Implementation of the NICS Improvement Amendments Act of 2007, 91702-91715 [2016-30407]

Download as PDF 91702 Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations 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. Final rules. AGENCY: ACTION: These final rules 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 these final rules, we will 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 who 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 will 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 will also notify individuals, both orally and in writing, of their possible Federal prohibition on possessing or receiving firearms, the consequences of such prohibition, the criminal penalties for violating the Gun Control Act, and the availability of relief from the prohibition on the receipt or possession of firearms imposed by Federal law. Finally, we also establish a program that permits individuals to request relief from the Federal firearms prohibitions based on our adjudication. These changes will allow us to fulfill responsibilities that we have under the NIAA. DATES: This final rule will be effective on January 18, 2017. However, compliance is not required until December 19, 2017. SUPPLEMENTARY INFORMATION: srobinson on DSK5SPTVN1PROD with RULES SUMMARY: Background On May 5, 2016, we published a notice of proposed rulemaking (NPRM) in the Federal Register (81 FR 27059) in which we proposed adding part 421 to our regulations in order to implement our obligations under the NIAA. We VerDate Sep<11>2014 20:05 Dec 16, 2016 Jkt 241001 proposed rules under which we would identify and report to the Attorney General, on a prospective basis, information about any title II or title XVI beneficiary whom we are required to report for inclusion in the NICS because that person is subject to the Federal mental health prohibitor as a result of our adjudication.1 Under our proposed rules, we would: (1) Identify relevant records and report pertinent information to the NICS, (2) provide oral and written notification to our title II and title XVI beneficiaries who meet the requisite criteria, and (3) permit our beneficiaries who meet the requisite criteria to apply to us for relief from the firearms prohibition imposed by 18 U.S.C. 922(d)(4) or (g)(4) by virtue of our adjudication. We provided additional information and discussion of the reasons we issued our proposed rules in the preamble to those rules at 81 FR 27059. We adopt the proposed rules as final rules, with several changes outlined in the discussion of the public comments and our responses. The final rules allow a person to apply for relief any time after our adjudication that the person meets the requirements of the Federal mental health prohibitor has become final. The final rules also set out several circumstances in which we will notify the Attorney General to remove a person’s name from the NICS. We also made minor changes to the definition of the term ‘‘affected individual’’ in section 421.105 and to section 421.110(b)(2). The changes in both of these sections are for clarity, and do not substantively change the rules. Public Comments and Discussion In our NPRM, we provided a 62-day comment period, which ended July 5, 2016. As we stated in our proposed rules, the NIAA, the President’s January 2013 Memorandum to Federal agencies, and the Department of Justice’s (DOJ) March 2013 guidance require Federal agencies with any record demonstrating that a person falls within one of the categories in 18 U.S.C. 922(g) or (n) to provide the pertinent information contained in the record to the Attorney General, not less frequently than quarterly, for inclusion in the NICS.2 1 As part of our responsibilities under the NIAA, we will also provide the Attorney General with copies of court orders that we receive, beginning on or after the compliance date of these final rules, regarding adult title II and title XVI disability claimants and beneficiaries who have been declared legally incompetent by a State or Federal court. The FBI will identify those court orders that meet the requirements of the Federal mental health prohibitor. 2 NIAA, sec. 101(a)(4), 121 Stat. at 2161; Memorandum for the Heads of Executive PO 00000 Frm 00060 Fmt 4700 Sfmt 4700 Because our proposed rules were limited to our process for satisfying our mandated reporting and relief requirements, comments about issues that do not pertain to our proposed rules are outside of the scope of our rulemaking authority. We have not responded here to comments outside of the scope of our proposed rules. We received 91,243 timely submitted comments that addressed issues within the scope of our proposed rules. We carefully considered the concerns expressed in these comments. Due to the high volume of the comments submitted, we summarized and grouped them by main issue expressed. We present the views received, and address the relevant and significant issues raised by the commenters. Of the timelysubmitted comments, 86,860 were identical letters from different members of one advocacy group, and 324 were signatures on one comment letter. These letters urged us to withdraw the proposed rules, which the commenters thought would adversely affect individuals’ Second Amendment rights. We address that comment below. Various advocacy groups and individuals submitted the remaining 4,059 comments. Many of these commenters questioned our legal authority to provide the names of Social Security beneficiaries to DOJ for inclusion in the NICS. The majority of these comments focused on how DOJ would use the information we provide— i.e., what the effect would be on the Second Amendment rights of individuals whose names would be included in the NICS. Other legal issues raised included due process and equal protection concerns. Many commenters questioned the criteria we proposed to use to identify names for inclusion in the NICS. Some of these comments were based on an incorrect understanding of the information we provided in the NPRM. We also address those misunderstandings below. Several commenters appeared to misunderstand the process we would need to follow to revise these criteria in the future. Some commenters cautioned about the potential for stigmatization of those with mental health disorders, and questioned why we did not provide evidence demonstrating the correlation between mental health and gun-related Departments and Agencies, Improving Availability of Relevant Executive Branch Records to the National Instant Criminal Background Check System, 78 FR 4297 (2013); Department of Justice, Guidance to Agencies Regarding Submission of Relevant Records to the NICS (March 2013) (‘‘DOJ Guidance’’). We included the relevant portion of the DOJ Guidance in the preamble to our proposed rules (81 FR at 27060–27061). E:\FR\FM\19DER1.SGM 19DER1 Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations srobinson on DSK5SPTVN1PROD with RULES violence. Commenters also expressed apprehension about the potential violation of privacy rights, including rights under the Health Insurance Portability and Accountability Act (HIPAA). Commenters also questioned our existing processes for determining the presence of a disability based on a mental impairment and our process for appointing representative payees. Multiple commenters asked about our process for seeking relief and the removal of names from the NICS. Several commenters expressed that the policy we proposed was an unnecessary expenditure of Federal Government funds. We also received multiple comments in support of the rules. These individuals and advocacy group commenters spoke as appointed representatives of Social Security beneficiaries with mental illness or as proponents of greater gun control efforts. We respond in greater detail below to the relevant comments submitted in response to the proposed rule. We organize the comments and our responses by category for ease of review. Legal Authority Comment: Multiple individuals questioned our authority to report any information to the NICS database. Some commenters opined that NIAA section 101(c)(1)(C) prohibited us from reporting information to DOJ that is ‘‘based solely on a medical finding of disability. . . .’’ Another commenter suggested that we should not be able to submit any medical information to the NICS without a court order. Response: Our authority to report the information we include in these final rules stems from section 101(a)(4) of the NIAA, which requires that we provide to the Attorney General for inclusion in the NICS pertinent information included in any record demonstrating that a person falls within one of the categories in 18 U.S.C. 922(g) or (n).3 NIAA section 101(c)(1)(C) does not prohibit us from reporting this information to the NICS. The commenters who relied on section 101(c)(1)(C) only cited part of the section in their comments. In its entirety, section 101(c)(1)(C) of the NIAA states: ‘‘No department or agency of the Federal Government may provide to the Attorney General any record of an adjudication related to the mental health of a person or any commitment of a person to a mental institution if . . . (C) the adjudication or commitment, respectively, 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 section 922(g)(4) of title 18, United States Code, 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.’’ We are not reporting information in records based solely on a medical finding of disability without the person being adjudicated as subject to the Federal mental health prohibitor ‘‘consistent with 18 U.S.C. 922(g)(4).’’ The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has clarified through regulations that this prohibition covers individuals who have been determined by a court, board, commission or other lawful authority as a result of marked subnormal intelligence, or mental illness, incompetency, condition or disease to be a danger to himself or to others, or who lacks the mental capacity to contract or manage his or her own affairs.4 The DOJ Guidance specifically indicates that records relevant to the NICS include ‘‘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.’’ The DOJ further indicated that this category of records ‘‘includes certain agency designations of representative or alternate payees for program beneficiaries.’’ 5 As we explained in the NPRM, our adjudication is an adjudication by a lawful authority, by virtue of the authority granted to the Commissioner of Social Security under the Social Security Act. We also are not basing our reporting of records to the NICS solely on a medical finding of disability. Rather, consistent with section 101(a)(4) of the NIAA and the ATF’s implementing regulation, we are basing our report on the individual’s inability to manage his or her affairs as a result of his or her mental impairment. However, we will not include medical information in our reports to the NICS— 4 27 3 NIAA 101(a)(4), 121 Stat. at 2161. VerDate Sep<11>2014 20:05 Dec 16, 2016 Jkt 241001 5 81 PO 00000 CFR 478.11(a)(1)–(2). FR at 27061. Frm 00061 Fmt 4700 we will report only the beneficiary’s name, full date of birth, sex, and Social Security number. In addition, we will only inform the FBI of the fact that the individual meets the criteria for inclusion in the NICS under the NIAA due to a mental health prohibitor, but we will not provide any details on the individual’s specific diagnosis. Comment: Multiple commenters questioned our authority to declare an individual to be subject to the Federal mental health prohibitor, and argued that only a court can make that decision. Response: By these rules, we are complying with the requirements of the NIAA by identifying individuals in our records who meet the criteria of the mental health prohibitor in 18 U.S.C. 922(g). As we noted previously, our authority to do so derives from section 101(a)(4) of the NIAA. DOJ’s guidance indicates that relevant records under the mental health prohibitor category include not only court adjudications but also agency records of adjudications of an individual’s inability to manage his or her own affairs, including the agency’s designation of a representative payee because of his or her mental impairment. As we noted above and in the proposed rules, the ATF’s regulations require that the individual be found to be subject to the Federal mental health prohibitor ‘‘by a court, board, commission or other lawful authority. . . .’’ 6 Consequently, neither the NIAA nor the ATF’s implementing regulations require an agency to report information to the NICS based only on a court order, as some of the commenters suggested. Comment: One commenter asked if the determinations would be secret or open, and if there are safeguards in place to ensure that the people making the designations are free of bias or prejudice. Response: We will use our regular program rules to determine whether an individual is disabled due to a mental impairment that is severe enough to meet the requirements of our mental disorder listings, and to determine if that person also requires a representative payee because of his or her mental impairment. We apply our program rules to all claimants equally, regardless of whether or not one meets the NICS criteria. We expect all of our adjudicators to fulfill their duties with fairness and impartiality, and we have existing procedures in place that allow us to address claims of bias or prejudice in our administrative process. By ‘‘open’’ we assume that the commenter’s concern was over the 6 27 Sfmt 4700 91703 E:\FR\FM\19DER1.SGM CFR 478.11(a). 19DER1 91704 Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations srobinson on DSK5SPTVN1PROD with RULES privacy of the information that we would report to the NICS. A determination regarding inclusion in the NICS would be open to the individual affected, and we will apply the safeguards set out in these rules, such as oral and written notification to the individual at the commencement of the adjudication, to ensure that the individual who may be subject to reporting has adequate information about the reporting process, the effect of our reporting, and options for relief. In addition, we will apply the protections against unauthorized disclosure in the Privacy Act of 1974, 5 U.S.C. 552a; our regulations, 20 CFR part 401; and the Social Security Act, 42 U.S.C. 1306(a). Thus, we may only disclose information in accordance with these laws and regulations. We also provide claim information to individuals upon request of the claimant. Under the Privacy Act of 1974 and our regulations, an individual may request access to his or her records maintained in agency Privacy Act systems of records, including those under which we maintain diagnosis information.7 Constitutional Issues: Second Amendment and Equal Protection Comment: Many commenters expressed concern that these rules would violate the affected individuals’ rights under the Second Amendment to the Constitution, and would also violate their equal protection rights under the Constitution. Most of these comments were provided in largely identical letters, and they asserted that our rules would take firearms away from elderly recipients of Social Security retirement benefits. Response: With these rules, we are seeking to satisfy our obligations under the NIAA, which requires Federal agencies to provide relevant records to the Attorney General for inclusion in the NICS. While the rule addresses reporting requirements, it is the Federal Gun Control Act, not the Social Security Act, that governs when a person can possess a firearm. The criteria we will use under these rules do not focus on one age group, such as the elderly or recipients of Social Security retirement benefits, nor do they categorize and treat individuals who are similarly situated differently. Consequently, these final rules do not violate principles of equal protection. In addition, as we stated in the preamble to our NPRM and in the requirements listed in section 421.110(b)(4) of our rules, we will identify certain individuals who have 75 U.S.C. 552a(d); 20 CFR 401.35–401.40. VerDate Sep<11>2014 20:05 Dec 16, 2016 Jkt 241001 attained age 18, but have not yet attained full retirement age. We do not intend under these rules to report to the NICS any individual for whom we appoint a representative payee based solely on the individual’s application for and receipt of Social Security retirement benefits. With regard to the broader point the commenters raised about the constitutionality of our actions under the Second Amendment, we note that the Supreme Court recognized in District of Columbia v. Heller, 554 U.S. 570, 595 (2008), ‘‘that the Second Amendment conferred an individual right to keep and bear arms.’’ The Court emphasized, however, that, ‘‘[l]ike most rights, the right secured by the Second Amendment is not unlimited,’’ id., at 626, and that ‘‘nothing in [the Court’s] opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill.’’ Id. Our actions, taken in accordance with the Congress’ directives in the NIAA, the President’s January 2013 memorandum to Executive agencies, and DOJ’s March 2013 guidance, are fully consistent with the Supreme Court’s recognition in Heller of the validity ‘‘of longstanding prohibitions on the possession of firearms by . . . the mentally ill.’’ Nothing in the rules we are issuing today is inconsistent with the scope of the Second Amendment as interpreted in Heller. Accordingly, we have not made any changes to the rule in response to comments asserting that our actions were inconsistent with an individual’s Second Amendment right. Due Process Comment: Multiple commenters also stated that the rules as written would violate beneficiaries’ right to due process, particularly because they do not allow affected individuals to appeal the inclusion of their names in the NICS before we submit them to the DOJ. One commenter suggested that we should obtain a beneficiary’s written permission before submitting information to the DOJ. Response: Affected individuals will have the opportunity to apply for relief from the Federal firearms prohibitions imposed by 18 U.S.C. 922(g)(4) at any time after our adjudication has become final. We have clarified our rules to make that point. We will follow the requirements of the NIAA and apply principles of due process in determining applicants’ entitlement to relief from the burdens imposed by inclusion in the NICS. Under these rules, we will provide individuals with advance notice at the commencement of the PO 00000 Frm 00062 Fmt 4700 Sfmt 4700 adjudication that we may report their information to NICS if we find they meet the criteria for reporting when the adjudication is final. An individual can request relief any time after the adjudication is final but we cannot delay fulfilling our obligations under the NIAA to provide relevant records to the Attorney General while the person decides whether to request relief. When an individual requests relief, we provide an opportunity for the individual to submit evidence in support of the request, which will be reviewed by an impartial decisionmaker who was not involved in making the finding that the applicant’s benefit payments be made through a representative payee. We will notify the applicant in writing of our action regarding the request for relief and explain 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. And, of course, judicial review of our action denying an applicant’s request for relief is available in accordance with the standards prescribed in 18 U.S.C. 925(c). These procedures provide a beneficiary with ample due process protections. In response to the other commenter’s concern, we note that nothing in the NIAA or any other provision of law requires us to obtain a beneficiary’s written permission to disclose information to the DOJ for the NICS. We will publish a system of records notice (SORN) that will explain the purposes for which information will be maintained and disclosed, and the public will have an opportunity to comment on the SORN. Comment: Several commenters questioned whether individuals who meet our criteria would receive adequate notice or be given the opportunity to appeal before we share their information with the DOJ. One commenter expressed concern that, ‘‘[m]any people will not be informed of the action.’’ Other commenters asked whether ‘‘an existing beneficiary with a representative payee [would] be notified and given the opportunity to appeal before they are reported to NICS’’ or if we would ‘‘allow the person a reasonable amount of time to appeal that action.’’ Response: Consistent with the NIAA, we will provide oral and written notice to the beneficiary at the commencement of the adjudication, which we define as after we have determined that he or she meets the medical requirements for disability based on a finding that his or E:\FR\FM\19DER1.SGM 19DER1 srobinson on DSK5SPTVN1PROD with RULES Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations 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. Under these final rules, we will provide individuals with the opportunity to apply for relief from the Federal firearms prohibitions once the adjudication becomes final and those prohibitions are imposed. Because we will only identify individuals for reporting on a prospective basis, existing beneficiaries with representative payees will not be affected by these final rules. Individuals who currently receive benefits but who would not qualify for reporting to the NICS because they do not currently satisfy all five requirements will be reported should a continuing disability review or other disability review, such as an age-18 redetermination, demonstrate a change in status that would satisfy all five requirements. In that circumstance, we would provide the beneficiary oral and written notice of his or her potential reporting to the NICS under the regular notice requirements established by these rules before we take any action to determine capability. In addition, under our regulations, our determination to appoint a representative payee for a beneficiary is subject to our administrative review process and, ultimately, to judicial review after the individual receives our final decision. Comment: Several commenters expressed the belief that pursuing relief would be a highly expensive process for beneficiaries, and thus beneficiaries who could not afford what might be prohibitively expensive activities, would effectively be denied due process. Response: We will not impose a fee in connection with the filing of a request for relief. We anticipate that the cost for acquiring the evidence that we require and providing it to us directly will be reasonable. In addition to providing us with a completed relief application form, consistent with the requirements set forth in section 421.151(b) of this final rule, an applicant for relief will only be required to provide us with: (1) A current statement from his or her primary mental health provider that assesses the applicant’s current mental health status and mental status for the 5 years preceding the date of the relief request; and (2) written statements and any other evidence regarding the applicant’s reputation. We will obtain the applicant’s criminal history report. The requirement that the individual provide us with medical evidence, in the form of a current statement from the applicant’s primary mental health VerDate Sep<11>2014 20:05 Dec 16, 2016 Jkt 241001 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, stems from the requirements of the NIAA. Section 101(c)(2)(A)(iii) of the NIAA 8 provides that ‘‘[r]elief and judicial review with respect to’’ an agency’s relief program ‘‘shall be available according to the standards prescribed in’’ 18 U.S.C. 925(c). Section 925(c), in turn, provides that relief may be granted ‘‘if it is established to [an agency’s] 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.’’ In order for us to determine whether ‘‘the applicant will not be likely to act in a manner dangerous to public safety,’’ we must necessarily have evidence assessing the individual’s mental status. The evidentiary requirements we are including in final section 421.151(c) will allow us to make the determination the NIAA and section 925(c) require us to make. Reporting Criteria Comment: Multiple individuals commented on the criteria we proposed for identifying individuals whose names we would report to the DOJ. Many questioned how we selected these criteria for inclusion. One commenter suggested that, ‘‘there should be a more specific review of these criteria.’’ Another individual asked why we did not propose to send information on individuals who, among other things, are felons, domestic abusers, or unlawful users of controlled substances. Another commenter suggested that we conduct a criminal background history as an additional step prior to reporting an individual’s information to the DOJ. One commenter suggested that we include an additional factor to consider an individual’s propensity for violence, aggressive behavior, or self-destructive behavior.9 8 121 Stat. at 2563. commenter raised the issue of our reporting felons to the NICS database. This issue is outside the scope of this final rule. However, we note that our Office of the Inspector General (OIG) has independent statutory obligations under the Inspector General Act of 1978 (Pub. L. 95–452; 92 Stat. 1101), as amended. Our OIG reports that it provides records to the NICS for individuals on whom it has opened an investigation and who are subsequently prosecuted in a State or local court. The OIG provides information on individuals who fall into the following categories: (1) Certain felons (with judgment and conviction orders from a court); certain fugitive felons; and (3) certain persons under indictment. The OIG does not provide information from their investigations prosecuted in 9 One PO 00000 Frm 00063 Fmt 4700 Sfmt 4700 91705 Response: As we explained in the NPRM, in choosing the criteria we sought to find the best fit between our adjudication regarding a claimant’s entitlement to benefits and the decision to designate a representative payee and the regulatory definition of an individual who is subject to the Federal mental health prohibitor. For the reasons we discussed in the NPRM,10 we believe that there is a reasonable and appropriate fit between the criteria we use to decide whether some of our beneficiaries are disabled (e.g., a primary diagnosis of a mental impairment and meeting or equaling the requirements of one of the Mental Disorders Listing of Impairments (Listings) and requiring a representative payee because of that mental impairment) and the Federal mental health prohibitor. We have not adopted the comment that we conduct a criminal background history in advance, because it does not comport with the criteria we are using to identify individuals for referral to NICS and, within that framework, a criminal background check is unnecessary. To reiterate, we will report an individual’s record to the NICS based on his or her inability to manage his or her affairs due to a disabling mental impairment that meets or equals the criteria found in one of the Mental Disorders Listings. A criminal background check is not necessary for us to make a determination on that issue. However, we will obtain a criminal background check as part of the relief process. The relief inquiry focuses on whether the applicant will be likely to act in a manner dangerous to public safety, and whether the granting of the relief would be contrary to the public interest. The distinction we have made in these rules, under which we will obtain a criminal background check as part of the relief process, but not as part of the referral process, is consistent with the NIAA. With respect to the commenters’ questions about other categories of individuals, such as domestic abusers or unlawful users of controlled substances, we note that we do not have records regarding individuals who are domestic abusers. In addition, in adjudicating disability claims, we do not determine whether a claimant has ‘‘lost the power of self-control with reference to the use of a controlled substance,’’ as contemplated by the ATF regulation. 27 CFR 478.11. Rather, our focus is on whether the claimant is capable of Federal courts, because this information is already provided to NICS. 10 81 FR at 27062. E:\FR\FM\19DER1.SGM 19DER1 srobinson on DSK5SPTVN1PROD with RULES 91706 Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations engaging in substantial gainful activity despite his or her impairments. Even where our records identify a claim as involving either drugs only or both drugs and alcohol, our electronic records do not include structured data on the type of drug use, the extent of the use, or on how recently the controlled substance was used. Consequently, we have determined that we do not have records that meet DOJ’s criteria for reporting individuals in this category to the NICS. Regarding the suggestion that we consider an individual’s propensity for violence, aggressive behavior or selfdestructive behavior before we refer an individual’s record to the NICS, the relevant Federal law and implementing regulation do not require us to find that a beneficiary has a propensity for violence, aggressive behavior, or selfdestructive behavior before we report his or her name to the NICS. The governing ATF regulation defines the Federal mental health prohibitor as involving 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 to others; or lacks the mental capacity to contract or manage his own affairs.11 The regulation distinguishes between (1) the requirements of being a danger to one’s self or others; and (2) the lacking of mental capacity to contract or manage one’s affairs. The DOJ Guidance specifically notes that records relevant to the Federal mental health prohibitor include agency adjudications of an individual’s inability to manage his or her own affairs, if the adjudication is based on marked subnormal intelligence or mental illness, incompetency, condition or disease, and it includes certain agency designations of representative or alternate payees for program beneficiaries.12 Accordingly, in light of the ATF regulation and DOJ Guidance, we believe that we are required to find that an individual meets the requirements for the Federal mental health prohibitor if he or she meets either of the two factors set out in the ATF regulation. Comment: Several commenters protested against what they thought would be our evaluation of all Social Security beneficiaries for potential inclusion in the NICS. Response: The comment reflects a misunderstanding of our proposed rules. We will not evaluate all Social Security beneficiaries for potential 11 27 CFR 478.11(a)(1)–(2). 12 81 FR at 27061. VerDate Sep<11>2014 20:05 Dec 16, 2016 Jkt 241001 inclusion in the NICS. As we indicate in section 421.110(b) of our rules, the beneficiaries whose names we would submit to the NICS must meet five welldefined criteria. The criteria are that the individual must have: (1) Filed a claim based on disability; (2) been determined by us 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 Listings; (3) a primary diagnosis code in our records that is based on a mental impairment; (4) attained age 18, but have not yet attained full retirement age; and (5) benefit payments made through a representative payee because we have found him or her incapable of managing benefit payments. We will not include any beneficiary who does not meet all of those criteria in our reporting to the NICS. Comment: We received a significant number of comments expressing the view that we should not report certain categories of people to the DOJ for inclusion in the NICS based solely on one qualifier. Commenters erroneously expressed the belief that we would report names to the NICS if they belonged to any one of the following categories: (1) Recipients of any type of Social Security benefits; (2) recipients of Supplemental Security Income (SSI) payments or Disability Insurance (DI) beneficiaries under the Social Security Act; (3) senior citizens; (4) DI beneficiaries for other physical, nonmental disabilities; (5) DI beneficiaries based on a mental impairment, but who do not have a representative payee; (6) have a representative payee for retirement benefits but do not receive DI benefits; (7) have a representative payee but do not receive DI benefits because of a listing-level mental impairment; or (8) no longer receive any type of Social Security benefits. Response: As we noted in our response to the previous comment, this comment reflects a misunderstanding of our rules. As we indicate in section 421.110(b) of our rules, the beneficiaries whose names we would submit to the NICS must meet all five well-defined criteria. We will not report any beneficiary who does not satisfy all five criteria to the NICS. Comment: One commenter stated that, because we do not make medical determinations about Social Security retirement beneficiaries’ health, we do not have the right to make decisions concerning their mental status. Response: We agree that we do not make a medical determination when an individual files a claim for Social PO 00000 Frm 00064 Fmt 4700 Sfmt 4700 Security retirement benefits. For that reason, our proposed rules and these final rules provide that in order for us to refer an individual’s record to the NICS, he or she must, among other things, have filed a claim for disability insurance benefits under title II of the Act or supplemental security income payments based on disability under title XVI of the Act. We do not and will not review the medical records of individuals simply because they file a claim for retirement benefits. Our authority to make a determination regarding an individual’s capacity and the appointment of a representative payee is in accordance with the authority granted to the Commissioner under the Act.13 When we appoint a representative payee, we base our determination on available medical or other evidence, such as statements from relatives, friends, or people in positions to observe the beneficiary.14 This process includes gathering medical evidence from the disability folder or a treating physician, obtaining information from family members or friends about the person’s ability to manage finances, and asking the individual how he or she handles monthly expenses and financial decisions.15 Comment: Multiple commenters expressed the belief that we would report beneficiaries to the NICS solely based on their having a representative payee. Further, commenters opined that having an alternate payee, or requiring some help with financial arrangements such as receipt of Social Security benefits, does not demonstrate mental incompetence. Response: As noted in our responses to previous comments, this comment reflects a misunderstanding of our rules. As we indicate in section 421.110(b) of our rules, the beneficiaries whose names we would submit to the NICS must meet all five well-defined criteria. We will not report to the NICS any beneficiary who does not satisfy all five of those criteria. We will not report a person to the NICS simply because the person has a representative payee if they do not meet all of the other criteria. The DOJ Guidance, with which we are complying, specifically indicates that records relevant to the NICS include ‘‘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.’’ The DOJ further 13 42 14 20 U.S.C. 405(b)(1), and (j). CFR 404.2015(b) and (c); 416.615(b) and (c). 15 Id. E:\FR\FM\19DER1.SGM 19DER1 Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations indicated that this category of records includes certain agency designations of representative or alternate payees for program beneficiaries.16 Comment: Several individuals expressed concern that we would decide to expand the categories of names to submit to the NICS beyond the scope of the current rules without justification or prior notice. Response: Prior to making any changes that would revise or otherwise substantively change the scope of the current rules, we would follow the Administrative Procedure Act’s procedures of notice and comment rulemaking, similar to the process we followed in publishing these rules. Mental Illness srobinson on DSK5SPTVN1PROD with RULES Connection to Violence, Potential for Stigmatization Comment: Commenters questioned the decision to add beneficiaries’ names to the NICS based on mental illness, stating we had not provided data indicating that mental illness was a precursor for violence (particularly gun violence). Response: We are not attempting to imply a connection between mental illness and a propensity for violence, particularly gun violence. Rather, we are complying with our obligations under the NIAA, which require us to provide information from our records when an individual falls within one of the categories identified in 18 U.S.C. 922(g). As we have noted previously, the ATF has clarified through regulation that the prohibitor referenced in 18 U.S.C. 922(g)(4) covers an individual determined by a court, board, commission or other lawful authority to be a danger to himself or others or to lack the mental capacity to contract or manage his or her own affairs as a result of marked subnormal intelligence, or mental illness, incompetency, condition or disease.17 A finding regarding an individual’s ability to manage his or her own affairs does not require us to find that an individual has a propensity for violence before we report his or her name to the NICS. For that reason, the studies that the commenters cited regarding the relationship between mental illness and gun violence do not require us to make any changes to these rules. Comment: Multiple commenters opined that these rules would unfairly stigmatize those with mental illness. Response: We are committed to treating all beneficiaries with dignity 16 81 17 27 FR at 27061. CFR 478.11(a)(1)–(2). VerDate Sep<11>2014 20:05 Dec 16, 2016 Jkt 241001 and respect. To that end, we regularly collaborate and consult with mental health and other advocacy groups and organizations to stay informed and responsive to the needs of beneficiaries with mental health issues. Our collaboration with these organizations includes, among other activities, hosting regular meetings, soliciting input on agency initiatives, and participating in national and regional conferences. We are not attempting to stigmatize individuals who have a mental illness, but are simply following the requirements imposed by Congress in the NIAA. We would also like to highlight that when we report a beneficiary for inclusion in the NICS, we will disclose directly to the FBI a beneficiary’s name, full date of birth, sex, and Social Security number. We will not include specific medical information with our report. We will inform the FBI only of the fact that the individual meets the criteria for inclusion in the NICS due to a mental health prohibitor, but we will not provide any details on the individual’s specific diagnosis. The information will not be made public, and will be used solely for the purposes of the NICS program. Moreover, a Federal Firearms Licensee (FFL) who submits a NICS request when an individual attempts to purchase a firearm from the FFL would not know the reason for the individual’s inclusion, or even which Federal agency had reported the individual’s name to NICS. FFLs only receive a transaction number and a status of Delay, Deny, or Proceed (for the firearm purchase), which will avoid embarrassment or stigmatization for Social Security beneficiaries whose names we refer for inclusion in NICS. Comment: Some commenters expressed concern that individuals might choose not to seek mental health treatment or apply for Social Security benefits out of fear that we would submit their information to the DOJ for inclusion in the NICS. One commenter stated that, ‘‘[t]he end result of this will be many will be very reluctant to seek help, and will refuse the help of a payee, if that is to be automatically reported in this way.’’ Another commenter suggested that, ‘‘[o]ne unintended consequence of the proposed action will be to introduce a tremendous disincentive to those who would seek medical assistance.’’ Response: It is not our intent to discourage individuals from seeking disability benefits or appropriate mental health services. While the outcome of our decision may mean that some beneficiaries will meet the criteria for PO 00000 Frm 00065 Fmt 4700 Sfmt 4700 91707 inclusion in the NICS as detailed in section 421.110(b)(1)–(5) of our rules, our disability process will remain the same. It is also important to note that an FFL who submits a NICS request when an individual attempts to purchase a firearm from the FFL would not know the reason for the individual’s inclusion, or even which Federal agency had reported the individual’s name to NICS. FFLs only receive a transaction number and a status of Delay, Deny, or Proceed (for the firearm purchase), avoiding embarrassment or stigmatization for Social Security beneficiaries whose names we refer for inclusion in NICS. Mental Illness Determination Comment: We received several comments questioning how we determine whether individuals are disabled based on their diagnosed mental disorders. One commenter stated that, ‘‘[t]he parameters established within this rule are entirely too vague.’’ The commenter went on to opine that the proposed rules rely on factors that are ‘‘severely error-prone,’’ suggesting that our system ‘‘ ‘red flags’ too many claims based simply on the mentioning of certain terms (i.e. ‘red flagging’ claims as ‘suicidal’ based solely on the term ‘suicide’ within a person’s records . . . even if the actual reference is ‘claimant states he does not have any suicidal ideations.’ ’’) Another commenter stated that we do not explain the severity required to satisfy a mental disability listing. Response: The Act and our implementing regulations set out the rules we apply for deciding whether an individual is disabled. The Act defines ‘‘disability’’ as the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment(s) which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. A medically determinable physical or mental impairment is an impairment that results from anatomical, physiological, or psychological abnormalities, which are demonstrated by medically acceptable clinical and laboratory diagnostic techniques. The medical evidence must establish a physical or mental impairment consisting of signs, symptoms, and laboratory findings. An individual’s statement of symptoms is not sufficient basis for a determination of disability. Our rules for evaluating mental disorders can be found in 20 CFR 404.1520a and 416.920a. We consider the medical severity of mental E:\FR\FM\19DER1.SGM 19DER1 srobinson on DSK5SPTVN1PROD with RULES 91708 Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations disorder(s) using the mental disorders listings in appendix 1 of 20 CFR part 404, subpart P. We describe the severity required to satisfy a mental disorders listing in sections 404.1525 and 416.925 of our rules. For adults, the Listings describe 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 of the listed impairments are permanent or expected to result in death, or the listing includes a specific statement of duration. For all other listings, the evidence must show that the impairment has lasted or is expected to last for a continuous period of at least 12 months. Our criteria for deciding disability may differ from the criteria applied in other government and private disability programs. When we make an initial determination whether an individual has a severe medical impairment or an impairment that meets or equals the severity of an impairment in the Listings, a team consisting of a doctor and disability examiner reviews the claimant’s statements and the relevant evidence together. We base a determination on a thorough review and evaluation of an individual’s record and not solely on the use of one term or ‘‘flag.’’ The criteria that we use to determine disability for individuals with mental impairments is well-known and is published in the Act, our regulations, and our sub-regulatory instructions, all of which are available to the public on our Internet site. Comment: Multiple commenters stated that, because our adjudication of an individual as disabled under our mental disorders listings causes the individual’s name to be included in the NICS, commenters’ perceived flaws in the adjudication process could lead to unfair inclusion in the NICS. Concerns were raised about the ability of our employees to participate in what seems to be a medical decision. Commenters also discussed the possible lack of input by medical professionals during the determination process. Multiple commenters raised the idea that it is difficult to properly diagnose mental illness at all. Response: Our disability determination process for adults includes making medical determinations and evaluating claimants’ mental impairments based on medical and other evidence. We follow a required sequential evaluation process in order and stop as soon as we can make a determination or decision. The steps are: 1. Is the individual working, and is the work substantial gainful activity? If VerDate Sep<11>2014 20:05 Dec 16, 2016 Jkt 241001 the answer is yes, we will find him or her not disabled. If the answer is no, we will move on to step 2. 2. Does the individual have a severe impairment? If the individual does not have an impairment or combination of impairments that significantly limits his or her physical or mental ability to do basic work activities, we will find him or her not disabled. If the individual does, we will go on to step 3. 3. Does the individual have an impairment(s) that meets or medically equals the severity of an impairment in the Listings? The Listings are examples of impairments that we consider severe enough to prevent an adult from doing any gainful activity. If the individual has an impairment(s) that meets or medically equals the severity of an impairment in the Listings, and the impairment(s) meets the duration requirement, we will find him or her disabled.18 When we evaluate whether an individual has a severe medical impairment or whether an impairment meets or equals the severity of an impairment in the Listings at the third step of our sequential evaluation, a team consisting of a doctor and disability examiner reviews the claimant’s statements and the relevant evidence together. Our team will ask the claimant’s doctors about the claimant’s medical impairments, when the impairments began, how the impairments limit the claimant’s activities, what the results of medical tests were, and what treatment the claimant received. They will also ask the claimant’s doctors for information about the claimant’s ability to perform work-related activities, such as walking, lifting, carrying, and remembering instructions. Although mental impairments are qualitatively different from impairments that affect physical body systems, such as the cardiovascular or musculoskeletal body systems, mental impairments can and do prevent people from working. Our mental disorders listing criteria, which we recently updated effective January 17, 2017, accurately and reliably identify the mental impairments that prevent claimants from engaging in any gainful activity. Additionally, section 221(h)(1) of the Act requires us to make reasonable efforts to ensure that a qualified psychiatrist or psychologist completes the medical review of cases involving mental impairments before we 18 We will not report to the NICS individuals whom we find disabled at step 5 of the sequential evaluation process. PO 00000 Frm 00066 Fmt 4700 Sfmt 4700 make a determination on a claim for benefits.19 Comment: Multiple commenters focused on our classification and diagnosis of mental disorders in general. One commenter asked which mental disorders would be included in the criteria under section 421.110 of our rules. One commenter stated that the term ‘‘mental impairment’’ itself is unclear and asked ‘‘[h]ow and who will define this impairment and to what degree will be considered worthy to report? If I have a panic attack is that worthy?’’ Another wondered if, ‘‘[f]or purposes of this rule, anxiety, abnormal sleep/appetite, inflated self-esteem, or decreased energy, combined with alleged difficulty in managing money, are sufficiently disabling to disqualify a person from possessing firearms.’’ Hundreds of commenters asked if Post Traumatic Stress Disorder (PTSD) was an included impairment. Multiple commenters expressed concern that the disorders included in section 12.00 of the Listings are too broad, and equate ‘‘severe mental issues the same as other issues’’ such as ‘‘eating and anxiety disorders.’’ Response: As we explained in the NPRM, we will report an individual’s record only if we have determined the individual to be disabled based on a finding that his or her impairment(s) meets or medically equals the requirements of one of the mental disorder listings and if he or she meets all the other four criteria. If any of these criteria are not met, we will not submit the individual’s name to the NICS. For an impairment to meet or medically equal a listing, an individual’s symptoms must establish that he or she has a medically determinable mental impairment. A medically determinable mental impairment results from anatomical, physiological, or psychological abnormalities demonstrated by medically acceptable clinical and laboratory diagnostic techniques. The impairment must be established by medical evidence consisting of signs, symptoms, and laboratory findings, not only by the claimant’s statement of symptoms alone.20 Specific signs or symptoms of a mental impairment combined with an alleged difficulty in managing money, alone, will not meet or equal one of the mental disorders listings. The claimant’s mental impairment must also result in limitations in the claimant’s ability to 19 42 U.S.C. 421(h)(1), as amended by section 832(a) of the Bipartisan Budget Act of 2015, Public Law 114–74, 129 Stat. 584, 613. 20 20 CFR 404.1508 and 416.908. E:\FR\FM\19DER1.SGM 19DER1 Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations srobinson on DSK5SPTVN1PROD with RULES function to the degree required by the listing criteria. The Listings cover many categories of mental impairments to ensure that we can evaluate the types of impairments with which claimants are diagnosed. The Listings include criteria that, when satisfied, indicate that a person has a mental impairment that is disabling under our rules. PTSD is an example of an impairment that could meet or equal one of the Listings, if the claimant’s signs, symptoms, and functional limitations rise to the level of severity required in the listing for PTSD. On September 26, 2016, we published a comprehensive update to our mental disorders Listings, ensuring that the criteria we use to determine the presence of disability based on a mental impairment—and, by extension, the criteria that underlie our referrals to NICS—reflect the most modern medical standards in this area.21 Privacy and Confidentiality Comment: Several commenters stated that our sending information to the NICS would violate beneficiaries’ right to privacy, both generally and with regard to their medical information. Response: We have stringent privacy and disclosure policies that protect our beneficiaries’ right to privacy. We will not report any specific medical information when we report to the NICS. To meet the NIAA’s requirement to report relevant records to the NICS, we will report only the name, full date of birth, sex, and Social Security number for each beneficiary who meets the criteria for inclusion in the NICS. The FBI will only be informed of the fact that the individual meets the criteria for inclusion in the NICS due to a mental health prohibitor, but we will not provide any details on the individual’s specific diagnosis. Moreover, FFLs submitting a NICS request when an individual attempts to purchase a firearm from the FFL would not know the reason for the individual’s inclusion, or even which Federal agency had reported the individual’s name to NICS. FFLs only receive a transaction number and a status of Delay, Deny, or Proceed (for the firearm purchase), further protecting the privacy of Social Security beneficiaries whose names we refer for inclusion in NICS. Our disclosure of individual information to the DOJ for the NICS 21 81 FR 66138. The revised mental impairment listings will become effective on January 17, 2017. Id. at 66138. We based this revision to our mental impairment listings on the American Psychiatric Association’s latest revision to the Diagnostic and Statistical Manual of Mental Disorders, the fifth edition, published in May 2013. Id., at 66139. VerDate Sep<11>2014 20:05 Dec 16, 2016 Jkt 241001 complies with the Privacy Act of 1974, 5 U.S.C. 552a; our privacy regulations, 20 CFR part 401; and all other applicable Federal law. We are publishing a new Privacy Act systems of records notice and, as appropriate, we will amend existing systems of records notices to cover the maintenance and disclosure of information for reporting individuals to the NICS.22 The systems of records notices will describe how we will report data to the NICS and the permitted uses of the data. Any systems of records from which we disclose information to the DOJ for the NICS will contain routine uses authorizing the disclosure of the information, without the consent of the individuals to whom the information pertains.23 Comment: We received multiple comments from individuals stating that our proposed rules conflicted with HIPAA privacy rights or doctor-patient confidentiality. Response: Our rules do not conflict with HIPAA because we will not share any specific medical information with the NICS. When we report an individual’s record to the NICS, we will provide only his or her name, full date of birth, sex, and Social Security number. Moreover, HIPAA and any laws governing doctor-patient confidentiality do not apply to our disclosure of information from information maintained in agency systems of records to the DOJ for the NICS. Representative Payee Appointment Comment: We received many comments expressing concern about the manner in which we appoint representative payees. Some comments expressed the belief that we may force the appointment of representative payees for certain beneficiaries who do not require their services. Other commenters conveyed that perceived flaws in the representative payee appointment process would result in the unnecessary appointment of a representative payee and, consequently, unfair inclusion of names in the NICS. Multiple commenters questioned the manner in which we appoint representative payees. One individual questioned the thoroughness of our representative payee evaluation process, while others suggested that we should require direct medical evidence to support the need for a representative payee. Response: Congress first authorized us to direct the payment of an individual’s benefits to a representative payee as part of the Social Security Act Amendments 22 5 23 5 PO 00000 U.S.C. 552a(e)(4). U.S.C. 552a(b)(3). Frm 00067 Fmt 4700 Sfmt 4700 91709 of 1939, so we have over 75 years of experience making capability findings and appointing payees for individuals. Under our policy, we presume that a legally competent adult beneficiary can manage or direct the management of his or her benefits unless there are indicators to the contrary. We will appoint a representative payee for a beneficiary who is under age 18 or a beneficiary who is age 18 or older and is legally incompetent or unable to manage or direct management of his or her benefits due to a physical or mental condition.24 When we appoint a representative payee because a beneficiary is legally incompetent, we base our determination to do so on a court order.25 We do not appoint a payee for an individual unless we determine this is necessary because the individual’s interests would be better served by the appointment of a payee. We do not, and under these rules we will not, appoint a payee for any individual who does not need one. When we appoint a representative payee for reasons other than the beneficiary’s legal incompetency, we base our determination on the available medical or other evidence, such as statements from relatives, friends, or people in positions to observe the beneficiary.26 This process includes gathering medical evidence from the disability folder or a treating medical source, obtaining information from family members or friends about the person’s ability to manage finances, and asking the individual how they handle monthly expenses and financial decisions.27 We then identify an individual or organization to serve as representative payee. When we propose to appoint a representative payee because of incapability, we provide the beneficiary with the right to protest and appeal the capability determination prior to the appointment. The beneficiary can also protest our choice of payee.28 We are committed to continuous improvement of the representative payee program. Our goal is to ensure that beneficiaries who cannot manage or direct the management of their benefits have representative payees who will serve their best interests. When selecting payees, we look for any factors that could disqualify a person from 24 We will not appoint a representative payee for a beneficiary who is age 15 to 17 and is emancipated under State law, unless we determine the beneficiary is incapable. 25 20 CFR 404.2015(a) and 416.615(a). 26 20 CFR 404.2015(b) and (c); 416.615(b) and (c). 27 Id. 28 20 CFR 404.902 and 416.1402. E:\FR\FM\19DER1.SGM 19DER1 srobinson on DSK5SPTVN1PROD with RULES 91710 Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations serving as a payee. For example, a person who has committed Social Security fraud may not be a payee. In addition, we conduct criminal background checks on certain representative payee applicants. We also bar representative payee applicants who have been convicted of serious felonies from serving as a representative payee. The Social Security Protection Act of 2004 (SSPA) expanded our monitoring program by requiring us to conduct periodic reviews for any organizational payee that serves 50 or more beneficiaries, and individual payees serving 15 or more beneficiaries. In addition to these required reviews, we also conduct additional reviews of organizational and individual payees. The SSPA provided us with additional methods to penalize representative payees found to have misused benefits, including: Making payees forfeit fee for service monies; enhancing our ability to hold payees liable for misused benefits; and granting us authority to impose civil monetary penalties when a payee misuses benefits. In response to the SSPA, we developed an online misuse tracking system that we use to store and track all allegations of misuse of benefits. To help prevent misuse, we improved our training materials for individual and organizational representative payees. We also published revised instructions for our technicians, providing them with clarified and streamlined policies and procedures for processing misuse cases. We also have sought recommendations for representative payee program improvement from external entities such as the National Academy of Sciences and National Academy of Medicine. Comment: Several commenters questioned beneficiaries’ ability to remove a representative payee once we appoint one. One commenter asked how we determine if an individual no longer needs a representative payee, and another opined that it is much more difficult to remove a representative payee than it is to obtain one. Response: Our general policy starts with a presumption that every beneficiary has the right to direct payment.29 At any time, a beneficiary whom we have determined to be incapable may request a capability determination. We may also conduct a capability determination if we have reason to believe that an incapable beneficiary may have become capable of managing or directing management of 29 20 CFR 404.2001 and 416.601. VerDate Sep<11>2014 20:05 Dec 16, 2016 his or her own benefits. We apply the same standards for the appointment or removal of a representative payee— ability or inability to manage or direct the management of benefits due to a physical or mental condition. If the beneficiary proves that he or she is capable, he or she will receive direct payment.30 However, in response to these comments, we have clarified in these final rules that we will notify the Attorney General, or his or her designate, that an individual’s record should be removed from the NICS when we find that an individual whom we previously required to have benefit payments made through a representative payee is now capable of managing his or her benefit payments without the need for a representative payee. We also have clarified several other situations in which we will notify the Attorney General to remove an individual’s name from the NICS. Comment: One commenter stated, ‘‘Presumably, a current recipient who can manage his/her own financial affairs and is in fact receiving benefits directly (e.g., direct deposit to bank account) would not fall under the abovementioned phrase, and would retain the right to own, possess, etc., firearms. If this is true, I would recommend making that clearer in the [final] Rule.’’ Another asked, ‘‘If disability benefits under Title II or Title XVI of the Social Security Act are NOT received through a representative payee (i.e., a third party), does the proposed rule to the NIAA still apply?’’ Many commenters expressed concern that an individual who assigns a representative payee for a temporary period or for convenience would be unfairly reported for inclusion in the NICS. A common scenario described by commenters was that of retired individuals who asked their children to pay their bills during an extended vacation. Another scenario described was that of a mentally capable individual with a physical disability who, due to an inability to write checks or drive, was assigned a representative payee. Response: We clearly state in section 421.110(b) of our rules that the beneficiaries whose names we will submit to the NICS must meet all five well-defined criteria. We will not include any beneficiary who does not meet all of these criteria. We will not report a person to the NICS simply because the person has a representative payee if he or she does not meet all of the other criteria. Conversely, we will not report information regarding an individual who has a mental 30 20 Jkt 241001 PO 00000 CFR 404.2055 and 416.655. Frm 00068 Fmt 4700 Sfmt 4700 impairment if we have not appointed a representative payee for the individual, because that individual would not meet all of the criteria for NICS reporting in our rules. Beneficiaries cannot appoint a representative payee, nor can we name a representative payee without evidence indicating that the individual is legally incompetent or unable to manage or direct management of his or her benefits due to a physical or mental condition.31 We presume that a legally competent adult beneficiary can manage or direct the management of his benefits unless there are indicators to the contrary. Therefore, we do not appoint a representative payee for beneficiaries solely because they require assistance with financial matters or as a matter of convenience for the beneficiary. Relief Process Comment: Multiple commenters asked for specific information about the relief process, including when and at what points in the NICS inclusion decision process a request for relief could be submitted and reviewed, what documentation and evidence would be required to request relief, and who would review the evidence and make relief decisions. Response: As we explained in the NPRM, consistent with section 101(a)(2)(A) of the NIAA, we will allow a person who is subject to the Federal mental health prohibitor to apply for relief from the Federal firearms prohibitions as a result of our adjudication. In section 421.150(a) of our rules, we indicate that an individual may apply for relief once our adjudication has become final. In addition to providing us with a completed relief application form, consistent with the requirements set forth in section 421.151(b) of this final rule, we require the individual who requests relief to provide us with 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, including a statement addressing whether the applicant has ever been a danger to himself or others and whether the applicant would pose a danger to himself or others if we granted the applicant’s request for relief and the applicant purchased and possessed a firearm and ammunition. We also require an applicant for relief to submit written statements and any other evidence regarding the applicant’s reputation including a statement addressing whether the applicant would 31 20 E:\FR\FM\19DER1.SGM CFR 404.2001; 416.601. 