Implementation of the NICS Improvement Amendments Act of 2007, 27059-27067 [2016-10424]
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Federal Register / Vol. 81, No. 87 / Thursday, May 5, 2016 / Proposed Rules
3. Will not affect intrastate aviation in
Alaska to the extent that it justifies
making a regulatory distinction; and
4. Will not have a significant
economic impact, positive or negative,
on a substantial number of small entities
under the criteria of the Regulatory
Flexibility Act.
We prepared an economic evaluation
of the estimated costs to comply with
this proposed AD and placed it in the
AD docket.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation
safety, Incorporation by reference,
Safety.
The Proposed Amendment
Accordingly, under the authority
delegated to me by the Administrator,
the FAA proposes to amend 14 CFR part
39 as follows:
BK117–20A–114, Revision 1, dated July 30,
2015.
(2) After the effective date of this AD, do
not install adhesive seal P/N 117–800201.01
on any helicopter sliding door.
(f) Alternative Methods of Compliance
(AMOCs)
(1) The Manager, Safety Management
Group, FAA, may approve AMOCs for this
AD. Send your proposal to: Matt Fuller,
Senior Aviation Safety Engineer, Safety
Management Group, Rotorcraft Directorate,
FAA, 10101 Hillwood Pkwy., Fort Worth, TX
76177; telephone (817) 222–5110; email 9ASW-FTW-AMOC-Requests@faa.gov.
(2) For operations conducted under a 14
CFR part 119 operating certificate or under
14 CFR part 91, subpart K, we suggest that
you notify your principal inspector, or
lacking a principal inspector, the manager of
the local flight standards district office or
certificate holding district office before
operating any aircraft complying with this
AD through an AMOC.
(g) Additional Information
The subject of this AD is addressed in
European Aviation Safety Agency (EASA) AD
No. 2015–0163, dated August 6, 2015. You
may view the EASA AD on the Internet at
https://www.regulations.gov in the AD Docket.
PART 39—AIRWORTHINESS
DIRECTIVES
1. The authority citation for part 39
continues to read as follows:
■
Authority: 49 U.S.C. 106(g), 40113, 44701.
■
(h) Subject
Joint Aircraft Service Component (JASC)
Code: 5220, Emergency Exits.
Airbus Helicopters Deutschland GmbH:
Docket No. FAA–2015–3941; Directorate
Identifier 2015–SW–052–AD.
Issued in Fort Worth, Texas, on April 19,
2016.
Scott A. Horn,
Acting Manager, Rotorcraft Directorate,
Aircraft Certification Service.
§ 39.13
[Amended]
2. The FAA amends § 39.13 by adding
the following new airworthiness
directive (AD):
(a) Applicability
This AD applies to Airbus Helicopters
Deutschland GmbH (Airbus Helicopters)
Model MBB–BK 117A–3, MBB–BK 117A–4,
MBB–BK 117B–1, MBB–BK 117B–2, and
MBB–BK 117C–1 helicopters with an
adhesive seal part number (P/N) 117–
800201.01 installed on an exterior or interior
sliding door, certificated in any category.
(b) Unsafe Condition
This AD defines the unsafe condition the
presence of sealant on a sliding door (door).
This condition could result in the door
failing to jettison, preventing helicopter
occupants from exiting the helicopter during
an emergency.
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(c) Comments Due Date
We must receive comments by July 5, 2016.
(d) Compliance
You are responsible for performing each
action required by this AD within the
specified compliance time unless it has
already been accomplished prior to that time.
(e) Required Actions
(1) Within 25 hours time-in-service,
remove adhesive seal P/N 117–800201.01
from the interior and exterior of each door.
The areas where the seal is installed are
shown in Figure 1 and Figure 2 of Airbus
Helicopters Alert Service Bulletin MBB–
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[FR Doc. 2016–10285 Filed 5–4–16; 8:45 am]
BILLING CODE 4910–13–P
SOCIAL SECURITY ADMINISTRATION
20 CFR Part 421
[Docket No. SSA–2016–0011]
RIN 0960–AH95
Implementation of the NICS
Improvement Amendments Act of 2007
Social Security Administration.
Notice of proposed rulemaking.
AGENCY:
ACTION:
We propose to implement
provisions of the NICS Improvement
Amendments Act of 2007 (NIAA) that
require Federal agencies to provide
relevant records to the Attorney General
for inclusion in the National Instant
Criminal Background Check System
(NICS). Under the proposed rule, we
would identify, on a prospective basis,
individuals who receive Disability
Insurance benefits under title II of the
Social Security Act (Act) or
Supplemental Security Income (SSI)
payments under title XVI of the Act and
also meet certain other criteria,
SUMMARY:
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27059
including an award of benefits based on
a finding that the individual’s mental
impairment meets or medically equals
the requirements of section 12.00 of the
Listing of Impairments (Listings) and
receipt of benefits through a
representative payee. We propose to
provide pertinent information about
these individuals to the Attorney
General on not less than a quarterly
basis. As required by the NIAA, at the
commencement of the adjudication
process we would also notify
individuals, both orally and in writing,
of their possible Federal prohibition on
possessing or receiving firearms, the
consequences of such inclusion, the
criminal penalties for violating the Gun
Control Act, and the availability of relief
from the prohibitions imposed by
Federal law. Finally, we also propose to
establish a program that permits
individuals to request relief from the
Federal firearms prohibitions based on
our adjudication. The proposed rule
would allow us to fulfill responsibilities
that we have under the NIAA.
DATES: To ensure that your comments
are considered, we must receive them
no later than July 5, 2016.
ADDRESSES: You may submit comments
by any one of three methods—Internet,
fax, or mail. Do not submit the same
comment multiple times or by more
than one method. Regardless of which
method you choose, please state that
your comments refer to Docket No.
SSA–2016–0011 so that we may
associate your comments with the
correct regulation.
Caution: You should be careful to
include in your comments only
information that you wish to make
publicly available. We strongly urge you
not to include in your comments any
personal information, such as Social
Security numbers or medical
information.
1. Internet: We strongly recommend
that you submit your comments via the
Internet. Please visit the Federal
eRulemaking portal at https://
www.regulations.gov. Use the ‘‘Search’’
function to find docket number SSA–
2016–0011. The system will issue a
tracking number to confirm your
submission. You will not be able to
view your comment immediately
because we must post each comment
manually. It may take up to a week or
more for your comment to be viewable.
2. Fax: Fax comments to (410) 966–
2830.
3. Mail: Mail your comments to NICS
Comments, Social Security
Administration, 3100 West High Rise
Building, 6401 Security Boulevard,
Baltimore, Maryland 21235–6401.
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Federal Register / Vol. 81, No. 87 / Thursday, May 5, 2016 / Proposed Rules
Comments are available for public
viewing on the Federal eRulemaking
portal at https://www.regulations.gov or
in person, during regular business
hours, by arranging with the contact
identified below.
FOR FURTHER INFORMATION CONTACT:
Social Security Administration, 410–
965–3735 or Regulations@ssa.gov. We
will not accept public comments at this
telephone number or email address; to
comment, please follow the instructions
above. For information on eligibility or
filing for benefits, call our national tollfree number, 1–800–772–1213 or TTY
1–800–325–0778, or visit our Internet
site, Social Security Online, at https://
www.socialsecurity.gov.
SUPPLEMENTARY INFORMATION:
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Background
Section 103 of the Brady Handgun
Violence Prevention Act (Brady Act)
required the Attorney General to
establish the NICS, which allows a
Federal Firearms Licensee (FFL) to
determine whether the law prohibits a
potential buyer from possessing or
receiving a firearm.1 The Brady Act and
its implementing regulations are
designed to prevent the transfer of
firearms by FFLs to individuals who are
not allowed to possess or receive them
because of restrictions contained in the
Gun Control Act of 1968, as amended,2
or State law. Federal law makes it
unlawful for certain persons to ship,
transport, receive, or possess any
firearm or ammunition that has been
shipped or transported in interstate or
foreign commerce.3 As relevant to our
programs, the Federal prohibition on the
possession or receipt of firearms or
ammunition applies to a person who, in
the language of the statute, ‘‘has been
adjudicated as a mental defective.’’ 4
In 2007, Congress found that many
background checks were delayed if the
Federal Bureau of Investigation (FBI)
did not have automated access to
complete information concerning
persons prohibited from possessing or
receiving a firearm under Federal or
State law. Congress noted that the
primary cause of delay in the NICS
background checks included a lack of
automated access to information
concerning persons prohibited from
possessing or receiving a firearm
because of mental illness, restraining
1 Public Law 103–159, 107 Stat. 1536, 1541
(codified at 18 U.S.C. 922 note).
2 Codified at 18 U.S.C. Chapter 44.
3 18 U.S.C. 922(g) and (n).
4 18 U.S.C. 922(g)(4). In these rules, we will refer
to this prohibition as the ‘‘Federal mental health
prohibitor’’ although we also use the statutory
language in section 922(g)(4) in our proposed
regulatory language below.
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orders, or misdemeanor convictions for
domestic violence.5 Congress also found
that computerizing information relating
to criminal history, criminal
dispositions, mental illness, restraining
orders, and misdemeanor convictions
for domestic violence, or making this
information available to the NICS in a
usable format, could improve automated
access to it.6
To address these concerns, Congress
enacted the NIAA,7 which strengthened
the NICS by increasing the quantity and
quality of relevant records from Federal,
State, and tribal authorities accessible
by the system. Among other things, the
NIAA requires that, if a Federal
department or agency has any record
demonstrating that a person falls within
one of the categories in 18 U.S.C. 922(g)
or (n), the head of that department or
agency must provide the pertinent
information contained in the record to
the Attorney General, not less frequently
than quarterly, for inclusion in the
NICS.8
On January 16, 2013, the President
issued a Memorandum to Federal
departments and agencies aimed at
further strengthening the accuracy and
efficiency of the Federal background
check system for firearms purchases.9
The President directed the Department
of Justice (DOJ) to provide guidance to
agencies regarding the identification
and sharing of relevant Federal records
and their submission to the NICS; DOJ
provided its guidance to agencies in
March 2013.10
The relevant section of the DOJ
Guidance discusses the Federal mental
health prohibitor and the relevant
agency records with respect to that
prohibitor as follows:
Pursuant to 18 U.S.C. 922(g)(4), any person
‘who has been adjudicated as a mental
defective or who has been committed to a
mental institution’ is prohibited from
shipping, transporting, possessing or
receiving firearms under federal firearms
laws. ATF has clarified through regulations
that this prohibitor covers the following
circumstances and categories of individuals:
(1) A determination by a court, board,
commission or other lawful authority that a
person, as a result of marked subnormal
5 NICS Improvement Amendments Act of 2007
(NIAA), Public Law 110–180, sec. 2, 121 Stat. 2559,
2559–2560.
6 Id.
7 Public Law 110–180, 121 Stat. 2559 (codified at
18 U.S.C. 922 note).
8 NIAA, sec. 101(a)(4), 121 Stat. at 2161.
9 Memorandum for the Heads of Executive
Departments and Agencies, Improving Availability
of Relevant Executive Branch Records to the
National Instant Criminal Background Check
System, 78 FR 4297 (2013).
10 Department of Justice, Guidance to Agencies
Regarding Submission of Relevant Federal Records
to the NICS (March 2013) (‘‘DOJ Guidance’’).
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intelligence, or mental illness, incompetency,
condition or disease:
Æ Is a danger to himself, herself or others;
or
Æ Lacks the mental capacity to contract or
manage his or her own affairs.
This includes (1) a person found to be
insane by a court in a criminal case, and (2)
a person found incompetent to stand trial or
found not guilty by reason of lack of mental
responsibility pursuant to articles 50a and
76b of the Uniform Code of Military Justice,
10 U.S.C. 850a, 876b.
(2) A formal commitment of a person to a
mental institution by a court, board,
commission or other lawful authority. This
includes commitment to a mental institution
involuntarily, commitment for mental
defectiveness or mental illness or
commitment for other reasons, such as for
drug use. It does not include a person in a
mental institution for observation or a
voluntary admission to a mental institution.
Please note the following four
important things about this prohibitor:
• First, ‘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.
• Second, ‘mental defective’ does not
include a person who has been granted relief
from the disability through a qualifying
federal or state relief from disability program
as authorized by the NIAA.
• Third, ‘mental defective’ also does not
include a person whose adjudication or
commitment was imposed by a federal
department or agency, and:
Æ The adjudication or commitment has
been set aside or expunged, or the person has
otherwise been fully released or discharged
from all mandatory treatment, supervision or
monitoring;
Æ The person has been found by a court,
board, commission or other lawful authority
to no longer suffer from the mental health
condition that was the basis of the
adjudication or commitment, or has
otherwise been found to be rehabilitated
through any procedure available under law;
or
Æ The adjudication or commitment is
based solely on a medical finding of
disability, without an opportunity for a
hearing by a court, board, commission or
other lawful authority, and the person has
not been adjudicated as a mental defective
consistent with 18 U.S.C. 922(g)(4), except
that nothing in this section or any other
provision of law shall prevent a federal
department or agency from providing to the
Attorney General any record demonstrating
that a person was adjudicated to be not guilty
by reason of insanity, or based on lack of
mental responsibility, or found incompetent
to stand trial, in any criminal case or under
the Uniform Code of Military Justice.
• Fourth, agencies that conduct mental
health adjudications must provide both oral
and written notice to the individual at the
commencement of the adjudication process.
Such notice must include:
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Æ Notification that adjudication of the
person as a mental defective or commitment
to a mental institution, when final, will
prohibit the individual from purchasing,
possessing, receiving, shipping or
transporting a firearm or ammunition under
18 U.S.C. 922(d)(4) or 922(g)(4);
Æ Information about the penalties imposed
for unlawful possession, receipt, shipment or
transportation of a firearm under 18 U.S.C.
924(a)(2); and
Æ Information about the availability of
relief from the disabilities imposed by federal
laws with respect to the acquisition, receipt,
transfer, shipment, transportation or
possession of firearms.
