ATF

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Bureau of Alcohol, Tobacco, Firearms and Explosives

DEPARTMENT OF THE TREASURY

Bureau of Alcohol, Tobacco and Firearms

27 CFR Part 178

(T.D. ATF-401; Ref: Notice No. 862)
RIN: 1512-AB64

 
Implementation of Public Law 104208, Omnibus Consolidated 
Appropriations Act of 1997 (96R-034P)

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

ACTION: Temporary Rule (Treasury decision).

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SUMMARY: This temporary rule implements the provisions of Public Law 
104-208, the Omnibus Consolidated Appropriations Act of 1997, which 
amended the Gun Control Act of 1968. Specifically, the new law makes it 
unlawful for individuals who have been convicted of a ``misdemeanor 
crime of domestic violence'' to ship, transport, receive or possess 
firearms and ammunition, and prohibits sales or other dispositions of 
firearms and ammunition to such individuals. Further, the law requires 
individuals acquiring handguns from Federal firearms licensees under 
the Brady law to certify that they have not been convicted of such a 
crime. Additionally, it allows all Federal firearms licensees to engage 
in the business of dealing in curio or relic firearms with another 
licensee away from their licensed premises. This temporary rule will 
remain in effect until superseded by final regulations.
    In the Proposed Rules section of this Federal Register, ATF is also 
issuing a notice of proposed rulemaking inviting comments on the 
temporary rule for a 90-day period following the publication date of 
this temporary rule.

EFFECTIVE DATE: The temporary regulations are effective June 30, 1998.

ADDRESS: Send written comments to: Chief, Regulations Division, Bureau 
of Alcohol, Tobacco and Firearms, P.O. Box 50221, Washington, DC 20091-
0221.

FOR FURTHER INFORMATION CONTACT: Barry Fields, Regulations Division, 
Bureau of Alcohol, Tobacco and Firearms, 650 Massachusetts Ave., NW, 
Washington, DC 20226; (202-927-8210).

SUPPLEMENTARY INFORMATION:

Background

    On September 30, 1996, The Omnibus Consolidated Appropriations Act 
of 1997 (hereinafter, ``the Act''), Pub. L. 104-208 (110 Stat. 3009), 
was enacted. The Act amended the Gun Control Act of 1968 (GCA), 18 
U.S.C. Chapter 44. The amendments became effective upon the date of 
enactment. The new statutory provisions and the regulation changes 
necessitated by the Act are as follows:
    (1) Misdemeanor crime of domestic violence. The Act amended 18 
U.S.C. 922(g) to make it unlawful for any person convicted of a 
``misdemeanor crime of domestic violence'' to ship, transport, possess, 
or receive in or affecting commerce firearms or ammunition. It also 
amended 18 U.S.C. 922(d) to make it unlawful for any person to sell or 
otherwise dispose of a firearm or ammunition to any person knowing or 
having reasonable cause to believe that the recipient has been 
convicted of such a misdemeanor.
    As defined in the GCA, a ``misdemeanor crime of domestic violence'' 
means an offense that: (1) Is a misdemeanor under Federal or State law; 
(2) has, as an element, the use or attempted use of physical force, or 
the threatened use of a deadly weapon; and (3) was committed by a 
current or former spouse, parent, or guardian of the victim, by a 
person with whom the victim shares a child in common, by a person who 
is cohabiting with or has cohabited with the victim as a spouse, 
parent, or guardian, or by a person similarly situated to a spouse, 
parent, or guardian of the victim.
    This definition includes any offense that is classified as a 
misdemeanor under Federal or State law. (An example of a Federal 
misdemeanor is a conviction in an Indian Court established pursuant to 
25 CFR part 11. Misdemeanor convictions in other Indian courts are not 
Federal misdemeanors because these courts are not considered Federal or 
State courts.) In addition, in States that do not classify offenses as 
misdemeanors, the definition includes any State or local offense 
punishable by imprisonment for a term of one year or less.
    Accordingly, if State A has an offense classified as a State 
``domestic violence misdemeanor'' that is punishable by up to five 
years imprisonment, it would be a misdemeanor crime of domestic 
violence as defined in the GCA.
    If State B does not characterize offenses as misdemeanors, but has 
a domestic violence offense that is punishable by no more than one year 
imprisonment, this offense would be a misdemeanor crime of domestic 
violence as defined in the GCA. Therefore, a person convicted of such 
an offense would be subject to firearms disabilities under 18 U.S.C. 
922(g)(9).

