Attention: This bulletin has been superseded and is inactive.
Issue Date: November 18, 2013
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Effective Date: November 18, 2013
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Expiration Date: November 18, 2014
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Subject: National Instant Criminal Background Check System (NICS) Improvement Amendments Act of 2007 (NIAA).
Background: The Brady Handgun Violence Prevention Act of 1993 required the Attorney General to establish a system that allows federal firearms dealers to determine whether a potential buyer is prohibited from receiving the firearm under the federal Gun Control Act of 1968 or state law. This system, the NICS, is a federal database that became operational on November 30, 1998.
The ability of the NICS to determine quickly and effectively whether an individual is prohibited from possessing or receiving a firearm depends on the completeness and accuracy of the information made available to it by federal, state, and tribal authorities. The NIAA was an effort to strengthen the NICS by increasing the quantity and quality of relevant records accessible to the system. Among its requirements, the NIAA mandates that federal departments and agencies provide relevant information to the Attorney General for the NICS on no less than a quarterly basis. The statute specifies that federal agencies must provide this information “notwithstanding any other law,” and, as a result, information can be shared by agencies despite the otherwise applicable limitations of other laws (Privacy Act, Health Insurance Portability and Accountability Act, etc.). For any information provided, the NIAA also requires federal agencies to update, correct, modify, or remove records once they become aware that information should no longer be prohibiting.
On January 16, 2013, President Obama issued a Memorandum directing the Department of Justice (DOJ) to provide guidance to agencies to improve the implementation of this law. This memorandum also required each Federal agency to issue an annual report setting forth relevant records possessed by the agency, the number of records submitted each year, and various other details concerning efforts required in connection with NICS reporting.
References: P. L. 110-180, NICS Improvement Amendments Act of 2007
Purpose: To inform the appropriate Office of Workers’ Compensation Program (OWCP) Division of Energy Employees Occupational Illness Compensation (DEEOIC) personnel of their responsibilities and the DEEOIC procedures required to effectively identify, track and report relevant case file records in accordance with the NIAA of 2007.
Applicability: Appropriate National Office and District Office personnel.
Actions:
A. Prohibitors and Relevant Records
There are ten (10) categories of persons who are prohibited from shipping, transporting, possessing or receiving a firearm by federal law. For each category of prohibitors, there are relevant record types that should be reported to the NICS. Records possessed by DEEOIC are relevant for the NICS if they can identify an individual as being someone who is a prohibitor. Most applicable records in DEEOIC’s possession will be obtained by DEEOIC rather than created by DEEOIC.
Only records obtained from State or Local agencies need be shared. Federal records that DEEOIC obtains should not be shared as the federal agency that created it is responsible for its submission to the NICS independently.
The following list describes the ten (10) categories of prohibited individuals and the relevant record types for each:
1. Felons
a. This includes any person “who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year,” (including general court-martial) regardless of whether or not that term of imprisonment was imposed.
b. The term “offense punishable by imprisonment for a term exceeding one year” does not include:
(1) any federal or state offenses pertaining to antitrust violations, unfair trade practices, restraints of trade or other similar offenses relating to the regulation of business practices; or
(2) any state offense classified by the laws of the state as a misdemeanor and punishable by a term of imprisonment of two years or less.
c. What constitutes a conviction is determined in accordance with the law of the jurisdiction in which the proceedings were held. If a conviction has been expunged or set aside, or the person has been pardoned or had his/her civil rights restored, it is not considered a conviction unless it was provided in the expungement, pardon, or restoration that the person may not ship, transport, possess, or receive firearms.
Relevant records defined by Department of Justice: Judgment and commitment orders from the courts – only if the conviction is secured without collaborating with a U.S. Attorney’s Office or other DOJ component.
Potential DEEOIC specific relevant records: Judgments in state court actions, usually received in conjunction with 42 U.S.C. § 7385i(a) which states that a person convicted of fraud in the application for or receipt of benefits under the Energy Employees Occupational Illness Compensation Program Act (EEOICPA) or any other federal or state workers’ compensation law forfeits any entitlement to the EEOICPA benefits for any injury, illness or death for which the time of injury was on or before the date of the conviction.