Relevant Records. Records that are relevant
to this prohibitor include judgment and
commitment orders, sentencing orders and
court or agency records of adjudications of an
individual’s inability to manage his or her
own affairs if such adjudication is based on
marked subnormal intelligence or mental
illness, incompetency, condition or disease.
This last category includes certain agency
designations of representative or alternate
payees for program beneficiaries.11
Therefore, DOJ has determined that to
comply with the NIAA, we must report
to the Attorney General information
about some of our title II and title XVI
beneficiaries.12
The FBI collects and maintains, in the
NICS Index, certain identifying
information about individuals who are
subject to one or more Federal
prohibitors and thus are ineligible to
possess or receive firearms.13 The
minimum information required in a
NICS Index record consists of the name
of the ineligible individual, the
individual’s date of birth, sex, codes
indicating the applicable prohibitor, and
the submitting entity. We also propose
to include the individual’s Social
Security number to ensure accurate
identification. For individuals subject to
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11 The
ATF regulations discussed in the DOJ
Guidance are found at 27 CFR 478.11.
12 As part of our responsibilities under the NIAA,
we will also provide the Attorney General with
copies of court orders that we receive regarding
adult title II and title XVI disability beneficiaries
who have been declared legally incompetent by a
State or Federal court. Our procedures regarding
these types of orders are found in POMS GN
00502.005 (available at: https://secure.ssa.gov/
apps10/poms.nsf/lnx/0200502005) and GN
00502.300 (available at: https://secure.ssa.gov/
apps10/poms.nsf/lnx/0200502300). The FBI would
determine whether these court orders meet the
requirements of the Federal mental health
prohibitor.
13 See National Instant Criminal Background
Check System (NICS) Operations, 2014, at page 1
(available at: https://www.fbi.gov/about-us/cjis/
nics//2014-operations-report) (The NICS Index, ‘‘a
database created specifically for the NICS, contains
information contributed by local, state, tribal, and
federal agencies pertaining to persons prohibited
from receiving or possessing a firearm pursuant to
state and/or federal law. Typically, the records
maintained in the NICS Index are not available via
the III [Interstate Identification Index] or the NCIC
[National Crime Information Center].’’).
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the Federal mental health prohibitor, we
would submit to the NICS only the fact
that the individual is subject to that
prohibitor; we would not provide
underlying diagnoses, treatment
records, or other identifiable health
information, nor does the NICS
maintain that information.
A NICS background check queries the
NICS Index and certain other national
databases to determine whether a
prospective buyer’s identifying
information matches any prohibiting
records contained in the databases.14
The NICS Index can be accessed only
for the limited purposes authorized by
regulation.15 The potential transfer of a
firearm from an FFL to a prospective
buyer proceeds as follows: (1) The
prospective buyer is required to provide
personal information on a Firearms
Transaction Record (ATF Form 4473);
(2) unless the prospective buyer has
documentation that he or she qualifies
for an exception to the NICS background
check requirement,16 the FFL contacts
the NICS—electronically, by telephone,
or through a State level point of
contact—and provides certain
identifying information about the
prospective buyer from ATF Form
4473; 17 (3) the FFL receives a response
that the prospective firearm transfer
may proceed, is denied, or is delayed.
If the prospective buyer’s information
matches a record contained in one of the
databases reviewed, but there is
14 See National Instant Criminal Background
Check System, Fact Sheet (available at: https://
www.fbi.gov/about-us/cjis/nics/generalinformation/fact-sheet.) The other databases
include the III, which contains criminal history
record information; and the NCIC, which includes,
e.g., information on persons subject to civil
protection orders and arrest warrants.
15 28 CFR 25.6(j). Under this regulation, access to
the NICS Index for purposes unrelated to NICS
background checks is limited to uses for the
purposes of: (1) Providing information to Federal,
state, tribal, or local criminal justice agencies in
connection with the issuance of a firearm-related or
explosives-related permit or license, including
permits or licenses to possess, acquire, or transfer
a firearm, or to carry a concealed firearm, or to
import, manufacture, deal in, or purchase
explosives; (2) responding to an inquiry from ATF
in connection with a civil or criminal law
enforcement activity relating to the Gun Control Act
or the National Firearms Act; or (3) disposing of
firearms in the possession of a Federal, state, tribal,
or local criminal justice agency.
16 These exceptions are outlined in 27 CFR
478.102(d). For example, a NICS check would not
be required where the potential recipient of a
firearm has presented a valid State permit or
license, provided conditions at 27 CFR
478.102(d)(1) are met.
17 The form collects the prospective buyer’s name;
demographic information such as address, place
and date of birth, sex, citizenship, race and
ethnicity; and ‘‘yes’’ or ‘‘no’’ answers to questions
about the person’s criminal history and other
potential prohibitors. The form is available at
https://www.atf.gov/forms/download/atf-f-44731.pdf.
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27061
insufficient information in the record to
immediately determine whether the
firearm transfer should proceed or be
denied, the transfer is delayed.
If there is a match, a NICS examiner
reviews the record to determine whether
the information it contains is, in fact,
prohibiting and then either: (1) Advises
the FFL to proceed with the transaction
if the record does not contain
prohibiting information, (2) denies the
transaction (due to ineligibility) if the
record does contain prohibiting
information, or (3) delays the
transaction pending further research if it
is unclear based solely on the existing
information in the record whether it is
prohibiting.18 The NICS examiner does
not disclose the reason for the
determination to the FFL. As a result,
the FFL does not learn that the
individual is ineligible due to the
Federal mental health prohibitor. If the
NICS examiner does not provide a final
status to the FFL within 3 business days
of the initial background check request,
the FFL may proceed with the
transaction, if he or she chooses to do
so.19
The Proposed Rule
The regulatory changes in this
proposed rule fall into three general
categories: (1) Identifying relevant
records and reporting pertinent
information to the NICS, (2) oral and
written notification to our title II and
title XVI beneficiaries who meet the
requisite criteria, and (3) establishing a
program that permits our beneficiaries
who meet the requisite criteria to apply
for relief from the firearms prohibition
imposed by 18 U.S.C. 922(d)(4) or (g)(4)
by virtue of our adjudication.20
Identifying Relevant Records and
Reporting Pertinent Information to the
NICS
To comply with the requirements of
the NIAA, we propose to identify, on a
prospective basis, any title II or title XVI
beneficiary whom we are required to
18 For example, a ‘‘delay’’ response may mean
that further research is required because potentially
prohibitive criteria exist, but the matched records
are incomplete. See Federal Bureau of Investigation
(FBI) Fact Sheet, available at: www.fbi.gov/aboutus/cjis/nice/general-information/fact-sheet.
19 Some States have waiting periods that also
must be complied with before a firearm may be
transferred, regardless of whether a proceed
response from the NICS is received by the FFL
within 3 business days.
20 Section 101(c)(2)(A)(iii) of the NIAA specifies
that relief and judicial review with respect to the
‘‘relief from disabilities’’ program shall be available
according to the standards prescribed in 18 U.S.C.
925(c). In these rules, we will refer to this program
as the ‘‘relief from firearm prohibitions’’ program in
order to avoid any possible confusion with our
disability programs.
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report for inclusion in the NICS because
that person is subject to the Federal
mental health prohibitor as a result of
our adjudication. Under the governing
regulations, the Federal mental health
prohibitor applies when there has been
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.’’ 21 This regulation therefore
contains three operative components.
First, there must be a determination by
a ‘‘lawful authority.’’ Second, the
adjudication must concern (as relevant
to our programs) an individual’s
inability to manage his or her own
affairs. Third, the adjudication regarding
the inability to manage an individual’s
affairs must be based on ‘‘marked
subnormal intelligence or mental
illness, incompetency, condition or
disease.’’
There are several relevant
observations regarding the application
of these three factors to our adjudication
process. First, our determination
regarding an individual’s claim for
benefits, specifically our determination
regarding the appointment of a
representative payee, which we make in
accordance with the authority granted to
the Commissioner under the Act,
constitutes a determination by a ‘‘lawful
authority.’’ 22 Second, the regulation’s
focus on an individual’s lack of ‘‘mental
capacity to contract or manage his or her
own affairs’’ makes our appointment of
a representative payee the
determination that makes a person
subject to the Federal mental health
prohibitor.23 The DOJ Guidance
discussed above makes that point clear,
specifying that relevant records for the
Federal mental health prohibitor
include ‘‘certain agency designations of
representative or alternate payees for
program beneficiaries.’’ As we discuss
in more detail below, once we have
determined that an individual is
disabled, we may need to decide
whether he or she is capable of
managing his or her benefits, or whether
his or her interest would be served by
21 27
CFR 478.11.
42 U.S.C. 405(b)(1), 1383(c)(1)(A) (directing
the Commissioner to ‘‘make findings of fact, and
decisions as to the rights of any individual applying
for a payment’’ under titles II and XVI of the Act),
902(a)(4) (providing that the Commissioner ‘‘shall
be responsible for the exercise of all powers and the
discharge of all duties of the Administration, and
shall have authority and control over all personnel
and activities thereof.’’).
23 See 42 U.S.C. 405(j)(1)(A), 1383(a)(2)(A)(ii); 20
CFR 404.2010(a), 416.610(a).
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22 See
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the appointment of a representative
payee.24 Finally, the regulation requires
that the individual lack the mental
capacity to manage his or her own
affairs ‘‘as a result of marked subnormal
intelligence, or mental illness,
incompetency, condition, or disease.’’
Consequently, the basis for the
individual’s inability to manage his or
her own affairs must therefore be the
‘‘result of’’ his or her mental
impairment. As a result, individuals
whom we are required to report to NICS
will be a subset of the universe of
individuals for whom we have
appointed a representative payee.
We recognize that there is no perfect
fit between: (1) Our adjudication
regarding a claimant’s entitlement to
benefits and determination of whether
to designate a representative payee; and
(2) the regulatory definition of an
individual who is subject to the Federal
mental health prohibitor. Considering
the relevant regulatory factors,
discussed above, however, we believe
that there is a reasonable and
appropriate fit between the criteria we
use to decide whether some of our
beneficiaries are disabled and require a
representative payee and the Federal
mental health prohibitor. Accordingly,
we propose that, during the title II or
title XVI claim development and
adjudication process, or when we take
certain post-entitlement or posteligibility actions, we will identify
individuals who: (1) Filed a claim based
on disability; (2) we have determined to
be disabled based on a finding at step
three of our sequential evaluation
process that the individual’s
impairment(s) meets or medically
equals the requirements of one of the
Mental Disorders Listing of Impairments
(Listings) (12.00 et seq.); 25 (3) have a
primary diagnosis code in our records
that is based on a mental impairment; 26
24 Id.
25 See
20 CFR 404.1520(a)(4)(iii), 404.1520(d),
404.1525, 404.1526, 416.920(a)(4)(iii), 416.920(d),
416.925, 416.926. The Listings are found in 20 CFR
part 404, subpart P, appendix 1.
26 The relevant diagnosis codes are: Listing 12.02:
2940 (Organic Mental Disorders); Listing 12.03:
2950 (Schizophrenic, Paranoid and Other Psychotic
Disorders); Listing 12.04: 2960 (Affective
Disorders); Listing 12.05: 3180 (Intellectual
Disability); Listing 12.06: 3000 (Anxiety-Related
Disorders); Listing 12.07: 3060 (Somatoform
Disorders); Listing 12:08: 3010 (Personality
Disorders); and Listing 12.10: 2990 (Autistic
Disorders and Other Pervasive Developmental
Disorders). See Program Operations Manual System
(POMS) DI 26510.015G (available at: https://
secure.ssa.gov/apps10/poms.nsf/lnx/0426510015);
DI 28084.035A (available at: https://secure.ssa.gov/
apps10/poms.nsf/lnx/0428084035). If we find a
claimant’s borderline intellectual functioning to be
of listing-level severity, we will use the code 3195
and base the appropriate listing category for our
finding of medical equivalence on a consideration
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(4) have attained age 18, but have not
yet attained full retirement age; and (5)
require their benefit payments to be
made through a representative payee
because we have found that they are
incapable of managing benefit
payments.
We propose to include the first four
factors in order to help us identify
individuals for whom our determination
is the ‘‘result of’’ his or her mental
impairment, and not because of another
factor, such as the individual’s age or
physical impairment. The final factor,
our appointment of a representative
payee, focuses on the second factor
under the applicable regulations, the
individual’s inability to manage his or
her affairs.27
We propose to include the existence
of a Listing-level mental impairment as
one of the criteria for our reporting to
the NICS because the existence of such
an impairment best identifies those
beneficiaries who are unable to manage
their affairs as a result of their mental
impairment, and are therefore subject to
the Federal mental health prohibitor.
We use a five-step sequential evaluation
process to decide if an individual who
has filed a claim for benefits is
disabled.28 At the third step of that
process, we decide whether the
individual has an impairment, or
combination of impairments, that meets
or medically equals the requirements of
an impairment in the Listings.29 The
Listings describe, for each of the major
body systems, impairments that we
consider severe enough to prevent an
individual from doing any gainful
activity, regardless of his or her age,
education, or work experience.
Most body system sections in the
Listings contain two parts: An
introduction and the specific listings.
The introduction to each body system
contains information relevant to the use
of all the cognitive and behavioral manifestations in
the particular claim. POMS DI 26510.015G.
27 Our choice of an age criterion—individuals
who have attained age 18, but have not yet attained
full retirement age—also reflects the fact that when
we appoint a representative payee for individuals
at full retirement age or older, we do not obtain the
type of medical evidence that would allow us to
determine whether the inability to manage their
benefit payments is as a result of a mental
impairment or for some other reason.
28 20 CFR 404.1520(a), 416.920(a). When we
perform a continuing disability review, we use a
separate sequential evaluation process to decide if
a beneficiary continues to be disabled. 20 CFR
404.1594(f), 416.994(b)(5).