[[Page 35521]]

    Moreover, the definition includes offenses that are punishable only 
by a fine, as well as offenses that are punishable by a term of 
imprisonment. Nothing in the language of the statute limits the term 
misdemeanor crime of domestic violence to offenses punishable by 
imprisonment. The legislative history of the statute illustrates that 
the prohibition on firearm possession by persons convicted of such 
offenses was to be as broad as possible, for example, covering 
individuals who plead guilty to minor offenses.
    The prohibition also applies to persons convicted of such 
misdemeanors at any time, even if the conviction occurred prior to the 
new law's effective date, September 30, 1996. As of the effective date 
of the new law, such a person may no longer lawfully possess a firearm 
or ammunition.
    Whether a person has been ``convicted'' of a misdemeanor crime of 
domestic violence is determined by the law of the jurisdiction where 
the proceedings were held. In addition, a conviction would not be 
disabling if it has been expunged, set aside, pardoned, or the person 
has had his or her civil rights restored (if the law of the applicable 
jurisdiction provides for the loss of civil rights upon conviction for 
such an offense) AND the person is not otherwise prohibited by the law 
of the jurisdiction in which the proceedings were held from receiving 
or possessing any firearms.
    In addition, a person shall not be considered to have been 
convicted of such an offense, unless (1) the person was represented by 
counsel in the case, or knowingly and intelligently waived the right to 
counsel; and (2) if the person was entitled to a jury trial, the case 
was tried by a jury or the person knowingly and intelligently waived 
the right to a jury trial by guilty plea or otherwise.
    The definition of misdemeanor crime of domestic violence includes 
all offenses that have as an element the use or attempted use of 
physical force (e.g., assault and battery) if the offense is committed 
by one of the defined parties. This is true whether or not the State 
statute specifically defines the offense as a domestic violence 
misdemeanor. For example, a person convicted of misdemeanor assault and 
battery against his or her spouse would be prohibited from receiving or 
possessing firearms or ammunition.
    A misdemeanor crime of domestic violence includes an offense that 
is committed by a current or former spouse, parent or guardian of the 
victim, by a person with whom the victim shares a child in common, by a 
person who is cohabiting with or has cohabitated with the victim as a 
spouse, parent, or guardian, or by a person similarly situated to a 
spouse, parent, or guardian of the victim.
    The statute does not define the phrase ``a person who is cohabiting 
with the victim as a spouse'' or a ``person similarly situated to a 
spouse.'' ``Cohabit'' is commonly defined as ``to live together as 
husband and wife, especially when not legally married.'' Webster's New 
World Dictionary of the American Language, 2nd College Edition, 1974. 
Therefore, for purposes of these regulations the phrase ``cohabiting as 
a spouse'' means two persons living together in an intimate 
relationship who hold themselves out as husband and wife.
    Further, the regulations interpret the phrase ``similarly situated 
to a spouse'' to mean two persons who share the same domicile in an 
intimate relationship. A ``domicile'' is defined as ``one's fixed place 
of dwelling, where one intends to reside more or less permanently.'' 
Webster's New World Dictionary of the American Language, 2nd College 
Edition, 1974. Unlike persons ``cohabiting with a spouse,'' persons 
``similarly situated'' do not necessarily have to hold themselves out 
