domicile'' is defined as ``one's fixed place
of dwelling, where one intends to reside more or less permanently.''
Webster's New World Dictionary of the American Language, 2nd College
Edition, 1974. Unlike persons ``cohabiting with a spouse,'' persons
``similarly situated'' do not necessarily have to hold themselves out
as husband and wife.
The regulation also implements the Act's amendments to 18 U.S.C.
922(s) to require individuals who intend to acquire handguns from
licensees to state on the Brady Form, ATF Form 5300.35, whether they
have been convicted of a ``misdemeanor crime of domestic violence.''
Prior to the Act, employees of government agencies with firearms
disabilities were allowed to receive and possess firearms for official
duties under the exemption in 18 U.S.C. 925(a)(1). However, the Act
amended section 925(a)(1) to prohibit the possession of firearms and
ammunition by any individual convicted of a misdemeanor crime of
domestic violence. Accordingly, the regulations provide that employees
of government agencies convicted of disqualifying misdemeanors would
not be exempt from this new disability with respect to their receipt or
possession of firearms or ammunition. Thus, law enforcement officers
and other government officials who have been convicted of a
disqualifying misdemeanor may not lawfully possess or receive firearms
or ammunition for any purpose, including performance of their official
duties. This disability applies to firearms and ammunition issued by
government agencies, firearms and ammunition purchased by government
employees for use in performing their official duties, and government
employees' personal firearms and ammunition.
The regulations are also being amended to provide that dealers may
continue to sell firearms to law enforcement officers, including out-
of-State officers, for official use without requiring them to fill out
a Form 4473 or a Form 5300.35. Prior to the Act, law enforcement
officers could establish their exemption from these requirements if
they presented a certification letter on their agency's letterhead,
signed by a person in authority within the agency, and stating that the
firearm would be used in the performance of official duties. This
procedure is now being incorporated into the regulations.
To ensure that law enforcement officers who purchase firearms for
official use are not subject to the misdemeanor crime of domestic
violence disability, the regulations provide that the certification
letter must also state that a records check does not disclose any
convictions of the officer for a misdemeanor crime of domestic
violence. This new requirement allows for an effective method of
determining whether the officer is prohibited from purchasing firearms
and provides safeguards equivalent to those afforded by the Form 4473
and Form 5300.35. Disposition of the firearm to the officer must still
be entered into the licensee's permanent records and the certification
letter must be retained in the licensee's files.
(2) Disposition of Curio or Relic Firearms by Licensed Importers,
Manufacturers, and Dealers Away From Their Licensed Premises. The Act
amended 18 U.S.C. 923(j) to allow licensed importers, manufacturers,
and dealers to engage in the business of selling or transferring curio
or relic firearms to other licensees away from their licensed premises.
Prior to the amendment, licensed importers, manufacturers, and dealers
were restricted to conducting business from their licensed premises and
temporarily at gun shows away from the licensed premises if the gun
show was in the same State as that specified on the license. The
regulation at Sec. 178.50 is being amended to reflect this amendment.
In addition, Sec. 178.100 is being amended to require licensees to
record in their acquisition and disposition records the location of the
sale or disposition.
Licensed importers, manufacturers, and dealers are still subject to
all recordkeeping requirements in the
[[Page 35522]]
regulations concerning the sale or other disposition of curios or
relics.
Executive Order 12866
It has been determined that this temporary rule is not a
significant regulatory action as defined in E.O. 12866, because any
economic effects flow directly from the underlying statute and not from
this temporary rule. Therefore, a regulatory assessment is not
required.
Administrative Procedure Act
Because this document merely implements the law and because
immediate guidance is necessary to implement the provisions of the law,
it is found to be impracticable to issue this Treasury decision with
notice and public procedure under 5 U.S.C. Sec. 553(b), or subject to
the effective date limitation in section 553(d).
Regulatory Flexibility Act
The provisions of the Regulatory Flexibility Act relating to an
initial and final regulatory flexibility analysis (5 U.S.C. 604) are
not applicable to this temporary rule because the agency was not
required to publish a notice of proposed rulemaking under 5 U.S.C.
Sec. 553 or any other law. Accordingly, a regulatory flexibility
analysis is not required.
Paperwork Reduction Act
This regulation is being issued without prior notice and public
procedure pursuant to the Administrative Procedure Act (5 U.S.C. 553).
For this reason, the collection of information contained in this
regulation has been reviewed under the requirements of the Paperwork
Reduction Act (44 U.S.C. 3507(j)) and, pending receipt and evaluation
of public comments, approved by the Office of Management and Budget
(OMB) under control number 1512-0520. An agency may not conduct or
sponsor, and a person is not required to respond to, a collection of
information unless it displays a valid control number assigned by OMB.
The collection of information in this regulation is in
Secs. 178.130(a)(1) and 178.134. This information is required to
prevent the purchase of handguns by persons convicted of a misdemeanor
crime of domestic violence. The likely respondents are individuals.