29 In the sequential evaluation process we use to
determine an individual’s continuing eligibility, we
consider whether the individual’s medically
determinable impairment(s) meets or medically
equals the requirements of the Listings at the
second step of the process in title II claims, and at
the first step of the process in title XVI claims. 20
CFR 404.1594(f)(2), 416.994(b)(5)(i).
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of the listings in that body system; for
example, examples of common
impairments in the body system and
definitions used in the listings for that
body system. The introductory section
also may include specific criteria for
establishing a diagnosis, confirming the
existence of an impairment, or
establishing that an impairment(s)
satisfies the criteria of a particular
listing in the body system. The specific
listings follow the introduction in each
body system. Within each listing, we
specify the objective medical evidence
and other findings needed to satisfy the
criteria of that Listing.30
The Listings help us ensure that
determinations or decisions of disability
have a sound medical basis, that
claimants receive equal treatment
throughout the country, and that we can
readily identify the majority of persons
who are disabled. The level of severity
described in the Listings—the inability
to perform any gainful activity—is such
that an individual who is not engaging
in substantial gainful activity and who
has an impairment that meets or
medically equals the requirements of
the Listings is generally considered
unable to work by reason of the medical
impairment alone.31 Thus, individuals
who have a Listing-level impairment are
the most severely disabled beneficiaries
we serve. In our view, given the medical
severity of a Listing-level impairment,
using our award of benefits based on the
mental disorders listings, combined
with the appointment of a
representative payee, as part of the
criteria we use to identify individuals
for reporting to the NICS most
appropriately identifies beneficiaries
who are subject to the Federal mental
health prohibitor in a manner consistent
with the congressional purpose
expressed in the NIAA.
We acknowledge that we are not
proposing to identify and report for
inclusion in the NICS those individuals
for whom we have appointed a
representative payee after a finding of
disability at step five of our sequential
evaluation process. At step five of the
sequential evaluation process we decide
whether an individual can perform a
significant number of jobs that exist in
the national economy considering his or
her age, education, past work
experience, and residual functional
capacity.32 In contrast to a step three
finding of disability, which focuses on
medical severity as established by
30 20
CFR 404.1525(c), 416.925(c).
Security Ruling (SSR) 86–8 (available at:
https://ssa.gov/OP_Home/rulings/di/01/SSR86-08di-01.html).
32 See 20 CFR 404.1520(a)(4)(v), 404.1520(g),
416.920(a)(4)(v), 416.920(g).
31 Social
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objective criteria, a step five finding of
disability takes into account vocational
factors and depends on an assessment of
the number of jobs in the economy that
a person can perform. For the reasons
discussed above, we believe that
including individuals whom we have
determined to have a Listing-level
mental impairment (and who meet the
other criteria that we propose), most
closely comports with the requirements
of the NIAA, the regulatory definition of
the Federal mental health prohibitor,
and the DOJ Guidance. However, we
recognize that applying the proposal to
beneficiaries who are found disabled at
step five of our sequential evaluation
process may also be a reasonable
interpretation of the NIAA, its
implementing regulations, and the DOJ
Guidance, as applied to our programs.
Therefore, during the comment period
for this NPRM, we invite comment on
the possible benefits and limitations of
applying the proposal to beneficiaries
who are found disabled based on a
finding at step five of our sequential
evaluation process. Further, we invite
comment on the possible manner in
which we could implement the proposal
with respect to these beneficiaries in a
manner that is least disruptive to our
ability to process claims and deliver
services to the public. We will consider
the comments we receive on this issue,
and determine whether to include these
beneficiaries in our reporting to the
NICS. If we decide to include
beneficiaries who are found disabled at
step five of our sequential evaluation
process in our reporting to the NICS, we
will respond to the comments and
explain our reasons for doing so in any
final rule, and make appropriate
modifications to the regulatory language
in the final rule.
The information about the individual
that we propose to report for inclusion
in the NICS would consist of his or her:
(1) Name, (2) full date of birth, (3) sex,
and (4) Social Security number. We
propose to provide the pertinent
information about individuals meeting
the proposed criteria to the Attorney
General for inclusion in the NICS on not
less than a quarterly basis. We also
propose to provide information
regarding these individuals on a
prospective basis. That means we would
report individuals to the Attorney
General for inclusion in the NICS based
on representative payee determinations
meeting the 18 U.S.C. 922(g)(4)
requirements, that we make on or after
the effective date of any final rule.
In addition, if we conduct a
continuing disability review (including
an age-18 disability redetermination) in
an individual’s case and determine, on
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27063
or after the effective date of any final
rule, that the individual meets the
criteria for inclusion in the NICS, we
would also report that individual for
inclusion in the NICS. That means that
we would report an individual for
inclusion in the NICS after a continuing
disability review if we appoint a
representative payee for the person
because he or she is incapable of
managing benefit payments as a result of
a primary mental impairment that meets
or medically equals the requirements of
one of the Mental Disorders Listings. We
would do so even if we originally
determined that the individual did not
require a representative payee because
of his or her mental impairment before
the effective date of any final rule.
Oral and Written Notification to
Beneficiaries
Under our representative payee
policy, unless direct payment is
prohibited, we presume that an adult
beneficiary is capable of managing or
directing the management of benefits.
However, if we have information that
the beneficiary has a mental or physical
impairment that prevents him or her
from managing or directing the
management of benefits, we will
develop the issue of capability.33 If a
beneficiary has a mental impairment,
we will develop the capability issue if
there is an indication that the
beneficiary may lack the ability to
reason properly, is disoriented, has
seriously impaired judgment, or is
unable to communicate with others.34
It is also important to remember that
we can reevaluate a beneficiary’s
capability even though we may have
already determined a beneficiary’s
capability in the past. We are always
alert to changes in circumstances that
might indicate the need for a new
capability determination. For example, a
once incapable beneficiary who requests
direct payment may now be capable, or
a once capable beneficiary who is
admitted to a mental hospital may now
be incapable. We consider reviewing
capability in a number of situations,
including: When we perform a
continuing disability review or an SSI
redetermination (including an age-18
disability redetermination), when we
discover that a beneficiary manages any
other benefits that he or she may be
33 POMS GN 00502.020 (available at: https://
secure.ssa.gov/apps10/poms.nsf/lnx/0200502020).
Under our policy, we prohibit legally incompetent
beneficiaries and children under age 15 from
receiving benefits directly. In these cases, we will
appoint a representative payee. POMS GN
00502.005A (available at: https://secure.ssa.gov/
apps10/poms.nsf/lnx/0200502005).
34 POMS GN 00502.020A.2.
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entitled to, when a beneficiary appeals
the appointment of a payee, and when
any other contact with the beneficiary or
payee raises a question about the
beneficiary’s capability.35
We base our determination of whether
to pay a beneficiary directly or through
a representative payee on evidence
provided to us.36 When we adjudicate
an individual’s capability, we consider
anything that helps us understand the
beneficiary’s ability to manage funds.37
Usually, we characterize evidence of
capability as one of three types. First,
we consider legal evidence; legal
evidence is required only where there is
an allegation that the beneficiary is
legally incompetent.38 Second, we
consider medical evidence; whenever
possible, we will obtain medical
evidence that indicates the beneficiary
cannot manage or direct someone else to
manage his or her benefits. Third, we
consider lay evidence; in the absence of
legal evidence, we will obtain lay
evidence in all cases. If legal evidence
establishes that the beneficiary is
incompetent to manage or direct
someone else to manage his or her
benefits, the beneficiary must receive
benefits through a representative payee,
and no other development is necessary.
Otherwise, we will make a capability
determination based on lay and medical
evidence.39
The NIAA requires any Federal
department or agency that conducts
proceedings to adjudicate a person as
subject to the Federal mental health
prohibitor to provide the person with
both oral and written notice of several
things at the commencement of the
35 POMS
GN 00502.020A.6.
20 CFR 404.2015, 416.625.
37 POMS GN 00502.020B.
38 POMS GN 00502.005A.2 (available at: https://
secure.ssa.gov/apps10/poms.nsf/lnx/0200502005).
Under our policy, there must be a court order in
place for a finding that an individual is
incompetent. The appointment of a legal guardian
alone does not necessarily mean the beneficiary is
legally incompetent. The court order must
specifically address the beneficiary’s competency or
must contain a statement regarding the individual’s
ability to handle his or her financial affairs. If the
court order does not specify incompetency, we may
use the Digest of State Guardianship Laws found in
POMS GN 00502.300 (available at: https://
secure.ssa.gov/apps10/poms.nsf/lnx/0200502300)
to help determine if the court order represents a
finding of legal incompetence, or we may call the
court for clarification. Id.
39 POMS GN 00502.020B. We explain how we
consider legal evidence of capability in POMS GN
00502.005 (available at: https://secure.ssa.gov/
apps10/poms.nsf/lnx/0200502005). We explain
how we consider medical evidence of capability in
POMS GN 00502.025 (available at: https://
secure.ssa.gov/apps10/poms.nsf/lnx/0200502025).
We explain how we consider lay evidence of
capability in POMS GN 00502.030 (available at:
https://secure.ssa.gov/apps10/poms.nsf/lnx/
0200502030).
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36 See
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adjudication process.40 Consistent with
the NIAA, the oral and written notice
we propose to provide would advise the
affected individual of the following: (1)
The adjudication, when final, will
prohibit him or her from purchasing,
shipping, transporting, receiving, or
possessing firearms and ammunition,
pursuant to 18 U.S.C. 922(d)(4) and
(g)(4); (2) any person who knowingly
violates these restrictions may be
imprisoned for up to 10 years or fined
up to $250,000, or both; and (3) relief
from the Federal firearms prohibitions
imposed by 18 U.S.C. 922(d)(4) and
(g)(4) as a result of our adjudication is
available to the individual.
For our purposes, we consider the
commencement of the adjudication
process to mean the beginning of the
capability determination process
described above.41 Under these
proposed rules, we would provide oral
and written notice to the beneficiary
after we have determined that he or she
meets the medical requirements for
disability based on a finding that his or
her impairment(s) meets or medically
equals the requirements of the Mental
Disorders Listings, but before we find
that he or she requires a representative
payee. We recognize that this means we
would provide some beneficiaries with
the oral and written notice required by
the NIAA, but ultimately not report
them to the NICS because we determine
that they do not require representative
payees. We believe that the NIAA
requires this result. Section 101(c)(3)(A)
of the NIAA specifically states that an
agency must provide oral and written
notice that, ‘‘should the agency
adjudicate the person as a mental
defective,’’ the adjudication, ‘‘when
final, will prohibit the individual from
purchasing, possessing, receiving,
shipping, or transporting a firearm or
ammunition.’’ (Emphasis added). The
statutory language clearly indicates that
Congress intended for us to provide the
oral and written notice before we
actually find that an individual needs a
representative payee.
40 Section 101(c)(3) of the NIAA, 121 Stat. at
2564.
41 We recognize that, for purposes of reporting an
individual to NICS, the ‘‘commencement of the
adjudication process’’ differs from the meaning that
we would attribute to that phrase in the context of
our disability determination process. As we discuss
here, for the purpose of these proposed rules, the
commencement of the adjudication process refers to
the commencement of the process we use to
determine whether an individual requires a
representative payee, after we have determined the
individual to be disabled based on a finding at step
three of our sequential evaluation process that the
individual’s impairment(s) meets or medically
equals the requirements of one of the Mental
Disorders Listing of Impairments.
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Program for Relief
Section 101(a)(2)(A) of the NIAA
requires a Federal agency that makes
any adjudication related to the mental
health of a person to establish a program
that permits a person to apply for relief
from the firearms prohibitions imposed
by 18 U.S.C. 922(g)(4). We propose to
allow a person who is subject to the
Federal mental health prohibitor
because he or she meets the criteria in
§ 421.110(b) to apply for relief from the
Federal firearms prohibitions imposed
as a result of our adjudication.
We propose to provide these
individuals with a process by which
they can apply for relief from the
Federal firearms prohibitions and a
means to submit evidence for us to
consider. As required by the NIAA, this
request for relief process would focus on
whether the circumstances regarding the
disability, and the applicant’s record
and reputation, are such that we find
the applicant will not be likely to act in
a manner dangerous to public safety,
and that the granting of the relief would
not be contrary to the public interest.42
To make these required findings, we
propose to require the individual who
requests relief to provide us with certain
evidence, including evidence from his
or her primary mental health provider
regarding his or her current mental
health status and mental health status
for the past 5 years. We also propose to
require an applicant for relief to submit
written statements and any other
evidence regarding the applicant’s
reputation. As part of the relief process,
we would also obtain a criminal history
report on the applicant.
After the applicant submits the
evidence required under the rules, a
decision maker who was not involved in
finding that the applicant’s benefit
payments must be made through a
representative payee would review the
evidence and act on the request for
relief. We would notify the applicant in
writing of our action regarding the
request for relief.
Section 101(c)(2)(A)(iii) of the NIAA
specifies 43 that relief and judicial
review with respect to the relief
program shall be available according to
the standards prescribed in 18 U.S.C.
925(c). Section 925(c), in turn, provides
that any person whose application for
relief is denied may file a petition for a
judicial review of the denial with the
United States district court for the
district in which he or she resides. The
court may, in its discretion, admit
additional evidence where failure to do
42 Section 101(c)(2)(A)(iii) of the NIAA, 121 Stat.
at 2563; see 18 U.S.C. 925(c).
43 121 Stat. at 2563.
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Regulatory Procedures
Executive Order 12866
We have consulted with the Office of
Management and Budget (OMB) and
determined that these proposed rules
meet the requirements for a significant
regulatory action under Executive Order
12866 and were subject to OMB review.
Regulatory Flexibility Act
We certify that these proposed rules
would not have a significant economic
impact on a substantial number of small
entities because they only affect
individuals. Therefore, a regulatory
flexibility analysis is not required under
the Regulatory Flexibility Act, as
amended.