19DER1 srobinson on DSK5SPTVN1PROD with RULES Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations pose a danger to himself or others if we granted the applicant’s request for relief and the applicant purchased and possessed a firearm and ammunition. We will obtain and consider a relief applicant’s criminal history report as part of the relief process. We specify the details of the evidentiary requirements in section 421.151 of our rules. We have not yet determined the details regarding who in our agency would review the evidence and issue relief decisions. We will publish this information in the Federal Register as part of the Paperwork Reduction Act process once we have finalized our business process, and the public will have an opportunity to review and respond to more relief details, including what information will be required and who will review the request. Comment: Commenters suggested that we simplify the relief process for beneficiaries and representatives. Many expressed their disapproval that affected individuals would be required to request that their names be removed from the list and to provide evidence to our satisfaction to be removed from the list. Many highlighted the fact that the burden of proof for non-inclusion would lie with the individual. Other commenters found it problematic that our relief process does not make provision for a formal hearing before an adjudicative authority or allow the examination of witnesses. Several others suggested that we should provide legal counsel to those individuals whom we report to the DOJ. Response: We have established a simple and direct process that satisfies the requirements of the NIAA. In addition to providing us with a completed relief application form, consistent with the requirements set forth in section 421.151(b) of this final rule, an applicant for relief will only be required to provide us with: (1) A current statement from his or her primary mental health provider assessing the applicant’s current mental health status and mental status for the 5 years preceding the date of the relief request; and (2) written statements and any other evidence regarding the applicant’s reputation. We will not impose a fee in connection with the filing of a request for relief. We anticipate that the cost for acquiring the evidence that we require and providing it to us directly will be reasonable. Moreover, the required evidence is more easily attained by the applicant directly. We will obtain the applicant’s criminal history report on his or her behalf. Section 101(a)(2)(A) of the NIAA provides that relief shall be available according to the standards prescribed in VerDate Sep<11>2014 20:05 Dec 16, 2016 Jkt 241001 18 U.S.C. 925(c). Section 925(c) states that relief may be granted if it is established 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. It is generally appropriate under the law to place the burden of production and proof on the proponent of an order. In this case, that means the person who applies for relief must demonstrate his or her entitlement to relief, and there is no indication in the NIAA or any other provision of law that Congress intended to alter that normal rule. Similarly, the NIAA does not provide for the appointment of legal counsel for those seeking relief, nor is the appointment of counsel generally required under civil law. Finally, in addition to the successful pursuit of relief from the NICS prohibitions, in new section 421.130 of the final rules, we have added three additional bases for removal of an individual’s information from the NICS database. These bases apply when: (1) We find that an individual whom we previously required to have benefit payments made through a representative payee is now capable of managing his or her benefit payments without the need for a representative payee; (2) We are notified that the individual has died; or (3) We receive information that we reported an individual’s record to the NICS in error (e.g., we reported to the NICS the record of an individual who does not have a primary diagnosis code in our records that is based on a mental impairment, or we reported the record of an individual who does not have a representative payee). Comment: Multiple commenters sought clarification about what evidence we would consider when we review a request for relief. One commenter specifically asked about issues relating to documents attesting to a person’s character and 5 years of mental health records, such as the availability of these records and who would be required or allowed to provide them. The commenter questioned whether a ‘‘clean’’ criminal record or State background check would qualify as documentation attesting to a person’s character. Another commenter questioned the specifics of how we would propose that relief ‘‘may’’ be granted if an individual could establish to our ‘‘satisfaction’’ that the applicant will not be likely to act in a manner dangerous to public safety. Response: The relief process that we outlined in the NPRM is based on the PO 00000 Frm 00069 Fmt 4700 Sfmt 4700 91711 NIAA, which indicates that relief and judicial review ‘‘shall be available according to the standards prescribed in section 925(c) of title 18, United States Code.’’ That section of the law states that relief may be granted ‘‘if it is established to [an agency’s] 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.’’ Section 421.151 of our rules specifies the evidence we will consider when we decide whether to grant an application for relief. It indicates that we will consider the applicant’s record, which must include the applicant’s mental health records and a criminal history report, and written statements regarding the applicant’s character. We will obtain a criminal history report on the applicant’s behalf. The rule states that the applicant must provide evidence from his or her primary mental health provider and written statements regarding the applicant’s character. This evidence must include statements addressing (1) whether the applicant would pose a danger to himself or others if we granted the applicant’s request for relief, and the applicant then purchased and possessed a firearm and ammunition, and (2) whether the applicant has a reputation for violence in the community. We will provide other procedural details of our relief process in subregulatory guidance, as well as in the Federal Register as part of the Paperwork Reduction Act process, once we have finalized our business process. The public will have an opportunity to review and respond to additional details about the relief process, including what information will be required, in response to the Paperwork Reduction Act process. Comment: One commenter questioned how beneficiaries could find out what their specific primary diagnosis was in order to best seek relief from inclusion in the NICS. The commenter also asked about the possibility of disputing the diagnosis, particularly when a secondary diagnosis is also involved in the adjudication of being disabled. Response: We provide claim information to individuals upon their request. Under the Privacy Act of 1974 and our regulations, an individual may request access to his or her records maintained in agency Privacy Act systems of records, including those under which we maintain diagnosis E:\FR\FM\19DER1.SGM 19DER1 srobinson on DSK5SPTVN1PROD with RULES 91712 Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations information.32 Our regulations require individuals to verify their identity when making an access request.33 A beneficiary who proves his or her identity has the right to access his or her disability file in accordance with our rules.34 The medical records include information about the beneficiary’s primary and secondary diagnosis, if applicable. Criteria for inclusion in the NICS include that an individual is 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 listings.35 These listings consist of medical conditions that we consider severe enough to prevent a person from doing any gainful activity, regardless of age, education, or work experience. Individuals whose impairments meet a listing are the most severely disabled individuals we serve. If we find an individual to be disabled based on a listing-level mental impairment, and he or she satisfies all of the remaining four requirements, we are required to report them to the NICS. If we do not find an individual to be disabled based on a mental impairment, he or she has not met the reporting requirements and we will not report them to the NICS. Our administrative review process and the request for relief process are two different processes. If an individual wishes to appeal our disability determination or decision they may do so within the appeal period, which is generally 60 days after being notified of our determination or decision. However, appealing a disability decision is not part of the NICS relief process. It is important to note that the qualifications for inclusion in the NICS are not the same as the qualifications for relief prescribed by 18 U.S.C. 925(c); that is, proof that he or she is not likely to act in a manner dangerous to public safety and that granting relief from the prohibitions will not be contrary to the public interest. Comment: Several individuals expressed concern over the anticipated length of time for the processing of a request for relief, stating that 30 days was insufficient time to gather and submit all of the required information, particularly as it involved actions by other government agencies or individuals. One individual expressed 32 5 U.S.C. 552a(d); 20 CFR 401.35–401.40. CFR 401.45. 34 20 CFR 401.50, 401.55. 35 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. 33 20 VerDate Sep<11>2014 20:05 Dec 16, 2016 Jkt 241001 concern about the 30-day deadline for the submission of evidence supporting a beneficiary’s request for relief in contrast to our 365-day response time. Several other commenters also questioned our ability to respond within the 365-day period, given current delays in the NICS-related relief programs run by other Federal agencies. Response: In response to the comments we received expressing concerns about the 30-day deadline, we have revised the rules to eliminate this timeframe. Under the final rules, an individual may request relief at any time after our adjudication that the individual is subject to the Federal mental health prohibitor has become final. We will accept an individual’s request for relief once he or she has compiled all of the evidence that we require, as set forth in section 421.151 of this final rule. We believe that this revised process for requiring that the applicant submit his or her evidence along with a request for relief comports with due process and allows us to process the application for relief no later than 365 days after receipt of the complete application and all required supporting documentation and evidence, as required under the NIAA. We will work in good faith to respond to all requests for relief promptly and within the 365-day period. Finally, there is no limit to the number of times a person can apply for relief. Comment: One commenter suggested that we should not report to the DOJ individuals awaiting a response to their petition for relief unless a judge deems it appropriate. Response: This suggestion is contrary to the language of the NIAA, which permits a person to apply for relief from the firearms prohibitions imposed by 18 U.S.C. 922(g)(4) and does not require judicial review prior to reporting. Further, as noted under section 421.170 of our rules, if we deny the applicant’s request for relief, he or she may then seek judicial review of our action. Comment: Multiple commenters asked if we would develop a procedure other than seeking relief to request the removal of individuals’ names from the NICS for individuals who no longer meet the criteria that were the cause of their original inclusion in the NICS. Response: As we noted in response to a prior comment, in addition to the successful pursuit of relief from the NICS prohibitions, in section 421.130 to the final rules, we have added three additional bases for removal of an individual’s information from the NICS database. Specifically, we will notify the Attorney General to remove an individual’s name from the NICS when: PO 00000 Frm 00070 Fmt 4700 Sfmt 4700 (1) We find that an individual whom we previously required to have benefit payments made through a representative payee is now capable of managing his or her benefit payments without the need for a representative payee; (2) We are notified that the individual has died; or (3) We receive information that we reported an individual’s record to the NICS in error (e.g., we reported to the NICS the record of an individual who does not have a primary diagnosis code in our records that is based on a mental impairment, or we reported the record of an individual who does not have a representative payee). Comment: One commenter stated that, ‘‘there is no guarantee that the same prejudices that the rule creates in the first place won’t reassert themselves’’ in the relief process. Response: We use the same process to determine disability and to determine whether the individual needs a representative payee for each individual who applies for disability benefits. We determine whether a beneficiary is eligible for inclusion in the NICS after the disability process is complete. Therefore, there will be no opportunity for prejudice or bias concerning whether a beneficiary should be included in the NICS, because it is not a consideration during the disability determination process. In addition, there will be no opportunity for bias or prejudice when we process a request for relief because, under 20 CFR 421.165, a different decision maker who was not involved in the beneficiary’s disability or capability determinations, will review the evidence and act on the request for relief. We will follow the requirements of the NIAA and apply principles of due process in determining applicants’ entitlement to relief from the Federal firearms prohibitions imposed as a result of our adjudication. Judicial review of our action denying an applicant’s request for relief is available according to the standards set forth in 18 U.S.C. 925(c). Resources Concerns Comment: Several commenters expressed that this policy would be an unnecessary waste of the Government’s time and resources. One commenter opined that implementing the proposed rules would add to the workload of SSI cases and risk additional backlogs, without any offsetting improvement to public safety. Response: While we note the commenters’ concerns, in issuing these rules we are satisfying our legal obligations under the NIAA that require Federal agencies to provide relevant E:\FR\FM\19DER1.SGM 19DER1 Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations records to the Attorney General for inclusion in the NICS. Comments in Support of the Rule Multiple commenters expressed support for the rule. Several individual commenters were in favor of our reporting certain individuals to the NICS database based on their expressed belief that some persons with mental illness should not be allowed to own firearms, because they could pose a danger to themselves or others. Some commenters spoke in their capacity as relatives and representative payees for Social Security beneficiaries with mental illness. One such commenter stated that if ‘‘someone does not have enough mental capacity to handle personal finances, he certainly does not have enough mental capacity to have access to guns.’’ Another commenter opined that medical professionals should support the rules, because clinicians would not want to authorize anyone to possess a firearm for legal liability reasons. Several advocacy groups also articulated support for the rules. One group supported the rules as written. One group suggested we should expand the criteria used to identify names for inclusion in the NICS, stating that, ‘‘One issue not addressed by the proposed rule is the NICS status of future applicants for benefits who are dangerous due to severe mental illness, but who do not have third party representatives who receive payments on their behalf.’’ This commenter encouraged us to consider ways to expand the rule to include those beneficiaries who pose a danger to themselves or others, regardless of whether their payments are made to a representative payee. Regulatory Procedures srobinson on DSK5SPTVN1PROD with RULES Executive Order 12866 We have consulted with the Office of Management and Budget (OMB) and determined that these final 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 final 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 final rules contain new public reporting burdens in sections § 421.150(b), 421.151(b)(1) and (2), VerDate Sep<11>2014 20:05 Dec 16, 2016 Jkt 241001 421.151(c)(1), (2) and (3), 421.152, and 421.165(b) that require OMB approval under the Paperwork Reduction Act of 1995 (PRA). 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 PRA process, and we will submit a separate information collection request to OMB. We will not collect the information referenced in these burden sections until we receive OMB approval. (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 20 CFR Part 421 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 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. 421.130 Removal of an individual’s record from the NICS. 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 Timing of processing 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: 42 U.S.C. 902(a)(5); sec. 101, Pub. L. 110–180, 121 Stat. 2559, 2561 (18 U.S.C. 922 note). § 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 PO 00000 Frm 00071 Fmt 4700 Sfmt 4700 91713 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. § 421.105 part. 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 impairment(s) meets or medically equals the requirements of one of the Mental Disorders Listing of Impairments (section 12.00 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, as a result of a mental impairment. 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 E:\FR\FM\19DER1.SGM 19DER1 91714 Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations 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. srobinson on DSK5SPTVN1PROD with RULES § 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 posteligibility actions, we will identify any individual who: (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 (section 12.00 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 mentally incapable of managing benefit payments. (c) We will apply the provisions of this section to: (1) Capability findings that we make in connection with initial claims on or VerDate Sep<11>2014 20:05 Dec 16, 2016 Jkt 241001 after December 19, 2017 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 December 19, 2017 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 (c)(2) only with respect to capability findings in which we appoint a representative payee for an individual in connection with a continuing disability review. § 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. § 421.130 Removal of an individual’s record from the NICS. (a) General. We will identify when the record of an individual that we previously identified for submission to the NICS under § 421.110 should be removed from the NICS database. We will notify the Attorney General, or his or her designate, that an individual’s record should be removed from the NICS database only in the circumstances in paragraphs (b)(1) through (4) of this section. (b) We will notify the Attorney General, or his or her designate, that an individual’s record should be removed from the NICS when: (1) We find that an individual whom we previously required to have benefit payments made through a representative payee is now capable of managing his or her benefit payments without the need for a representative payee; (2) We are notified that the individual has died; (3) We receive information that we reported an individual’s record to the NICS in error (e.g., we reported to the NICS the record of an individual who does not have a primary diagnosis code in our records that is based on a mental impairment, or we reported the record of an individual who does not have a representative payee); or (4) We grant the individual’s request for relief under the rules in §§ 421.150 PO 00000 Frm 00072 Fmt 4700 Sfmt 4700 through 421.165, or a Federal court grants the individual’s request for relief under the rules in § 421.170. § 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) When our adjudication that an individual meets the criteria in § 421.110(b)(1) through (5) becomes final, he or she 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 deem 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 E:\FR\FM\19DER1.SGM 19DER1 srobinson on DSK5SPTVN1PROD with RULES Federal Register / Vol. 81, No. 243 / Monday, December 19, 2016 / Rules and Regulations 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 VerDate Sep<11>2014 20:05 Dec 16, 2016 Jkt 241001 related to the applicant by blood or marriage. § 421.152 for relief. Timing of processing a request (a) An individual may request relief at any time after our adjudication that results in that person becoming prohibited by 18 U.S.C. 922(d)(4) or (g)(4) becomes final. (b) We will process an application for relief under § 421.150 when the applicant has provided us with all the necessary evidence required under § 421.151(b)(1) through (3). § 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. § 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 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. PO 00000 Frm 00073 Fmt 4700 Sfmt 9990 91715 (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)(1) The NIAA requires us to process each application for relief not later than 365 days after the date we receive it. We consider the application date for the request for relief to be the date on which all evidence required under § 421.151(a) is submitted. (2) 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 (d) 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. 2016–30407 Filed 12–16–16; 8:45 am] BILLING CODE 4191–02–P E:\FR\FM\19DER1.SGM 19DER1