2. Fugitives from justice
a. This includes any person who has fled from any state to avoid prosecution for a felony or a misdemeanor, leaves the state to avoid giving testimony in any criminal proceeding, or who knows that misdemeanor or felony charges are pending against him/her and who leaves the state of prosecution.
Relevant records defined by Department of Justice: Misdemeanor and felony warrants and charging documents – only if obtained without collaborating with a U.S. Attorney’s Office or other DOJ component.
Potential DEEOIC specific relevant records: None anticipated.
3. Persons unlawfully using or addicted to any controlled substance
a. This includes any person who uses a controlled substance and has lost the power of self-control with reference to the use of the controlled substance or who is a current user of a controlled substance in a manner other than as prescribed by a licensed physician.
b. Unlawful use need only to have occurred recently enough to indicate that the individual is actively engaged in such conduct, not necessarily at the precise time the person seeks to acquire a firearm.
c. An inference of current use may be drawn from evidence of recent use or possession of a controlled substance, or a pattern of use or possession that reasonably covers the present time (i.e., conviction for use or possession within the past year or multiple arrests for possession within the past five years if the most recent arrest occurred within the past year).
d. For a current or former member of the Armed Forces, an inference of current use may be drawn from recent disciplinary or other administrative action based on confirmed drug use (i.e., discharged based on drug rehabilitation failure).
e. The term “controlled substance” includes, but is not limited to, marijuana, depressants, stimulants, and narcotic drugs, but excludes distilled spirits, wine, malt beverages, and tobacco.
Relevant records defined by Department of Justice: Drug- related convictions, drug-related arrests, and disciplinary or other administrative actions in the Armed Forces based on confirmed drug use – only if obtained without collaborating with a U.S. Attorney’s Office or other DOJ component. Therapeutic or medical records that are created in the course of treatment in hospitals, medical facilities, or analogous contexts that demonstrate drug use or addiction should not be submitted.
Potential DEEOIC specific relevant records: Judgments in state court actions, usually received in conjunction with 42 U.S.C. § 7385i(a).
4. Persons “adjudicated as a mental defective” or “committed to a mental institution”
a. This includes any person who has been determined by a court, board, commission, or other lawful authority as being a danger to himself/herself or others, or lacking the mental capacity to contract or manage his/her own affairs.
b. A mental institution is a facility that provides diagnoses by licensed professionals of mental retardation or mental illness.
c. “Mentally defective” does not include a person:
(1) who has been granted relief from the disability through a qualifying federal or state relief from disability program as authorized by the NIAA; or
(2) whose adjudication or commitment was imposed by a federal department or agency and,
a) the adjudication or commitment has been set aside or expunged;
b) the individual has been fully released or discharged from all treatment, supervision or monitoring;
c) the individual has been found by a court, board, commission or other lawful authority to no longer suffer from the mental health condition that was the basis for the adjudication or commitment, or
d) whose adjudication or commitment is based 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” pursuant to 18 U.S.C. § 922(g)(4).
d. Formal commitment of a person to a mental institution by a court, board, commission or other lawful authority includes commitment to a mental institution involuntarily, commitment for mental defectiveness or mental illness or commitment for other reasons, such as for drug use. It does not include a person in a mental institution for observation or a voluntary admission to a mental institution.
Relevant records defined by Department of Justice: Judgment and commitment orders, sentencing orders, and court or agency records of adjudications of an individual’s inability to manage his or her own affairs if such adjudication is based on marked subnormal intelligence or mental illness, incompetency, or disease (including certain agency designations of representative or alternate payees for program beneficiaries).
Potential DEEOIC specific relevant records: Court ordered guardianship and conservatorship documents received during the course of claims adjudication.
