[Federal Register Volume 79, Number 4 (Tuesday, January 7, 2014)]
[Proposed Rules]
[Pages 774-777]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-00039]



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DEPARTMENT OF JUSTICE

Bureau of Alcohol, Tobacco, Firearms, and Explosives

27 CFR Part 478

[Docket No. ATF 51P; AG Order No. 3411-2014]
RIN 1140-AA47


Amended Definition of ``Adjudicated as a Mental Defective'' and 
``Committed to a Mental Institution'' (2010R-21P)

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

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of Justice proposes amending Bureau of Alcohol, 
Tobacco, Firearms, and Explosives (ATF) regulations to clarify 
definitions of two categories of persons who are prohibited from 
receiving, possessing, shipping, or transporting firearms under the Gun 
Control Act of 1968. The proposed rule would clarify that the statutory 
term ``adjudicated as a mental defective'' includes persons who are 
found incompetent to stand trial or not guilty by reason of mental 
disease or defect, lack of mental responsibility, or insanity, and that 
the term includes persons found guilty but mentally ill. The Department 
recognizes that the term ``mental defective'' is outdated, but it is 
included in the statute and cannot be amended by regulation. The 
proposed amendments would further clarify that federal, state, local, 
and military courts are recognized lawful authorities that can find 
persons incompetent to stand trial or find them not guilty by reason of 
mental disease or defect, lack of mental responsibility, or insanity. 
The proposed rule seeks public comments regarding whether the statutory 
term ``adjudicated as a mental defective'' includes an adjudication 
that occurred when the person was under the age of 18. This proposed 
rulemaking would also amend ATF regulations to clarify that the 
statutory term ``committed to a mental institution'' applies to 
involuntary inpatient or outpatient treatment. The proposed rule seeks 
public comments regarding whether the statutory term ``committed to a 
mental institution'' includes an involuntary commitment that occurred 
when the person was under the age of 18.

DATES: Written comments must be postmarked and electronic comments must 
be submitted on or before April 7, 2014. Commenters should be aware 
that the electronic Federal Docket Management System will not accept 
comments after midnight Eastern Standard Time on the last day of the 
comment period.

ADDRESSES: You may submit comments, identified by docket number ATF 
51P, by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Fax: (202) 648-9741.
     Mail or Hand Delivery/Courier: George M. Fodor, Room 6.N-
523, Enforcement Programs and Services, Bureau of Alcohol, Tobacco, 
Firearms, and Explosives, U.S. Department of Justice, 99 New York 
Avenue NE., Washington, DC 20226.
    Instructions: All submissions received must include the agency name 
and docket number for this rulemaking. All comments received will be 
posted without change to the Federal eRulemaking portal, http://www.regulations.gov, including any personal information provided. For 
detailed instructions on submitting comments and additional information 
on the rulemaking process, see the ``Public Participation'' heading of 
the SUPPLEMENTARY INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: George M. Fodor, Enforcement Programs 
and Services, Bureau of Alcohol, Tobacco, Firearms, and Explosives, 
U.S. Department of Justice, 99 New York Avenue NE., Washington, DC 
20226; telephone: (202) 648-7070.

SUPPLEMENTARY INFORMATION: 

