[Federal Register Volume 86, Number 97 (Friday, May 21, 2021)]
[Proposed Rules]
[Pages 27720-27753]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-10058]
[[Page 27719]]
Vol. 86
Friday,
No. 97
May 21, 2021
Part III
Department of Justice
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Bureau of Alcohol, Tobacco, Firearms, and Explosives
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27 CFR Parts 447, 478, and 479
Definition of ``Frame or Receiver'' and Identification of Firearms;
Proposed Rule
Federal Register / Vol. 86 , No. 97 / Friday, May 21, 2021 / Proposed
Rules
[[Page 27720]]
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DEPARTMENT OF JUSTICE
Bureau of Alcohol, Tobacco, Firearms, and Explosives
27 CFR Parts 447, 478, and 479
[Docket No. ATF 2021R-05; AG Order No. 5051-2021]
RIN 1140-AA54
Definition of ``Frame or Receiver'' and Identification of
Firearms
AGENCY: Bureau of Alcohol, Tobacco, Firearms, and Explosives,
Department of Justice.
ACTION: Notice of proposed rulemaking; request for comment.
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SUMMARY: The Department of Justice (``Department'') proposes amending
Bureau of Alcohol, Tobacco, Firearms, and Explosives (``ATF'')
regulations to provide new regulatory definitions of ``firearm frame or
receiver'' and ``frame or receiver'' because the current regulations
fail to capture the full meaning of those terms. The Department also
proposes amending ATF's definitions of ``firearm'' and ``gunsmith'' to
clarify the meaning of those terms, and to provide definitions of terms
such as ``complete weapon,'' ``complete muffler or silencer device,''
``privately made firearm,'' and ``readily'' for purposes of clarity
given advancements in firearms technology. Further, the Department
proposes amendments to ATF's regulations on marking and recordkeeping
that are necessary to implement these new or amended definitions.
DATES: Written comments must be postmarked and electronic comments must
be submitted on or before August 19, 2021. Commenters should be aware
that the electronic Federal Docket Management System will not accept
comments after Midnight Eastern Time on the last day of the comment
period.
ADDRESSES: You may submit comments, identified by docket number ATF
2021R-05, by any of the following methods--
Federal eRulemaking Portal: www.regulations.gov. Follow
the instructions for submitting comments.
Mail: Andrew Lange, Office of Regulatory Affairs,
Enforcement Programs and Services, Bureau of Alcohol, Tobacco,
Firearms, and Explosives, 99 New York Ave. NE, Mail Stop 6N-518,
Washington, DC 20226; ATTN: ATF 2021R-05.
Fax: (202) 648-9741.
Instructions: All submissions received must include the agency name
and docket number (ATF 2021R-05) for this notice of proposed rulemaking
(``NPRM'' or ``proposed rule''). All properly completed comments
received will be posted without change to the Federal eRulemaking
portal, 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: Andrew Lange, Office of Regulatory
Affairs, Enforcement Programs and Services, Bureau of Alcohol, Tobacco,
Firearms, and Explosives, U.S. Department of Justice, 99 New York Ave.
NE, Mail Stop 6N-518, Washington, DC 20226; telephone: (202) 648-7070
(this is not a toll-free number).
SUPPLEMENTARY INFORMATION:
I. Background
The Attorney General is responsible for enforcing the Gun Control
Act of 1968 (``GCA''), as amended, and the National Firearms Act of
1934 (``NFA''), as amended.\1\ This responsibility includes the
authority to promulgate regulations necessary to enforce the provisions
of the GCA and NFA. See 18 U.S.C. 926(a); 26 U.S.C. 7801(a)(2)(A),
7805(a). Congress and the Attorney General have delegated the
responsibility for administering and enforcing the GCA and NFA to the
Director of ATF, subject to the direction of the Attorney General and
the Deputy Attorney General. See 28 U.S.C. 599A(b)(1); 28 CFR
0.130(a)(1)-(2). Accordingly, the Department and ATF have promulgated
regulations implementing the GCA and NFA. See 27 CFR parts 478, 479.
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\1\ NFA provisions still refer to the ``Secretary of the
Treasury.'' 26 U.S.C. ch. 53. However, the Homeland Security Act of
2002, Public Law 107-296, 116 Stat. 2135 (2002), transferred the
functions of ATF from the Department of the Treasury to the
Department of Justice, under the general authority of the Attorney
General. 26 U.S.C. 7801(a)(2); 28 U.S.C. 599A(c)(1). Thus, for ease
of reference, this notice of proposed rulemaking refers to the
Attorney General throughout.
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Prior to passage of the GCA, the Federal Firearms Act of 1938
(``FFA'') regulated all firearm parts. The FFA and implementing
regulations defined the term ``firearm'' to mean ``any weapon, by
whatever name known, which is designed to expel a projectile or
projectiles by the action of an explosive and a firearm muffler or
firearm silencer, or any part or parts of such weapon.'' Public Law 75-
785, 52 Stat. 1250 (1938); 26 CFR 177.10 (repealed) (emphasis added).
The Omnibus Crime Control and Safe Streets Act of 1968 repealed the
FFA, replacing it with the GCA. Public Law 90-351, section 907, 82
Stat. 197 (1968). During debate on the GCA and related bills introduced
to address firearms trafficking, Congress recognized that regulation of
all firearm parts was impractical. Senator Dodd explained that ``[t]he
present definition of this term includes `any part or parts' of a
firearm. It has been impractical to treat each small part of a firearm
as if it were a weapon. The revised definition substitutes the words
`frame or receiver' for the words `any part or parts.' '' See 111 Cong.
Rec. 5527 (March 22, 1965).\2\
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\2\ See also H.R. Rep. 90-1577, at 4416 (June 21, 1968) (``Under
former definitions of `firearm,' any part or parts of such a weapon
were included. It was found impractical to have controls over each
small part of a firearm. Thus, this definition includes only the
major parts of the firearm, that is, the frame or receiver.''); S.
Rep. No. 90-1097, at 2200 (April 29, 1968) (same).
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A ``firearm'' is defined by 18 U.S.C. 921(a)(3) to include not only
a weapon that will, is designed to, or may readily be converted to
expel a projectile, but also the ``frame or receiver'' of any such
weapon. Because ``frames'' or ``receivers'' are included in the
definition of ``firearm,'' any person who engages in the business of
manufacturing, importing, or dealing in frames or receivers must obtain
a license from ATF. 18 U.S.C. 922(a)(1)(A); id. at 923(a). Each
licensed manufacturer or importer must ``identify by means of a serial
number engraved or cast on the receiver or frame of the weapon, in such
manner as the Attorney General shall by regulations prescribe, each
firearm imported or manufactured by such importer or manufacturer.''