5. Illegal/unlawful aliens, and aliens admitted on a non-immigrant visa
a. This includes any person who is illegally or unlawfully in the United States or has been admitted to the United States under a non-immigrant visa.
b. This includes those persons who:
(1) unlawfully entered the United States without inspection and authorization by an immigrant officer and who have not been paroled into the United Stated under § 212(d)(5) of the INA;
(2) are a non-immigrant and whose authorized period of stay has expired or who has violated the terms of the non-immigrant category in which he/she was admitted;
(3) were paroled under INA § 212(d)(5) whose authorized period of parole has expired or whose parole status has been terminated, or;
(4) are under an order of deportation, exclusion or removal, or voluntary departure, whether or not he/she has left the United States.
c. Permanent resident aliens and aliens lawfully present in this country without a visa are not prohibited.
Relevant records defined by Department of Justice: Deportation orders, visa applications (including denials), and immigration papers.
Potential DEEOIC specific relevant records: None anticipated.
6. Persons dishonorably discharged from the military
a. This includes any person whose separation from the U.S. Armed Forces was characterized as a dishonorable discharge or a dismissal adjudged by a general court-martial.
b. Any person who was separated for any other discharge (for example, a bad conduct discharge) or whose dishonorable discharge or dismissal has been upgraded under the authority of a discharge review board or a board for the correction of military records is not prohibited.
Relevant records defined by Department of Justice: Discharge records, court-martial records, and disciplinary orders – only if no other federal agency would be submitting.
Potential DEEOIC specific relevant records: None anticipated.
7. Citizen renunciates
a. This includes any person who having been a U.S. citizen renounced U.S. citizenship either before a diplomatic or consular office of the United States in a foreign state pursuant to 8 U.S.C. § 1481(a)(5) or before an officer designated by the Attorney General when the United States is in a state of war pursuant to 8 U.S.C. § 1481(a)(6).
b. Any person whose renunciation of citizenship has been reversed as a result of administrative or judicial appeal is not prohibited.
Relevant records defined by Department of Justice: Form DS-4083, Certificates of Loss of Nationality.
Potential DEEOIC specific relevant records: None anticipated.
8. Persons subject to a domestic violence restraining order
a. This includes any person subject to a domestic violence restraining order as long as the court order was:
(1) issued after a hearing of which such person received actual notice and had an opportunity to participate;
(2) restrains such person from harassing, stalking, or threatening his/her intimate partner or his/her child with that intimate partner or person, or engaging in other conduct that would place the intimate partner in reasonable fear of bodily injury to the partner or child; and
(3) includes a finding that such person represents a credible threat to the physical safety of the intimate partner or child or, by its terms, prohibits the use, attempted use or threatened use of physical force against the intimate partner or child that would reasonably be expected to cause bodily injury.
b. The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has clarified that an “intimate partner” is defined as:
(1) the spouse of the person
(2) a former spouse of the person
(3) an individual who is a parent of a child of the person
(4) an individual who cohabits or has cohabited with the person.
Relevant records defined by Department of Justice: Protective orders.
Potential DEEOIC specific relevant records: Protective orders potentially received in conjunction with child support orders.
9. Persons convicted of a misdemeanor crime of domestic violence
a. This includes any person who meets all of the following criteria:
(1) has been convicted of a federal, state, local or tribal offense that is a misdemeanor, or in states that do not classify offenses as misdemeanors, is an offense punishable by imprisonment for a term of one year or less or only by a fine;
(2) the offense has, as an element, the use or attempted use of physical force or the threatened use of a deadly weapon; and
(3) the offense was committed by a current or former spouse, parent or guardian of the victim, by a person with whom the victim shares a child, by a person who is cohabitating with or has cohabited with the victim as a spouse, parent or guardian, or by a person similarly situated to a spouse, parent or guardian of the victim.
b. If a conviction of a misdemeanor crime of domestic violence has been expunged or set aside, or the person has been pardoned or had his/her civil rights restored, it is not considered a conviction unless it was provided in the expungement, pardon, or restoration that the person may not ship, transport, possess, or receive firearms (and the person is not otherwise lawfully prohibited in the jurisdiction in which the proceedings were held).
Relevant records defined by Department of Justice: Convictions – only if obtained without collaborating with a U.S. Attorney’s Office or other DOJ component.
Potential DEEOIC specific relevant records: Judgments in state court actions, usually received in conjunction with 42 U.S.C. § 7385i(a).