I. Background

    The Attorney General has delegated to the Director of the Bureau of 
Alcohol, Tobacco, Firearms, and Explosives (ATF) the authority to 
enforce provisions of the Gun Control Act of 1968 (GCA), codified in 
chapter 44 of title 18, United States Code (U.S.C.), subject to the 
direction of the Attorney General and Deputy Attorney General. 28 CFR 
0.130(a). Regulations in 27 CFR part 478 implement provisions of the 
GCA.
    Section 922(g) of the GCA prohibits certain persons from shipping 
or transporting any firearm or ammunition in interstate or foreign 
commerce, possessing a firearm or ammunition in or affecting commerce, 
or receiving a firearm or ammunition that has traveled in interstate or 
foreign commerce. These prohibitions apply to any person who:
    (1) Has been convicted in any court of a crime punishable by 
imprisonment for a term exceeding one year;
    (2) Is a fugitive from justice;
    (3) Is an unlawful user of or addicted to any controlled substance;
    (4) Has been adjudicated as a mental defective or committed to a 
mental institution;
    (5) Is an alien illegally or unlawfully in the United States or 
admitted to the United States under a nonimmigrant visa;
    (6) Has been discharged from the Armed Forces under dishonorable 
conditions;
    (7) Having been a citizen of the United States, has renounced U.S. 
citizenship;
    (8) Is subject to certain types of court-issued protective orders; 
or
    (9) Has been convicted in any court of a misdemeanor crime of 
domestic violence.
    On September 6, 1996, ATF published in the Federal Register a 
notice of proposed rulemaking (NPRM) in which it proposed definitions 
for the terms ``adjudicated as a mental defective'' and ``committed to 
a mental institution'' as used in 18 U.S.C. 922(g)(4) (Notice No. 839; 
61 FR 47095). The proposed definition of ``adjudicated as a mental 
defective'' published at 61 FR 47098 included determinations 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. The 
proposed definition also included a finding of insanity by a court in a 
criminal case.
    In response to the 1996 NRPM, ATF received a number of comments 
from the public and from federal and state agencies. Some comments 
suggested additional language to clarify the definition of 
``adjudicated as a mental defective'' or included information not 
originally considered by ATF. Among the comments ATF received was a 
recommendation from the Department of Defense (DOD) that the definition 
of ``adjudicated as a mental defective'' be amended to specifically 
include ``those persons found incompetent to stand trial or found not 
guilty by reason of lack of mental responsibility pursuant to articles 
50a and 72b [sic] of the Uniform Code of Military Justice, 10 U.S.C. 
850a, 876b.'' DOD suggested this addition to conform to the National 
Defense Authorization Act for 1996, Public Law 104-106, 110 Stat. 186, 
which amended subchapter IX of the Uniform Code of Military Justice 
(UCMJ) to include procedures for the commitment of military personnel 
for reason of a lack of mental responsibility (See Notice No. 839; 62 
FR 34634 (June 27, 1997)).
    ATF incorporated DOD's suggestion into its final rule published in 
the

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Federal Register on June 27, 1997 (Notice No. 839; 62 FR 34634). The 
1997 final rule defines ``adjudicated as a mental defective'' as 
codified at 27 CFR 478.11.
    The proposed definition in the 1996 NPRM of ``committed to a mental 
institution'' read as published at 61 FR 47098. No comments were 
received regarding this proposed definition, and the final rule 
contained this definition without change. See 27 CFR 478.11.
    Congress amended the GCA in 2008 to provide that federal 
departments or agencies may not provide records of individuals 
``adjudicated as a mental defective'' or ``committed to a mental 
institution'' to the Attorney General for inclusion in the National 
Instant Criminal Background Check System (NICS) if:
    (a) The adjudication or commitment was set aside or expunged, or 
the person was fully released or discharged from all mandatory 
treatment, supervision, or monitoring;
    (b) The person was found by a court, board, commission, or other 
lawful authority to no longer suffer from the mental health condition 
that served as the basis of the initial adjudication or commitment, or 
was found to be rehabilitated; or
    (c) The adjudication or commitment was based solely on a medical 
finding of disability, without any opportunity for a hearing by a 
court, board, commission, or other lawful authority, and the person has 
not otherwise been adjudicated as a mental defective under 18 U.S.C. 
922(g)(4).

NICS Improvement Amendments Act of 2007, Public Law 110-180, tit. I, 
sec. 101(c)(1), 121 Stat. 2559, 2562-63 (2008). A person who falls in 
one of these exemptions is not prohibited from shipping, transporting, 
possessing, or receiving a firearm or ammunition that has traveled in 
interstate or foreign commerce. These exemptions do not apply to any 
person adjudicated, in any criminal case or under the UCMJ, to be not 
guilty by reason of insanity or based on lack of mental responsibility, 
or found incompetent to stand trial. Id.