\3\ 18 U.S.C. 923(i); see 27 CFR 478.92, 479.102. Licensed
manufacturers and importers must also maintain permanent records of
production or importation, as well as their receipt, sale, or other
disposition of firearms, including frames or receivers. 18 U.S.C.
923(g)(1)(A); 27 CFR 478.122, 478.123.
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\3\ Additionally, a firearm frame or receiver that is not a
component part of a complete weapon at the time it is sold, shipped,
or disposed of must be identified in the manner prescribed with a
serial number and all of the other required markings. 27 CFR
478.92(a)(2); id. at 479.102(e); ATF Ruling 2012-1.
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A ``frame or receiver'' is the primary structural component of a
firearm to which fire control components are attached.\4\ While the GCA
does not
[[Page 27721]]
define the term ``frame or receiver,'' to implement the statute, the
terms ``firearm frame or receiver'' and ``frame or receiver'' were
defined in regulations several decades ago as that part of a firearm
that provides housing for the hammer, bolt or breechblock, and firing
mechanism, and which is usually threaded at its forward portion to
receive the barrel. 27 CFR 478.11 (implementing GCA, Title I); 27 CFR
479.11 \5\ (implementing GCA, Title II). The intent in promulgating
these definitions was to provide guidance as to which portion of a
firearm was the frame or receiver for purposes of licensing,
serialization, and recordkeeping, thereby ensuring that a necessary
component of the weapon could be traced if later involved in a crime.
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\4\ See Webster's Third New International Dictionary, pp. 902,
1894 (1971) (a ``frame'' is ``the basic unit of a handgun which
serves as a mounting for the barrel and operating parts of the
arm''; ``receiver'' means ``the metal frame in which the action of a
firearm is fitted and to which the breech end of the barrel is
attached''); Olson's Encyclopedia of Small Arms, p.72 (1985) (the
term ``frame'' means ``the basic structure and principal component
of a firearm''); Steindler's New Firearms Dictionary p. 209 (1985)
(``receiver'' means ``that part of a rifle or shotgun (excepting
hinged frame guns) that houses the bolt, firing pin, mainspring,
trigger group, and magazine or ammunition feed system. The barrel is
threaded into the somewhat enlarged forward part of the receiver,
called the receiver ring. At the rear of the receiver, the butt or
stock is fastened. In semiautomatic pistols, the frame or housing is
sometimes referred to as the receiver.'').
\5\ The definition of ``frame or receiver'' in Sec. 479.11
differs slightly from the definition in Sec. 478.11 in that it
omits an Oxford comma between ``bolt or breechblock'' and ``firing
mechanism.''
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At the time these definitions were published around 50 years ago,
single-framed firearms such as revolvers and break-open shotguns were
far more prevalent for civilian use than split/multi-piece receiver
weapons, such as semiautomatic rifles and pistols with detachable
magazines. Single-framed firearms incorporate the hammer, bolt or
breechblock, and firing mechanism within the same housing. Years after
these definitions were published, split/multi-piece receiver firearms,
such as the AR-15 semiautomatic rifle (upper receiver and lower
receiver), Glock semiautomatic pistols (upper slide assembly and lower
grip module), and Sig Sauer P320 (M17/18 as adopted by the U.S.
military) (upper slide assembly, chassis, and lower grip module),
became popular.\6\ Additionally, more firearm manufacturers began
incorporating a striker-fired mechanism rather than a ``hammer'' in the
firing design. With the rise in popularity of striker-fired Glock
semiautomatic pistols in the mid-1980s, other manufacturers began
incorporating a striker-fired mechanism, rather than a hammer, in
semiautomatic handguns.\7\
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\6\ See Once Banned, Now Loved and Loathed: How the AR-15 Became
`America's Rifle', New York Times (Mar. 3, 2018), https://www.nytimes.com/2018/03/03/us/politics/ar-15-americas-rifle.html
(Once the patent expired in 1977, ``it opened the way for dozens of
weapons manufacturers to produce their own models, using the same
technology. The term AR-15 has become a catchall that includes a
variety of weapons that look and operate similarly''); Paul M.
Barrett, Glock: The Rise of America's Gun 21-23 (2013) (``Today the
Glock is on the hip of more American police officers than any other
handgun.''); A Star Is Born--U.S. Army Chooses Sig Sauer P320 For
Its New Service Pistol, Forbes.com (Jan. 20, 2017) https://www.forbes.com/sites/frankminiter/2017/01/20/a-star-is-born-u-s-army-chooses-sig-sauer-p320-for-its-new-service-pistol/. While
millions of AR-15s/M-16s existed at the time ATF promulgated the
definitions, they were manufactured almost exclusively for military
use. See Internal Colt Memorandum from B. Northrop, Feb. 2, 1973,
p.2 (noting that there were 2,752,812 military versus 25,774
civilian (``Sporters'') serialization of AR-15/M-16 rifles then
manufactured).
\7\ A Matter of Purpose: Striker Fire vs. Hammer Fire, Small
Arms Defense Journal (June 8, 2018), http://www.sadefensejournal.com/wp/a-matter-of-purpose-striker-fire-vs-hammer-fire/ (``Even though Glock wasn't the first to use striker
fire on pistols, Glock can be credited for making the striker fire
popular in the 1980s when they started using striker fire in their
entire line of pistols. As Glock became popular, other manufacturers
started using striker fire as well, proliferating it across the
firearms manufacturing community on a grand scale.'').
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A. ATF's Application of the Definitions To Split Frames or Receivers
Although ATF's regulatory definitions of ``frame or receiver'' do
not expressly capture these types of firearms (i.e., split/multi-piece
receivers) that now constitute the majority of firearms in the United
States,\8\ ATF's position has long been that the weapon ``should be
examined with a view toward determining if [either] the upper or lower
half of the receiver more nearly fits the legal definition of
`receiver,' '' and more specifically, for machineguns, whether the
upper or lower portion has the ability to accept machinegun
parts.9 10
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\8\ United States v. Rowold, 429 F. Supp. 3d 469 (N.D. Ohio
2019), Testimony of ATF Firearms Enforcement Officer Daniel Hoffman
at Doc. No. 60, Hrg. Tr., Page ID 557 (approximately 10% of
currently manufactured firearms in the United States include the
three components in the frame or receiver definition); and Defense
Expert Daniel O'Kelly at Doc. No. 60, Hrg. Tr. Page ID 482 (``90
some percent of [semiautomatic pistols] do not have a part which has
more than one of these four elements in it and, therefore, don't
qualify, according to the definition in the CFR.'').