Paperwork Reduction Act
These proposed rules pose new public
reporting burdens in § 421.150(b),
421.151(b)(1) and (2) and (c)(1) through
(3), 421.152(b), and 421.165(b). Since
we will create new forms for these
requirements, we will solicit public
comment for them in a separate future
notice in the Federal Register as part of
the Paperwork Reduction Act process.
(Catalog of Federal Domestic Program Nos.
96.001, Social Security—Disability
Insurance; 96.002, Social Security—
Retirement Insurance; 96.004, Social
Security—Survivors Insurance, and 96.006,
Supplemental Security Income)
List of Subjects
Administrative practice and
procedure, Freedom of information,
Privacy, Reporting and recordkeeping
requirements.
Carolyn W. Colvin,
Acting Commissioner of Social Security.
For the reasons set out in the
preamble, we propose to add part 421 to
chapter III of title 20 of the Code of
Federal Regulations to read as follows:
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■
PART 421—NATIONAL INSTANT
CRIMINAL BACKGROUND CHECK
SYSTEM (NICS)
Sec.
421.100 What is this part about?
421.105 Definitions of terms used in this
part.
421.110 Identifying records relevant to the
NICS.
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The rules in this part relate to the
Brady Handgun Violence Prevention
Act (Brady Act), as amended by the
NICS Improvement Amendments Act of
2007 (NIAA) (Pub. L. 110–180). The
Brady Act required the Attorney General
to establish the National Instant
Criminal Background Check System
(NICS), which allows a Federal firearms
licensee to determine whether the law
prohibits a potential buyer from
possessing or receiving a firearm.
Among other things, the NIAA requires
a Federal agency that has any records
demonstrating that a person falls within
one of the categories in 18 U.S.C. 922(g)
or (n) to report the pertinent information
contained in the record to the Attorney
General for inclusion in the NICS. The
rules in this part define key terms and
explain which records we will report to
the NICS. They also explain how we
will provide oral and written
notification to our title II and title XVI
beneficiaries who meet the requisite
criteria. Finally, the rules in this part
explain how beneficiaries who meet the
requisite criteria may apply for relief
from the Federal firearms prohibitions,
and how we will process a request for
relief.
impairment(s) meets or medically
equals the requirements of one of the
Mental Disorders Listing of Impairments
(sections 12.00 through 12.10 of
appendix 1 to subpart P of part 404 of
this chapter) under the rules in part 404,
subpart P of this chapter, or under the
rules in part 416, subpart I of this
chapter; and
(2) For whom we need to make a
capability finding under the rules in
part 404, subpart U of this chapter, or
under the rules in part 416, subpart F of
this chapter, and that finding is the
result of marked subnormal intelligence,
or mental illness, incompetency,
condition or disease.
Commencement of the adjudication
process means, with respect to an
affected individual, the beginning of the
process we use to determine whether, as
a result of a mental impairment:
(1) An individual is capable of
managing his or her own benefits; or
(2) Whether his or her interests would
be better served if we certified benefit
payments to another person as a
representative payee, under the rules in
part 404, subpart U of this chapter, or
the rules in part 416, subpart F of this
chapter.
Full retirement age has the meaning
used in § 404.409 of this chapter.
NICS means the National Instant
Criminal Background Check System
established by the Brady Handgun
Violence Prevention Act, Public Law
103–159, 107 Stat. 1536 (codified at 18
U.S.C. 922 note), as amended.
Primary diagnosis code means the
code we use to identify an individual’s
primary medical diagnosis in our
records. The primary diagnosis refers to
the basic condition that renders an
individual disabled under the rules in
part 404, subpart P of this chapter, or
under the rules in part 416, subpart I of
this chapter.
Us or We means the Social Security
Administration.
§ 421.105
part.
so would result in a miscarriage of
justice. Consistent with the standards
contained in 18 U.S.C. 925(c), we
propose to include in the regulation a
provision that the individual may seek
judicial review when we deny his or her
request for relief through the filing of a
petition for relief in the United States
district court for the district in which
the individual resides.
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421.120 NICS reporting requirements.
421.140 Notice requirements for an
affected individual.
421.150 Requesting relief from the Federal
firearms prohibitions.
421.151 Evidentiary requirements and
processing a request for relief.
421.152 Time limits to provide evidence
supporting a request for relief.
421.155 Burden of proof in requests for
relief.
421.160 Granting a request for relief.
421.165 Actions on a request for relief.
421.170 Judicial review following a denial
of a request for relief.
27065
§ 421.110 Identifying records relevant to
the NICS.
Authority: Section 702(a)(5) of the Social
Security Act (42 U.S.C. 902(a)(5)); sec. 101,
Public Law 110–180, 121 Stat. 2559, 2561 (18
U.S.C. 922 note).
§ 421.100
What is this part about?
Definitions of terms used in this
For the purposes of this part:
Adjudicated as a mental defective, in
accordance with 18 U.S.C. 922(g)(4), as
amended, means 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: Is a danger to
himself or others; or lacks the mental
capacity to contract or manage his own
affairs.
Affected individual means an
individual:
(1) Who has been found disabled
based on a finding that the individual’s
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Sfmt 4702
(a) In accordance with the
requirements of the NIAA, we will
identify the records of individuals
whom we have ‘‘adjudicated as a mental
defective.’’ For purposes of the Social
Security programs established under
titles II and XVI of the Social Security
Act, we have ‘‘adjudicated as a mental
defective’’ any individual who meets
the criteria in paragraphs (b)(1) through
(5) of this section.
(b) During our claim development and
adjudication process, or when we take
certain post-entitlement or posteligibility actions, we will identify any
individual who:
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(1) Has filed a claim based on
disability;
(2) Has been determined to be
disabled based on a finding that the
individual’s impairment(s) meets or
medically equals the requirements of
one of the Mental Disorders Listing of
Impairments (sections 12.00 through
12.10 of appendix 1 to subpart P of part
404 of this chapter) under the rules in
part 404, subpart P of this chapter, or
under the rules in part 416, subpart I of
this chapter;
(3) Has a primary diagnosis code in
our records based on a mental
impairment;
(4) Has attained age 18, but has not
attained full retirement age; and
(5) Requires that his or her benefit
payments be made through a
representative payee because we have
determined, under the rules in part 404,
subpart U of this chapter, or the rules in
part 416, subpart F of this chapter, that
he or she is incapable of managing
benefit payments as a result of marked
subnormal intelligence, or mental
illness, incompetency, condition or
disease.
(c) We will apply the provisions of
this section to:
(1) Capability findings that we make
in connection with initial claims on or
after [EFFECTIVE DATE OF THE FINAL
RULE] under the rules in part 404,
subpart U of this chapter or the rules in
part 416, subpart F of this chapter, or
(2) Capability findings that we make
in connection with continuing disability
reviews (including age-18 disability
redeterminations under § 416.987 of this
chapter) on or after [EFFECTIVE DATE
OF THE FINAL RULE] under the rules
in part 404, subpart U of this chapter,
or the rules in part 416, subpart F of this
chapter. We will apply the provisions of
this paragraph only with respect to
capability findings in which we appoint
a representative payee for an individual
in connection with a continuing
disability review.
ehiers on DSK5VPTVN1PROD with PROPOSALS
§ 421.120
NICS reporting requirements.
On not less than a quarterly calendar
basis, we will provide information about
any individual who meets the criteria in
§ 421.110 to the Attorney General, or his
or her designate, for inclusion in the
NICS. The information we will report
includes the name of the individual, his
or her full date of birth, his or her sex,
and his or her Social Security number.
We will also report any other
information that the Attorney General
determines Federal agencies should
report to the NICS.
VerDate Sep<11>2014
14:43 May 04, 2016
Jkt 238001
§ 421.140 Notice requirements for an
affected individual.
At the commencement of the
adjudication process, we will provide
both oral and written notice to an
affected individual that:
(a) A finding that he or she meets the
criteria in § 421.110(b)(1) through (5),
when final, will prohibit the individual
from purchasing, possessing, receiving,
shipping, or transporting firearms and
ammunition, pursuant to 18 U.S.C.
922(d)(4) and (g)(4);
(b) Any person who knowingly
violates the prohibitions in 18 U.S.C.
922(d)(4) or (g)(4) may be imprisoned
for up to 10 years or fined up to
$250,000, or both, pursuant to 18 U.S.C.
924(a)(2); and
(c) Relief from the Federal firearms
prohibitions imposed by 18 U.S.C.
922(d)(4) and (g)(4) by virtue of our
adjudication is available under the
NIAA.
§ 421.150 Requesting relief from the
Federal firearms prohibitions.
(a) If we report an individual to the
NICS based on a finding that he or she
meets the criteria in § 421.110(b)(1)
through (5), the individual may apply
for relief from the Federal firearms
prohibitions imposed by Federal law as
a result of our adjudication. If such an
individual requests relief from us, we
will apply the rules in §§ 421.150
through 421.165.
(b) An application for relief filed
under this section must be in writing
and include the information required by
§ 421.151. It may also include any other
supporting data that we or the applicant
deems appropriate. When an individual
requests relief under this section, we
will also obtain a criminal history report
on the individual before deciding
whether to grant the request for relief.
§ 421.151 Evidentiary requirements and
processing a request for relief.
(a) When we decide whether to grant
an application for relief, we will
consider:
(1) The circumstances regarding the
firearms prohibitions imposed;
(2) The applicant’s record, which
must include the applicant’s mental
health records and a criminal history
report; and
(3) The applicant’s reputation,
developed through witness statements
or other evidence.
(b) Evidence. The applicant must
provide the following evidence to us in
support of a request for relief:
(1) A current statement from the
applicant’s primary mental health
provider assessing the applicant’s
current mental health status and mental
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Fmt 4702
Sfmt 4702
health status for the 5 years preceding
the date of the request for relief; and
(2) Written statements and any other
evidence regarding the applicant’s
reputation.
(c) Evidentiary requirements—(1) A
current statement from the applicant’s
primary mental health provider
submitted under paragraph (b)(1) of this
section. We will consider a statement
from the applicant’s primary mental
health provider to be current if it is
based on a complete mental health
assessment that was conducted during
the 90-day period immediately
preceding the date we received the
applicant’s request for relief under
paragraph (b)(1) of this section. The
statement must specifically address:
(i) Whether the applicant has ever
been a danger to himself or herself or
others; and
(ii) Whether the applicant would pose
a danger to himself or herself or others
if we granted the applicant’s request for
relief and the applicant purchased and
possessed a firearm or ammunition.
(2) Written statements regarding the
applicant’s character submitted under
paragraph (b)(2) of this section. The
statements must specifically:
(i) Identify the person supplying the
information;
(ii) Provide the person’s current
address and telephone number;
(iii) Describe the person’s relationship
with and frequency of contact with the
applicant;
(iv) Indicate whether the applicant
has a reputation for violence in the
community; and
(v) Indicate whether the applicant
would pose a danger to himself or
herself or others if we granted the
applicant’s request for relief and the
applicant purchased and possessed a
firearm or ammunition.
(3) The applicant may obtain written
statements from anyone who knows the
applicant, including but not limited to
clergy, law enforcement officials,
employers, friends, and family
members, as long as the person
providing the statement has known the
applicant for a sufficient period, has had
recent and frequent contact with the
beneficiary, and can attest to the
beneficiary’s good reputation. The
individual submitting the written
statement must describe his or her
relationship with the applicant and
provide information concerning the
length of time he or she has known the
applicant and the frequency of his or
her contact with the applicant. The
applicant must submit at least one
statement from an individual who is not
related to the applicant by blood or
marriage.
E:\FR\FM\05MYP1.SGM
05MYP1
Federal Register / Vol. 81, No. 87 / Thursday, May 5, 2016 / Proposed Rules
§ 421.152 Time limits to provide evidence
supporting a request for relief.
(a) An applicant has 30 days after the
date on which he or she submits a
request for relief under § 421.150 to
provide us with the evidence required
under § 421.151(b)(1) through (3).
(b) An applicant may ask us for more
time to submit evidence under
paragraph (a) of this section. The
request for an extension of time must be
in writing and must give the reasons
why the applicant cannot give us the
required evidence within the 30-day
period. If the applicant shows us that he
or she had good cause for missing the
deadline, we will extend the 30-day
period. To determine whether good
cause exists, we use the standards
explained in § 404.911 of this chapter.
(c) If the applicant does not submit
the evidence required under § 421.151
within the 30-day period provided
under paragraph (a) of this section, or
within the extended period provided
under paragraph (b) of this section, we
will dismiss the request for relief.
§ 421.155
relief.
Burden of proof in requests for
An applicant who requests relief
under § 421.150 must prove that he or
she is not likely to act in a manner
dangerous to public safety and that
granting relief from the prohibitions
imposed by 18 U.S.C. 922(d)(4) and
(g)(4) will not be contrary to the public
interest.
§ 421.160
Granting a request for relief.
(a) We may grant an applicant’s
request for relief if the applicant
establishes, to our satisfaction, that the
circumstances regarding the disability,
and the applicant’s record and
reputation, are such that the applicant
will not be likely to act in a manner
dangerous to public safety, and that the
granting of the relief would not be
contrary to the public interest.
(b) We will not grant an applicant’s
request for relief if the applicant is
prohibited from possessing firearms by
the law of the State in which the
applicant resides.
ehiers on DSK5VPTVN1PROD with PROPOSALS
§ 421.165
Actions on a request for relief.
(a) After the applicant submits the
evidence required under § 421.151 and
any other evidence he or she wants us
to consider, we will review the
evidence, which will include any
evidence from our records that we
determine is appropriate. A decision
maker who was not involved in making
the finding that the applicant’s benefit
payments be made through a
representative payee will review the
evidence and act on the request for
VerDate Sep<11>2014
14:43 May 04, 2016
Jkt 238001
relief. We will notify the applicant in
writing of our action regarding the
request for relief.