    Persons granted relief from disabilities under 18 U.S.C. 925(c) or 
under a federal or state relief program described in section 
101(c)(2)(A) or section 105 of the NICS Improvement Amendments Act of 
2007 (18 U.S.C. 922 note) are not considered to have been adjudicated 
as a mental defective or committed to a mental institution.

II. Proposed Rule

    The Department proposes amending the definition of ``adjudicated as 
a mental defective'' in 27 CFR 478.11 to clarify that persons found not 
guilty by reason of mental disease or defect are included in the 
definition of ``adjudicated as a mental defective.'' The legislative 
history of the Gun Control Act indicates that Congress intended that 
the prohibition against the receipt and possession of firearms would 
apply broadly to ``mentally unstable'' or ``irresponsible'' persons. 
See, e.g., 114 Cong. Rec. 21780 (1968) (statement of Rep. Sikes); id. 
at 21832 (statement of Rep. Corman); id. at 22270 (statement of Rep. 
Fino); see also, e.g., id. at 21791 (statement of Rep. Thompson). This 
proposed amendment would clarify the application of the definition and 
specifically identifies those persons found not guilty by reason of 
mental disease or defect as included within the definition of 
``adjudicated as a mental defective.''
    The Department also proposes amending the definition of 
``adjudicated as a mental defective'' in 27 CFR 478.11 by removing the 
reference to articles 50a and 72b of the UCMJ and adding ``by a court 
in a criminal case'' to clarify that the term includes federal, state, 
local and military courts that can find persons incompetent to stand 
trial or not guilty by reason of mental disease or defect, lack of 
mental responsibility, or insanity. This proposal would clarify, rather 
than alter, the current meaning of the term.
    As in the military judicial system, courts in the federal, state, 
and local judicial systems are responsible for finding individuals 
incompetent to stand trial or not guilty by reason of insanity, mental 
disease or defect, or lack of mental responsibility. Federal courts 
have authority to determine competency to stand trial as well as to 
issue special verdicts on the basis of a person's mental capacity at 
the time of the alleged crime. 18 U.S.C. 4241, 4242. Most states also 
have laws authorizing state courts to find a person either incompetent 
to stand trial or not guilty by reason of insanity. See Bureau of 
Justice Statistics, State Court Organization (2004), pp. 199-202. This 
proposed amendment would clarify that being found incompetent to stand 
trial or not guilty by reason of mental disease or defect, lack of 
mental responsibility, or insanity by federal, state, local, or 
military courts constitutes ``adjudicat[ion] as a mental defective.''
    The Department also proposes amending the definition of 
``adjudicated as a mental defective'' in 27 CFR 478.11 to clarify that 
the term includes those persons found guilty but mentally ill by a 
court in a criminal case in a jurisdiction that provides for such a 
finding. This addition to the definition would acknowledge the States 
that extend the guilty but mentally ill option to defendants who do not 
meet criteria for a plea of not guilty by reason of insanity. E.g., 
Alaska, AS Sec.  12.47.030; Georgia, O.C.G.A. Sec.  17-7-131.
    State practices have varied regarding whether, for purposes of a 
NICS background check, commitments of persons under the age of 18 are 
treated as qualifying commitments to a mental institution and whether 
the term ``adjudicated as a mental defective'' includes an adjudication 
that occurred when the person was under the age of 18. Some States make 
these records available to the NICS database and others not. In 
addition, ATF has received inquiries from States seeking greater 
clarity as to whether these adjudications and commitments qualify. 
Therefore, we are seeking comment regarding whether individuals 
``adjudicated as a mental defective'' or ``committed to a mental 
institution'' and therefore prohibited from receiving, possessing, 
shipping, or transporting firearms under the Gun Control Act of 1968 
includes commitments or adjudications as a mental defective that 
occurred when the person was under the age of 18.
    In addition, the Department proposes amending the definition of 
``committed to a mental institution'' to clarify that involuntary 
commitment to a mental institution includes both inpatient and 
outpatient treatment. ATF has received inquiries as to whether the 
definition applies to involuntary outpatient treatment. Although the 
term ``committed to a mental institution'' is not defined in 18 U.S.C. 
922, the plain language of the statute incorporates both inpatient and 
outpatient commitments as the statute requires commitment to a mental 
institution, not commitment in a mental institution. See United States 
v. B.H., 466 F. Supp. 2d 1139, 1147 (N.D. Iowa 2006). Mental 
institutions include mental health facilities and the auxiliary mental 
health services provided through those facilities.
    Furthermore, ATF has received inquiries as to whether commitments 
of persons under the age of 18 are qualifying commitments to a mental 
institution. ATF is considering clarifying whether the term ``committed 
to a mental institution'' includes a commitment that occurred when the 
person was under the age of 18. ATF seeks comments on this option and 
solicits recommendations for other approaches.
    Persons are not considered to have been ``committed to a mental 
institution'' as a result of a voluntary