as husband and wife.
    The regulation also implements the Act's amendments to 18 U.S.C. 
922(s) to require individuals who intend to acquire handguns from 
licensees to state on the Brady Form, ATF Form 5300.35, whether they 
have been convicted of a ``misdemeanor crime of domestic violence.''
    Prior to the Act, employees of government agencies with firearms 
disabilities were allowed to receive and possess firearms for official 
duties under the exemption in 18 U.S.C. 925(a)(1). However, the Act 
amended section 925(a)(1) to prohibit the possession of firearms and 
ammunition by any individual convicted of a misdemeanor crime of 
domestic violence. Accordingly, the regulations provide that employees 
of government agencies convicted of disqualifying misdemeanors would 
not be exempt from this new disability with respect to their receipt or 
possession of firearms or ammunition. Thus, law enforcement officers 
and other government officials who have been convicted of a 
disqualifying misdemeanor may not lawfully possess or receive firearms 
or ammunition for any purpose, including performance of their official 
duties. This disability applies to firearms and ammunition issued by 
government agencies, firearms and ammunition purchased by government 
employees for use in performing their official duties, and government 
employees' personal firearms and ammunition.
    The regulations are also being amended to provide that dealers may 
continue to sell firearms to law enforcement officers, including out-
of-State officers, for official use without requiring them to fill out 
a Form 4473 or a Form 5300.35. Prior to the Act, law enforcement 
officers could establish their exemption from these requirements if 
they presented a certification letter on their agency's letterhead, 
signed by a person in authority within the agency, and stating that the 
firearm would be used in the performance of official duties. This 
procedure is now being incorporated into the regulations.
    To ensure that law enforcement officers who purchase firearms for 
official use are not subject to the misdemeanor crime of domestic 
violence disability, the regulations provide that the certification 
letter must also state that a records check does not disclose any 
convictions of the officer for a misdemeanor crime of domestic 
violence. This new requirement allows for an effective method of 
determining whether the officer is prohibited from purchasing firearms 
and provides safeguards equivalent to those afforded by the Form 4473 
and Form 5300.35. Disposition of the firearm to the officer must still 
be entered into the licensee's permanent records and the certification 
letter must be retained in the licensee's files.
    (2) Disposition of Curio or Relic Firearms by Licensed Importers, 
Manufacturers, and Dealers Away From Their Licensed Premises. The Act 
amended 18 U.S.C. 923(j) to allow licensed importers, manufacturers, 
and dealers to engage in the business of selling or transferring curio 
or relic firearms to other licensees away from their licensed premises. 
Prior to the amendment, licensed importers, manufacturers, and dealers 
were restricted to conducting business from their licensed premises and 
temporarily at gun shows away from the licensed premises if the gun 
show was in the same State as that specified on the license. The 
regulation at Sec. 178.50 is being amended to reflect this amendment. 
In addition, Sec. 178.100 is being amended to require licensees to 
record in their acquisition and disposition records the location of the 
sale or disposition.
    Licensed importers, manufacturers, and dealers are still subject to 
all recordkeeping requirements in the

