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

DEPARTMENT OF THE TREASURY



Bureau of Alcohol, Tobacco and Firearms



27 CFR Part 178



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

RIN: 1512-AB64





Implementation of Public Law 104208, Omnibus Consolidated

Appropriations Act of 1997 (96R-034P)



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

the Treasury.



ACTION: Temporary Rule (Treasury decision).



-----------------------------------------------------------------------



SUMMARY: This temporary rule implements the provisions of Public Law

104-208, the Omnibus Consolidated Appropriations Act of 1997, which

amended the Gun Control Act of 1968. Specifically, the new law makes it

unlawful for individuals who have been convicted of a ``misdemeanor

crime of domestic violence'' to ship, transport, receive or possess

firearms and ammunition, and prohibits sales or other dispositions of

firearms and ammunition to such individuals. Further, the law requires

individuals acquiring handguns from Federal firearms licensees under

the Brady law to certify that they have not been convicted of such a

crime. Additionally, it allows all Federal firearms licensees to engage

in the business of dealing in curio or relic firearms with another

licensee away from their licensed premises. This temporary rule will

remain in effect until superseded by final regulations.

In the Proposed Rules section of this Federal Register, ATF is also

issuing a notice of proposed rulemaking inviting comments on the

temporary rule for a 90-day period following the publication date of

this temporary rule.



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



ADDRESS: Send written comments to: Chief, Regulations Division, Bureau

of Alcohol, Tobacco and Firearms, P.O. Box 50221, Washington, DC 20091-

0221.



FOR FURTHER INFORMATION CONTACT: Barry Fields, Regulations Division,

Bureau of Alcohol, Tobacco and Firearms, 650 Massachusetts Ave., NW,

Washington, DC 20226; (202-453-2265).



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

This was last updated on August 25, 1998