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admission to a mental institution or a temporary admission for 
observation unless the temporary admission for observation turns into a 
qualifying commitment as a result of a formal commitment by a court, 
board, commission, or other lawful authority. As previously noted, the 
NICS Improvement Amendments Act of 2007 provides that adjudications and 
commitments by a federal agency may not be reported to NICS when the 
adjudication or commitment is expunged, or when other criteria are met.
    Furthermore, persons granted relief from disabilities under 18 
U.S.C. 925(c) or under a federal or state relief program described in 
section 101(c)(2)(A) or section 105 of the NICS Improvement Amendments 
Act of 2007 (18 U.S.C. 922 note) are not considered to have been 
adjudicated as a mental defective or committed to a mental institution.

III. Statutory and Executive Order Reviews

A. Executive Order 12866 and Executive Order 13563

    This proposed rule has been drafted and reviewed in accordance with 
Executive Order 12866 (``Regulatory Planning and Review''), section 
1(b) (``The Principles of Regulation''), and Executive Order 13563 
(``Improving Regulation and Regulatory Review''). The Department has 
determined that this proposed rule is a ``significant regulatory 
action'' under section 3(f) of Executive Order 12866, and accordingly 
this proposed rule has been reviewed by the Office of Management and 
Budget. However, this proposed rule would not have an annual effect on 
the economy of $100 million or more, nor would it adversely affect in a 
material way the economy, a sector of the economy, productivity, 
competition, jobs, the environment, public health or safety, or state, 
local, or tribal governments or communities. Accordingly, this proposed 
rule is not an economically significant rulemaking action as defined by 
Executive Order 12866.
    Further, the Department has assessed both costs and benefits of 
this proposed rule as required by Executive Order 12866, section 
1(b)(6), and has made a reasoned determination that the benefits of 
this proposed rule would justify the costs. The Department believes 
that the costs that would be associated with compliance with this 
proposed rule are minimal. A few States may incur added costs to 
provide the additional records to NICS. However, the proposed rule 
helpfully would clarify the statutory terms ``adjudicated as a mental 
defective'' and ``committed to a mental institution'' to prevent the 
unlawful possession or transfer of firearms to prohibited persons. In 
addition, as stated above, the Department is seeking comment regarding 
whether the terms ``adjudicated as a mental defective'' or ``committed 
to a mental institution'' includes adjudications as a mental defective 
or commitments that occurred when the person was under the age of 18. 
Explicitly including such adjudications or commitments within the 
definitions of these terms may result in state entities providing 
additional records to the NICS that may affect future NICS background 
checks and may have public safety benefits. The Department seeks input 
from the public for assessing the costs and benefits of explicitly 
including such adjudications or commitments within the definitions of 
these terms.

B. Executive Order 13132

    The proposed rule would not have substantial direct effects on the 
States, on the relationship between the Federal Government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with section 6 
of Executive Order 13132 (``Federalism''), the Attorney General has 
determined that the proposed rule would not have sufficient federalism 
implications to warrant the preparation of a federalism summary impact 
statement.

C. Executive Order 12988

    The proposed rule meets the applicable standards set forth in 
sections 3(a) and 3(b)(2) of Executive Order 12988 (``Civil Justice 
Reform'').