[[Page 35522]]

regulations concerning the sale or other disposition of curios or 
relics.

Executive Order 12866

    It has been determined that this temporary rule is not a 
significant regulatory action as defined in E.O. 12866, because any 
economic effects flow directly from the underlying statute and not from 
this temporary rule. Therefore, a regulatory assessment is not 
required.

Administrative Procedure Act

    Because this document merely implements the law and because 
immediate guidance is necessary to implement the provisions of the law, 
it is found to be impracticable to issue this Treasury decision with 
notice and public procedure under 5 U.S.C. Sec. 553(b), or subject to 
the effective date limitation in section 553(d).

Regulatory Flexibility Act

    The provisions of the Regulatory Flexibility Act relating to an 
initial and final regulatory flexibility analysis (5 U.S.C. 604) are 
not applicable to this temporary rule because the agency was not 
required to publish a notice of proposed rulemaking under 5 U.S.C. 
Sec. 553 or any other law. Accordingly, a regulatory flexibility 
analysis is not required.

Paperwork Reduction Act

    This regulation is being issued without prior notice and public 
procedure pursuant to the Administrative Procedure Act (5 U.S.C. 553). 
For this reason, the collection of information contained in this 
regulation has been reviewed under the requirements of the Paperwork 
Reduction Act (44 U.S.C. 3507(j)) and, pending receipt and evaluation 
of public comments, approved by the Office of Management and Budget 
(OMB) under control number 1512-0520. An agency may not conduct or 
sponsor, and a person is not required to respond to, a collection of 
information unless it displays a valid control number assigned by OMB.
    The collection of information in this regulation is in 
Secs. 178.130(a)(1) and 178.134. This information is required to 
prevent the purchase of handguns by persons convicted of a misdemeanor 
crime of domestic violence. The likely respondents are individuals.
    For further information concerning this collection of information, 
and where to submit comments on the collection of information, refer to 
the preamble of the cross-referenced notice of proposed rulemaking 
published elsewhere in this issue of the Federal Register.
    Drafting Information: The author of this document is Barry Fields, 
Regulations Division, Bureau of Alcohol, Tobacco and Firearms.

List of Subjects in 27 CFR Part 178

    Administrative practice and procedure, Arms and ammunition, 
Authority delegations, Customs duties and inspection, Domestic 
violence, Exports, Imports, Law enforcement personnel, Military 
personnel, Penalties, Reporting requirements, Research, Seizures and 
forfeitures, and Transportation.

Authority and Issuance

    27 CFR part 178 is amended as follows:

PART 178--COMMERCE IN FIREARMS AND AMMUNITION

    Paragraph 1. The authority citation for 27 CFR part 178 continues 
to read as follows:

    Authority: 5 U.S.C. 552(a); 18 U.S.C. 847, 921-930; 44 U.S.C. 
3504(h).

    Par. 2. Section 178.1(a) is revised to read as follows:


Sec. 178.1  Scope of regulations.

    (a) General. The regulations contained in this part relate to 
commerce in firearms and ammunition and are promulgated to implement 
Title I, State Firearms Control Assistance (18 U.S.C. Chapter 44), of 
the Gun Control Act of 1968 (82 Stat. 1213) as amended by Pub. L. 99-
308 (100 Stat. 449), Pub. L. 99-360 (100 Stat. 766), Pub. L. 99-408 
(100 Stat. 920), Pub. L. 103-159 (107 Stat. 1536), Pub. L. 103-322 (108 
Stat. 1796), and Pub. L. 104-208 (110 Stat. 3009).
* * * * *
    Par. 3. Section 178.11 is amended by adding the definition for 
``misdemeanor crime of domestic violence'' to read as follows:


Sec. 178.11  Meaning of terms.