(b) If we deny an applicant’s request
for relief, we will send the applicant a
written notice that explains the reasons
for our action. We will also inform the
applicant that if he or she is dissatisfied
with our action, he or she has 60 days
from the date he or she receives the
notice of our action to file a petition
seeking judicial review in Federal
district court.
(c) If we grant an applicant’s request
for relief, we will send the applicant a
written notice that explains the reasons
for our action. We will inform the
applicant that we will notify the
Attorney General, or his or her delegate,
that the individual’s record should be
removed from the NICS database. We
will also notify the applicant that he or
she is no longer prohibited under 18
U.S.C. 922(g)(4) from purchasing,
possessing, receiving, shipping, or
transporting firearms or ammunition
based on the prohibition that we granted
the applicant relief from. We will notify
the Attorney General, or his or her
delegate, that the applicant’s record
should be removed from the NICS
database after we grant the applicant’s
request for relief.
(d) The NIAA requires us to process
each application for relief not later than
365 days after the date we receive it. If
we fail to resolve an application for
relief within that period for any reason,
including a lack of appropriated funds,
we will be deemed to have denied the
relief request without cause. In
accordance with the NIAA, judicial
review of any petition brought under
this paragraph shall be de novo.
§ 421.170 Judicial review following a
denial of a request for relief.
(a) Judicial review of our action
denying an applicant’s request for
review is available according to the
standards contained in 18 U.S.C. 925(c).
An individual for whom we have
denied an application for relief may file
a petition for judicial review with the
United States district court for the
district in which he or she resides.
(b) If, on judicial review, a Federal
court grants an applicant’s request for
relief, we will notify the Attorney
General that the individual’s record
should be removed from the NICS
database.
[FR Doc. 2016–10424 Filed 5–4–16; 8:45 am]
BILLING CODE 4191–02–P
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Sfmt 4702
27067
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Food and Drug Administration
21 CFR Parts 11 and 101
[Docket No. FDA–2011–F–0172]
A Labeling Guide for Restaurants and
Retail Establishments Selling AwayFrom-Home Foods—Part II (Menu
Labeling Requirements in Accordance
With the Patient Protection Affordable
Care Act of 2010); Guidance for
Industry; Availability
AGENCY:
Food and Drug Administration,
HHS.
ACTION:
Notification of availability.
The Food and Drug
Administration (FDA or we) is
announcing the availability of a
guidance for industry entitled ‘‘A
Labeling Guide for Restaurants and
Retail Establishments Selling AwayFrom-Home Foods—Part II (Menu
Labeling Requirements in Accordance
With FDA’s Food Labeling
Regulations).’’ The guidance will help
certain restaurants and similar retail
food establishments comply with the
menu labeling requirements, including
the requirements to provide calorie and
other nutrition information for standard
menu items, including food on display
and self-service food. In addition, we
note that enforcement of the Nutrition
Labeling of Standard Menu Items in
Restaurants and Similar Retail Food
Establishments final rule will
commence 1 year after the date on
which this document publishes in the
Federal Register.
DATES: Submit either electronic or
written comments on FDA guidances at
any time.
ADDRESSES: You may submit comments
as follows:
SUMMARY:
Electronic Submissions
Submit electronic comments in the
following way:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
Comments submitted electronically,
including attachments, to https://
www.regulations.gov will be posted to
the docket unchanged. Because your
comment will be made public, you are
solely responsible for ensuring that your
comment does not include any
confidential information that you or a
third party may not wish to be posted,
such as medical information, your or
anyone else’s Social Security number, or
confidential business information, such
as a manufacturing process. Please note
E:\FR\FM\05MYP1.SGM
05MYP1
Agencies
[Federal Register Volume 81, Number 87 (Thursday, May 5, 2016)]
[Proposed Rules]
[Pages 27059-27067]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-10424]
=======================================================================
-----------------------------------------------------------------------
SOCIAL SECURITY ADMINISTRATION
20 CFR Part 421
[Docket No. SSA-2016-0011]
RIN 0960-AH95
Implementation of the NICS Improvement Amendments Act of 2007
AGENCY: Social Security Administration.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: We propose to implement provisions of the NICS Improvement
Amendments Act of 2007 (NIAA) that require Federal agencies to provide
relevant records to the Attorney General for inclusion in the National
Instant Criminal Background Check System (NICS). Under the proposed
rule, we would identify, on a prospective basis, individuals who
receive Disability Insurance benefits under title II of the Social
Security Act (Act) or Supplemental Security Income (SSI) payments under
title XVI of the Act and also meet certain other criteria, including an
award of benefits based on a finding that the individual's mental
impairment meets or medically equals the requirements of section 12.00
of the Listing of Impairments (Listings) and receipt of benefits
through a representative payee. We propose to provide pertinent
information about these individuals to the Attorney General on not less
than a quarterly basis. As required by the NIAA, at the commencement of
the adjudication process we would also notify individuals, both orally
and in writing, of their possible Federal prohibition on possessing or
receiving firearms, the consequences of such inclusion, the criminal
penalties for violating the Gun Control Act, and the availability of
relief from the prohibitions imposed by Federal law. Finally, we also
propose to establish a program that permits individuals to request
relief from the Federal firearms prohibitions based on our
adjudication. The proposed rule would allow us to fulfill
responsibilities that we have under the NIAA.
DATES: To ensure that your comments are considered, we must receive
them no later than July 5, 2016.
ADDRESSES: You may submit comments by any one of three methods--
Internet, fax, or mail. Do not submit the same comment multiple times
or by more than one method. Regardless of which method you choose,
please state that your comments refer to Docket No. SSA-2016-0011 so
that we may associate your comments with the correct regulation.
Caution: You should be careful to include in your comments only
information that you wish to make publicly available. We strongly urge
you not to include in your comments any personal information, such as
Social Security numbers or medical information.
1. Internet: We strongly recommend that you submit your comments
via the Internet. Please visit the Federal eRulemaking portal at https://www.regulations.gov. Use the ``Search'' function to find docket number
SSA-2016-0011. The system will issue a tracking number to confirm your
submission. You will not be able to view your comment immediately
because we must post each comment manually. It may take up to a week or
more for your comment to be viewable.
2. Fax: Fax comments to (410) 966-2830.
3. Mail: Mail your comments to NICS Comments, Social Security
Administration, 3100 West High Rise Building, 6401 Security Boulevard,
Baltimore, Maryland 21235-6401.
[[Page 27060]]
Comments are available for public viewing on the Federal
eRulemaking portal at https://www.regulations.gov or in person, during
regular business hours, by arranging with the contact identified below.
FOR FURTHER INFORMATION CONTACT: Social Security Administration, 410-
965-3735 or Regulations@ssa.gov. We will not accept public comments at
this telephone number or email address; to comment, please follow the
instructions above. For information on eligibility or filing for
benefits, call our national toll-free number, 1-800-772-1213 or TTY 1-
800-325-0778, or visit our Internet site, Social Security Online, at
https://www.socialsecurity.gov.
SUPPLEMENTARY INFORMATION:
Background
Section 103 of the Brady Handgun Violence Prevention Act (Brady
Act) required the Attorney General to establish the NICS, which allows
a Federal Firearms Licensee (FFL) to determine whether the law
prohibits a potential buyer from possessing or receiving a firearm.\1\
The Brady Act and its implementing regulations are designed to prevent
the transfer of firearms by FFLs to individuals who are not allowed to
possess or receive them because of restrictions contained in the Gun
Control Act of 1968, as amended,\2\ or State law. Federal law makes it
unlawful for certain persons to ship, transport, receive, or possess
any firearm or ammunition that has been shipped or transported in
interstate or foreign commerce.\3\ As relevant to our programs, the
Federal prohibition on the possession or receipt of firearms or
ammunition applies to a person who, in the language of the statute,
``has been adjudicated as a mental defective.'' \4\
---------------------------------------------------------------------------
\1\ Public Law 103-159, 107 Stat. 1536, 1541 (codified at 18
U.S.C. 922 note).
\2\ Codified at 18 U.S.C. Chapter 44.
\3\ 18 U.S.C. 922(g) and (n).
\4\ 18 U.S.C. 922(g)(4). In these rules, we will refer to this
prohibition as the ``Federal mental health prohibitor'' although we
also use the statutory language in section 922(g)(4) in our proposed
regulatory language below.
---------------------------------------------------------------------------
In 2007, Congress found that many background checks were delayed if
the Federal Bureau of Investigation (FBI) did not have automated access
to complete information concerning persons prohibited from possessing
or receiving a firearm under Federal or State law. Congress noted that
the primary cause of delay in the NICS background checks included a
lack of automated access to information concerning persons prohibited
from possessing or receiving a firearm because of mental illness,
restraining orders, or misdemeanor convictions for domestic
violence.\5\ Congress also found that computerizing information
relating to criminal history, criminal dispositions, mental illness,
restraining orders, and misdemeanor convictions for domestic violence,
or making this information available to the NICS in a usable format,
could improve automated access to it.\6\
---------------------------------------------------------------------------
\5\ NICS Improvement Amendments Act of 2007 (NIAA), Public Law
110-180, sec. 2, 121 Stat. 2559, 2559-2560.
\6\ Id.
---------------------------------------------------------------------------
To address these concerns, Congress enacted the NIAA,\7\ which
strengthened the NICS by increasing the quantity and quality of
relevant records from Federal, State, and tribal authorities accessible
by the system. Among other things, the NIAA requires that, if a Federal
department or agency has any record demonstrating that a person falls
within one of the categories in 18 U.S.C. 922(g) or (n), the head of
that department or agency must provide the pertinent information
contained in the record to the Attorney General, not less frequently
than quarterly, for inclusion in the NICS.\8\
---------------------------------------------------------------------------
\7\ Public Law 110-180, 121 Stat. 2559 (codified at 18 U.S.C.
922 note).
\8\ NIAA, sec. 101(a)(4), 121 Stat. at 2161.
---------------------------------------------------------------------------
On January 16, 2013, the President issued a Memorandum to Federal
departments and agencies aimed at further strengthening the accuracy
and efficiency of the Federal background check system for firearms
purchases.\9\ The President directed the Department of Justice (DOJ) to
provide guidance to agencies regarding the identification and sharing
of relevant Federal records and their submission to the NICS; DOJ
provided its guidance to agencies in March 2013.\10\
---------------------------------------------------------------------------
\9\ Memorandum for the Heads of Executive Departments and
Agencies, Improving Availability of Relevant Executive Branch
Records to the National Instant Criminal Background Check System, 78
FR 4297 (2013).
\10\ Department of Justice, Guidance to Agencies Regarding
Submission of Relevant Federal Records to the NICS (March 2013)
(``DOJ Guidance'').
---------------------------------------------------------------------------
The relevant section of the DOJ Guidance discusses the Federal
mental health prohibitor and the relevant agency records with respect
to that prohibitor as follows:
Pursuant to 18 U.S.C. 922(g)(4), any person `who has been
adjudicated as a mental defective or who has been committed to a
mental institution' is prohibited from shipping, transporting,
possessing or receiving firearms under federal firearms laws. ATF
has clarified through regulations that this prohibitor covers the
following circumstances and categories of individuals:
(1) 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:
[cir] Is a danger to himself, herself or others; or
[cir] Lacks the mental capacity to contract or manage his or her
own affairs.
This includes (1) a person found to be insane by a court in a
criminal case, and (2) a person found incompetent to stand trial or
found not guilty by reason of lack of mental responsibility pursuant
to articles 50a and 76b of the Uniform Code of Military Justice, 10
U.S.C. 850a, 876b.
(2) A formal commitment of a person to a mental institution by a
court, board, commission or other lawful authority. This includes
commitment to a mental institution involuntarily, commitment for
mental defectiveness or mental illness or commitment for other
reasons, such as for drug use. It does not include a person in a
mental institution for observation or a voluntary admission to a
mental institution.
Please note the following four important things about this
prohibitor:
First, `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.
Second, `mental defective' does not include a person
who has been granted relief from the disability through a qualifying
federal or state relief from disability program as authorized by the
NIAA.
Third, `mental defective' also does not include a
person whose adjudication or commitment was imposed by a federal
department or agency, and:
[cir] The adjudication or commitment has been set aside or
expunged, or the person has otherwise been fully released or
discharged from all mandatory treatment, supervision or monitoring;
[cir] The person has been found by a court, board, commission or
other lawful authority to no longer suffer from the mental health
condition that was the basis of the adjudication or commitment, or
has otherwise been found to be rehabilitated through any procedure
available under law; or
[cir] The adjudication or commitment is based solely on a
medical finding of disability, without an opportunity for a hearing
by a court, board, commission or other lawful authority, and the
person has not been adjudicated as a mental defective consistent
with 18 U.S.C. 922(g)(4), except that nothing in this section or any
other provision of law shall prevent a federal department or agency
from providing to the Attorney General any record demonstrating that
a person was adjudicated to be not guilty by reason of insanity, or
based on lack of mental responsibility, or found incompetent to
stand trial, in any criminal case or under the Uniform Code of
Military Justice.
Fourth, agencies that conduct mental health
adjudications must provide both oral and written notice to the
individual at the commencement of the adjudication process. Such
notice must include:
[[Page 27061]]
[cir] Notification that adjudication of the person as a mental
defective or commitment to a mental institution, when final, will
prohibit the individual from purchasing, possessing, receiving,
shipping or transporting a firearm or ammunition under 18 U.S.C.
922(d)(4) or 922(g)(4);
[cir] Information about the penalties imposed for unlawful
possession, receipt, shipment or transportation of a firearm under
18 U.S.C. 924(a)(2); and
[cir] Information about the availability of relief from the
disabilities imposed by federal laws with respect to the
acquisition, receipt, transfer, shipment, transportation or
possession of firearms.
Relevant Records. Records that are relevant to this prohibitor
include judgment and commitment orders, sentencing orders and court
or agency records of adjudications of an individual's inability to
manage his or her own affairs if such adjudication is based on
marked subnormal intelligence or mental illness, incompetency,
condition or disease. This last category includes certain agency
designations of representative or alternate payees for program
beneficiaries.\11\
---------------------------------------------------------------------------
\11\ The ATF regulations discussed in the DOJ Guidance are found
at 27 CFR 478.11.