For further information concerning this collection of information,
and where to submit comments on the collection of information, refer to
the preamble of the cross-referenced notice of proposed rulemaking
published elsewhere in this issue of the Federal Register.
Drafting Information: The author of this document is Barry Fields,
Regulations Division, 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, Domestic
violence, Exports, Imports, Law enforcement personnel, Military
personnel, Penalties, Reporting requirements, Research, Seizures and
forfeitures, and Transportation.
Authority and Issuance
27 CFR part 178 is amended as follows:
PART 178--COMMERCE IN FIREARMS AND AMMUNITION
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 178.1(a) is revised to read as follows:
Sec. 178.1 Scope of regulations.
(a) General. The regulations contained in this part relate to
commerce in firearms and ammunition and are promulgated to implement
Title I, State Firearms Control Assistance (18 U.S.C. Chapter 44), of
the Gun Control Act of 1968 (82 Stat. 1213) as amended by Pub. L. 99-
308 (100 Stat. 449), Pub. L. 99-360 (100 Stat. 766), Pub. L. 99-408
(100 Stat. 920), Pub. L. 103-159 (107 Stat. 1536), Pub. L. 103-322 (108
Stat. 1796), and Pub. L. 104-208 (110 Stat. 3009).
* * * * *
Par. 3. Section 178.11 is amended by adding the definition for
``misdemeanor crime of domestic violence'' to read as follows:
Sec. 178.11 Meaning of terms.
* * * * *
Misdemeanor crime of domestic violence. (a) Is a Federal, State or
local offense that:
(1) Is a misdemeanor under Federal or State law or, in States which
do not classify offenses as misdemeanors, is an offense punishable by
imprisonment for a term of one year or less, and includes offenses that
are punishable only by a fine. (This is true whether or not the State
statute specifically defines the offense as a ``misdemeanor'' or as a
``misdemeanor crime of domestic violence.'' The term includes all such
misdemeanor convictions in Indian Courts established pursuant to 25 CFR
part 11.);
(2) Has, as an element, the use or attempted use of physical force
(e.g., assault and battery), or the threatened use of a deadly weapon;
and
(3) Was committed by a current or former spouse, parent, or
guardian of the victim, by a person with whom the victim shares a child
in common, by a person who is cohabiting with or has cohabited with the
victim as a spouse, parent, or guardian, (e.g., the equivalent of a
``common law'' marriage even if such relationship is not recognized
under the law), or a person similarly situated to a spouse, parent, or
guardian of the victim (e.g., two persons who are residing at the same
location in an intimate relationship with the intent to make that place
their home would be similarly situated to a spouse).
(b) A person shall not be considered to have been convicted of such
an offense for purposes of this part unless:
(1) The person is considered to have been convicted by the
jurisdiction in which the proceedings were held.
(2) The person was represented by counsel in the case, or knowingly
and intelligently waived the right to counsel in the case; and
(3) In the case of a prosecution for which a person was entitled to
a jury trial in the jurisdiction in which the case was tried, either
(i) The case was tried by a jury, or
(ii) The person knowingly and intelligently waived the right to
have the case tried by a jury, by guilty plea or otherwise.
(c) A person shall not be considered to have been convicted of such
an offense for purposes of this part if the conviction has been
expunged or set aside, or is an offense for which the person has been
pardoned or has had civil rights restored (if the law of the
jurisdiction in which the proceedings were held provides for the loss
of civil rights upon conviction for such an offense) unless the pardon,
expunction, or restoration of civil rights expressly provides that the
person may not ship, transport, possess, or receive firearms, and the
person is not otherwise prohibited by the law of the jurisdiction in
which the proceedings were held from receiving or possessing any
firearms.
* * * * *
Par. 4. Section 178.32 is amended by removing the word ``or'' at
the end of paragraph (a)(7), by removing the period at the end of
paragraph (a)(8)(iii)(B) and adding in its place ``, or'', by removing
the word ``or'' at the end of paragraph (d)(7), by removing the period
at the end
[[Page 35523]]
of paragraph (d)(8)(ii)(B) and adding in its place ``, or'', and by
adding new paragraphs (a)(9) and (d)(9) to read as follows:
Sec. 178.32 Prohibited shipment, transportation, possession, or
receipt of firearms and ammunition by certain persons.
(a) * * *
(9) Has been convicted of a misdemeanor crime of domestic violence.
* * * * *
(d) * * *
(9) Has been convicted of a misdemeanor crime of domestic violence.
Par. 5. Section 178.50 is amended by removing the word ``or'' at
the end of paragraph (b), by removing the period at the end of
paragraph (c) and adding in its place ``; or'', and by adding new
paragraph (d) to read as follows:
Sec. 178.50 Locations covered by license.
* * * * *
(d) A licensed importer, manufacturer, or dealer may engage in the
business of dealing in curio or relic firearms with another licensee at
any location pursuant to the provisions of Sec. 178.100.