* * * * *
    Misdemeanor crime of domestic violence. (a) Is a Federal, State or 
local offense that:
    (1) Is a misdemeanor under Federal or State law or, in States which 
do not classify offenses as misdemeanors, is an offense punishable by 
imprisonment for a term of one year or less, and includes offenses that 
are punishable only by a fine. (This is true whether or not the State 
statute specifically defines the offense as a ``misdemeanor'' or as a 
``misdemeanor crime of domestic violence.'' The term includes all such 
misdemeanor convictions in Indian Courts established pursuant to 25 CFR 
part 11.);
    (2) Has, as an element, the use or attempted use of physical force 
(e.g., assault and battery), or the threatened use of a deadly weapon; 
and
    (3) Was committed by a current or former spouse, parent, or 
guardian of the victim, by a person with whom the victim shares a child 
in common, by a person who is cohabiting with or has cohabited with the 
victim as a spouse, parent, or guardian, (e.g., the equivalent of a 
``common law'' marriage even if such relationship is not recognized 
under the law), or a person similarly situated to a spouse, parent, or 
guardian of the victim (e.g., two persons who are residing at the same 
location in an intimate relationship with the intent to make that place 
their home would be similarly situated to a spouse).
    (b) A person shall not be considered to have been convicted of such 
an offense for purposes of this part unless:
    (1) The person is considered to have been convicted by the 
jurisdiction in which the proceedings were held.
    (2) The person was represented by counsel in the case, or knowingly 
and intelligently waived the right to counsel in the case; and
    (3) In the case of a prosecution for which a person was entitled to 
a jury trial in the jurisdiction in which the case was tried, either
    (i) The case was tried by a jury, or
    (ii) The person knowingly and intelligently waived the right to 
have the case tried by a jury, by guilty plea or otherwise.
    (c) A person shall not be considered to have been convicted of such 
an offense for purposes of this part if the conviction has been 
expunged or set aside, or is an offense for which the person has been 
pardoned or has had civil rights restored (if the law of the 
jurisdiction in which the proceedings were held provides for the loss 
of civil rights upon conviction for such an offense) unless the pardon, 
expunction, or restoration of civil rights expressly provides that the 
person may not ship, transport, possess, or receive firearms, and the 
person is not otherwise prohibited by the law of the jurisdiction in 
which the proceedings were held from receiving or possessing any 
firearms.
* * * * *
    Par. 4. Section 178.32 is amended by removing the word ``or'' at 
the end of paragraph (a)(7), by removing the period at the end of 
paragraph (a)(8)(iii)(B) and adding in its place ``, or'', by removing 
the word ``or'' at the end of paragraph (d)(7), by removing the period 
at the end

[[Page 35523]]

of paragraph (d)(8)(ii)(B) and adding in its place ``, or'', and by 
adding new paragraphs (a)(9) and (d)(9) to read as follows:


Sec. 178.32  Prohibited shipment, transportation, possession, or 
receipt of firearms and ammunition by certain persons.

    (a) * * *
    (9) Has been convicted of a misdemeanor crime of domestic violence.
* * * * *
    (d) * * *
    (9) Has been convicted of a misdemeanor crime of domestic violence.
    Par. 5. Section 178.50 is amended by removing the word ``or'' at 
the end of paragraph (b), by removing the period at the end of 
paragraph (c) and adding in its place ``; or'', and by adding new 
paragraph (d) to read as follows:


Sec. 178.50  Locations covered by license.

* * * * *
    (d) A licensed importer, manufacturer, or dealer may engage in the 
business of dealing in curio or relic firearms with another licensee at 
any location pursuant to the provisions of Sec. 178.100.
    Par. 6. Section 178.99 is amended by removing the word ``or'' at 
the end of paragraph (c)(7), by removing the period at the end of 
paragraph (c)(8)(ii)(B) and adding in its place ``, or'', and by adding 
new paragraph (c)(9) to read as follows:


Sec. 178.99  Certain prohibited sales or deliveries.

* * * * *
    (c) * * *
    (9) Has been convicted of a misdemeanor crime of domestic violence.
* * * * *
    Par. 7. Section 178.100 is amended by redesignating paragraph (a) 
as (a)(1), by adding new paragraph (a)(2), and by revising paragraph 
(c) to read as follows:


Sec. 178.100  Conduct of business away from licensed premises.

    (a)(1) * * *
    (2) A licensed importer, manufacturer, or dealer may engage in the 
business of dealing in curio or relic firearms with another licensee at 
any location.
* * * * *
    (c) Licensees conducting business at locations other than the 
premises specified on their license under the provisions of paragraph 
(a) of this section shall maintain firearms records in the form and 
manner prescribed by Subpart H of this part. In addition, records of 
firearms transactions conducted at such locations shall include the 
location of the sale or other disposition, be entered in the 
acquisition and disposition records of the licensee, and retained on 
the premises specified on the license.
    Par. 8. Section 178.130(a)(1) is amended by revising the last 
sentence to read as follows:


Sec. 178.130  Statement of intent to obtain a handgun after February 
27, 1994, and before November 30, 1998.

