	Introduction

On February 2, 2017, the House of Representatives passed a Congressional Review Act disapproval resolution ( H.J.Res. 40 ) to overturn a final rule promulgated by the Social Security Administration (SSA) regarding implementation of firearms restrictions for certain persons. On February 28, 2017, President Donald Trump signed this resolution into law ( P.L. 115-8 ) effectively vacating the SSA final rule. The resolution also bars the SSA from promulgating any rule in the future that would be "substantially the same" as the disapproved rule unless the administration receives a new statutory authorization to do so. The SSA final rule was intended to implement provisions of the NICS Improvement Amendments Act of 2007 (NIAA), which strengthened existing provisions of federal law that set out reporting requirements for any federal agency holding records on persons prohibited from possessing firearms. NIAA mandates that agencies must share those records with the Federal Bureau of Investigation (FBI) for inclusion in a computer index accessible to the National Instant Criminal Background Check System (NICS). As described below, some of these prohibiting records are based upon findings of "mental incompetency" made during certain federal benefit claims processes administered by the Department of Veterans Affairs (VA) since 1998 and similar findings that would have been made by the SSA beginning in December 2017 under the vacated final rule. Since the release of this report, the House has passed a bill ( H.R. 1181 ) that would clarify the conditions under which veterans and survivors who are beneficiaries of programs administered by the VA may be treated as "adjudicated as a mental defective." Pursuant to the Brady Act, the FBI activated NICS on November 30, 1998. This national computer network allows FFLs to initiate a background check through either the FBI or a state point of contact (POC), before transferring a firearm to an unlicensed, private person. These discussions were largely led by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), the agency principally responsible for administering and enforcing federal gun control laws. On June 27, 1997, the ATF promulgated a final rule defining the following terms:
"Adjudicated as a mental defective" includes a determination by a court, board, commission, or other lawful authority that a person, as a result of marked subnormal intelligence or a mental illness, incompetency, condition, or disease, (1) is a danger to himself or others, or (2) lacks the mental capacity to contract or manage his own affairs. Records Prohibited from Inclusion in NICS

NIAA prohibits any department or agency of the U.S. government from providing the Attorney General with any record regarding the mental health of a person, or any commitment of a person to a mental institution, if (1) the adjudication or commitment has been set aside or expunged, or the person has otherwise been fully released or discharged from all mandatory treatment, supervision, or monitoring; (2) the person in question has been found by a court, board, commission or other lawful authority to no longer suffer from a mental health condition; or (3) the adjudication or commitment is based solely on a medical finding of disability, without an opportunity for hearing by a court, board, or other lawful authority, and the person has not been adjudicated as a mental defective. P.L. In addition, the VA is to refer the name of any beneficiary determined to be incompetent to the FBI for inclusion in the NICS. The rule also outlined SSA's process for notifying affected individuals as well as the administrative appeals process under which such individuals could have requested relief from the federal firearms prohibitions. The final rule became effective on January 18, 2017; however, compliance was not required until December 19, 2017. Individuals Who Would Have Had Their Records Reported to the NICS

Under the new rule, an individual would have been considered to be "adjudicated as a mental defective" by SSA if the individual meets all of the following requirements:
has filed a claim for Social Security or SSI benefits based on a disability; has been determined to have an impairment (or combination of impairments) that meets or medically equals the criteria of one of the mental disorders specified in SSA's Listing of Impairments (Step 3 of the disability determination process); has a primary diagnosis code based on a mental impairment; has attained age 18 but not yet attained Social Security's full retirement age (currently 66); and has had a representative payee appointed because he or she has been determined by SSA to be mentally incapable of managing benefit payments. Under the GCA, such persons are prohibited from shipping, transporting, receiving, or possessing firearms or ammunition. The VA has implemented the Brady Act and NIAA and submitted prohibiting records on beneficiaries "who because of injury or disease lack the mental capacity to contract or to manage his or her own affairs."
On February 2, 2017, the House of Representatives passed a Congressional Review Act disapproval resolution (H.J.Res. 40) to overturn a final rule promulgated by the Social Security Administration (SSA) regarding implementation of firearms restrictions for certain persons. On February 16, 2017, the Senate passed H.J.Res. 40 without any amendments. On February 28, 2017, President Donald Trump signed this resolution into law (P.L. 115-8). This enacted joint resolution vacates the SSA final rule. It also bars the SSA from promulgating any future rule that would be "substantially the same" as the vacated rule unless the agency receives a new statutory authorization to do so.
The vacated SSA final rule was intended to implement provisions of the NICS Improvement Amendments Act of 2007 (NIAA; P.L. 110-180) on reporting requirements for any federal agency holding records on persons prohibited from possessing firearms. NIAA mandates that agencies must share those records with the Federal Bureau of Investigation (FBI) for inclusion in a computer index accessible to the National Instant Criminal Background Check System (NICS). As described in this report, some of these prohibiting records are based upon findings of "mental incompetency" made during certain federal benefit claims processes administered by the Department of Veterans Affairs (VA) since 1998 and to be administered by the SSA beginning in December 2017.
Activated by the FBI, NICS is a national computer network that allows federally licensed gun dealers to initiate a background check through either the FBI or a state or local authority, before transferring a firearm to an unlicensed, private person. Under federal law, persons who are "adjudicated as a mental defective" are ineligible to ship, transport, receive, or possess firearms or ammunition. In 1998, the Bureau of Alcohol, Tobacco, Firearms and Explosives promulgated a rule that defined this term to include any individual that a court, board, commission, or other lawful authority has made a determination that—as a result of marked subnormal intelligence, mental illness, incompetency, condition or disease—he or she is a person who
is a danger to himself or others; lacks the mental capacity to contract or manage his or her own affairs; is found insane by a court in a criminal case; or is found incompetent to stand trial, or not guilty by reason of lack of moral responsibility.
Since 1998, the Department of Veterans Affairs has referred the name of any beneficiary determined to be incompetent—because he or she lacks the mental capacity to contract or manage his or her own affairs due to injury or disease—to the FBI for inclusion in the NICS index pursuant to the Brady Handgun Violence Prevention Act, 1993 (Brady Act; P.L. 103-159). Under NIAA, since 2007, the VA must inform any benefits claimant that such determinations could lead to a loss of his or her firearms rights and privileges. But, NIAA also requires any federal authority that provides prohibiting mental health records to the FBI for inclusion in the NICS index to establish an administrative process, by which mentally incompetent, prohibited beneficiaries may petition to have those rights and privileges restored.
Pursuant to both the Brady Act and NIAA, the SSA final rule specified conditions under which individuals would have been reported for inclusion in the NICS index as Social Security or SSI disability beneficiaries who would have been deemed too mentally incompetent to be trusted with firearms or ammunition. The rule also outlined SSA's process for notifying affected individuals as well as an administrative appeals process under which such individuals may request relief from the federal firearms prohibitions. The vacated rule was to have become effective on January 18, 2017; however, compliance would not have been required until December 19, 2017.
Since the release of this report, the House has passed a bill (H.R. 1181) that would clarify the conditions under which veterans and survivors who are beneficiaries of programs administered by the VA may be treated as "adjudicated as a mental defective." For further information, see CRS Report R44818, Gun Control, Veterans Benefits, and Mental Incompetency Determinations.