[Federal Register Volume 62, Number 124 (Friday, June 27, 1997)]
[Rules and Regulations]
[Pages 34634-34640]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-16900]
-----------------------------------------------------------------------
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