\9\ ATF Internal Revenue Service Memoranda #21208 (Mar. 1, 1971)
(lower portion of the M-16 is the frame or receiver because it comes
closest to meeting the definition of frame or receiver in 26 CFR
178.11 (now 27 CFR 478.11), and is the receiver of a machinegun as
defined in the NFA); ATF Memorandum #22334 (Jan. 24, 1977) (upper
half of the FN FAL rifle is the frame or receiver because it was
designed to accept the components that allow fully automatic fire).
The ability to accept machinegun parts is considered because both
the GCA and the NFA regulate machinegun receivers as
``machineguns.'' See 18 U.S.C. 921(a)(23); 26 U.S.C. 5845(b) (``The
term [``machinegun''] shall also include the frame or receiver of
any such weapon [which shoots is designed to shoot, or can be
readily restored to shoot, automatically more than one shot, without
manual reloading, by a single function of the trigger].'').
\10\ Regulations implementing the relevant statutes spell the
term ``machine gun'' rather than ``machinegun.'' E.g., 27 CFR
478.11, 479.11. For convenience, this notice of proposed rulemaking
uses ``machinegun'' except when quoting a source to the contrary.
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Since it began issuing firearm classifications under the GCA and
NFA in private letter rulings and for criminal investigations, ATF has
considered a variety of factors when examining firearms, including: (a)
Which component the manufacturer intended to be the frame or receiver;
(b) which component the firearms industry commonly considers to be the
frame or receiver with respect to the same or similar firearms; (c) how
the component fits within the overall design of the firearm when
assembled; (d) the design and function of the fire control components
to be housed, such as the hammer, bolt or breechblock, and firing
mechanism; (e) whether the component could permanently, conspicuously,
and legibly be identified with a serial number and other markings in a
manner not susceptible of being readily obliterated, altered, or
removed, in accordance with regulations; (f) whether classifying the
particular component is consistent with the legislative intent of the
GCA and implementing regulations; and (g) whether classifying the
component as the frame or receiver is consistent with ATF's prior
classifications.
Even though neither the upper nor the lower portion of a split/
multi-piece receiver firearm alone falls within the precise wording of
the regulatory definition, ATF has for many years interpreted the
regulatory definition using these factors as a guide in determining
which portion of a weapon model is a firearm frame or receiver. Indeed,
the current definitions were never intended to be, or understood to be,
exhaustive; at the time the current definitions were adopted there were
numerous models of firearms that did not contain a part that fully met
the regulatory definition of ``frame or receiver,'' such as the Colt
1911, FN-FAL, and the AR-15/M-16, all of which were originally
manufactured almost exclusively for military use, and ATF has long
applied these factors in determining which component of those weapons
qualifies as the frame or receiver.\11\
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\11\ See footnote 9 supra.
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Existing law recognizes that the definition of ``frame or
receiver'' need not be limited to a strict application of the
regulation. The prefatory paragraph to the definitional section of 27
CFR 478.11 (Meaning of Terms) states: ``[w]hen used in this part and in
forms
[[Page 27722]]
prescribed under this part, where not otherwise distinctly expressed or
manifestly incompatible with the intent thereof, terms shall have the
meanings ascribed in this section.'' \12\ The intent of Congress, as
indicated by the plain language and the statutory scheme of the GCA, is
to regulate--as a firearm--the frame or receiver of a firearm. See 111
Cong. Rec. 5527 (March 22, 1965). As stated above, Congress replaced
the term ``part or parts'' in the FFA definition of ``firearm'' with
``frame or receiver,'' the major parts of a weapon regulated under the
GCA. This includes marking these parts with serial numbers for tracing
purposes, recording these parts as ``firearms'' in required records,
and running a National Instant Criminal Background Check System
(``NICS'') background check when individuals purchase or acquire them.
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\12\ ATF's predecessor agency, the Alcohol, Tobacco and Firearms
Division within the Internal Revenue Service, derived this
limitation on the application of definitions from the Internal
Revenue Code (``IRC''), 26 U.S.C. 7701(a). Courts interpreting
definitions in the IRC have not strictly applied those definitions
where they would be manifestly incompatible with the intent of the
applicable statute. See, e.g., Pierre v. Commissioner, 133 T.C. 24,
35 (2009) (even though a Limited Liability Company was not among any
of the named entities defined in section 7701, it would be
manifestly incompatible with the Federal estate and gift tax
statutes to exclude them); Bunnel v. Commissioner, 50 T.C. 837, 841
(1968) (literal application of the definition of ``taxpayer'' in
section 7701(a)(14) was avoided where it was manifestly incompatible
with the intent of other sections of the IRC); Davis v.
Commissioner, 30 T.C. 462, 466-67 (1958) (strict geographical
application of the term ``United States'' in 26 U.S.C. 3797(a)(9)
(now 7701(a)(9)) to the territory of American Samoa, rather than in
a political sense, would be manifestly incompatible with the intent
and purpose of the income tax exemption for persons earning income
outside the United States).
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In the past few years, however, some courts have treated the
regulatory definition as exhaustive when applied to the lower portion
of the AR-15-type rifle, which is the semiautomatic version of the M-
16-type machinegun originally designed for the U.S. military. While ATF
for decades has classified the lower receiver of the AR-15 rifle as a
``frame or receiver,'' courts recently have read the regulatory
definition to mean that the lower portion of the AR-15 is not a ``frame
or receiver'' because it only provides housing for the hammer and
firing mechanism, but not the bolt or breechblock. See United States v.
Rowold, 429 F. Supp. 3d 469, 475-77 (N.D. Ohio 2019) (``The language of
the regulatory definition in Sec. 478.11 lends itself to only one
interpretation: namely, that under the GCA, the receiver of a firearm
must be a single unit that holds three, not two components: 1) the
hammer, 2) the bolt or breechblock, and 3) the firing mechanism.'');
United States v. Jimenez, 191 F. Supp. 3d 1038, 1041 (N.D. Cal. 2016)
(``[A] receiver must have the housing for three elements: hammer, bolt
or breechblock, and firing mechanism.''); United States v. Joseph Roh,
SACR 14-167-JV, Minute Order p. 6 (C.D. Cal. July 27, 2020) (granting
defendant's post-trial motion for acquittal for manufacturing AR-15
lower receivers without a license because ``[n]o reasonable person
would understand that a part constitutes a receiver where it lacks the
components specified in regulation'').