Par. 6. Section 178.99 is amended by removing the word ``or'' at
the end of paragraph (c)(7), by removing the period at the end of
paragraph (c)(8)(ii)(B) and adding in its place ``, or'', and by adding
new paragraph (c)(9) to read as follows:
Sec. 178.99 Certain prohibited sales or deliveries.
* * * * *
(c) * * *
(9) Has been convicted of a misdemeanor crime of domestic violence.
* * * * *
Par. 7. Section 178.100 is amended by redesignating paragraph (a)
as (a)(1), by adding new paragraph (a)(2), and by revising paragraph
(c) to read as follows:
Sec. 178.100 Conduct of business away from licensed premises.
(a)(1) * * *
(2) A licensed importer, manufacturer, or dealer may engage in the
business of dealing in curio or relic firearms with another licensee at
any location.
* * * * *
(c) Licensees conducting business at locations other than the
premises specified on their license under the provisions of paragraph
(a) of this section shall maintain firearms records in the form and
manner prescribed by Subpart H of this part. In addition, records of
firearms transactions conducted at such locations shall include the
location of the sale or other disposition, be entered in the
acquisition and disposition records of the licensee, and retained on
the premises specified on the license.
Par. 8. Section 178.130(a)(1) is amended by revising the last
sentence to read as follows:
Sec. 178.130 Statement of intent to obtain a handgun after February
27, 1994, and before November 30, 1998.
(a)(1) * * * The transferee must date and execute the sworn
statement contained on the form showing that the transferee is not
under indictment for a crime punishable by imprisonment for a term
exceeding 1 year; has not been convicted in any court of such a crime;
is not a fugitive from justice; is not an unlawful user of or addicted
to any controlled substance; has not been adjudicated as a mental
defective or been committed to a mental institution; is not an alien
who is illegally or unlawfully in the United States; has not been
discharged from the Armed Forces under dishonorable conditions; is not
a person who, having been a citizen of the United States, has renounced
such citizenship; and has not been convicted of a misdemeanor crime of
domestic violence.
* * * * *
Par. 9. Section 178.134 is added to Subpart H to read as follows:
Sec. 178.134 Sale of firearms to law enforcement officers.
(a) Law enforcement officers purchasing firearms for official use
who provide the licensee with a certification on agency letterhead,
signed by a person in authority within the agency (other than the
officer purchasing the firearm), stating that the officer will use the
firearm in official duties and that a records check reveals that the
purchasing officer has no convictions for misdemeanor crimes of
domestic violence are not required to complete Form 4473 or Form
5300.35. The law enforcement officer purchasing the firearm may
purchase a firearm from a licensee in another State, regardless of
where the officer resides or where the agency is located.
(b)(1) The following individuals are considered to have sufficient
authority to certify that law enforcement officers purchasing firearms
will use the firearms in the performance of official duties:
(i) In a city or county police department, the director of public
safety or the chief or commissioner of police.
(ii) In a sheriff's office, the sheriff.
(iii) In a State police or highway patrol department, the
superintendent or the supervisor in charge of the office to which the
State officer or employee is assigned.
(iv) In Federal law enforcement offices, the supervisor in charge
of the office to which the Federal officer or employee is assigned.
(2) An individual signing on behalf of the person in authority is
acceptable, provided there is a proper delegation of authority.
(c) Licensees are not required to prepare a Form 4473 or Form
5300.35 covering sales of firearm made in accordance with paragraph (a)
of this section to law enforcement officers for official use. However,
disposition to the officer must be entered into the licensee's
permanent records, and the certification letter must be retained in the
licensee's files.
Par. 10. Section 178.141 is amended by revising the introductory
text to read as follows:
Sec. 178.141 General.
With the exception of Secs. 178.32(a)(9) and (d)(9) and
178.99(c)(9), the provisions of this part shall not apply with respect
to:
* * * * *
Par. 11. Section 178.144 is amended by removing the word ``and'' at
the end of paragraph (c)(6), by removing the period at the end of
paragraph (c)(7) and by adding in its place ``; and'', and by adding
paragraph (c)(8) to read as follows:
Sec. 178.144 Relief from disabilities under the Act.
* * * * *
(c) * * *
(8) In the case of an applicant who has been convicted of a
misdemeanor crime of domestic violence, a copy of the indictment or
information on which the applicant was convicted, the judgment of
conviction or record of any plea of nolo contendere or plea of guilty
or finding of guilt by the court, and any pardon, expunction, setting
aside or other record purporting to show that the conviction was
rendered nugatory or that civil rights were restored.
* * * * *
Signed: February 18, 1998.
John W. Magaw,
Director.
Approved: April 24, 1998.
John P. Simpson,
Deputy Assistant Secretary (Regulatory, Tariff and Trade Enforcement).
[FR Doc. 98-17288 Filed 6-29-98; 8:45 am]
BILLING CODE 4810-31-U