Agencies

[Federal Register Volume 81, Number 243 (Monday, December 19, 2016)]
[Rules and Regulations]
[Pages 91702-91715]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-30407]



[[Page 91702]]

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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: Final rules.

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SUMMARY: These final rules 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 these final 
rules, we will 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 who 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 will 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 will also notify individuals, both orally and 
in writing, of their possible Federal prohibition on possessing or 
receiving firearms, the consequences of such prohibition, the criminal 
penalties for violating the Gun Control Act, and the availability of 
relief from the prohibition on the receipt or possession of firearms 
imposed by Federal law. Finally, we also establish a program that 
permits individuals to request relief from the Federal firearms 
prohibitions based on our adjudication. These changes will allow us to 
fulfill responsibilities that we have under the NIAA.

DATES: This final rule will be effective on January 18, 2017. However, 
compliance is not required until December 19, 2017.

SUPPLEMENTARY INFORMATION: 

Background

    On May 5, 2016, we published a notice of proposed rulemaking (NPRM) 
in the Federal Register (81 FR 27059) in which we proposed adding part 
421 to our regulations in order to implement our obligations under the 
NIAA. We proposed rules under which we would identify and report to the 
Attorney General, on a prospective basis, information about any title 
II or title XVI beneficiary whom we are required to report for 
inclusion in the NICS because that person is subject to the Federal 
mental health prohibitor as a result of our adjudication.\1\ Under our 
proposed rules, we would: (1) Identify relevant records and report 
pertinent information to the NICS, (2) provide oral and written 
notification to our title II and title XVI beneficiaries who meet the 
requisite criteria, and (3) permit our beneficiaries who meet the 
requisite criteria to apply to us for relief from the firearms 
prohibition imposed by 18 U.S.C. 922(d)(4) or (g)(4) by virtue of our 
adjudication. We provided additional information and discussion of the 
reasons we issued our proposed rules in the preamble to those rules at 
81 FR 27059.
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    \1\ As part of our responsibilities under the NIAA, we will also 
provide the Attorney General with copies of court orders that we 
receive, beginning on or after the compliance date of these final 
rules, regarding adult title II and title XVI disability claimants 
and beneficiaries who have been declared legally incompetent by a 
State or Federal court. The FBI will identify those court orders 
that meet the requirements of the Federal mental health prohibitor.
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    We adopt the proposed rules as final rules, with several changes 
outlined in the discussion of the public comments and our responses. 
The final rules allow a person to apply for relief any time after our 
adjudication that the person meets the requirements of the Federal 
mental health prohibitor has become final. The final rules also set out 
several circumstances in which we will notify the Attorney General to 
remove a person's name from the NICS. We also made minor changes to the 
definition of the term ``affected individual'' in section 421.105 and 
to section 421.110(b)(2). The changes in both of these sections are for 
clarity, and do not substantively change the rules.

Public Comments and Discussion

    In our NPRM, we provided a 62-day comment period, which ended July 
5, 2016. As we stated in our proposed rules, the NIAA, the President's 
January 2013 Memorandum to Federal agencies, and the Department of 
Justice's (DOJ) March 2013 guidance require Federal agencies with any 
record demonstrating that a person falls within one of the categories 
in 18 U.S.C. 922(g) or (n) to provide the pertinent information 
contained in the record to the Attorney General, not less frequently 
than quarterly, for inclusion in the NICS.\2\ Because our proposed 
rules were limited to our process for satisfying our mandated reporting 
and relief requirements, comments about issues that do not pertain to 
our proposed rules are outside of the scope of our rulemaking 
authority. We have not responded here to comments outside of the scope 
of our proposed rules.
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    \2\ NIAA, sec. 101(a)(4), 121 Stat. at 2161; 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); Department of 
Justice, Guidance to Agencies Regarding Submission of Relevant 
Records to the NICS (March 2013) (``DOJ Guidance''). We included the 
relevant portion of the DOJ Guidance in the preamble to our proposed 
rules (81 FR at 27060-27061).
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    We received 91,243 timely submitted comments that addressed issues 
within the scope of our proposed rules. We carefully considered the 
concerns expressed in these comments. Due to the high volume of the 
comments submitted, we summarized and grouped them by main issue 
expressed. We present the views received, and address the relevant and 
significant issues raised by the commenters. Of the timely-submitted 
comments, 86,860 were identical letters from different members of one 
advocacy group, and 324 were signatures on one comment letter. These 
letters urged us to withdraw the proposed rules, which the commenters 
thought would adversely affect individuals' Second Amendment rights. We 
address that comment below.
    Various advocacy groups and individuals submitted the remaining 
4,059 comments. Many of these commenters questioned our legal authority 
to provide the names of Social Security beneficiaries to DOJ for 
inclusion in the NICS. The majority of these comments focused on how 
DOJ would use the information we provide--i.e., what the effect would 
be on the Second Amendment rights of individuals whose names would be 
included in the NICS. Other legal issues raised included due process 
and equal protection concerns. Many commenters questioned the criteria 
we proposed to use to identify names for inclusion in the NICS. Some of 
these comments were based on an incorrect understanding of the 
information we provided in the NPRM. We also address those 
misunderstandings below. Several commenters appeared to misunderstand 
the process we would need to follow to revise these criteria in the 
future.
    Some commenters cautioned about the potential for stigmatization of 
those with mental health disorders, and questioned why we did not 
provide evidence demonstrating the correlation between mental health 
and gun-related

[[Page 91703]]

violence. Commenters also expressed apprehension about the potential 
violation of privacy rights, including rights under the Health 
Insurance Portability and Accountability Act (HIPAA). Commenters also 
questioned our existing processes for determining the presence of a 
disability based on a mental impairment and our process for appointing 
representative payees. Multiple commenters asked about our process for 
seeking relief and the removal of names from the NICS. Several 
commenters expressed that the policy we proposed was an unnecessary 
expenditure of Federal Government funds.
    We also received multiple comments in support of the rules. These 
individuals and advocacy group commenters spoke as appointed 
representatives of Social Security beneficiaries with mental illness or 
as proponents of greater gun control efforts.
    We respond in greater detail below to the relevant comments 
submitted in response to the proposed rule. We organize the comments 
and our responses by category for ease of review.

Legal Authority

    Comment: Multiple individuals questioned our authority to report 
any information to the NICS database. Some commenters opined that NIAA 
section 101(c)(1)(C) prohibited us from reporting information to DOJ 
that is ``based solely on a medical finding of disability. . . .'' 
Another commenter suggested that we should not be able to submit any 
medical information to the NICS without a court order.
    Response: Our authority to report the information we include in 
these final rules stems from section 101(a)(4) of the NIAA, which 
requires that we provide to the Attorney General for inclusion in the 
NICS pertinent information included in any record demonstrating that a 
person falls within one of the categories in 18 U.S.C. 922(g) or 
(n).\3\ NIAA section 101(c)(1)(C) does not prohibit us from reporting 
this information to the NICS. The commenters who relied on section 
101(c)(1)(C) only cited part of the section in their comments. In its 
entirety, section 101(c)(1)(C) of the NIAA states: ``No department or 
agency of the Federal Government may provide to the Attorney General 
any record of an adjudication related to the mental health of a person 
or any commitment of a person to a mental institution if . . . (C) the 
adjudication or commitment, respectively, 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 section 
922(g)(4) of title 18, United States Code, 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.''
---------------------------------------------------------------------------

    \3\ NIAA 101(a)(4), 121 Stat. at 2161.
---------------------------------------------------------------------------

    We are not reporting information in records based solely on a 
medical finding of disability without the person being adjudicated as 
subject to the Federal mental health prohibitor ``consistent with 18 
U.S.C. 922(g)(4).'' The Bureau of Alcohol, Tobacco, Firearms and 
Explosives (ATF) has clarified through regulations that this 
prohibition covers individuals who have been determined by a court, 
board, commission or other lawful authority as a result of marked 
subnormal intelligence, or mental illness, incompetency, condition or 
disease to be a danger to himself or to others, or who lacks the mental 
capacity to contract or manage his or her own affairs.\4\
---------------------------------------------------------------------------

    \4\ 27 CFR 478.11(a)(1)-(2).
---------------------------------------------------------------------------

    The DOJ Guidance specifically indicates that records relevant to 
the NICS include ``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.'' The DOJ further indicated that this category of 
records ``includes certain agency designations of representative or 
alternate payees for program beneficiaries.'' \5\
---------------------------------------------------------------------------

    \5\ 81 FR at 27061.
---------------------------------------------------------------------------

    As we explained in the NPRM, our adjudication is an adjudication by 
a lawful authority, by virtue of the authority granted to the 
Commissioner of Social Security under the Social Security Act. We also 
are not basing our reporting of records to the NICS solely on a medical 
finding of disability. Rather, consistent with section 101(a)(4) of the 
NIAA and the ATF's implementing regulation, we are basing our report on 
the individual's inability to manage his or her affairs as a result of 
his or her mental impairment. However, we will not include medical 
information in our reports to the NICS--we will report only the 
beneficiary's name, full date of birth, sex, and Social Security 
number. In addition, we will only inform the FBI of the fact that the 
individual meets the criteria for inclusion in the NICS under the NIAA 
due to a mental health prohibitor, but we will not provide any details 
on the individual's specific diagnosis.
    Comment: Multiple commenters questioned our authority to declare an 
individual to be subject to the Federal mental health prohibitor, and 
argued that only a court can make that decision.
    Response: By these rules, we are complying with the requirements of 
the NIAA by identifying individuals in our records who meet the 
criteria of the mental health prohibitor in 18 U.S.C. 922(g). As we 
noted previously, our authority to do so derives from section 101(a)(4) 
of the NIAA. DOJ's guidance indicates that relevant records under the 
mental health prohibitor category include not only court adjudications 
but also agency records of adjudications of an individual's inability 
to manage his or her own affairs, including the agency's designation of 
a representative payee because of his or her mental impairment. As we 
noted above and in the proposed rules, the ATF's regulations require 
that the individual be found to be subject to the Federal mental health 
prohibitor ``by a court, board, commission or other lawful authority. . 
. .'' \6\ Consequently, neither the NIAA nor the ATF's implementing 
regulations require an agency to report information to the NICS based 
only on a court order, as some of the commenters suggested.
---------------------------------------------------------------------------

    \6\ 27 CFR 478.11(a).
---------------------------------------------------------------------------

    Comment: One commenter asked if the determinations would be secret 
or open, and if there are safeguards in place to ensure that the people 
making the designations are free of bias or prejudice.
    Response: We will use our regular program rules to determine 
whether an individual is disabled due to a mental impairment that is 
severe enough to meet the requirements of our mental disorder listings, 
and to determine if that person also requires a representative payee 
because of his or her mental impairment. We apply our program rules to 
all claimants equally, regardless of whether or not one meets the NICS 
criteria. We expect all of our adjudicators to fulfill their duties 
with fairness and impartiality, and we have existing procedures in 
place that allow us to address claims of bias or prejudice in our 
administrative process.
    By ``open'' we assume that the commenter's concern was over the

[[Page 91704]]

privacy of the information that we would report to the NICS. A 
determination regarding inclusion in the NICS would be open to the 
individual affected, and we will apply the safeguards set out in these 
rules, such as oral and written notification to the individual at the 
commencement of the adjudication, to ensure that the individual who may 
be subject to reporting has adequate information about the reporting 
process, the effect of our reporting, and options for relief.
    In addition, we will apply the protections against unauthorized 
disclosure in the Privacy Act of 1974, 5 U.S.C. 552a; our regulations, 
20 CFR part 401; and the Social Security Act, 42 U.S.C. 1306(a). Thus, 
we may only disclose information in accordance with these laws and 
regulations. We also provide claim information to individuals upon 
request of the claimant. Under the Privacy Act of 1974 and our 
regulations, an individual may request access to his or her records 
maintained in agency Privacy Act systems of records, including those 
under which we maintain diagnosis information.\7\
---------------------------------------------------------------------------

    \7\ 5 U.S.C. 552a(d); 20 CFR 401.35-401.40.
---------------------------------------------------------------------------

Constitutional Issues: Second Amendment and Equal Protection

    Comment: Many commenters expressed concern that these rules would 
violate the affected individuals' rights under the Second Amendment to 
the Constitution, and would also violate their equal protection rights 
under the Constitution. Most of these comments were provided in largely 
identical letters, and they asserted that our rules would take firearms 
away from elderly recipients of Social Security retirement benefits.
    Response: With these rules, we are seeking to satisfy our 
obligations under the NIAA, which requires Federal agencies to provide 
relevant records to the Attorney General for inclusion in the NICS. 
While the rule addresses reporting requirements, it is the Federal Gun 
Control Act, not the Social Security Act, that governs when a person 
can possess a firearm. The criteria we will use under these rules do 
not focus on one age group, such as the elderly or recipients of Social 
Security retirement benefits, nor do they categorize and treat 
individuals who are similarly situated differently. Consequently, these 
final rules do not violate principles of equal protection. In addition, 
as we stated in the preamble to our NPRM and in the requirements listed 
in section 421.110(b)(4) of our rules, we will identify certain 
individuals who have attained age 18, but have not yet attained full 
retirement age. We do not intend under these rules to report to the 
NICS any individual for whom we appoint a representative payee based 
solely on the individual's application for and receipt of Social 
Security retirement benefits.
    With regard to the broader point the commenters raised about the 
constitutionality of our actions under the Second Amendment, we note 
that the Supreme Court recognized in District of Columbia v. Heller, 
554 U.S. 570, 595 (2008), ``that the Second Amendment conferred an 
individual right to keep and bear arms.'' The Court emphasized, 
however, that, ``[l]ike most rights, the right secured by the Second 
Amendment is not unlimited,'' id., at 626, and that ``nothing in [the 
Court's] opinion should be taken to cast doubt on longstanding 
prohibitions on the possession of firearms by felons and the mentally 
ill.'' Id. Our actions, taken in accordance with the Congress' 
directives in the NIAA, the President's January 2013 memorandum to 
Executive agencies, and DOJ's March 2013 guidance, are fully consistent 
with the Supreme Court's recognition in Heller of the validity ``of 
longstanding prohibitions on the possession of firearms by . . . the 
mentally ill.'' Nothing in the rules we are issuing today is 
inconsistent with the scope of the Second Amendment as interpreted in 
Heller. Accordingly, we have not made any changes to the rule in 
response to comments asserting that our actions were inconsistent with 
an individual's Second Amendment right.

Due Process

    Comment: Multiple commenters also stated that the rules as written 
would violate beneficiaries' right to due process, particularly because 
they do not allow affected individuals to appeal the inclusion of their 
names in the NICS before we submit them to the DOJ. One commenter 
suggested that we should obtain a beneficiary's written permission 
before submitting information to the DOJ.
    Response: Affected individuals will have the opportunity to apply 
for relief from the Federal firearms prohibitions imposed by 18 U.S.C. 
922(g)(4) at any time after our adjudication has become final. We have 
clarified our rules to make that point. We will follow the requirements 
of the NIAA and apply principles of due process in determining 
applicants' entitlement to relief from the burdens imposed by inclusion 
in the NICS. Under these rules, we will provide individuals with 
advance notice at the commencement of the adjudication that we may 
report their information to NICS if we find they meet the criteria for 
reporting when the adjudication is final. An individual can request 
relief any time after the adjudication is final but we cannot delay 
fulfilling our obligations under the NIAA to provide relevant records 
to the Attorney General while the person decides whether to request 
relief.
    When an individual requests relief, we provide an opportunity for 
the individual to submit evidence in support of the request, which will 
be reviewed by an impartial decisionmaker who was not involved in 
making the finding that the applicant's benefit payments be made 
through a representative payee. We will notify the applicant in writing 
of our action regarding the request for relief and explain 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. And, of course, judicial 
review of our action denying an applicant's request for relief is 
available in accordance with the standards prescribed in 18 U.S.C. 
925(c). These procedures provide a beneficiary with ample due process 
protections. In response to the other commenter's concern, we note that 
nothing in the NIAA or any other provision of law requires us to obtain 
a beneficiary's written permission to disclose information to the DOJ 
for the NICS. We will publish a system of records notice (SORN) that 
will explain the purposes for which information will be maintained and 
disclosed, and the public will have an opportunity to comment on the 
SORN.
    Comment: Several commenters questioned whether individuals who meet 
our criteria would receive adequate notice or be given the opportunity 
to appeal before we share their information with the DOJ. One commenter 
expressed concern that, ``[m]any people will not be informed of the 
action.'' Other commenters asked whether ``an existing beneficiary with 
a representative payee [would] be notified and given the opportunity to 
appeal before they are reported to NICS'' or if we would ``allow the 
person a reasonable amount of time to appeal that action.''
    Response: Consistent with the NIAA, we will provide oral and 
written notice to the beneficiary at the commencement of the 
adjudication, which we define as after we have determined that he or 
she meets the medical requirements for disability based on a finding 
that his or

[[Page 91705]]

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. Under these final rules, we will provide 
individuals with the opportunity to apply for relief from the Federal 
firearms prohibitions once the adjudication becomes final and those 
prohibitions are imposed.
    Because we will only identify individuals for reporting on a 
prospective basis, existing beneficiaries with representative payees 
will not be affected by these final rules. Individuals who currently 
receive benefits but who would not qualify for reporting to the NICS 
because they do not currently satisfy all five requirements will be 
reported should a continuing disability review or other disability 
review, such as an age-18 redetermination, demonstrate a change in 
status that would satisfy all five requirements. In that circumstance, 
we would provide the beneficiary oral and written notice of his or her 
potential reporting to the NICS under the regular notice requirements 
established by these rules before we take any action to determine 
capability. In addition, under our regulations, our determination to 
appoint a representative payee for a beneficiary is subject to our 
administrative review process and, ultimately, to judicial review after 
the individual receives our final decision.
    Comment: Several commenters expressed the belief that pursuing 
relief would be a highly expensive process for beneficiaries, and thus 
beneficiaries who could not afford what might be prohibitively 
expensive activities, would effectively be denied due process.
    Response: We will not impose a fee in connection with the filing of 
a request for relief. We anticipate that the cost for acquiring the 
evidence that we require and providing it to us directly will be 
reasonable. In addition to providing us with a completed relief 
application form, consistent with the requirements set forth in section 
421.151(b) of this final rule, an applicant for relief will only be 
required to provide us with: (1) A current statement from his or her 
primary mental health provider that assesses the applicant's current 
mental health status and mental status for the 5 years preceding the 
date of the relief request; and (2) written statements and any other 
evidence regarding the applicant's reputation. We will obtain the 
applicant's criminal history report.
    The requirement that the individual provide us with medical 
evidence, in the form of 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, stems from the requirements of the 
NIAA. Section 101(c)(2)(A)(iii) of the NIAA \8\ provides that 
``[r]elief and judicial review with respect to'' an agency's relief 
program ``shall be available according to the standards prescribed in'' 
18 U.S.C. 925(c). Section 925(c), in turn, provides that relief may be 
granted ``if it is established to [an agency's] 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.'' In order for us to 
determine whether ``the applicant will not be likely to act in a manner 
dangerous to public safety,'' we must necessarily have evidence 
assessing the individual's mental status. The evidentiary requirements 
we are including in final section 421.151(c) will allow us to make the 
determination the NIAA and section 925(c) require us to make.
---------------------------------------------------------------------------