These courts' interpretation of ATF's regulations, if broadly
followed, could mean that as many as 90 percent of all firearms now in
the United States would not have any frame or receiver subject to
regulation.\13\ Those firearms would include numerous widely available
models, such as Glock-type and Sig Sauer P320 \14\ pistols, that do not
utilize a hammer--a named component--in the firing sequence. Such a
narrow interpretation of what constitutes a frame or receiver would
allow persons to avoid: (a) Obtaining a license to engage in the
business of manufacturing or importing upper or lower frames or
receivers; (b) identifying upper or lower frames or receivers with a
serial number and other traceable markings; (c) maintaining records of
upper or lower frames or receivers produced or imported through which
they can be traced; and (d) running NICS checks on potential
transferees to determine if they are legally prohibited from receiving
or possessing firearms when they acquire upper or lower frames or
receivers. In turn, this would allow prohibited persons to acquire
upper and lower receivers that can quickly be assembled into
semiautomatic weapons more easily and without a background check.\15\
If no portion of split/multi-piece frames or receivers were subject to
any existing regulations, such as marking, recordkeeping, or background
checks, law enforcement's ability to trace semiautomatic firearms later
used in crime would be severely impeded. This result would thereby
undermine the intent of Congress in requiring the frame or receiver of
every firearm to be identified, see 18 U.S.C. 923(i), and regulated as
a firearm, see 18 U.S.C. 921(a)(3)(B).\16\
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\13\ See footnote 8, supra.
\14\ The United States military services have adopted variants
of the Sig Sauer P320 as their official side arm, and are in the
process of purchasing up to 500,000 of these striker-fired pistols.
Army Picks Sig Sauer's P320 Handgun to Replace M9 Service Pistol,
Military.com (Jan. 19, 2017), https://www.military.com/daily-news/2017/01/19/army-picks-sig-sauer-replace-m9-service-pistol.html;
Every U.S. military branch is about to get its hands on the Army's
new sidearm of choice, Taskandpurpose.com (Nov. 18, 2020), https://taskandpurpose.com/military-tech/modular-handgun-system-fielding/
(Sig Sauer delivered its 200,000th P320 variant pistol to the
military despite the obstacles posed by the novel coronavirus).
\15\ See Design of AR-15 could derail charges tied to popular
rifle, APnews.com (Jan. 13, 2020), https://apnews.com/article/396bbedbf4963a28bda99e7793ee6366.
\16\ See footnote 2, supra.
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B. Privately Made Firearms or ``Ghost Guns''
Technological advances have also made it easier for unlicensed
persons to make firearms at home from standalone parts or weapon parts
kits, or by using 3D printers or personally owned or leased equipment,
without any records or a background check. Commonly referred to as
``ghost guns,'' these privately made firearms (``PMFs''), when made for
personal use, are not required by the GCA to have a serial number
placed on the frame or receiver, making it difficult for law
enforcement to determine where, by whom, or when they were
manufactured, and to whom they were sold or otherwise disposed.
In recent years, the number of PMFs recovered from crime scenes
throughout the country has increased.\17\ From January 1, 2016, through
December 31, 2020, there were approximately 23,906 suspected PMFs
reported to ATF as having been recovered by law enforcement from
potential crime scenes, including 325 homicides or attempted homicides,
and that were attempted to be traced by ATF, broken down by year as
follows: \18\
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\17\ See Baltimore police report a 400% increase in untraceable
`ghost guns', The Baltimore Sun (Feb. 18, 2021), http://www.baltimoresun.com/news/crime/bs-pr-md-ci-cr-ghost-gun-ban-20210218-ae2dortu6ngn5llmfmq6yxtx6m-story.html; Syracuse joins
lawsuit against feds amid rise in ghost guns, WRVO Syracuse (Aug.
27, 2020), https://www.wrvo.org/post/syracuse-joins-lawsuit-against-feds-amid-rise-ghost-guns#stream/0; Ghost Guns: The build-it-
yourself firearms that skirt most federal gun laws and are virtually
untraceable, CBS News (May 10, 2020), https://www.cbsnews.com/news/ghost-guns-untraceable-weapons-criminal-cases-60-minutes-2020-05-10/
; Untraceable ghost guns proliferate as Philadelphia grapples with
violence, The Morning Call (Mar. 18, 2020), https://www.mcall.com/news/pennsylvania/mc-nws-pa-philadelphia-ghost-guns-20200318-jzyt4thyvvgntproexbleyleay-story.html; Ghost Guns Are Everywhere in
California, The Trace (May 17, 2019), https://www.thetrace.org/2019/05/ghost-gun-california-crime/; The Rise of Untraceable Ghost Guns,
Wall Street Journal (Jan. 4, 2018), https://www.wsj.com/articles/the-rise-of-untraceable-ghost-guns-1515061800; How D.C. Is
Addressing An Ongoing Spike In Gun Violence, NPR Washington (Mar. 2,
2020), https://www.npr.org/local/305/2020/03/02/811194978/how-d-c-is-addressing-an-ongoing-spike-in-gun-violence; Untraceable `Ghost
Guns' sold across Central Florida, WKMG-TV Orlando (Nov. 15, 2016),
https://www.clickorlando.com/getting-results/2016/11/15/untraceable-ghost-guns-sold-across-central-florida/.
\18\ Source: ATF Office of Strategic Intelligence and
Information. These numbers (as of March 4, 2021) are likely far
lower than the actual number of PMFs recovered from crime scenes
because some law enforcement departments incorrectly trace some PMFs
as commercially manufactured firearms, or may not see a need to use
their resources to attempt to trace firearms with no serial number
or other identifiable markings. The term ``suspected PMF'' is used
because of the difficulty of getting law enforcement officials to
uniformly enter PMF trace information into ATF's electronic tracing
system (``eTrace''), resulting in reporting inconsistencies of PMFs
involved in crime. For example, often PMFs resemble commercially
manufactured firearms, or incorporate parts from commercially
manufactured firearms bearing that manufacturer's name, so some
firearms suspected of being PMFs were entered into eTrace using a
commercial manufacturer's name rather than as one privately made by
an individual. The term ``potential crime scenes'' is used because
ATF does not know if the firearm being traced by the law enforcement
agency was found at a crime scene as opposed to one recovered by
them that was stolen or otherwise not from at the scene of a crime.
