Code of Federal Regulations - TD ATF-391

AGENCY: Bureau of Alcohol, Tobacco and Firearms (ATF), Department of 

the Treasury.



ACTION: Final rule, Treasury decision.



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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