10. Persons under indictment
a. This includes any person “who is under indictment for a crime punishable by imprisonment for a term exceeding one year.”
b. The ATF has clarified that this includes:
(1) a person under indictment or information in any court under which a crime punishable by imprisonment for a term exceeding one year may be prosecuted, or;
(2) a military service member charged with any offense punishable by imprisonment for a term exceeding one year which has been referred to a general court-martial.
Relevant records defined by Department of Justice: Indictments and information – only if obtained without collaborating with a U.S. Attorney’s Office or other DOJ component.
Potential DEEOIC relevant records: Indictments in state court actions – usually received in conjunction with 42 U.S.C. § 7385i(a).
B. DEEOIC Responsibilities
When a relevant record is obtained/created by DEEOIC, it should be recorded and tracked by the Claims Staff in the Energy Compensation System (ECS). DEEOIC National Office will then report any such records to NICS on a quarterly basis using this data.
1. A new “NICS Indicator” to capture the relevant record for quarterly reporting to NICS has been added to ECS effective October 15, 2013. The “NICS Indicator” is accessed from the Case Summary Screen in ECS.
2. Relevant records as described in Part A of this bulletin, primarily those identified as “Potential DEEOIC specific relevant records,” for each of the 10 categories may be identified in daily Incoming Correspondence, upon inspection of case records, or in Investigative Memoranda submitted by the Department of Labor’s Office of Inspector General.
3. Upon initial identification of a relevant record, the Claims Examiner should:
a. Author a brief Memo to the File describing the relevant record and why it identifies the individual as a prohibitor. The author date and received date of the relevant document should be noted in the Memo to the File.
b. Forward the Memo to the File to the District Director or Final Adjudication Branch (FAB) Manager for signature. The case file, containing the Memo to the File, should be forwarded to the Policy Branch for review. If the Policy Branch does not concur with the Memo to the File, the case file will be returned to the district office/FAB office with a memo explaining why the evidence does not meet the NICS reporting requirements.
c. If the Policy Branch agrees that the case file contains a relevant record for NICS reporting, the policy staff should sign the Memo to the File and then select the “View/Edit NICS Indicator” from the Case Summary Screen in ECS. The policy staff will select the “NICS Enabled” field and the effective date of the memo will be auto-populated. The policy staff should indicate in the “Note” section of the “NICS Indicator” the relevant document that identifies the individual as a prohibitor.
d. No further action or reporting is required, since a report will be generated based on the entry of this NICS Indicator.
4. Upon later determination that the relevant record does not apply or no longer applies, and thus is no longer prohibiting, the Claims Examiner should:
a. Author a brief Memo to the File describing the reason the relevant record does not apply or no longer applies. The author date and received date of the relevant document that alters the original determination should be noted in the Memo to the File.
b. Forward the Memo to the File to the District Director or FAB Manager for signature. The case file, containing the Memo to the File, should then be forwarded to the Policy Branch for review. If the Policy Branch does not concur with the Memo to the File, the case file will be returned to the district office/FAB office with a memo explaining why the evidence still meets the NICS reporting requirements. If the Policy Branch agrees that the relevant record previously reported does not apply or no longer applies, the policy staff should sign the Memo to the File and update, correct, modify, or remove the “NICS Indicator” from ECS by selecting the “View/Edit NICS Indicator” from the Case Summary Screen in ECS and selecting the “NICS Disabled” field. The policy staff should enter any applicable note in the “Note” section of the “NICS Indicator.”
c. The National Office should report the update, correction, modification, or removal of the NICS Indicator to the Office of the Solicitor so that NICS can be appropriately notified.
Disposition: Retain until incorporated in the Federal Energy Employees Occupational Illness Compensation Program Act (EEOICPA) Procedure Manual.
RACHEL P. LEITON
Director, Division of Energy Employees
Occupational Illness Compensation
Distribution List No. 1: Claims Examiners, Supervisory Claims Examiners, Technical Assistants, Customer Service Representatives, Fiscal Officers, FAB District Managers, Operation Chiefs, Hearing Representatives, Resource Centers and District Office Mail & File Sections