This is because the recovery location or correlated crime is not
always communicated by the agency to ATF in the tracing process.
[[Page 27723]]
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2016: 1,750
2017: 2,507
2018: 3,776
2019: 7,161
2020: 8,712
It is, therefore, not unexpected that numerous Federal criminal cases
have been brought by the Department to counter illegal trafficking in
unserialized home-completed and assembled weapons, and possession of
such weapons by prohibited persons.\19\
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\19\ See, e.g., Kissimmee Man Sentenced To Five Years In Prison
For Manufacturing Over 200 ``Ghost Guns'' Without A License, D.O.J
Office of Public Affairs (June 12, 2018), https://www.justice.gov/usao-mdfl/pr/kissimmee-man-sentenced-five-years-prison-manufacturing-over-200-ghost-guns-without; Grass Valley Man
Sentenced to 5 Years in Prison for Unlawfully Manufacturing Ghost
Guns and Selling Them on Dark Web, DOJ Office of Public Affairs
(Sept. 21, 2018), https://www.justice.gov/usao-edca/pr/grass-valley-man-sentenced-5-years-prison-unlawfully-manufacturing-ghost-guns-and; Rhode Island Man Charged with Building, Selling ``Ghost''
Machine Gun, DOJ Office of Public Affairs (Dec. 12, 2018), https://www.justice.gov/usao-ri/pr/rhode-island-man-charged-building-selling-ghost-machine-gun; Conroe Man Ordered to Prison for Making
``Ghost Guns'', DOJ Office of Public Affairs (Feb. 21, 2019) https://www.justice.gov/usao-sdtx/pr/conroe-man-ordered-prison-making-ghost-guns; Seven Felons Indicted, Dozens of Firearms Seized as Part
of Investigation Targeting Criminal Gun Sales in Orange County, DOJ
Office of Public Affairs (Oct. 10, 2019), https://www.justice.gov/usao-cdca/pr/seven-felons-indicted-dozens-firearms-seized-part-investigation-targeting-criminal-gun; Man Sentenced to 15 Years for
Trafficking ``Ghost Guns'' and Drugs, DOJ Office of Public Affairs
(Feb. 14, 2020), https://www.justice.gov/usao-edva/pr/man-sentenced-15-years-trafficking-ghost-guns-and-drugs; Tampa Man Sentenced To
Over Five Years For Manufacturing Counterfeit Credit Cards, Fake
IDs, And Illegal Firearms, DOJ Office of Public Affairs (June 26,
2020), https://www.justice.gov/usao-mdfl/pr/tampa-man-sentenced-over-five-years-manufacturing-counterfeit-credit-cards-fake-ids-and;
Alleged Dealer of Ghost Guns and Machinegun Conversion Devices
Arraigned, DOJ Office of Public Affairs (July 15, 2020), https://www.justice.gov/usao-edva/pr/alleged-dealer-ghost-guns-and-machinegun-conversion-devices-arraigned; Connecticut Man Charged
with Firearm Trafficking, DOJ Office of Public Affairs (Aug. 12,
2020), https://www.justice.gov/usao-ma/pr/connecticut-man-charged-firearm-trafficking; Operation `Black Phoenix' Leads to Federal
Charges Against 25 Who Allegedly Engaged in Illegal Narcotics and
Firearms Sales, DOJ Office of Public Affairs (Sept. 15, 2020),
https://www.justice.gov/usao-cdca/pr/operation-black-phoenix-leads-federal-charges-against-25-who-allegedly-engaged-illegal; D.C. Felon
Pleads Guilty in Federal Court in Maryland to Illegal Possession of
a ``Ghost Gun'' Firearm and Ammunition, DOJ Office of Public Affairs
(Sept. 22, 2020), https://www.justice.gov/usao-md/pr/dc-felon-pleads-gui<y-federal-court-maryland-illegal-possession-ghost-gun-firearm-and; Ghost Gun and Machine Gun Conversion Device Dealer
Pleads Guilty, DOJ Office of Public Affairs (Sept. 29, 2020),
https://www.justice.gov/usao-edva/pr/ghost-gun-and-machine-gun-conversion-device-dealer-pleads-guilty; Felon sentenced to more than
five years in prison for arsenal of `ghost guns' and smuggled
silencers, DOJ Office of Public Affairs (Oct. 9, 2020), https://www.justice.gov/usao-wdwa/pr/felon-sentenced-more-five-years-prison-arsenal-ghost-guns-and-smuggled-silencers; Montgomery County Man
Admits to Unlawfully Selling ``Ghost Guns'', DOJ Office of Public
Affairs (Nov. 5, 2020), https://www.justice.gov/usao-ndny/pr/montgomery-county-man-admits-unlawfully-selling-ghost-guns; Drug
Dealer Who Sold ``Ghost Guns,'' Silencers, and a Machinegun
Sentenced to Thirty Years in Federal Prison, DOJ Office of Public
Affairs (Nov. 6, 2020), https://www.justice.gov/usao-ndia/pr/drug-dealer-who-sold-ghost-guns-silencers-and-machinegun-sentenced-thirty-years-federal; Baltimore Man Sentenced to 21 Years in Federal
Prison for Five Bank Robberies, Five Armed Robberies of Liquor
Stores, and Related Firearms Charges, DOJ Office of Public Affairs
(Nov. 12, 2020), https://www.justice.gov/usao-md/pr/baltimore-man-sentenced-21-years-federal-prison-five-bank-robberies-five-armed-robberies; Philadelphia Man Sentenced to 12\1/2\ Years for
Trafficking Methamphetamine and Weapons, Including `Ghost Guns,'
Near Schools, DOJ Office of Public Affairs (Dec. 30, 2020), https://www.justice.gov/usao-edpa/pr/philadelphia-man-sentenced-12-12-years-trafficking-methamphetamine-and-weapons; Vineland Boys Gang Member
Pleads Guilty to Racketeering Offenses, Including Attempted Murder
and Narcotics Trafficking, DOJ Office of Public Affairs (Jan. 22,
2021), https://www.justice.gov/usao-cdca/pr/vineland-boys-gang-member-pleads-guilty-racketeering-offenses-including-attempted;
Burbank Man Arrested on Federal Complaint Alleging He Sold `Ghost
Guns' Out of His Hookah Lounge, DOJ Office of Public Affairs (Jan.