Therefore, DOJ has determined that to comply with the NIAA, we must
report to the Attorney General information about some of our title II
and title XVI beneficiaries.\12\
---------------------------------------------------------------------------
\12\ As part of our responsibilities under the NIAA, we will
also provide the Attorney General with copies of court orders that
we receive regarding adult title II and title XVI disability
beneficiaries who have been declared legally incompetent by a State
or Federal court. Our procedures regarding these types of orders are
found in POMS GN 00502.005 (available at: https://secure.ssa.gov/apps10/poms.nsf/lnx/0200502005) and GN 00502.300 (available at:
https://secure.ssa.gov/apps10/poms.nsf/lnx/0200502300). The FBI
would determine whether these court orders meet the requirements of
the Federal mental health prohibitor.
---------------------------------------------------------------------------
The FBI collects and maintains, in the NICS Index, certain
identifying information about individuals who are subject to one or
more Federal prohibitors and thus are ineligible to possess or receive
firearms.\13\ The minimum information required in a NICS Index record
consists of the name of the ineligible individual, the individual's
date of birth, sex, codes indicating the applicable prohibitor, and the
submitting entity. We also propose to include the individual's Social
Security number to ensure accurate identification. For individuals
subject to the Federal mental health prohibitor, we would submit to the
NICS only the fact that the individual is subject to that prohibitor;
we would not provide underlying diagnoses, treatment records, or other
identifiable health information, nor does the NICS maintain that
information.
---------------------------------------------------------------------------
\13\ See National Instant Criminal Background Check System
(NICS) Operations, 2014, at page 1 (available at: https://www.fbi.gov/about-us/cjis/nics//2014-operations-report) (The NICS
Index, ``a database created specifically for the NICS, contains
information contributed by local, state, tribal, and federal
agencies pertaining to persons prohibited from receiving or
possessing a firearm pursuant to state and/or federal law.
Typically, the records maintained in the NICS Index are not
available via the III [Interstate Identification Index] or the NCIC
[National Crime Information Center].'').
---------------------------------------------------------------------------
A NICS background check queries the NICS Index and certain other
national databases to determine whether a prospective buyer's
identifying information matches any prohibiting records contained in
the databases.\14\ The NICS Index can be accessed only for the limited
purposes authorized by regulation.\15\ The potential transfer of a
firearm from an FFL to a prospective buyer proceeds as follows: (1) The
prospective buyer is required to provide personal information on a
Firearms Transaction Record (ATF Form 4473); (2) unless the prospective
buyer has documentation that he or she qualifies for an exception to
the NICS background check requirement,\16\ the FFL contacts the NICS--
electronically, by telephone, or through a State level point of
contact--and provides certain identifying information about the
prospective buyer from ATF Form 4473; \17\ (3) the FFL receives a
response that the prospective firearm transfer may proceed, is denied,
or is delayed. If the prospective buyer's information matches a record
contained in one of the databases reviewed, but there is insufficient
information in the record to immediately determine whether the firearm
transfer should proceed or be denied, the transfer is delayed.
---------------------------------------------------------------------------
\14\ See National Instant Criminal Background Check System, Fact
Sheet (available at: https://www.fbi.gov/about-us/cjis/nics/general-information/fact-sheet.) The other databases include the III, which
contains criminal history record information; and the NCIC, which
includes, e.g., information on persons subject to civil protection
orders and arrest warrants.
\15\ 28 CFR 25.6(j). Under this regulation, access to the NICS
Index for purposes unrelated to NICS background checks is limited to
uses for the purposes of: (1) Providing information to Federal,
state, tribal, or local criminal justice agencies in connection with
the issuance of a firearm-related or explosives-related permit or
license, including permits or licenses to possess, acquire, or
transfer a firearm, or to carry a concealed firearm, or to import,
manufacture, deal in, or purchase explosives; (2) responding to an
inquiry from ATF in connection with a civil or criminal law
enforcement activity relating to the Gun Control Act or the National
Firearms Act; or (3) disposing of firearms in the possession of a
Federal, state, tribal, or local criminal justice agency.
\16\ These exceptions are outlined in 27 CFR 478.102(d). For
example, a NICS check would not be required where the potential
recipient of a firearm has presented a valid State permit or
license, provided conditions at 27 CFR 478.102(d)(1) are met.
\17\ The form collects the prospective buyer's name; demographic
information such as address, place and date of birth, sex,
citizenship, race and ethnicity; and ``yes'' or ``no'' answers to
questions about the person's criminal history and other potential
prohibitors. The form is available at https://www.atf.gov/forms/download/atf-f-4473-1.pdf.
---------------------------------------------------------------------------
If there is a match, a NICS examiner reviews the record to
determine whether the information it contains is, in fact, prohibiting
and then either: (1) Advises the FFL to proceed with the transaction if
the record does not contain prohibiting information, (2) denies the
transaction (due to ineligibility) if the record does contain
prohibiting information, or (3) delays the transaction pending further
research if it is unclear based solely on the existing information in
the record whether it is prohibiting.\18\ The NICS examiner does not
disclose the reason for the determination to the FFL. As a result, the
FFL does not learn that the individual is ineligible due to the Federal
mental health prohibitor. If the NICS examiner does not provide a final
status to the FFL within 3 business days of the initial background
check request, the FFL may proceed with the transaction, if he or she
chooses to do so.\19\
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\18\ For example, a ``delay'' response may mean that further
research is required because potentially prohibitive criteria exist,
but the matched records are incomplete. See Federal Bureau of
Investigation (FBI) Fact Sheet, available at: www.fbi.gov/about-us/cjis/nice/general-information/fact-sheet.
\19\ Some States have waiting periods that also must be complied
with before a firearm may be transferred, regardless of whether a
proceed response from the NICS is received by the FFL within 3
business days.
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The Proposed Rule
The regulatory changes in this proposed rule fall into three
general categories: (1) Identifying relevant records and reporting
pertinent information to the NICS, (2) oral and written notification to
our title II and title XVI beneficiaries who meet the requisite
criteria, and (3) establishing a program that permits our beneficiaries
who meet the requisite criteria to apply for relief from the firearms
prohibition imposed by 18 U.S.C. 922(d)(4) or (g)(4) by virtue of our
adjudication.\20\
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\20\ Section 101(c)(2)(A)(iii) of the NIAA specifies that relief
and judicial review with respect to the ``relief from disabilities''
program shall be available according to the standards prescribed in
18 U.S.C. 925(c). In these rules, we will refer to this program as
the ``relief from firearm prohibitions'' program in order to avoid
any possible confusion with our disability programs.
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Identifying Relevant Records and Reporting Pertinent Information to the
NICS
To comply with the requirements of the NIAA, we propose to
identify, on a prospective basis, any title II or title XVI beneficiary
whom we are required to
[[Page 27062]]
report for inclusion in the NICS because that person is subject to the
Federal mental health prohibitor as a result of our adjudication. Under
the governing regulations, the Federal mental health prohibitor applies
when there has been 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.'' \21\ This regulation
therefore contains three operative components. First, there must be a
determination by a ``lawful authority.'' Second, the adjudication must
concern (as relevant to our programs) an individual's inability to
manage his or her own affairs. Third, the adjudication regarding the
inability to manage an individual's affairs must be based on ``marked
subnormal intelligence or mental illness, incompetency, condition or
disease.''
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\21\ 27 CFR 478.11.
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There are several relevant observations regarding the application
of these three factors to our adjudication process. First, our
determination regarding an individual's claim for benefits,
specifically our determination regarding the appointment of a
representative payee, which we make in accordance with the authority
granted to the Commissioner under the Act, constitutes a determination
by a ``lawful authority.'' \22\ Second, the regulation's focus on an
individual's lack of ``mental capacity to contract or manage his or her
own affairs'' makes our appointment of a representative payee the
determination that makes a person subject to the Federal mental health
prohibitor.\23\ The DOJ Guidance discussed above makes that point
clear, specifying that relevant records for the Federal mental health
prohibitor include ``certain agency designations of representative or
alternate payees for program beneficiaries.'' As we discuss in more
detail below, once we have determined that an individual is disabled,
we may need to decide whether he or she is capable of managing his or
her benefits, or whether his or her interest would be served by the
appointment of a representative payee.\24\ Finally, the regulation
requires that the individual lack the mental capacity to manage his or
her own affairs ``as a result of marked subnormal intelligence, or
mental illness, incompetency, condition, or disease.'' Consequently,
the basis for the individual's inability to manage his or her own
affairs must therefore be the ``result of'' his or her mental
impairment. As a result, individuals whom we are required to report to
NICS will be a subset of the universe of individuals for whom we have
appointed a representative payee.
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\22\ See 42 U.S.C. 405(b)(1), 1383(c)(1)(A) (directing the
Commissioner to ``make findings of fact, and decisions as to the
rights of any individual applying for a payment'' under titles II
and XVI of the Act), 902(a)(4) (providing that the Commissioner
``shall be responsible for the exercise of all powers and the
discharge of all duties of the Administration, and shall have
authority and control over all personnel and activities thereof.'').
\23\ See 42 U.S.C. 405(j)(1)(A), 1383(a)(2)(A)(ii); 20 CFR
404.2010(a), 416.610(a).
\24\ Id.
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We recognize that there is no perfect fit between: (1) Our
adjudication regarding a claimant's entitlement to benefits and
determination of whether to designate a representative payee; and (2)
the regulatory definition of an individual who is subject to the
Federal mental health prohibitor. Considering the relevant regulatory
factors, discussed above, however, we believe that there is a
reasonable and appropriate fit between the criteria we use to decide
whether some of our beneficiaries are disabled and require a
representative payee and the Federal mental health prohibitor.
Accordingly, we propose that, during the title II or title XVI claim
development and adjudication process, or when we take certain post-
entitlement or post-eligibility actions, we will identify individuals
who: (1) Filed a claim based on disability; (2) we have determined to
be disabled based on a finding at step three of our sequential
evaluation process that the individual's impairment(s) meets or
medically equals the requirements of one of the Mental Disorders
Listing of Impairments (Listings) (12.00 et seq.); \25\ (3) have a
primary diagnosis code in our records that is based on a mental
impairment; \26\ (4) have attained age 18, but have not yet attained
full retirement age; and (5) require their benefit payments to be made
through a representative payee because we have found that they are
incapable of managing benefit payments.
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\25\ See 20 CFR 404.1520(a)(4)(iii), 404.1520(d), 404.1525,
404.1526, 416.920(a)(4)(iii), 416.920(d), 416.925, 416.926. The
Listings are found in 20 CFR part 404, subpart P, appendix 1.
\26\ The relevant diagnosis codes are: Listing 12.02: 2940
(Organic Mental Disorders); Listing 12.03: 2950 (Schizophrenic,
Paranoid and Other Psychotic Disorders); Listing 12.04: 2960
(Affective Disorders); Listing 12.05: 3180 (Intellectual
Disability); Listing 12.06: 3000 (Anxiety-Related Disorders);
Listing 12.07: 3060 (Somatoform Disorders); Listing 12:08: 3010
(Personality Disorders); and Listing 12.10: 2990 (Autistic Disorders
and Other Pervasive Developmental Disorders). See Program Operations
Manual System (POMS) DI 26510.015G (available at: https://secure.ssa.gov/apps10/poms.nsf/lnx/0426510015); DI 28084.035A
(available at: https://secure.ssa.gov/apps10/poms.nsf/lnx/0428084035). If we find a claimant's borderline intellectual
functioning to be of listing-level severity, we will use the code
3195 and base the appropriate listing category for our finding of
medical equivalence on a consideration of all the cognitive and
behavioral manifestations in the particular claim. POMS DI
26510.015G.
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We propose to include the first four factors in order to help us
identify individuals for whom our determination is the ``result of''
his or her mental impairment, and not because of another factor, such
as the individual's age or physical impairment. The final factor, our
appointment of a representative payee, focuses on the second factor
under the applicable regulations, the individual's inability to manage
his or her affairs.\27\
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\27\ Our choice of an age criterion--individuals who have
attained age 18, but have not yet attained full retirement age--also
reflects the fact that when we appoint a representative payee for
individuals at full retirement age or older, we do not obtain the
type of medical evidence that would allow us to determine whether
the inability to manage their benefit payments is as a result of a
mental impairment or for some other reason.
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We propose to include the existence of a Listing-level mental
impairment as one of the criteria for our reporting to the NICS because
the existence of such an impairment best identifies those beneficiaries
who are unable to manage their affairs as a result of their mental
impairment, and are therefore subject to the Federal mental health
prohibitor. We use a five-step sequential evaluation process to decide
if an individual who has filed a claim for benefits is disabled.\28\ At
the third step of that process, we decide whether the individual has an
impairment, or combination of impairments, that meets or medically
equals the requirements of an impairment in the Listings.\29\ The
Listings describe, for each of the major body systems, impairments that
we consider severe enough to prevent an individual from doing any
gainful activity, regardless of his or her age, education, or work
experience.
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\28\ 20 CFR 404.1520(a), 416.920(a). When we perform a
continuing disability review, we use a separate sequential
evaluation process to decide if a beneficiary continues to be
disabled. 20 CFR 404.1594(f), 416.994(b)(5).
\29\ In the sequential evaluation process we use to determine an
individual's continuing eligibility, we consider whether the
individual's medically determinable impairment(s) meets or medically
equals the requirements of the Listings at the second step of the
process in title II claims, and at the first step of the process in
title XVI claims. 20 CFR 404.1594(f)(2), 416.994(b)(5)(i).