D. Regulatory Flexibility Act

    The Regulatory Flexibility Act, 5 U.S.C. 601 et seq., requires an 
agency to conduct a regulatory flexibility analysis of any rule subject 
to notice and comment rulemaking requirements unless the agency 
certifies that the rule would not have a significant economic impact on 
a substantial number of small entities. See 5 U.S.C. 605(b). Small 
entities include small businesses, small not-for-profit enterprises, 
and small governmental jurisdictions. 5 U.S.C. 601. The Attorney 
General has reviewed this proposed rule and, by approving it, certifies 
that this proposed rule would not have a significant economic impact on 
a substantial number of small entities.

E. Small Business Regulatory Enforcement Fairness Act of 1996

    This proposed rule is not a major rule as defined by section 251 of 
the Small Business Regulatory Enforcement Fairness Act of 1996. 5 
U.S.C. 804. This proposed rule would not result in an annual effect on 
the economy of $100 million or more; a major increase in costs or 
prices; or significant adverse effects on competition, employment, 
investment, productivity, innovation, or on the ability of United 
States-based enterprises to compete with foreign-based enterprises in 
domestic and export markets.

F. Unfunded Mandates Reform Act of 1995

    This proposed rule would not result in the expenditure by state, 
local, and tribal governments, in the aggregate, or by the private 
sector, of $100 million or more in any one year, and it will not 
significantly or uniquely affect small governments. Therefore, no 
actions were deemed necessary under the provisions of the Unfunded 
Mandates Reform Act of 1995.

G. Paperwork Reduction Act

    This proposed rule does not contain any new or revisions to 
existing ``collection[s] of information'' as defined by the Paperwork 
Reduction Act of 1980, as amended (44 U.S.C. 3501 et seq.).

Public Participation

A. Comments Sought

    ATF requests comments on the proposed rule from all interested 
persons. ATF asks specifically for comments on the clarity of this 
proposed rule and how it may be made easier to understand. All comments 
must reference this document docket number (ATF 51P), be legible, and 
include the commenter's name and complete mailing address. ATF will 
treat all comments as originals and will not acknowledge receipt of 
comments.
    Comments received on or before the closing date will be carefully 
considered. Comments received after that date will be given the same 
consideration if it is practical to do so, but assurance of 
consideration cannot be given except as to comments received on or 
before the closing date.

B. Confidentiality

    Comments, whether submitted electronically or on paper, will be 
available for public viewing at ATF and on the Internet as part of the 
eRulemaking initiative, and are subject to the Freedom of Information 
Act.

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Commenters who do not want their names or other personal identifying 
information posted on the Internet should submit their comment by mail 
or facsimile, along with a separate cover sheet that contains their 
personal identifying information. Both the cover sheet and comment must 
reference this docket number (ATF 51P). Information contained in the 
cover sheet will not be posted on the Internet. Any personal 
identifying information that appears within the comment will be posted 
on the Internet and will not be redacted by ATF.
    Any material that the commenter considers to be inappropriate for 
disclosure to the public should not be included in the comment. Any 
person submitting a comment shall specifically designate that portion 
(if any) of his comments that contains material that is confidential 
under law (e.g., trade secrets, processes). Any portion of a comment 
that is confidential under law shall be set forth on pages separate 
from the balance of the comment and shall be prominently marked 
``confidential'' at the top of each page. Confidential information will 
be included in the rulemaking record but will not be disclosed to the 
public. Any comments containing material that is not confidential under 
law may be disclosed to the public. In any event, the name of the 
person submitting a comment is not exempt from disclosure.

C. Submitting Comments

    Submit comments in one of three ways:
     Mail or Hand Delivery/Courier: Send written comments to 
the address listed in the ADDRESSES section of this document. Written 
comments may be of any length and must appear in a minimum 12 point 
type (.17 inches), include a complete mailing address, and be signed.
     Facsimile: You may submit comments by facsimile 
transmission to (202) 648-9741. Faxed comments must:
    (1) Be legible and appear in a minimum 12 point type (.17 inches);
    (2) Be on 8\1/2\ x 11 paper;
    (3) Contain a legible, written signature; and
    (4) Be no more than five pages long. ATF will not accept faxed 
comments that exceed five pages.
     Federal eRulemaking Portal: To submit comments to ATF via 
the Federal eRulemaking portal, visit http://www.regulations.gov and 
follow the instructions for submitting comments.