29, 2021), https://www.justice.gov/usao-cdca/pr/burbank-man-arrested-federal-complaint-alleging-he-sold-ghost-guns-out-his-hookah; Saratoga County Man Admits to Unlawfully Selling ``Ghost
Guns'' and Methamphetamine Distribution, DOJ Office of Public
Affairs (Feb. 3, 2021), https://www.justice.gov/usao-ndny/pr/saratoga-county-man-admits-unlawfully-selling-ghost-guns-and-methamphetamine; Orange County Man Sentenced to 10 Years in Federal
Prison for Brokering Illegal Sales of `Ghost Guns,' Other Firearms,
DOJ Office of Public Affairs (Feb. 8, 2021), https://www.justice.gov/usao-cdca/pr/orange-county-man-sentenced-10-years-federal-prison-brokering-illegal-sales-ghost-guns.
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The problem of untraceable firearms being acquired and used by
violent criminals and terrorists is international in scope. On May 28,
2019, citing intelligence reports by the Department of Homeland
Security (``DHS''), the Federal Bureau of Investigation (``FBI''), and
the National Counterterrorism Center (``NCTC''), the House Committee on
Homeland Security issued a report concluding that ``[g]host guns not
only pose a challenge on the front end, enabling prohibited buyers to
purchase deadly weapons with just a few clicks online, but also on the
back end, hamstringing law enforcement's ability to investigate crimes
committed with untraceable weapons'' and that the ``wide availability
of ghost guns and the emergence of functional 3D-printed guns are a
homeland security threat. Terrorists and other bad actors may seek to
exploit the availability of these weapons for dangerous ends.'' H.R.
Rep. No. 116-88, at 2 (May 28, 2019).\20\ Criminal investigations and
studies highlight this concern.\21\
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\20\ Specifically, the House Report cited a January 11, 2019,
Joint Intelligence Bulletin issued by DHS, FBI, and NCTC concluding
that ``these rapidly evolving technologies pose an ongoing,
metastasizing challenge to law enforcement in understanding,
tracking, and tracing ghost guns,'' and an April 19, 2019, DHS
intelligence assessment that ``repeated the warning that ghost guns
pose an urgent and evolving threat to the homeland, particularly in
the hands of ideologically motivated lone wolf actors.'' H.R. Rep.
No. 116-88, at 2.
\21\ CBP: 3-D-printed full-auto rifle seized at Lukeville
crossing, tucsonsentinel.com (Feb. 8, 2016), http://www.tucsonsentinel.com/local/report/020816_3d_printed_gun/cbp-3-d-printed-full-auto-rifle-seized-lukeville-crossing/; Firearms using
3D-printed components seized in Sweden, Armament Research Services
(May 19, 2017), https://armamentresearch.com/3d-printed-firearms-seized-in-sweden/; The TSA Has Found 3D-Printed Guns at Airport
Checkpoints 4 Times Since 2016, Time (Aug. 2, 2018), https://time.com/5356179/3d-printed-guns-tsa/; Indiana Residents Indicted on
Terrorism and Firearms Charges, DOJ Office of Public Affairs (July
11, 2019), https://www.justice.gov/opa/pr/indiana-residents-indicted-terrorism-and-firearms-charges; Use of 3D printed guns in
German synagogue shooting must act as warning to security services,
experts say, independent.co.uk (Oct. 11, 2019), https://www.independent.co.uk/news/world/europe/3d-gun-print-germany-synagogue-shooting-stephan-balliet-neo-nazi-a9152746.html; TSA
Confiscated 3D-Printed Guns at Raleigh-Durham International Airport,
nextgov.com (Mar. 4, 2020), https://www.nextgov.com/emerging-tech/2020/03/tsa-confiscated-3d-printed-guns-raleigh-durham-international-airport/163533/; Man Sentenced for Attempting to Board
International Flight with a Loaded Firearm, DOJ Office of Public
Affairs (Mar. 12, 2021), https://www.justice.gov/usao-sdca/pr/man-sentenced-attempting-board-international-flight-loaded-firearm;
Glock ghost guns up for grabs on the dark web, Australian National
University (Mar. 23, 2021), https://www.anu.edu.au/news/all-news/glock-ghost-guns-up-for-grabs-on-the-dark-web; Spain dismantles
workshop making 3D-printed weapons, BBC, (Apr. 19, 2021), https://www.bbc.com/news/world-europe-56798743.
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The GCA ``insists that the dealer keep certain records, to enable
federal authorities both to enforce the law's verification measures and
to trace firearms used in crimes.'' Abramski v. United States, 573 U.S.
169, 173 (2014) (citing H. Rep. No. 1577, 90th Cong., 2d Sess., 14
(1968)). ``That information helps to fight serious crime.'' Id. at 182;
see also Identification Markings Placed on Firearms, 66 FR 40597 (Aug.
3, 2001) (``Firearms tracing is an integral part of
[[Page 27724]]
any investigation involving the criminal use of firearms.''); Blaustein
& Reich, Inc. v. Buckles, 220 F. Supp. 2d 535, 537 (E.D. Va. 2002) (ATF
has a statutory duty pursuant to the GCA to trace firearms to keep them
out of the hands of criminals).\22\ An accurate firearm description is
necessary to trace a firearm and is required to be recorded by a person
licensed to engage in the business of manufacturing, importing, or
dealing in firearms, or by a licensed collector of curio or relic
firearms, regardless of whether it is a business or personal
firearm.\23\
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\22\ See also ATF Ruling 2009-5, p.2 (``The unique marks of
identification of firearms serve several purposes. First, the marks
are used by Federal firearms licensees to effectively track their
firearms inventories and maintain all required records. Second, the
marks enable law enforcement officers to trace specific firearms
used in crimes from the manufacturer or importer to individual
purchasers, and to identify particular firearms that have been lost
or stolen. Further, marks help prove in certain criminal
prosecutions that firearms used in a crime have travelled in
interstate or foreign commerce.'').
\23\ See 18 U.S.C. 923(g)(1)(D); 27 CFR 478.125(f) (disposition
records of a Federal firearms licensee's personal collection
firearms must contain a complete description of the firearm); House
Consideration and Passage of S.2414, 99th Cong., 2d Sess., 132 Cong.
Rec. 15229 (June 24, 1986) (Statement of Rep. Hughes) (``In order
for the law enforcement Firearm Tracing Program to operate, some
minimal level of recordkeeping is required [for sales from dealers'
personal collections]. Otherwise, we will not have tracing
capability. This provision simply requires that a bound volume be
maintained by the dealer of the sales of firearms which would
include a complete description of the firearm, including its
manufacturer, model number, and its serial number and the verified
name, address, and date of birth of the purchaser. There is only a
minimal inconvenience for the dealer, yet obtaining and recording
this information is critical to avoid serious damage to the Firearm
Tracing Program.'').