    \8\ 121 Stat. at 2563.
---------------------------------------------------------------------------

Reporting Criteria

    Comment: Multiple individuals commented on the criteria we proposed 
for identifying individuals whose names we would report to the DOJ. 
Many questioned how we selected these criteria for inclusion. One 
commenter suggested that, ``there should be a more specific review of 
these criteria.'' Another individual asked why we did not propose to 
send information on individuals who, among other things, are felons, 
domestic abusers, or unlawful users of controlled substances. Another 
commenter suggested that we conduct a criminal background history as an 
additional step prior to reporting an individual's information to the 
DOJ. One commenter suggested that we include an additional factor to 
consider an individual's propensity for violence, aggressive behavior, 
or self-destructive behavior.\9\
---------------------------------------------------------------------------

    \9\ One commenter raised the issue of our reporting felons to 
the NICS database. This issue is outside the scope of this final 
rule. However, we note that our Office of the Inspector General 
(OIG) has independent statutory obligations under the Inspector 
General Act of 1978 (Pub. L. 95-452; 92 Stat. 1101), as amended. Our 
OIG reports that it provides records to the NICS for individuals on 
whom it has opened an investigation and who are subsequently 
prosecuted in a State or local court. The OIG provides information 
on individuals who fall into the following categories: (1) Certain 
felons (with judgment and conviction orders from a court); certain 
fugitive felons; and (3) certain persons under indictment. The OIG 
does not provide information from their investigations prosecuted in 
Federal courts, because this information is already provided to 
NICS.
---------------------------------------------------------------------------

    Response: As we explained in the NPRM, in choosing the criteria we 
sought to find the best fit between our adjudication regarding a 
claimant's entitlement to benefits and the decision to designate a 
representative payee and the regulatory definition of an individual who 
is subject to the Federal mental health prohibitor. For the reasons we 
discussed in the NPRM,\10\ we believe that there is a reasonable and 
appropriate fit between the criteria we use to decide whether some of 
our beneficiaries are disabled (e.g., a primary diagnosis of a mental 
impairment and meeting or equaling the requirements of one of the 
Mental Disorders Listing of Impairments (Listings) and requiring a 
representative payee because of that mental impairment) and the Federal 
mental health prohibitor.
---------------------------------------------------------------------------

    \10\ 81 FR at 27062.
---------------------------------------------------------------------------

    We have not adopted the comment that we conduct a criminal 
background history in advance, because it does not comport with the 
criteria we are using to identify individuals for referral to NICS and, 
within that framework, a criminal background check is unnecessary. To 
reiterate, we will report an individual's record to the NICS based on 
his or her inability to manage his or her affairs due to a disabling 
mental impairment that meets or equals the criteria found in one of the 
Mental Disorders Listings. A criminal background check is not necessary 
for us to make a determination on that issue. However, we will obtain a 
criminal background check as part of the relief process. The relief 
inquiry focuses on whether the applicant will be likely to act in a 
manner dangerous to public safety, and whether the granting of the 
relief would be contrary to the public interest. The distinction we 
have made in these rules, under which we will obtain a criminal 
background check as part of the relief process, but not as part of the 
referral process, is consistent with the NIAA.
    With respect to the commenters' questions about other categories of 
individuals, such as domestic abusers or unlawful users of controlled 
substances, we note that we do not have records regarding individuals 
who are domestic abusers. In addition, in adjudicating disability 
claims, we do not determine whether a claimant has ``lost the power of 
self-control with reference to the use of a controlled substance,'' as 
contemplated by the ATF regulation. 27 CFR 478.11. Rather, our focus is 
on whether the claimant is capable of

[[Page 91706]]

engaging in substantial gainful activity despite his or her 
impairments. Even where our records identify a claim as involving 
either drugs only or both drugs and alcohol, our electronic records do 
not include structured data on the type of drug use, the extent of the 
use, or on how recently the controlled substance was used. 
Consequently, we have determined that we do not have records that meet 
DOJ's criteria for reporting individuals in this category to the NICS.
    Regarding the suggestion that we consider an individual's 
propensity for violence, aggressive behavior or self-destructive 
behavior before we refer an individual's record to the NICS, the 
relevant Federal law and implementing regulation do not require us to 
find that a beneficiary has a propensity for violence, aggressive 
behavior, or self-destructive behavior before we report his or her name 
to the NICS. The governing ATF regulation defines the Federal mental 
health prohibitor as involving 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 to others; or lacks the 
mental capacity to contract or manage his own affairs.\11\
---------------------------------------------------------------------------

    \11\ 27 CFR 478.11(a)(1)-(2).
---------------------------------------------------------------------------

    The regulation distinguishes between (1) the requirements of being 
a danger to one's self or others; and (2) the lacking of mental 
capacity to contract or manage one's affairs. The DOJ Guidance 
specifically notes that records relevant to the Federal mental health 
prohibitor include agency adjudications of an individual's inability to 
manage his or her own affairs, if the adjudication is based on marked 
subnormal intelligence or mental illness, incompetency, condition or 
disease, and it includes certain agency designations of representative 
or alternate payees for program beneficiaries.\12\ Accordingly, in 
light of the ATF regulation and DOJ Guidance, we believe that we are 
required to find that an individual meets the requirements for the 
Federal mental health prohibitor if he or she meets either of the two 
factors set out in the ATF regulation.
---------------------------------------------------------------------------

    \12\ 81 FR at 27061.
---------------------------------------------------------------------------

    Comment: Several commenters protested against what they thought 
would be our evaluation of all Social Security beneficiaries for 
potential inclusion in the NICS.
    Response: The comment reflects a misunderstanding of our proposed 
rules. We will not evaluate all Social Security beneficiaries for 
potential inclusion in the NICS. As we indicate in section 421.110(b) 
of our rules, the beneficiaries whose names we would submit to the NICS 
must meet five well-defined criteria. The criteria are that the 
individual must have: (1) Filed a claim based on disability; (2) been 
determined by us 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 
Listings; (3) a primary diagnosis code in our records that is based on 
a mental impairment; (4) attained age 18, but have not yet attained 
full retirement age; and (5) benefit payments made through a 
representative payee because we have found him or her incapable of 
managing benefit payments. We will not include any beneficiary who does 
not meet all of those criteria in our reporting to the NICS.
    Comment: We received a significant number of comments expressing 
the view that we should not report certain categories of people to the 
DOJ for inclusion in the NICS based solely on one qualifier. Commenters 
erroneously expressed the belief that we would report names to the NICS 
if they belonged to any one of the following categories: (1) Recipients 
of any type of Social Security benefits; (2) recipients of Supplemental 
Security Income (SSI) payments or Disability Insurance (DI) 
beneficiaries under the Social Security Act; (3) senior citizens; (4) 
DI beneficiaries for other physical, non-mental disabilities; (5) DI 
beneficiaries based on a mental impairment, but who do not have a 
representative payee; (6) have a representative payee for retirement 
benefits but do not receive DI benefits; (7) have a representative 
payee but do not receive DI benefits because of a listing-level mental 
impairment; or (8) no longer receive any type of Social Security 
benefits.
    Response: As we noted in our response to the previous comment, this 
comment reflects a misunderstanding of our rules. As we indicate in 
section 421.110(b) of our rules, the beneficiaries whose names we would 
submit to the NICS must meet all five well-defined criteria. We will 
not report any beneficiary who does not satisfy all five criteria to 
the NICS.
    Comment: One commenter stated that, because we do not make medical 
determinations about Social Security retirement beneficiaries' health, 
we do not have the right to make decisions concerning their mental 
status.
    Response: We agree that we do not make a medical determination when 
an individual files a claim for Social Security retirement benefits. 
For that reason, our proposed rules and these final rules provide that 
in order for us to refer an individual's record to the NICS, he or she 
must, among other things, have filed a claim for disability insurance 
benefits under title II of the Act or supplemental security income 
payments based on disability under title XVI of the Act. We do not and 
will not review the medical records of individuals simply because they 
file a claim for retirement benefits. Our authority to make a 
determination regarding an individual's capacity and the appointment of 
a representative payee is in accordance with the authority granted to 
the Commissioner under the Act.\13\
---------------------------------------------------------------------------

    \13\ 42 U.S.C. 405(b)(1), and (j).
---------------------------------------------------------------------------

    When we appoint a representative payee, we base our determination 
on available medical or other evidence, such as statements from 
relatives, friends, or people in positions to observe the 
beneficiary.\14\ This process includes gathering medical evidence from 
the disability folder or a treating physician, obtaining information 
from family members or friends about the person's ability to manage 
finances, and asking the individual how he or she handles monthly 
expenses and financial decisions.\15\
---------------------------------------------------------------------------

    \14\ 20 CFR 404.2015(b) and (c); 416.615(b) and (c).
    \15\ Id.
---------------------------------------------------------------------------

    Comment: Multiple commenters expressed the belief that we would 
report beneficiaries to the NICS solely based on their having a 
representative payee. Further, commenters opined that having an 
alternate payee, or requiring some help with financial arrangements 
such as receipt of Social Security benefits, does not demonstrate 
mental incompetence.
    Response: As noted in our responses to previous comments, this 
comment reflects a misunderstanding of our rules. As we indicate in 
section 421.110(b) of our rules, the beneficiaries whose names we would 
submit to the NICS must meet all five well-defined criteria. We will 
not report to the NICS any beneficiary who does not satisfy all five of 
those criteria. We will not report a person to the NICS simply because 
the person has a representative payee if they do not meet all of the 
other criteria.
    The DOJ Guidance, with which we are complying, specifically 
indicates that records relevant to the NICS include ``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.'' The DOJ 
further

[[Page 91707]]

indicated that this category of records includes certain agency 
designations of representative or alternate payees for program 
beneficiaries.\16\
---------------------------------------------------------------------------

    \16\ 81 FR at 27061.
---------------------------------------------------------------------------

    Comment: Several individuals expressed concern that we would decide 
to expand the categories of names to submit to the NICS beyond the 
scope of the current rules without justification or prior notice.
    Response: Prior to making any changes that would revise or 
otherwise substantively change the scope of the current rules, we would 
follow the Administrative Procedure Act's procedures of notice and 
comment rulemaking, similar to the process we followed in publishing 
these rules.

Mental Illness

Connection to Violence, Potential for Stigmatization

    Comment: Commenters questioned the decision to add beneficiaries' 
names to the NICS based on mental illness, stating we had not provided 
data indicating that mental illness was a precursor for violence 
(particularly gun violence).
    Response: We are not attempting to imply a connection between 
mental illness and a propensity for violence, particularly gun 
violence. Rather, we are complying with our obligations under the NIAA, 
which require us to provide information from our records when an 
individual falls within one of the categories identified in 18 U.S.C. 
922(g). As we have noted previously, the ATF has clarified through 
regulation that the prohibitor referenced in 18 U.S.C. 922(g)(4) covers 
an individual determined by a court, board, commission or other lawful 
authority to be a danger to himself or others or to lack the mental 
capacity to contract or manage his or her own affairs as a result of 
marked subnormal intelligence, or mental illness, incompetency, 
condition or disease.\17\ A finding regarding an individual's ability 
to manage his or her own affairs does not require us to find that an 
individual has a propensity for violence before we report his or her 
name to the NICS. For that reason, the studies that the commenters 
cited regarding the relationship between mental illness and gun 
violence do not require us to make any changes to these rules.
---------------------------------------------------------------------------

    \17\ 27 CFR 478.11(a)(1)-(2).
---------------------------------------------------------------------------

    Comment: Multiple commenters opined that these rules would unfairly 
stigmatize those with mental illness.
    Response: We are committed to treating all beneficiaries with 
dignity and respect. To that end, we regularly collaborate and consult 
with mental health and other advocacy groups and organizations to stay 
informed and responsive to the needs of beneficiaries with mental 
health issues. Our collaboration with these organizations includes, 
among other activities, hosting regular meetings, soliciting input on 
agency initiatives, and participating in national and regional 
conferences. We are not attempting to stigmatize individuals who have a 
mental illness, but are simply following the requirements imposed by 
Congress in the NIAA.
    We would also like to highlight that when we report a beneficiary 
for inclusion in the NICS, we will disclose directly to the FBI a 
beneficiary's name, full date of birth, sex, and Social Security 
number. We will not include specific medical information with our 
report. We will inform the FBI only of the fact that the individual 
meets the criteria for inclusion in the NICS due to a mental health 
prohibitor, but we will not provide any details on the individual's 
specific diagnosis. The information will not be made public, and will 
be used solely for the purposes of the NICS program. Moreover, a 
Federal Firearms Licensee (FFL) who submits a NICS request when an 
individual attempts to purchase a firearm from the FFL would not know 
the reason for the individual's inclusion, or even which Federal agency 
had reported the individual's name to NICS. FFLs only receive a 
transaction number and a status of Delay, Deny, or Proceed (for the 
firearm purchase), which will avoid embarrassment or stigmatization for 
Social Security beneficiaries whose names we refer for inclusion in 
NICS.
    Comment: Some commenters expressed concern that individuals might 
choose not to seek mental health treatment or apply for Social Security 
benefits out of fear that we would submit their information to the DOJ 
for inclusion in the NICS. One commenter stated that, ``[t]he end 
result of this will be many will be very reluctant to seek help, and 
will refuse the help of a payee, if that is to be automatically 
reported in this way.'' Another commenter suggested that, ``[o]ne 
unintended consequence of the proposed action will be to introduce a 
tremendous disincentive to those who would seek medical assistance.''
    Response: It is not our intent to discourage individuals from 
seeking disability benefits or appropriate mental health services. 
While the outcome of our decision may mean that some beneficiaries will 
meet the criteria for inclusion in the NICS as detailed in section 
421.110(b)(1)-(5) of our rules, our disability process will remain the 
same. It is also important to note that an FFL who submits a NICS 
request when an individual attempts to purchase a firearm from the FFL 
would not know the reason for the individual's inclusion, or even which 
Federal agency had reported the individual's name to NICS. FFLs only 
receive a transaction number and a status of Delay, Deny, or Proceed 
(for the firearm purchase), avoiding embarrassment or stigmatization 
for Social Security beneficiaries whose names we refer for inclusion in 
NICS.