D. Request for Hearing

    Any interested person who desires an opportunity to comment orally 
at a public hearing should submit his or her request, in writing, to 
the Director of ATF within the 90-day comment period. The Director, 
however, reserves the right to determine, in light of all 
circumstances, whether a public hearing is necessary.

Disclosure

    Copies of this proposed rule and the comments received will be 
available for public inspection through the Federal eGovernment portal, 
http://www.regulations.gov, or by appointment during normal business 
hours at the ATF Reading Room, Room 1E-062, 99 New York Avenue NE., 
Washington, DC, 20226; telephone: (202) 648-8740.

Drafting Information

    The author of this document is George M. Fodor, Enforcement 
Programs and Services, Bureau of Alcohol, Tobacco, Firearms, and 
Explosives.

List of Subjects in 27 CFR Part 478

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

Authority and Issuance

    Accordingly, for the reasons discussed in the preamble, 27 CFR Part 
478 is proposed to be amended as follows:

PART 478--COMMERCE IN FIREARMS AND AMMUNITION

0
1. The authority citation for 27 CFR Part 478 continues to read as 
follows:

    Authority: 5 U.S.C. 552(a); 18 U.S.C. 847, 921-931; 44 U.S.C. 
3504(h).

0
2. Revise the definitions of ``Adjudicated as a mental defective'' and 
``Committed to a mental institution'' in Sec.  478.11 to read as 
follows:


Sec.  478.11  Meaning of terms.

* * * * *
    Adjudicated as a mental defective.
    (a) A determination, order, or similar finding by a court, board, 
commission, or other lawful authority that a person, as a result of 
marked subnormal intelligence, or mental illness, incompetency, 
condition, or disease:
    (1) Is a danger to self or others; or
    (2) Lacks the mental capacity to contract or manage his or her own 
affairs.
    (b) The term shall include--
    (1) Those persons found not guilty by reason of insanity, mental 
disease or defect, or lack of mental responsibility by a court in a 
criminal case;
    (2) Those persons found guilty but mentally ill by a court in a 
criminal case in a jurisdiction that provides for such a finding; and
    (3) Those persons found incompetent to stand trial by a court in a 
criminal case.
    (c) The term shall not include--
    (1) Any person adjudicated by a department or agency of the Federal 
Government, if any of the conditions of section 101(c)(1) of the NICS 
Improvement Amendments Act of 2007 apply; or
    (2) Any person who has been adjudicated and subsequently received 
relief from disabilities under 18 U.S.C. 925(c) or under a program 
authorized by section 101(c)(2) or section 105(a) of the NICS 
Improvement Amendments Act of 2007.
* * * * *
    Committed to a mental institution.
    (a) A formal commitment of a person to a mental institution by a 
court, board, commission, or other lawful authority. The term includes 
an involuntary commitment to a mental institution for inpatient or 
outpatient treatment. The term includes an involuntary commitment for 
mental defectiveness, i.e., mental illness, to a mental institution. It 
also includes a commitment to a mental institution for other reasons, 
such as for drug use.
    (b) The term does not include a person in a mental institution 
solely for observation or evaluation, a voluntary admission to a mental 
institution, or voluntary outpatient treatment. The term shall not 
include any person so committed by a department or agency of the 
Federal Government, if any of the conditions of section 101(c)(1) of 
the NICS Improvement Amendments Act of 2007 apply, or any person who 
has received relief from disabilities under a program authorized by 
section 101(c)(2) or section 105(a) of that Act or under 18 U.S.C. 
925(c).
* * * * *

    Dated: January 2, 2014.
Eric H. Holder, Jr.,
Attorney General.
[FR Doc. 2014-00039 Filed 1-3-14; 4:15 pm]
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