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ATF traces firearms found by law enforcement at a crime scene by
first contacting the licensed manufacturer or importer marked on the
frame or receiver who maintains permanent records of their manufacture
or importation and disposition. Using the information obtained from
those required records, ATF then contacts each licensed dealer or other
licensee who recorded their receipt and disposition to locate the first
unlicensed purchaser to help find the perpetrator or otherwise solve
the crime.\24\ However, because PMFs do not bear a serial number or
other markings of a licensed manufacturer or importer, ATF has found it
extremely difficult to complete such traces on behalf of law
enforcement to individual unlicensed purchasers. From January 1, 2016,
through March 4, 2021, ATF could only complete traces of suspected PMFs
recovered by law enforcement to an individual purchaser in
approximately 151 out of 23,946 attempts, generally by tracing a serial
number engraved on a handgun slide, barrel, or other firearm part not
currently defined as a frame or receiver, but recorded by licensees in
the absence of other markings.\25\
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\24\ Licensees must respond to ATF trace requests within 24
hours. 18 U.S.C. 923(g)(7); see also J&G Sales Ltd. v. Truscott, 473
F.3d 1043, 1045-46 (9th Cir. 2007) (describing the tracing process).
\25\ Source: ATF Office of Strategic Intelligence and
Information. These figures were extracted on May 5, 2021, and
include traces for both U.S. and international law enforcement
agencies.
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With the proliferation of PMFs, ATF has also received numerous
requests from licensees seeking clarity on how they may be accepted and
recorded so that they can track their inventories, process warranty
claims, reconcile any missing inventory, respond to trace requests, and
report lost or stolen PMFs to police and insurance companies. Federal
law and regulations require licensees, before conducting business, to
inventory the firearms possessed for such business and record it in a
Firearms Acquisition and Disposition Record (``A&D Record'').\26\ After
commencing business, licensees must record all firearms received and
disposed of by the business in the A&D Record to include the following
information separated into columns: Manufacturer and/or importer,
model, serial no., type, and caliber or gauge.\27\ When a firearm is
disposed to an unlicensed person, licensees are required to complete a
Firearms Transaction Record, ATF Form 4473 (``Form 4473'').\28\ Like
the A&D Record, this form requires licensees to record the manufacturer
and importer, model (if designated), serial number, type, and caliber
or gauge of the firearm. Licensees are also required by law to report
the theft or loss of firearms on a Federal Firearms Licensee Theft/Loss
Report, ATF Form 3310.11, which includes a description of the
manufacturer, importer, model, serial number, type, and caliber/gauge
of each firearm stolen or lost.\29\ And when licensees sell or
otherwise dispose of multiple pistols or revolvers within five
consecutive business days to the same person, they must report to ATF
the type, serial number, manufacturer, model, importer, and caliber on
a Report of Multiple Sale or Other Disposition of Pistols and
Revolvers, ATF Form 3310.4.\30\
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\26\ 27 CFR 478.125(e).
\27\ 18 U.S.C. 923(g)(1)(A); 27 CFR 478.125(e), (f).
\28\ 18 U.S.C. 923(g)(1)(A); 27 CFR 478.124.
\29\ 18 U.S.C. 923(g)(6); 27 CFR 478.39a(b).
\30\ 18 U.S.C. 923(g)(3)(A); 27 CFR 478.126a. Pursuant to 18
U.S.C. 923(g)(5)(A), licensed dealers along the Southwest border are
also required by demand letter to report to ATF multiple sales of
certain rifles during five consecutive business days to the same
person on ATF Form 3310.12, including the rifle's serial number,
manufacturer, importer, model, and caliber. Also under that statute,
licensed dealers with 15 or more trace requests with a ``time-to-
crime'' of three years or less must report to ATF the acquisition
date, model, caliber or gauge, and the serial number of a secondhand
firearm transferred by the dealer.
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However, because PMFs do not have markings identifying the name of
a licensed manufacturer or importer, model, serial number, or caliber/
gauge, licensees might only record a ``type'' of firearm (e.g., pistol,
revolver, rifle, or shotgun) in their A&D Records and on ATF Forms
4473. Over time, as more PMFs are accepted into inventory, it will
become increasingly difficult, if not impossible, for licensees and ATF
(during inspections) to distinguish between those PMFs physically in
the firearms inventory and those recorded in required A&D Records, as
well as determine which PMFs recorded as disposed on ATF Form 4473,
were those recorded as disposed in the A&D Record.\31\ Likewise, it
will be difficult for licensees and ATF to accurately determine which
PMFs were stolen or lost from inventory, and for police to locate
stolen PMFs in the business inventories of pawnbrokers,\32\ or to
return any recovered stolen or lost PMFs to their rightful owners.
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\31\ In United States v. Biswell, 406 U.S. 311, 315-16 (1972),
the Supreme Court explained that ``close scrutiny of [firearms]
traffic is undeniably of central importance to federal efforts to
prevent violent crime and to assist the States in regulating the
firearms traffic within their borders. Large interests are at stake,
and inspection is a crucial part of the regulatory scheme, since it
assures that weapons are distributed through regular channels and in
a traceable manner and makes possible the prevention of sales to
undesirable customers and the detection of the origin of particular
firearms.'' (citation omitted).
\32\ Most states require pawnbrokers to record or report any
serial number and other identifying markings on pawned merchandise
so that police can determine their origin. See Ala. Code section 5-
19A-3(1); Alaska Stat. section 08.76.180(a)(4); Ariz. Rev. Stat.
section 44-1625(C)(5); Colo. Rev. Stat. section 29-11.9-103(1);
Conn. Gen. Stat. section 21-41(c); Del. Code tit. 24, section
2302(a)(1)(b); DC Code section 47-2884.11(d); Fla. Stat. section
538.04(1)(b)(3),(9); Ga. Code section 44-12-132(4); Haw. Rev. Stat.
section 445-134.11(c)(10); 205 Ill. Comp. Stat. section 510/5(a);
Ind. Code section 28-7-5-19(a)(4); Ky. Rev. Stat. Ann. section
226.040(1)(d)(7); La. Stat. Ann. section 37:1782(16)(a); Mass. Gen.