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Most body system sections in the Listings contain two parts: An
introduction and the specific listings. The introduction to each body
system contains information relevant to the use
[[Page 27063]]
of the listings in that body system; for example, examples of common
impairments in the body system and definitions used in the listings for
that body system. The introductory section also may include specific
criteria for establishing a diagnosis, confirming the existence of an
impairment, or establishing that an impairment(s) satisfies the
criteria of a particular listing in the body system. The specific
listings follow the introduction in each body system. Within each
listing, we specify the objective medical evidence and other findings
needed to satisfy the criteria of that Listing.\30\
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\30\ 20 CFR 404.1525(c), 416.925(c).
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The Listings help us ensure that determinations or decisions of
disability have a sound medical basis, that claimants receive equal
treatment throughout the country, and that we can readily identify the
majority of persons who are disabled. The level of severity described
in the Listings--the inability to perform any gainful activity--is such
that an individual who is not engaging in substantial gainful activity
and who has an impairment that meets or medically equals the
requirements of the Listings is generally considered unable to work by
reason of the medical impairment alone.\31\ Thus, individuals who have
a Listing-level impairment are the most severely disabled beneficiaries
we serve. In our view, given the medical severity of a Listing-level
impairment, using our award of benefits based on the mental disorders
listings, combined with the appointment of a representative payee, as
part of the criteria we use to identify individuals for reporting to
the NICS most appropriately identifies beneficiaries who are subject to
the Federal mental health prohibitor in a manner consistent with the
congressional purpose expressed in the NIAA.
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\31\ Social Security Ruling (SSR) 86-8 (available at: https://ssa.gov/OP_Home/rulings/di/01/SSR86-08-di-01.html).
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We acknowledge that we are not proposing to identify and report for
inclusion in the NICS those individuals for whom we have appointed a
representative payee after a finding of disability at step five of our
sequential evaluation process. At step five of the sequential
evaluation process we decide whether an individual can perform a
significant number of jobs that exist in the national economy
considering his or her age, education, past work experience, and
residual functional capacity.\32\ In contrast to a step three finding
of disability, which focuses on medical severity as established by
objective criteria, a step five finding of disability takes into
account vocational factors and depends on an assessment of the number
of jobs in the economy that a person can perform. For the reasons
discussed above, we believe that including individuals whom we have
determined to have a Listing-level mental impairment (and who meet the
other criteria that we propose), most closely comports with the
requirements of the NIAA, the regulatory definition of the Federal
mental health prohibitor, and the DOJ Guidance. However, we recognize
that applying the proposal to beneficiaries who are found disabled at
step five of our sequential evaluation process may also be a reasonable
interpretation of the NIAA, its implementing regulations, and the DOJ
Guidance, as applied to our programs. Therefore, during the comment
period for this NPRM, we invite comment on the possible benefits and
limitations of applying the proposal to beneficiaries who are found
disabled based on a finding at step five of our sequential evaluation
process. Further, we invite comment on the possible manner in which we
could implement the proposal with respect to these beneficiaries in a
manner that is least disruptive to our ability to process claims and
deliver services to the public. We will consider the comments we
receive on this issue, and determine whether to include these
beneficiaries in our reporting to the NICS. If we decide to include
beneficiaries who are found disabled at step five of our sequential
evaluation process in our reporting to the NICS, we will respond to the
comments and explain our reasons for doing so in any final rule, and
make appropriate modifications to the regulatory language in the final
rule.
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\32\ See 20 CFR 404.1520(a)(4)(v), 404.1520(g),
416.920(a)(4)(v), 416.920(g).
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The information about the individual that we propose to report for
inclusion in the NICS would consist of his or her: (1) Name, (2) full
date of birth, (3) sex, and (4) Social Security number. We propose to
provide the pertinent information about individuals meeting the
proposed criteria to the Attorney General for inclusion in the NICS on
not less than a quarterly basis. We also propose to provide information
regarding these individuals on a prospective basis. That means we would
report individuals to the Attorney General for inclusion in the NICS
based on representative payee determinations meeting the 18 U.S.C.
922(g)(4) requirements, that we make on or after the effective date of
any final rule.
In addition, if we conduct a continuing disability review
(including an age-18 disability redetermination) in an individual's
case and determine, on or after the effective date of any final rule,
that the individual meets the criteria for inclusion in the NICS, we
would also report that individual for inclusion in the NICS. That means
that we would report an individual for inclusion in the NICS after a
continuing disability review if we appoint a representative payee for
the person because he or she is incapable of managing benefit payments
as a result of a primary mental impairment that meets or medically
equals the requirements of one of the Mental Disorders Listings. We
would do so even if we originally determined that the individual did
not require a representative payee because of his or her mental
impairment before the effective date of any final rule.
Oral and Written Notification to Beneficiaries
Under our representative payee policy, unless direct payment is
prohibited, we presume that an adult beneficiary is capable of managing
or directing the management of benefits. However, if we have
information that the beneficiary has a mental or physical impairment
that prevents him or her from managing or directing the management of
benefits, we will develop the issue of capability.\33\ If a beneficiary
has a mental impairment, we will develop the capability issue if there
is an indication that the beneficiary may lack the ability to reason
properly, is disoriented, has seriously impaired judgment, or is unable
to communicate with others.\34\
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\33\ POMS GN 00502.020 (available at: https://secure.ssa.gov/apps10/poms.nsf/lnx/0200502020). Under our policy, we prohibit
legally incompetent beneficiaries and children under age 15 from
receiving benefits directly. In these cases, we will appoint a
representative payee. POMS GN 00502.005A (available at: https://secure.ssa.gov/apps10/poms.nsf/lnx/0200502005).
\34\ POMS GN 00502.020A.2.
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It is also important to remember that we can reevaluate a
beneficiary's capability even though we may have already determined a
beneficiary's capability in the past. We are always alert to changes in
circumstances that might indicate the need for a new capability
determination. For example, a once incapable beneficiary who requests
direct payment may now be capable, or a once capable beneficiary who is
admitted to a mental hospital may now be incapable. We consider
reviewing capability in a number of situations, including: When we
perform a continuing disability review or an SSI redetermination
(including an age-18 disability redetermination), when we discover that
a beneficiary manages any other benefits that he or she may be
[[Page 27064]]
entitled to, when a beneficiary appeals the appointment of a payee, and
when any other contact with the beneficiary or payee raises a question
about the beneficiary's capability.\35\
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\35\ POMS GN 00502.020A.6.
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We base our determination of whether to pay a beneficiary directly
or through a representative payee on evidence provided to us.\36\ When
we adjudicate an individual's capability, we consider anything that
helps us understand the beneficiary's ability to manage funds.\37\
Usually, we characterize evidence of capability as one of three types.
First, we consider legal evidence; legal evidence is required only
where there is an allegation that the beneficiary is legally
incompetent.\38\ Second, we consider medical evidence; whenever
possible, we will obtain medical evidence that indicates the
beneficiary cannot manage or direct someone else to manage his or her
benefits. Third, we consider lay evidence; in the absence of legal
evidence, we will obtain lay evidence in all cases. If legal evidence
establishes that the beneficiary is incompetent to manage or direct
someone else to manage his or her benefits, the beneficiary must
receive benefits through a representative payee, and no other
development is necessary. Otherwise, we will make a capability
determination based on lay and medical evidence.\39\
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\36\ See 20 CFR 404.2015, 416.625.
\37\ POMS GN 00502.020B.
\38\ POMS GN 00502.005A.2 (available at: https://secure.ssa.gov/apps10/poms.nsf/lnx/0200502005). Under our policy, there must be a
court order in place for a finding that an individual is
incompetent. The appointment of a legal guardian alone does not
necessarily mean the beneficiary is legally incompetent. The court
order must specifically address the beneficiary's competency or must
contain a statement regarding the individual's ability to handle his
or her financial affairs. If the court order does not specify
incompetency, we may use the Digest of State Guardianship Laws found
in POMS GN 00502.300 (available at: https://secure.ssa.gov/apps10/poms.nsf/lnx/0200502300) to help determine if the court order
represents a finding of legal incompetence, or we may call the court
for clarification. Id.
\39\ POMS GN 00502.020B. We explain how we consider legal
evidence of capability in POMS GN 00502.005 (available at: https://secure.ssa.gov/apps10/poms.nsf/lnx/0200502005). We explain how we
consider medical evidence of capability in POMS GN 00502.025
(available at: https://secure.ssa.gov/apps10/poms.nsf/lnx/0200502025). We explain how we consider lay evidence of capability
in POMS GN 00502.030 (available at: https://secure.ssa.gov/apps10/poms.nsf/lnx/0200502030).
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The NIAA requires any Federal department or agency that conducts
proceedings to adjudicate a person as subject to the Federal mental
health prohibitor to provide the person with both oral and written
notice of several things at the commencement of the adjudication
process.\40\ Consistent with the NIAA, the oral and written notice we
propose to provide would advise the affected individual of the
following: (1) The adjudication, when final, will prohibit him or her
from purchasing, shipping, transporting, receiving, or possessing
firearms and ammunition, pursuant to 18 U.S.C. 922(d)(4) and (g)(4);
(2) any person who knowingly violates these restrictions may be
imprisoned for up to 10 years or fined up to $250,000, or both; and (3)
relief from the Federal firearms prohibitions imposed by 18 U.S.C.
922(d)(4) and (g)(4) as a result of our adjudication is available to
the individual.
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\40\ Section 101(c)(3) of the NIAA, 121 Stat. at 2564.
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For our purposes, we consider the commencement of the adjudication
process to mean the beginning of the capability determination process
described above.\41\ Under these proposed rules, we would provide oral
and written notice to the beneficiary after we have determined that he
or she meets the medical requirements for disability based on a finding
that his or her impairment(s) meets or medically equals the
requirements of the Mental Disorders Listings, but before we find that
he or she requires a representative payee. We recognize that this means
we would provide some beneficiaries with the oral and written notice
required by the NIAA, but ultimately not report them to the NICS
because we determine that they do not require representative payees. We
believe that the NIAA requires this result. Section 101(c)(3)(A) of the
NIAA specifically states that an agency must provide oral and written
notice that, ``should the agency adjudicate the person as a mental
defective,'' the adjudication, ``when final, will prohibit the
individual from purchasing, possessing, receiving, shipping, or
transporting a firearm or ammunition.'' (Emphasis added). The statutory
language clearly indicates that Congress intended for us to provide the
oral and written notice before we actually find that an individual
needs a representative payee.
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\41\ We recognize that, for purposes of reporting an individual
to NICS, the ``commencement of the adjudication process'' differs
from the meaning that we would attribute to that phrase in the
context of our disability determination process. As we discuss here,
for the purpose of these proposed rules, the commencement of the
adjudication process refers to the commencement of the process we
use to determine whether an individual requires a representative
payee, after we have determined the individual to be disabled based
on a finding at step three of our sequential evaluation process that
the individual's impairment(s) meets or medically equals the
requirements of one of the Mental Disorders Listing of Impairments.
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Program for Relief
Section 101(a)(2)(A) of the NIAA requires a Federal agency that
makes any adjudication related to the mental health of a person to
establish a program that permits a person to apply for relief from the
firearms prohibitions imposed by 18 U.S.C. 922(g)(4). We propose to
allow a person who is subject to the Federal mental health prohibitor
because he or she meets the criteria in Sec. 421.110(b) to apply for
relief from the Federal firearms prohibitions imposed as a result of
our adjudication.
We propose to provide these individuals with a process by which
they can apply for relief from the Federal firearms prohibitions and a
means to submit evidence for us to consider. As required by the NIAA,
this request for relief process would focus on whether the
circumstances regarding the disability, and the applicant's record and
reputation, are such that we find the applicant will not be likely to
act in a manner dangerous to public safety, and that the granting of
the relief would not be contrary to the public interest.\42\ To make
these required findings, we propose to require the individual who
requests relief to provide us with certain evidence, including evidence
from his or her primary mental health provider regarding his or her
current mental health status and mental health status for the past 5
years. We also propose to require an applicant for relief to submit
written statements and any other evidence regarding the applicant's
reputation. As part of the relief process, we would also obtain a
criminal history report on the applicant.
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\42\ Section 101(c)(2)(A)(iii) of the NIAA, 121 Stat. at 2563;
see 18 U.S.C. 925(c).
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After the applicant submits the evidence required under the rules,
a decision maker who was not involved in finding that the applicant's
benefit payments must be made through a representative payee would
review the evidence and act on the request for relief. We would notify
the applicant in writing of our action regarding the request for
relief.
Section 101(c)(2)(A)(iii) of the NIAA specifies \43\ that relief
and judicial review with respect to the relief program shall be
available according to the standards prescribed in 18 U.S.C. 925(c).
Section 925(c), in turn, provides that any person whose application for
relief is denied may file a petition for a judicial review of the
denial with the United States district court for the district in which
he or she resides. The court may, in its discretion, admit additional
evidence where failure to do
[[Page 27065]]
so would result in a miscarriage of justice. Consistent with the
standards contained in 18 U.S.C. 925(c), we propose to include in the
regulation a provision that the individual may seek judicial review
when we deny his or her request for relief through the filing of a
petition for relief in the United States district court for the
district in which the individual resides.
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\43\ 121 Stat. at 2563.
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Regulatory Procedures
Executive Order 12866
We have consulted with the Office of Management and Budget (OMB)
and determined that these proposed rules meet the requirements for a
significant regulatory action under Executive Order 12866 and were
subject to OMB review.
Regulatory Flexibility Act
We certify that these proposed rules would not have a significant
economic impact on a substantial number of small entities because they
only affect individuals. Therefore, a regulatory flexibility analysis
is not required under the Regulatory Flexibility Act, as amended.
Paperwork Reduction Act
These proposed rules pose new public reporting burdens in Sec.
421.150(b), 421.151(b)(1) and (2) and (c)(1) through (3), 421.152(b),
and 421.165(b). Since we will create new forms for these requirements,
we will solicit public comment for them in a separate future notice in
the Federal Register as part of the Paperwork Reduction Act process.