Mental Illness Determination

    Comment: We received several comments questioning how we determine 
whether individuals are disabled based on their diagnosed mental 
disorders. One commenter stated that, ``[t]he parameters established 
within this rule are entirely too vague.'' The commenter went on to 
opine that the proposed rules rely on factors that are ``severely 
error-prone,'' suggesting that our system `` `red flags' too many 
claims based simply on the mentioning of certain terms (i.e. `red 
flagging' claims as `suicidal' based solely on the term `suicide' 
within a person's records . . . even if the actual reference is 
`claimant states he does not have any suicidal ideations.' '') Another 
commenter stated that we do not explain the severity required to 
satisfy a mental disability listing.
    Response: The Act and our implementing regulations set out the 
rules we apply for deciding whether an individual is disabled. The Act 
defines ``disability'' as the inability to engage in any substantial 
gainful activity by reason of any medically determinable physical or 
mental impairment(s) which can be expected to result in death or which 
has lasted or can be expected to last for a continuous period of not 
less than 12 months. A medically determinable physical or mental 
impairment is an impairment that results from anatomical, 
physiological, or psychological abnormalities, which are demonstrated 
by medically acceptable clinical and laboratory diagnostic techniques. 
The medical evidence must establish a physical or mental impairment 
consisting of signs, symptoms, and laboratory findings. An individual's 
statement of symptoms is not sufficient basis for a determination of 
disability.
    Our rules for evaluating mental disorders can be found in 20 CFR 
404.1520a and 416.920a. We consider the medical severity of mental

[[Page 91708]]

disorder(s) using the mental disorders listings in appendix 1 of 20 CFR 
part 404, subpart P. We describe the severity required to satisfy a 
mental disorders listing in sections 404.1525 and 416.925 of our rules. 
For adults, the Listings describe 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 of 
the listed impairments are permanent or expected to result in death, or 
the listing includes a specific statement of duration. For all other 
listings, the evidence must show that the impairment has lasted or is 
expected to last for a continuous period of at least 12 months. Our 
criteria for deciding disability may differ from the criteria applied 
in other government and private disability programs.
    When we make an initial determination whether an individual has a 
severe medical impairment or an impairment that meets or equals the 
severity of an impairment in the Listings, a team consisting of a 
doctor and disability examiner reviews the claimant's statements and 
the relevant evidence together. We base a determination on a thorough 
review and evaluation of an individual's record and not solely on the 
use of one term or ``flag.'' The criteria that we use to determine 
disability for individuals with mental impairments is well-known and is 
published in the Act, our regulations, and our sub-regulatory 
instructions, all of which are available to the public on our Internet 
site.
    Comment: Multiple commenters stated that, because our adjudication 
of an individual as disabled under our mental disorders listings causes 
the individual's name to be included in the NICS, commenters' perceived 
flaws in the adjudication process could lead to unfair inclusion in the 
NICS. Concerns were raised about the ability of our employees to 
participate in what seems to be a medical decision. Commenters also 
discussed the possible lack of input by medical professionals during 
the determination process. Multiple commenters raised the idea that it 
is difficult to properly diagnose mental illness at all.
    Response: Our disability determination process for adults includes 
making medical determinations and evaluating claimants' mental 
impairments based on medical and other evidence. We follow a required 
sequential evaluation process in order and stop as soon as we can make 
a determination or decision. The steps are:
    1. Is the individual working, and is the work substantial gainful 
activity? If the answer is yes, we will find him or her not disabled. 
If the answer is no, we will move on to step 2.
    2. Does the individual have a severe impairment? If the individual 
does not have an impairment or combination of impairments that 
significantly limits his or her physical or mental ability to do basic 
work activities, we will find him or her not disabled. If the 
individual does, we will go on to step 3.
    3. Does the individual have an impairment(s) that meets or 
medically equals the severity of an impairment in the Listings? The 
Listings are examples of impairments that we consider severe enough to 
prevent an adult from doing any gainful activity. If the individual has 
an impairment(s) that meets or medically equals the severity of an 
impairment in the Listings, and the impairment(s) meets the duration 
requirement, we will find him or her disabled.\18\
---------------------------------------------------------------------------

    \18\ We will not report to the NICS individuals whom we find 
disabled at step 5 of the sequential evaluation process.
---------------------------------------------------------------------------

    When we evaluate whether an individual has a severe medical 
impairment or whether an impairment meets or equals the severity of an 
impairment in the Listings at the third step of our sequential 
evaluation, a team consisting of a doctor and disability examiner 
reviews the claimant's statements and the relevant evidence together. 
Our team will ask the claimant's doctors about the claimant's medical 
impairments, when the impairments began, how the impairments limit the 
claimant's activities, what the results of medical tests were, and what 
treatment the claimant received. They will also ask the claimant's 
doctors for information about the claimant's ability to perform work-
related activities, such as walking, lifting, carrying, and remembering 
instructions.
    Although mental impairments are qualitatively different from 
impairments that affect physical body systems, such as the 
cardiovascular or musculoskeletal body systems, mental impairments can 
and do prevent people from working. Our mental disorders listing 
criteria, which we recently updated effective January 17, 2017, 
accurately and reliably identify the mental impairments that prevent 
claimants from engaging in any gainful activity. Additionally, section 
221(h)(1) of the Act requires us to make reasonable efforts to ensure 
that a qualified psychiatrist or psychologist completes the medical 
review of cases involving mental impairments before we make a 
determination on a claim for benefits.\19\
---------------------------------------------------------------------------

    \19\ 42 U.S.C. 421(h)(1), as amended by section 832(a) of the 
Bipartisan Budget Act of 2015, Public Law 114-74, 129 Stat. 584, 
613.
---------------------------------------------------------------------------

    Comment: Multiple commenters focused on our classification and 
diagnosis of mental disorders in general. One commenter asked which 
mental disorders would be included in the criteria under section 
421.110 of our rules. One commenter stated that the term ``mental 
impairment'' itself is unclear and asked ``[h]ow and who will define 
this impairment and to what degree will be considered worthy to report? 
If I have a panic attack is that worthy?'' Another wondered if, ``[f]or 
purposes of this rule, anxiety, abnormal sleep/appetite, inflated self-
esteem, or decreased energy, combined with alleged difficulty in 
managing money, are sufficiently disabling to disqualify a person from 
possessing firearms.'' Hundreds of commenters asked if Post Traumatic 
Stress Disorder (PTSD) was an included impairment. Multiple commenters 
expressed concern that the disorders included in section 12.00 of the 
Listings are too broad, and equate ``severe mental issues the same as 
other issues'' such as ``eating and anxiety disorders.''
    Response: As we explained in the NPRM, we will report an 
individual's record only if we have determined the individual to be 
disabled based on a finding that his or her impairment(s) meets or 
medically equals the requirements of one of the mental disorder 
listings and if he or she meets all the other four criteria. If any of 
these criteria are not met, we will not submit the individual's name to 
the NICS.
    For an impairment to meet or medically equal a listing, an 
individual's symptoms must establish that he or she has a medically 
determinable mental impairment. A medically determinable mental 
impairment results from anatomical, physiological, or psychological 
abnormalities demonstrated by medically acceptable clinical and 
laboratory diagnostic techniques. The impairment must be established by 
medical evidence consisting of signs, symptoms, and laboratory 
findings, not only by the claimant's statement of symptoms alone.\20\ 
Specific signs or symptoms of a mental impairment combined with an 
alleged difficulty in managing money, alone, will not meet or equal one 
of the mental disorders listings. The claimant's mental impairment must 
also result in limitations in the claimant's ability to

[[Page 91709]]

function to the degree required by the listing criteria.
---------------------------------------------------------------------------

    \20\ 20 CFR 404.1508 and 416.908.
---------------------------------------------------------------------------

    The Listings cover many categories of mental impairments to ensure 
that we can evaluate the types of impairments with which claimants are 
diagnosed. The Listings include criteria that, when satisfied, indicate 
that a person has a mental impairment that is disabling under our 
rules. PTSD is an example of an impairment that could meet or equal one 
of the Listings, if the claimant's signs, symptoms, and functional 
limitations rise to the level of severity required in the listing for 
PTSD.
    On September 26, 2016, we published a comprehensive update to our 
mental disorders Listings, ensuring that the criteria we use to 
determine the presence of disability based on a mental impairment--and, 
by extension, the criteria that underlie our referrals to NICS--reflect 
the most modern medical standards in this area.\21\
---------------------------------------------------------------------------

    \21\ 81 FR 66138. The revised mental impairment listings will 
become effective on January 17, 2017. Id. at 66138. We based this 
revision to our mental impairment listings on the American 
Psychiatric Association's latest revision to the Diagnostic and 
Statistical Manual of Mental Disorders, the fifth edition, published 
in May 2013. Id., at 66139.
---------------------------------------------------------------------------

Privacy and Confidentiality

    Comment: Several commenters stated that our sending information to 
the NICS would violate beneficiaries' right to privacy, both generally 
and with regard to their medical information.
    Response: We have stringent privacy and disclosure policies that 
protect our beneficiaries' right to privacy. We will not report any 
specific medical information when we report to the NICS. To meet the 
NIAA's requirement to report relevant records to the NICS, we will 
report only the name, full date of birth, sex, and Social Security 
number for each beneficiary who meets the criteria for inclusion in the 
NICS. The FBI will only be informed of the fact that the individual 
meets the criteria for inclusion in the NICS due to a mental health 
prohibitor, but we will not provide any details on the individual's 
specific diagnosis. Moreover, FFLs submitting a NICS request when an 
individual attempts to purchase a firearm from the FFL would not know 
the reason for the individual's inclusion, or even which Federal agency 
had reported the individual's name to NICS. FFLs only receive a 
transaction number and a status of Delay, Deny, or Proceed (for the 
firearm purchase), further protecting the privacy of Social Security 
beneficiaries whose names we refer for inclusion in NICS.
    Our disclosure of individual information to the DOJ for the NICS 
complies with the Privacy Act of 1974, 5 U.S.C. 552a; our privacy 
regulations, 20 CFR part 401; and all other applicable Federal law. We 
are publishing a new Privacy Act systems of records notice and, as 
appropriate, we will amend existing systems of records notices to cover 
the maintenance and disclosure of information for reporting individuals 
to the NICS.\22\ The systems of records notices will describe how we 
will report data to the NICS and the permitted uses of the data. Any 
systems of records from which we disclose information to the DOJ for 
the NICS will contain routine uses authorizing the disclosure of the 
information, without the consent of the individuals to whom the 
information pertains.\23\
---------------------------------------------------------------------------

    \22\ 5 U.S.C. 552a(e)(4).
    \23\ 5 U.S.C. 552a(b)(3).
---------------------------------------------------------------------------

    Comment: We received multiple comments from individuals stating 
that our proposed rules conflicted with HIPAA privacy rights or doctor-
patient confidentiality.
    Response: Our rules do not conflict with HIPAA because we will not 
share any specific medical information with the NICS. When we report an 
individual's record to the NICS, we will provide only his or her name, 
full date of birth, sex, and Social Security number. Moreover, HIPAA 
and any laws governing doctor-patient confidentiality do not apply to 
our disclosure of information from information maintained in agency 
systems of records to the DOJ for the NICS.

Representative Payee Appointment

    Comment: We received many comments expressing concern about the 
manner in which we appoint representative payees. Some comments 
expressed the belief that we may force the appointment of 
representative payees for certain beneficiaries who do not require 
their services. Other commenters conveyed that perceived flaws in the 
representative payee appointment process would result in the 
unnecessary appointment of a representative payee and, consequently, 
unfair inclusion of names in the NICS. Multiple commenters questioned 
the manner in which we appoint representative payees. One individual 
questioned the thoroughness of our representative payee evaluation 
process, while others suggested that we should require direct medical 
evidence to support the need for a representative payee.
    Response: Congress first authorized us to direct the payment of an 
individual's benefits to a representative payee as part of the Social 
Security Act Amendments of 1939, so we have over 75 years of experience 
making capability findings and appointing payees for individuals. Under 
our policy, we presume that a legally competent adult beneficiary can 
manage or direct the management of his or her benefits unless there are 
indicators to the contrary. We will appoint a representative payee for 
a beneficiary who is under age 18 or a beneficiary who is age 18 or 
older and is legally incompetent or unable to manage or direct 
management of his or her benefits due to a physical or mental 
condition.\24\ When we appoint a representative payee because a 
beneficiary is legally incompetent, we base our determination to do so 
on a court order.\25\
---------------------------------------------------------------------------

    \24\ We will not appoint a representative payee for a 
beneficiary who is age 15 to 17 and is emancipated under State law, 
unless we determine the beneficiary is incapable.
    \25\ 20 CFR 404.2015(a) and 416.615(a).
---------------------------------------------------------------------------

    We do not appoint a payee for an individual unless we determine 
this is necessary because the individual's interests would be better 
served by the appointment of a payee. We do not, and under these rules 
we will not, appoint a payee for any individual who does not need one. 
When we appoint a representative payee for reasons other than the 
beneficiary's legal incompetency, we base our determination on the 
available medical or other evidence, such as statements from relatives, 
friends, or people in positions to observe the beneficiary.\26\ This 
process includes gathering medical evidence from the disability folder 
or a treating medical source, obtaining information from family members 
or friends about the person's ability to manage finances, and asking 
the individual how they handle monthly expenses and financial 
decisions.\27\ We then identify an individual or organization to serve 
as representative payee.
---------------------------------------------------------------------------

    \26\ 20 CFR 404.2015(b) and (c); 416.615(b) and (c).
    \27\ Id.
---------------------------------------------------------------------------

    When we propose to appoint a representative payee because of 
incapability, we provide the beneficiary with the right to protest and 
appeal the capability determination prior to the appointment. The 
beneficiary can also protest our choice of payee.\28\
---------------------------------------------------------------------------

    \28\ 20 CFR 404.902 and 416.1402.
---------------------------------------------------------------------------

    We are committed to continuous improvement of the representative 
payee program. Our goal is to ensure that beneficiaries who cannot 
manage or direct the management of their benefits have representative 
payees who will serve their best interests. When selecting payees, we 
look for any factors that could disqualify a person from

[[Page 91710]]

serving as a payee. For example, a person who has committed Social 
Security fraud may not be a payee. In addition, we conduct criminal 
background checks on certain representative payee applicants. We also 
bar representative payee applicants who have been convicted of serious 
felonies from serving as a representative payee.
    The Social Security Protection Act of 2004 (SSPA) expanded our 
monitoring program by requiring us to conduct periodic reviews for any 
organizational payee that serves 50 or more beneficiaries, and 
individual payees serving 15 or more beneficiaries. In addition to 
these required reviews, we also conduct additional reviews of 
organizational and individual payees.
    The SSPA provided us with additional methods to penalize 
representative payees found to have misused benefits, including: Making 
payees forfeit fee for service monies; enhancing our ability to hold 
payees liable for misused benefits; and granting us authority to impose 
civil monetary penalties when a payee misuses benefits.
    In response to the SSPA, we developed an online misuse tracking 
system that we use to store and track all allegations of misuse of 
benefits. To help prevent misuse, we improved our training materials 
for individual and organizational representative payees. We also 
published revised instructions for our technicians, providing them with 
clarified and streamlined policies and procedures for processing misuse 
cases.
    We also have sought recommendations for representative payee 
program improvement from external entities such as the National Academy 
of Sciences and National Academy of Medicine.
    Comment: Several commenters questioned beneficiaries' ability to 
remove a representative payee once we appoint one. One commenter asked 
how we determine if an individual no longer needs a representative 
payee, and another opined that it is much more difficult to remove a 
representative payee than it is to obtain one.
    Response: Our general policy starts with a presumption that every 
beneficiary has the right to direct payment.\29\ At any time, a 
beneficiary whom we have determined to be incapable may request a 
capability determination. We may also conduct a capability 
determination if we have reason to believe that an incapable 
beneficiary may have become capable of managing or directing management 
of his or her own benefits. We apply the same standards for the 
appointment or removal of a representative payee--ability or inability 
to manage or direct the management of benefits due to a physical or 
mental condition. If the beneficiary proves that he or she is capable, 
he or she will receive direct payment.\30\ However, in response to 
these comments, we have clarified in these final rules that we will 
notify the Attorney General, or his or her designate, that an 
individual's record should be removed from the NICS when we find that 
an individual whom we previously required to have benefit payments made 
through a representative payee is now capable of managing his or her 
benefit payments without the need for a representative payee. We also 
have clarified several other situations in which we will notify the 
Attorney General to remove an individual's name from the NICS.
---------------------------------------------------------------------------

    \29\ 20 CFR 404.2001 and 416.601.
    \30\ 20 CFR 404.2055 and 416.655.
---------------------------------------------------------------------------

    Comment: One commenter stated, ``Presumably, a current recipient 
who can manage his/her own financial affairs and is in fact receiving 
benefits directly (e.g., direct deposit to bank account) would not fall 
under the above-mentioned phrase, and would retain the right to own, 
possess, etc., firearms. If this is true, I would recommend making that 
clearer in the [final] Rule.'' Another asked, ``If disability benefits 
under Title II or Title XVI of the Social Security Act are NOT received 
through a representative payee (i.e., a third party), does the proposed 
rule to the NIAA still apply?'' Many commenters expressed concern that 
an individual who assigns a representative payee for a temporary period 
or for convenience would be unfairly reported for inclusion in the 
NICS. A common scenario described by commenters was that of retired 
individuals who asked their children to pay their bills during an 
extended vacation. Another scenario described was that of a mentally 
capable individual with a physical disability who, due to an inability 
to write checks or drive, was assigned a representative payee.
    Response: We clearly state in section 421.110(b) of our rules that 
the beneficiaries whose names we will submit to the NICS must meet all 
five well-defined criteria. We will not include any beneficiary who 
does not meet all of these criteria. We will not report a person to the 
NICS simply because the person has a representative payee if he or she 
does not meet all of the other criteria. Conversely, we will not report 
information regarding an individual who has a mental impairment if we 
have not appointed a representative payee for the individual, because 
that individual would not meet all of the criteria for NICS reporting 
in our rules.
    Beneficiaries cannot appoint a representative payee, nor can we 
name a representative payee without evidence indicating that the 
individual is legally incompetent or unable to manage or direct 
management of his or her benefits due to a physical or mental 
condition.\31\ We presume that a legally competent adult beneficiary 
can manage or direct the management of his benefits unless there are 
indicators to the contrary. Therefore, we do not appoint a 
representative payee for beneficiaries solely because they require 
assistance with financial matters or as a matter of convenience for the 
beneficiary.
---------------------------------------------------------------------------

