ATF

Sample Block


Bureau of Alcohol, Tobacco, Firearms and Explosives

Department of Treasury
Bureau of Alcohol, Tobacco, and Firearms

TD ATF-391
  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.

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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