(Catalog of Federal Domestic Program Nos. 96.001, Social Security--
Disability Insurance; 96.002, Social Security--Retirement Insurance;
96.004, Social Security--Survivors Insurance, and 96.006,
Supplemental Security Income)
List of Subjects
Administrative practice and procedure, Freedom of information,
Privacy, Reporting and recordkeeping requirements.
Carolyn W. Colvin,
Acting Commissioner of Social Security.
0
For the reasons set out in the preamble, we propose to add part 421 to
chapter III of title 20 of the Code of Federal Regulations to read as
follows:
PART 421--NATIONAL INSTANT CRIMINAL BACKGROUND CHECK SYSTEM (NICS)
Sec.
421.100 What is this part about?
421.105 Definitions of terms used in this part.
421.110 Identifying records relevant to the NICS.
421.120 NICS reporting requirements.
421.140 Notice requirements for an affected individual.
421.150 Requesting relief from the Federal firearms prohibitions.
421.151 Evidentiary requirements and processing a request for
relief.
421.152 Time limits to provide evidence supporting a request for
relief.
421.155 Burden of proof in requests for relief.
421.160 Granting a request for relief.
421.165 Actions on a request for relief.
421.170 Judicial review following a denial of a request for relief.
Authority: Section 702(a)(5) of the Social Security Act (42
U.S.C. 902(a)(5)); sec. 101, Public Law 110-180, 121 Stat. 2559,
2561 (18 U.S.C. 922 note).
Sec. 421.100 What is this part about?
The rules in this part relate to the Brady Handgun Violence
Prevention Act (Brady Act), as amended by the NICS Improvement
Amendments Act of 2007 (NIAA) (Pub. L. 110-180). The Brady Act required
the Attorney General to establish the National Instant Criminal
Background Check System (NICS), which allows a Federal firearms
licensee to determine whether the law prohibits a potential buyer from
possessing or receiving a firearm. Among other things, the NIAA
requires a Federal agency that has any records demonstrating that a
person falls within one of the categories in 18 U.S.C. 922(g) or (n) to
report the pertinent information contained in the record to the
Attorney General for inclusion in the NICS. The rules in this part
define key terms and explain which records we will report to the NICS.
They also explain how we will provide oral and written notification to
our title II and title XVI beneficiaries who meet the requisite
criteria. Finally, the rules in this part explain how beneficiaries who
meet the requisite criteria may apply for relief from the Federal
firearms prohibitions, and how we will process a request for relief.
Sec. 421.105 Definitions of terms used in this part.
For the purposes of this part:
Adjudicated as a mental defective, in accordance with 18 U.S.C.
922(g)(4), as amended, means 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: Is a danger to himself or others; or lacks the
mental capacity to contract or manage his own affairs.
Affected individual means an individual:
(1) Who has been found disabled based on a finding that the
individual's impairment(s) meets or medically equals the requirements
of one of the Mental Disorders Listing of Impairments (sections 12.00
through 12.10 of appendix 1 to subpart P of part 404 of this chapter)
under the rules in part 404, subpart P of this chapter, or under the
rules in part 416, subpart I of this chapter; and
(2) For whom we need to make a capability finding under the rules
in part 404, subpart U of this chapter, or under the rules in part 416,
subpart F of this chapter, and that finding is the result of marked
subnormal intelligence, or mental illness, incompetency, condition or
disease.
Commencement of the adjudication process means, with respect to an
affected individual, the beginning of the process we use to determine
whether, as a result of a mental impairment:
(1) An individual is capable of managing his or her own benefits;
or
(2) Whether his or her interests would be better served if we
certified benefit payments to another person as a representative payee,
under the rules in part 404, subpart U of this chapter, or the rules in
part 416, subpart F of this chapter.
Full retirement age has the meaning used in Sec. 404.409 of this
chapter.
NICS means the National Instant Criminal Background Check System
established by the Brady Handgun Violence Prevention Act, Public Law
103-159, 107 Stat. 1536 (codified at 18 U.S.C. 922 note), as amended.
Primary diagnosis code means the code we use to identify an
individual's primary medical diagnosis in our records. The primary
diagnosis refers to the basic condition that renders an individual
disabled under the rules in part 404, subpart P of this chapter, or
under the rules in part 416, subpart I of this chapter.
Us or We means the Social Security Administration.
Sec. 421.110 Identifying records relevant to the NICS.
(a) In accordance with the requirements of the NIAA, we will
identify the records of individuals whom we have ``adjudicated as a
mental defective.'' For purposes of the Social Security programs
established under titles II and XVI of the Social Security Act, we have
``adjudicated as a mental defective'' any individual who meets the
criteria in paragraphs (b)(1) through (5) of this section.
(b) During our claim development and adjudication process, or when
we take certain post-entitlement or post-eligibility actions, we will
identify any individual who:
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(1) Has filed a claim based on disability;
(2) Has been determined to be disabled based on a finding that the
individual's impairment(s) meets or medically equals the requirements
of one of the Mental Disorders Listing of Impairments (sections 12.00
through 12.10 of appendix 1 to subpart P of part 404 of this chapter)
under the rules in part 404, subpart P of this chapter, or under the
rules in part 416, subpart I of this chapter;
(3) Has a primary diagnosis code in our records based on a mental
impairment;
(4) Has attained age 18, but has not attained full retirement age;
and
(5) Requires that his or her benefit payments be made through a
representative payee because we have determined, under the rules in
part 404, subpart U of this chapter, or the rules in part 416, subpart
F of this chapter, that he or she is incapable of managing benefit
payments as a result of marked subnormal intelligence, or mental
illness, incompetency, condition or disease.
(c) We will apply the provisions of this section to:
(1) Capability findings that we make in connection with initial
claims on or after [EFFECTIVE DATE OF THE FINAL RULE] under the rules
in part 404, subpart U of this chapter or the rules in part 416,
subpart F of this chapter, or
(2) Capability findings that we make in connection with continuing
disability reviews (including age-18 disability redeterminations under
Sec. 416.987 of this chapter) on or after [EFFECTIVE DATE OF THE FINAL
RULE] under the rules in part 404, subpart U of this chapter, or the
rules in part 416, subpart F of this chapter. We will apply the
provisions of this paragraph only with respect to capability findings
in which we appoint a representative payee for an individual in
connection with a continuing disability review.
Sec. 421.120 NICS reporting requirements.
On not less than a quarterly calendar basis, we will provide
information about any individual who meets the criteria in Sec.
421.110 to the Attorney General, or his or her designate, for inclusion
in the NICS. The information we will report includes the name of the
individual, his or her full date of birth, his or her sex, and his or
her Social Security number. We will also report any other information
that the Attorney General determines Federal agencies should report to
the NICS.
Sec. 421.140 Notice requirements for an affected individual.
At the commencement of the adjudication process, we will provide
both oral and written notice to an affected individual that:
(a) A finding that he or she meets the criteria in Sec.
421.110(b)(1) through (5), when final, will prohibit the individual
from purchasing, possessing, receiving, shipping, or transporting
firearms and ammunition, pursuant to 18 U.S.C. 922(d)(4) and (g)(4);
(b) Any person who knowingly violates the prohibitions in 18 U.S.C.
922(d)(4) or (g)(4) may be imprisoned for up to 10 years or fined up to
$250,000, or both, pursuant to 18 U.S.C. 924(a)(2); and
(c) Relief from the Federal firearms prohibitions imposed by 18
U.S.C. 922(d)(4) and (g)(4) by virtue of our adjudication is available
under the NIAA.
Sec. 421.150 Requesting relief from the Federal firearms
prohibitions.
(a) If we report an individual to the NICS based on a finding that
he or she meets the criteria in Sec. 421.110(b)(1) through (5), the
individual may apply for relief from the Federal firearms prohibitions
imposed by Federal law as a result of our adjudication. If such an
individual requests relief from us, we will apply the rules in
Sec. Sec. 421.150 through 421.165.
(b) An application for relief filed under this section must be in
writing and include the information required by Sec. 421.151. It may
also include any other supporting data that we or the applicant deems
appropriate. When an individual requests relief under this section, we
will also obtain a criminal history report on the individual before
deciding whether to grant the request for relief.
Sec. 421.151 Evidentiary requirements and processing a request for
relief.
(a) When we decide whether to grant an application for relief, we
will consider:
(1) The circumstances regarding the firearms prohibitions imposed;
(2) The applicant's record, which must include the applicant's
mental health records and a criminal history report; and
(3) The applicant's reputation, developed through witness
statements or other evidence.
(b) Evidence. The applicant must provide the following evidence to
us in support of a request for relief:
(1) A current statement from the applicant's primary mental health
provider assessing the applicant's current mental health status and
mental health status for the 5 years preceding the date of the request
for relief; and
(2) Written statements and any other evidence regarding the
applicant's reputation.
(c) Evidentiary requirements--(1) A current statement from the
applicant's primary mental health provider submitted under paragraph
(b)(1) of this section. We will consider a statement from the
applicant's primary mental health provider to be current if it is based
on a complete mental health assessment that was conducted during the
90-day period immediately preceding the date we received the
applicant's request for relief under paragraph (b)(1) of this section.
The statement must specifically address:
(i) Whether the applicant has ever been a danger to himself or
herself or others; and
(ii) Whether the applicant would pose a danger to himself or
herself or others if we granted the applicant's request for relief and
the applicant purchased and possessed a firearm or ammunition.
(2) Written statements regarding the applicant's character
submitted under paragraph (b)(2) of this section. The statements must
specifically:
(i) Identify the person supplying the information;
(ii) Provide the person's current address and telephone number;
(iii) Describe the person's relationship with and frequency of
contact with the applicant;
(iv) Indicate whether the applicant has a reputation for violence
in the community; and
(v) Indicate whether the applicant would pose a danger to himself
or herself or others if we granted the applicant's request for relief
and the applicant purchased and possessed a firearm or ammunition.
(3) The applicant may obtain written statements from anyone who
knows the applicant, including but not limited to clergy, law
enforcement officials, employers, friends, and family members, as long
as the person providing the statement has known the applicant for a
sufficient period, has had recent and frequent contact with the
beneficiary, and can attest to the beneficiary's good reputation. The
individual submitting the written statement must describe his or her
relationship with the applicant and provide information concerning the
length of time he or she has known the applicant and the frequency of
his or her contact with the applicant. The applicant must submit at
least one statement from an individual who is not related to the
applicant by blood or marriage.
[[Page 27067]]
Sec. 421.152 Time limits to provide evidence supporting a request for
relief.
(a) An applicant has 30 days after the date on which he or she
submits a request for relief under Sec. 421.150 to provide us with the
evidence required under Sec. 421.151(b)(1) through (3).
(b) An applicant may ask us for more time to submit evidence under
paragraph (a) of this section. The request for an extension of time
must be in writing and must give the reasons why the applicant cannot
give us the required evidence within the 30-day period. If the
applicant shows us that he or she had good cause for missing the
deadline, we will extend the 30-day period. To determine whether good
cause exists, we use the standards explained in Sec. 404.911 of this
chapter.
(c) If the applicant does not submit the evidence required under
Sec. 421.151 within the 30-day period provided under paragraph (a) of
this section, or within the extended period provided under paragraph
(b) of this section, we will dismiss the request for relief.
Sec. 421.155 Burden of proof in requests for relief.
An applicant who requests relief under Sec. 421.150 must prove
that he or she is not likely to act in a manner dangerous to public
safety and that granting relief from the prohibitions imposed by 18
U.S.C. 922(d)(4) and (g)(4) will not be contrary to the public
interest.
Sec. 421.160 Granting a request for relief.
(a) We may grant an applicant's request for relief if the applicant
establishes, to our satisfaction, that the circumstances regarding the
disability, and the applicant's record and reputation, are such that
the applicant will not be likely to act in a manner dangerous to public
safety, and that the granting of the relief would not be contrary to
the public interest.
(b) We will not grant an applicant's request for relief if the
applicant is prohibited from possessing firearms by the law of the
State in which the applicant resides.
Sec. 421.165 Actions on a request for relief.
(a) After the applicant submits the evidence required under Sec.
421.151 and any other evidence he or she wants us to consider, we will
review the evidence, which will include any evidence from our records
that we determine is appropriate. A decision maker who was not involved
in making the finding that the applicant's benefit payments be made
through a representative payee will review the evidence and act on the
request for relief. We will notify the applicant in writing of our
action regarding the request for relief.
(b) If we deny an applicant's request for relief, we will send the
applicant a written notice that explains the reasons for our action. We
will also inform the applicant that if he or she is dissatisfied with
our action, he or she has 60 days from the date he or she receives the
notice of our action to file a petition seeking judicial review in
Federal district court.
(c) If we grant an applicant's request for relief, we will send the
applicant a written notice that explains the reasons for our action. We
will inform the applicant that we will notify the Attorney General, or
his or her delegate, that the individual's record should be removed
from the NICS database. We will also notify the applicant that he or
she is no longer prohibited under 18 U.S.C. 922(g)(4) from purchasing,
possessing, receiving, shipping, or transporting firearms or ammunition
based on the prohibition that we granted the applicant relief from. We
will notify the Attorney General, or his or her delegate, that the
applicant's record should be removed from the NICS database after we
grant the applicant's request for relief.
(d) The NIAA requires us to process each application for relief not
later than 365 days after the date we receive it. If we fail to resolve
an application for relief within that period for any reason, including
a lack of appropriated funds, we will be deemed to have denied the
relief request without cause. In accordance with the NIAA, judicial
review of any petition brought under this paragraph shall be de novo.
Sec. 421.170 Judicial review following a denial of a request for
relief.
(a) Judicial review of our action denying an applicant's request
for review is available according to the standards contained in 18
U.S.C. 925(c). An individual for whom we have denied an application for
relief may file a petition for judicial review with the United States
district court for the district in which he or she resides.
(b) If, on judicial review, a Federal court grants an applicant's
request for relief, we will notify the Attorney General that the
individual's record should be removed from the NICS database.
[FR Doc. 2016-10424 Filed 5-4-16; 8:45 am]
BILLING CODE 4191-02-P