    \31\ 20 CFR 404.2001; 416.601.
---------------------------------------------------------------------------

Relief Process

    Comment: Multiple commenters asked for specific information about 
the relief process, including when and at what points in the NICS 
inclusion decision process a request for relief could be submitted and 
reviewed, what documentation and evidence would be required to request 
relief, and who would review the evidence and make relief decisions.
    Response: As we explained in the NPRM, consistent with section 
101(a)(2)(A) of the NIAA, we will allow a person who is subject to the 
Federal mental health prohibitor to apply for relief from the Federal 
firearms prohibitions as a result of our adjudication. In section 
421.150(a) of our rules, we indicate that an individual may apply for 
relief once our adjudication has become final.
    In addition to providing us with a completed relief application 
form, consistent with the requirements set forth in section 421.151(b) 
of this final rule, we require the individual who requests relief to 
provide us with 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, including a statement addressing whether 
the applicant has ever been a danger to himself or others and whether 
the applicant would pose a danger to himself or others if we granted 
the applicant's request for relief and the applicant purchased and 
possessed a firearm and ammunition. We also require an applicant for 
relief to submit written statements and any other evidence regarding 
the applicant's reputation including a statement addressing whether the 
applicant would

[[Page 91711]]

pose a danger to himself or others if we granted the applicant's 
request for relief and the applicant purchased and possessed a firearm 
and ammunition. We will obtain and consider a relief applicant's 
criminal history report as part of the relief process. We specify the 
details of the evidentiary requirements in section 421.151 of our 
rules.
    We have not yet determined the details regarding who in our agency 
would review the evidence and issue relief decisions. We will publish 
this information in the Federal Register as part of the Paperwork 
Reduction Act process once we have finalized our business process, and 
the public will have an opportunity to review and respond to more 
relief details, including what information will be required and who 
will review the request.
    Comment: Commenters suggested that we simplify the relief process 
for beneficiaries and representatives. Many expressed their disapproval 
that affected individuals would be required to request that their names 
be removed from the list and to provide evidence to our satisfaction to 
be removed from the list. Many highlighted the fact that the burden of 
proof for non-inclusion would lie with the individual. Other commenters 
found it problematic that our relief process does not make provision 
for a formal hearing before an adjudicative authority or allow the 
examination of witnesses. Several others suggested that we should 
provide legal counsel to those individuals whom we report to the DOJ.
    Response: We have established a simple and direct process that 
satisfies the requirements of the NIAA. In addition to providing us 
with a completed relief application form, consistent with the 
requirements set forth in section 421.151(b) of this final rule, an 
applicant for relief will only be required to provide us with: (1) A 
current statement from his or her primary mental health provider 
assessing the applicant's current mental health status and mental 
status for the 5 years preceding the date of the relief request; and 
(2) written statements and any other evidence regarding the applicant's 
reputation. We will not impose a fee in connection with the filing of a 
request for relief. We anticipate that the cost for acquiring the 
evidence that we require and providing it to us directly will be 
reasonable. Moreover, the required evidence is more easily attained by 
the applicant directly. We will obtain the applicant's criminal history 
report on his or her behalf.
    Section 101(a)(2)(A) of the NIAA provides that relief shall be 
available according to the standards prescribed in 18 U.S.C. 925(c). 
Section 925(c) states that relief may be granted if it is established 
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. It is 
generally appropriate under the law to place the burden of production 
and proof on the proponent of an order. In this case, that means the 
person who applies for relief must demonstrate his or her entitlement 
to relief, and there is no indication in the NIAA or any other 
provision of law that Congress intended to alter that normal rule. 
Similarly, the NIAA does not provide for the appointment of legal 
counsel for those seeking relief, nor is the appointment of counsel 
generally required under civil law.
    Finally, in addition to the successful pursuit of relief from the 
NICS prohibitions, in new section 421.130 of the final rules, we have 
added three additional bases for removal of an individual's information 
from the NICS database. These bases apply when: (1) We find that an 
individual whom we previously required to have benefit payments made 
through a representative payee is now capable of managing his or her 
benefit payments without the need for a representative payee; (2) We 
are notified that the individual has died; or (3) We receive 
information that we reported an individual's record to the NICS in 
error (e.g., we reported to the NICS the record of an individual who 
does not have a primary diagnosis code in our records that is based on 
a mental impairment, or we reported the record of an individual who 
does not have a representative payee).
    Comment: Multiple commenters sought clarification about what 
evidence we would consider when we review a request for relief. One 
commenter specifically asked about issues relating to documents 
attesting to a person's character and 5 years of mental health records, 
such as the availability of these records and who would be required or 
allowed to provide them. The commenter questioned whether a ``clean'' 
criminal record or State background check would qualify as 
documentation attesting to a person's character. Another commenter 
questioned the specifics of how we would propose that relief ``may'' be 
granted if an individual could establish to our ``satisfaction'' that 
the applicant will not be likely to act in a manner dangerous to public 
safety.
    Response: The relief process that we outlined in the NPRM is based 
on the NIAA, which indicates that relief and judicial review ``shall be 
available according to the standards prescribed in section 925(c) of 
title 18, United States Code.'' That section of the law states that 
relief may be granted ``if it is established to [an agency's] 
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.''
    Section 421.151 of our rules specifies the evidence we will 
consider when we decide whether to grant an application for relief. It 
indicates that we will consider the applicant's record, which must 
include the applicant's mental health records and a criminal history 
report, and written statements regarding the applicant's character. We 
will obtain a criminal history report on the applicant's behalf. The 
rule states that the applicant must provide evidence from his or her 
primary mental health provider and written statements regarding the 
applicant's character. This evidence must include statements addressing 
(1) whether the applicant would pose a danger to himself or others if 
we granted the applicant's request for relief, and the applicant then 
purchased and possessed a firearm and ammunition, and (2) whether the 
applicant has a reputation for violence in the community.
    We will provide other procedural details of our relief process in 
sub-regulatory guidance, as well as in the Federal Register as part of 
the Paperwork Reduction Act process, once we have finalized our 
business process. The public will have an opportunity to review and 
respond to additional details about the relief process, including what 
information will be required, in response to the Paperwork Reduction 
Act process.
    Comment: One commenter questioned how beneficiaries could find out 
what their specific primary diagnosis was in order to best seek relief 
from inclusion in the NICS. The commenter also asked about the 
possibility of disputing the diagnosis, particularly when a secondary 
diagnosis is also involved in the adjudication of being disabled.
    Response: We provide claim information to individuals upon their 
request. Under the Privacy Act of 1974 and our regulations, an 
individual may request access to his or her records maintained in 
agency Privacy Act systems of records, including those under which we 
maintain diagnosis

[[Page 91712]]

information.\32\ Our regulations require individuals to verify their 
identity when making an access request.\33\ A beneficiary who proves 
his or her identity has the right to access his or her disability file 
in accordance with our rules.\34\ The medical records include 
information about the beneficiary's primary and secondary diagnosis, if 
applicable.
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    \32\ 5 U.S.C. 552a(d); 20 CFR 401.35-401.40.
    \33\ 20 CFR 401.45.
    \34\ 20 CFR 401.50, 401.55.
---------------------------------------------------------------------------

    Criteria for inclusion in the NICS include that an individual is 
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 listings.\35\ These 
listings consist of medical conditions that we consider severe enough 
to prevent a person from doing any gainful activity, regardless of age, 
education, or work experience. Individuals whose impairments meet a 
listing are the most severely disabled individuals we serve. If we find 
an individual to be disabled based on a listing-level mental 
impairment, and he or she satisfies all of the remaining four 
requirements, we are required to report them to the NICS. If we do not 
find an individual to be disabled based on a mental impairment, he or 
she has not met the reporting requirements and we will not report them 
to the NICS.
---------------------------------------------------------------------------

    \35\ 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.
---------------------------------------------------------------------------

    Our administrative review process and the request for relief 
process are two different processes. If an individual wishes to appeal 
our disability determination or decision they may do so within the 
appeal period, which is generally 60 days after being notified of our 
determination or decision.
    However, appealing a disability decision is not part of the NICS 
relief process. It is important to note that the qualifications for 
inclusion in the NICS are not the same as the qualifications for relief 
prescribed by 18 U.S.C. 925(c); that is, proof that he or she is not 
likely to act in a manner dangerous to public safety and that granting 
relief from the prohibitions will not be contrary to the public 
interest.
    Comment: Several individuals expressed concern over the anticipated 
length of time for the processing of a request for relief, stating that 
30 days was insufficient time to gather and submit all of the required 
information, particularly as it involved actions by other government 
agencies or individuals. One individual expressed concern about the 30-
day deadline for the submission of evidence supporting a beneficiary's 
request for relief in contrast to our 365-day response time. Several 
other commenters also questioned our ability to respond within the 365-
day period, given current delays in the NICS-related relief programs 
run by other Federal agencies.
    Response: In response to the comments we received expressing 
concerns about the 30-day deadline, we have revised the rules to 
eliminate this timeframe. Under the final rules, an individual may 
request relief at any time after our adjudication that the individual 
is subject to the Federal mental health prohibitor has become final. We 
will accept an individual's request for relief once he or she has 
compiled all of the evidence that we require, as set forth in section 
421.151 of this final rule. We believe that this revised process for 
requiring that the applicant submit his or her evidence along with a 
request for relief comports with due process and allows us to process 
the application for relief no later than 365 days after receipt of the 
complete application and all required supporting documentation and 
evidence, as required under the NIAA. We will work in good faith to 
respond to all requests for relief promptly and within the 365-day 
period. Finally, there is no limit to the number of times a person can 
apply for relief.
    Comment: One commenter suggested that we should not report to the 
DOJ individuals awaiting a response to their petition for relief unless 
a judge deems it appropriate.
    Response: This suggestion is contrary to the language of the NIAA, 
which permits a person to apply for relief from the firearms 
prohibitions imposed by 18 U.S.C. 922(g)(4) and does not require 
judicial review prior to reporting. Further, as noted under section 
421.170 of our rules, if we deny the applicant's request for relief, he 
or she may then seek judicial review of our action.
    Comment: Multiple commenters asked if we would develop a procedure 
other than seeking relief to request the removal of individuals' names 
from the NICS for individuals who no longer meet the criteria that were 
the cause of their original inclusion in the NICS.
    Response: As we noted in response to a prior comment, in addition 
to the successful pursuit of relief from the NICS prohibitions, in 
section 421.130 to the final rules, we have added three additional 
bases for removal of an individual's information from the NICS 
database. Specifically, we will notify the Attorney General to remove 
an individual's name from the NICS when: (1) We find that an individual 
whom we previously required to have benefit payments made through a 
representative payee is now capable of managing his or her benefit 
payments without the need for a representative payee; (2) We are 
notified that the individual has died; or (3) We receive information 
that we reported an individual's record to the NICS in error (e.g., we 
reported to the NICS the record of an individual who does not have a 
primary diagnosis code in our records that is based on a mental 
impairment, or we reported the record of an individual who does not 
have a representative payee).
    Comment: One commenter stated that, ``there is no guarantee that 
the same prejudices that the rule creates in the first place won't 
reassert themselves'' in the relief process.
    Response: We use the same process to determine disability and to 
determine whether the individual needs a representative payee for each 
individual who applies for disability benefits. We determine whether a 
beneficiary is eligible for inclusion in the NICS after the disability 
process is complete. Therefore, there will be no opportunity for 
prejudice or bias concerning whether a beneficiary should be included 
in the NICS, because it is not a consideration during the disability 
determination process.
    In addition, there will be no opportunity for bias or prejudice 
when we process a request for relief because, under 20 CFR 421.165, a 
different decision maker who was not involved in the beneficiary's 
disability or capability determinations, will review the evidence and 
act on the request for relief. We will follow the requirements of the 
NIAA and apply principles of due process in determining applicants' 
entitlement to relief from the Federal firearms prohibitions imposed as 
a result of our adjudication. Judicial review of our action denying an 
applicant's request for relief is available according to the standards 
set forth in 18 U.S.C. 925(c).

Resources Concerns

    Comment: Several commenters expressed that this policy would be an 
unnecessary waste of the Government's time and resources. One commenter 
opined that implementing the proposed rules would add to the workload 
of SSI cases and risk additional backlogs, without any offsetting 
improvement to public safety.
    Response: While we note the commenters' concerns, in issuing these 
rules we are satisfying our legal obligations under the NIAA that 
require Federal agencies to provide relevant

[[Page 91713]]

records to the Attorney General for inclusion in the NICS.

Comments in Support of the Rule

    Multiple commenters expressed support for the rule. Several 
individual commenters were in favor of our reporting certain 
individuals to the NICS database based on their expressed belief that 
some persons with mental illness should not be allowed to own firearms, 
because they could pose a danger to themselves or others. Some 
commenters spoke in their capacity as relatives and representative 
payees for Social Security beneficiaries with mental illness. One such 
commenter stated that if ``someone does not have enough mental capacity 
to handle personal finances, he certainly does not have enough mental 
capacity to have access to guns.'' Another commenter opined that 
medical professionals should support the rules, because clinicians 
would not want to authorize anyone to possess a firearm for legal 
liability reasons.
    Several advocacy groups also articulated support for the rules. One 
group supported the rules as written. One group suggested we should 
expand the criteria used to identify names for inclusion in the NICS, 
stating that, ``One issue not addressed by the proposed rule is the 
NICS status of future applicants for benefits who are dangerous due to 
severe mental illness, but who do not have third party representatives 
who receive payments on their behalf.'' This commenter encouraged us to 
consider ways to expand the rule to include those beneficiaries who 
pose a danger to themselves or others, regardless of whether their 
payments are made to a representative payee.

Regulatory Procedures

Executive Order 12866

    We have consulted with the Office of Management and Budget (OMB) 
and determined that these final 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 final 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 final rules contain new public reporting burdens in sections 
Sec.  421.150(b), 421.151(b)(1) and (2), 421.151(c)(1), (2) and (3), 
421.152, and 421.165(b) that require OMB approval under the Paperwork 
Reduction Act of 1995 (PRA). 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 PRA process, and 
we will submit a separate information collection request to OMB. We 
will not collect the information referenced in these burden sections 
until we receive OMB approval.

(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 20 CFR Part 421

    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 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.
421.130 Removal of an individual's record from the NICS.
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 Timing of processing 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:  42 U.S.C. 902(a)(5); sec. 101, Pub. L. 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 (section 12.00 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, as a result of a mental impairment.
    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

[[Page 91714]]

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:
    (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 (section 12.00 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 mentally incapable of managing 
benefit payments.
    (c) We will apply the provisions of this section to:
    (1) Capability findings that we make in connection with initial 
claims on or after December 19, 2017 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 December 19, 2017 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 (c)(2) 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.  421.130   Removal of an individual's record from the NICS.

    (a) General. We will identify when the record of an individual that 
we previously identified for submission to the NICS under Sec.  421.110 
should be removed from the NICS database. We will notify the Attorney 
General, or his or her designate, that an individual's record should be 
removed from the NICS database only in the circumstances in paragraphs 
(b)(1) through (4) of this section.
    (b) We will notify the Attorney General, or his or her designate, 
that an individual's record should be removed from the NICS when:
    (1) We find that an individual whom we previously required to have 
benefit payments made through a representative payee is now capable of 
managing his or her benefit payments without the need for a 
representative payee;
    (2) We are notified that the individual has died;
    (3) We receive information that we reported an individual's record 
to the NICS in error (e.g., we reported to the NICS the record of an 
individual who does not have a primary diagnosis code in our records 
that is based on a mental impairment, or we reported the record of an 
individual who does not have a representative payee); or
    (4) We grant the individual's request for relief under the rules in 
Sec. Sec.  421.150 through 421.165, or a Federal court grants the 
individual's request for relief under the rules in Sec.  421.170.


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) When our adjudication that an individual meets the criteria in 
Sec.  421.110(b)(1) through (5) becomes final, he or she 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 deem 
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

[[Page 91715]]

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.


Sec.  421.152   Timing of processing a request for relief.

    (a) An individual may request relief at any time after our 
adjudication that results in that person becoming prohibited by 18 
U.S.C. 922(d)(4) or (g)(4) becomes final.
    (b) We will process an application for relief under Sec.  421.150 
when the applicant has provided us with all the necessary evidence 
required under Sec.  421.151(b)(1) through (3).


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)(1) The NIAA requires us to process each application for relief 
not later than 365 days after the date we receive it. We consider the 
application date for the request for relief to be the date on which all 
evidence required under Sec.  421.151(a) is submitted.
    (2) 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 (d) 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. 2016-30407 Filed 12-16-16; 8:45 am]
 BILLING CODE 4191-02-P