    (a)(1) * * * The transferee must date and execute the sworn 
statement contained on the form showing that the transferee is not 
under indictment for a crime punishable by imprisonment for a term 
exceeding 1 year; has not been convicted in any court of such a crime; 
is not a fugitive from justice; is not an unlawful user of or addicted 
to any controlled substance; has not been adjudicated as a mental 
defective or been committed to a mental institution; is not an alien 
who is illegally or unlawfully in the United States; has not been 
discharged from the Armed Forces under dishonorable conditions; is not 
a person who, having been a citizen of the United States, has renounced 
such citizenship; and has not been convicted of a misdemeanor crime of 
domestic violence.
* * * * *
    Par. 9. Section 178.134 is added to Subpart H to read as follows:


Sec. 178.134  Sale of firearms to law enforcement officers.

    (a) Law enforcement officers purchasing firearms for official use 
who provide the licensee with a certification on agency letterhead, 
signed by a person in authority within the agency (other than the 
officer purchasing the firearm), stating that the officer will use the 
firearm in official duties and that a records check reveals that the 
purchasing officer has no convictions for misdemeanor crimes of 
domestic violence are not required to complete Form 4473 or Form 
5300.35. The law enforcement officer purchasing the firearm may 
purchase a firearm from a licensee in another State, regardless of 
where the officer resides or where the agency is located.
    (b)(1) The following individuals are considered to have sufficient 
authority to certify that law enforcement officers purchasing firearms 
will use the firearms in the performance of official duties:
    (i) In a city or county police department, the director of public 
safety or the chief or commissioner of police.
    (ii) In a sheriff's office, the sheriff.
    (iii) In a State police or highway patrol department, the 
superintendent or the supervisor in charge of the office to which the 
State officer or employee is assigned.
    (iv) In Federal law enforcement offices, the supervisor in charge 
of the office to which the Federal officer or employee is assigned.
    (2) An individual signing on behalf of the person in authority is 
acceptable, provided there is a proper delegation of authority.
    (c) Licensees are not required to prepare a Form 4473 or Form 
5300.35 covering sales of firearm made in accordance with paragraph (a) 
of this section to law enforcement officers for official use. However, 
disposition to the officer must be entered into the licensee's 
permanent records, and the certification letter must be retained in the 
licensee's files.
    Par. 10. Section 178.141 is amended by revising the introductory 
text to read as follows:


Sec. 178.141  General.

    With the exception of Secs. 178.32(a)(9) and (d)(9) and 
178.99(c)(9), the provisions of this part shall not apply with respect 
to:
* * * * *
    Par. 11. Section 178.144 is amended by removing the word ``and'' at 
the end of paragraph (c)(6), by removing the period at the end of 
paragraph (c)(7) and by adding in its place ``; and'', and by adding 
paragraph (c)(8) to read as follows:


Sec. 178.144  Relief from disabilities under the Act.

* * * * *
    (c) * * *
    (8) In the case of an applicant who has been convicted of a 
misdemeanor crime of domestic violence, a copy of the indictment or 
information on which the applicant was convicted, the judgment of 
conviction or record of any plea of nolo contendere or plea of guilty 
or finding of guilt by the court, and any pardon, expunction, setting 
aside or other record purporting to show that the conviction was 
rendered nugatory or that civil rights were restored.
* * * * *
    Signed: February 18, 1998.
John W. Magaw,
Director.
    Approved: April 24, 1998.
John P. Simpson,
Deputy Assistant Secretary (Regulatory, Tariff and Trade Enforcement).
[FR Doc. 98-17288 Filed 6-29-98; 8:45 am]
BILLING CODE 4810-31-U