Laws ch. 140 section 79; Mich. Comp. Laws section 446.205(5)(1),(4);
Minn. Stat. section 325J.04(Sub.1)(1); Miss. Code Ann. section 75-
67-305(1)(a)(iii),(ix); Mo. Rev. Stat. section 367.040(6)(b); Neb.
Rev. Stat. section 69-204(3); N.M. Stat. section 56-12-9(A)(3); N.C.
Gen. Stat. section 66-391(b)(1); Ohio Rev. Code section 4727.07;
Okla. Stat. tit. 59 section 1509(D)(h); S.C. Code Ann. section 40-
39-80(B)(1)(l)(iii),(ix); Tenn. Code Ann. section 45-6-
209(b)(1)(C),(H); Tex. Fin. Code section 371.157(4); Utah Code
section 13-32a-104(1)(h)(i)(A); Va. Code Ann. section 54.1-
4009(A)(1); Wash. Rev. Code section 19.60.020(1)(e); W. Va. Code
section 47-26-2(b)(1); Wis. Stat. section 134.71(8)(c)(2).
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Not only does the inability to distinguish between unmarked
firearms
[[Page 27725]]
make it extremely difficult for law enforcement to trace PMFs involved
in crime, it also makes it more difficult for Federal, State, and local
law enforcement to identify and prosecute illegal firearms traffickers
who are often tied to violent criminals and armed narcotics
traffickers.\33\ The ATF Form 4473 is the primary evidence used to
prosecute straw purchasers who buy firearms from a Federal firearms
licensee on behalf of prohibited persons, such as felons, and other
persons who could use them to commit a violent crime. The form is
typically the key evidence that the straw purchaser who bought the
firearm (and who can pass a background check) made a false statement to
the Federal firearms licensee concerning the identity of the actual
purchaser when acquiring that firearm, in violation of 18 U.S.C.
922(a)(6) and 924(a)(1)(A), or State law.\34\ But as unmarked and
difficult-to-trace PMFs proliferate throughout the marketplace, it is
likely to become increasingly difficult to prove that firearms acquired
under false pretenses on a Form 4473 were the ones found in the hands
of the true purchaser--and thus more difficult to prosecute straw
purchasers for making false statements.\35\ This assumes, of course,
that the PMF involved in the crime could even be traced to the Federal
firearms licensee, or that the correct Form 4473 could be located.
Likewise, the absence of identifying firearm information on multiple
sales forms and theft/loss reports makes it more difficult for ATF to
identify firearms traffickers and thieves.\36\
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\33\ See United States v. Marzzarella, 614 F.3d 85, 100 (3rd
Cir. 2010) (``The direct tracing of the chain of custody of firearms
involved in crimes is one useful means by which serial numbers
assist law enforcement. But serial number tracing also provides
agencies with vital criminology statistics--including a detailed
picture of the geographical source areas for firearms trafficking
and ``time-to-crime'' statistics which measure the time between a
firearm's initial retail sale and its recovery in a crime--as well
as allowing for the identification of individual dealers involved in
the trafficking of firearms and the matching of ballistics data with
recovered firearms.''); Following the Gun, Enforcing Federal Laws
Against Firearms Traffickers, ATF Publication, pp.1, 26 (June 2000)
(serial number obliteration is a clear indicator of firearms
trafficking to, among other criminals, armed narcotics traffickers).
\34\ See, e.g., Abramski v. United States, 573 U.S. 169 (2014);
Marshall v. Commonwealth, 822 S.E.2d 389 (Va. App. 2019);
Commonwealth v. Baxter, 956 A.2d 465 (Pa. Super 2008).
\35\ See, e.g., United States v. Powell, 467 F. Supp. 3d 360,
368, 374 (E.D. Va. 2020) (indictment charging false statements on
ATF Form 4473 in connection with the purchase of specific handguns
listed by date of purchase, make, caliber, model, serial number, and
name of FFL); United States v. McCurdy, 634 F. Supp. 2d 118 (D. Me
2009) (denial of a motion for a new trial discussing whether the
firearm sold as documented on the ATF Form 4473 and the firearm
introduced at trial were the same).
\36\ The lack of firearm description information in theft/loss
reports makes it difficult for ATF to match recovered firearms with
those reported as lost or stolen, thereby hindering ATF's efforts to
enforce the numerous provisions of the GCA that prohibit thefts. See
18 U.S.C. 922(i) (transporting or shipping stolen firearms in
interstate or foreign commerce); id. at 922(j) (receiving,
possessing, concealing, storing, bartering, selling, disposing, or
pledging or accepting as security for a loan any stolen firearm
which has moved in interstate or foreign commerce); id. at 922(u)
(stealing a firearm that has been shipped or transported in
interstate or foreign commerce from the person or premises of an
FFL); id. at 924(l) (stealing a firearm which is moving in or has
moved in interstate commerce); and id. at 924(m) (stealing a firearm
from a licensee).
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Although clarifying the definition of ``frame or receiver'' in this
rule would help the firearms industry and the public understand which
part of a complete weapon is the regulated ``frame or receiver,'' and
more commercially manufactured frames or receivers are likely to be
marked by licensed manufacturers as a result, PMFs are increasingly
being made or 3D printed at home without any identifying marks,
recordkeeping, or background checks. In turn, these firearms are
progressively finding their way to licensees who may wish to acquire
them so they can advertise and market them broadly, or who may repair,
customize, or accept them as security in pawn for a loan. Rulemaking is
therefore necessary to ensure that PMFs are not unlawfully manufactured
for sale to licensees who may wish to acquire them for resale, or
accept them as security in pawn for a loan, as this would undermine the
important public safety goals of the GCA to reduce violent crime, which
includes assisting State and local law enforcement in their efforts to
control the traffic of firearms within their borders.\37\ Indeed,
several States and municipalities have banned or severely restricted
unserialized or 3D printed firearms.\38\
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\37\ See Public Law 90-351, sec. 901(a), 82 Stat. 212, 225-26
(1968); 18 U.S.C. 922(b)(2) (prohibiting licensees from selling or
delivering any firearm to any person in a State where the purchase
or possession by such person of such firearm would be in violation
of any State law or published ordinance applicable at the place of
sale, delivery, or other disposition); id. at 922(t)(2),(4) (NICS
background check denied if receipt of firearm by transferee would
violate State law); id. at 923(d)(1)(F) (requiring license
applicants to certify compliance with the requirements of State and
local law applicable to the conduct of business).
\38\ See Cal. Pen. Code. section 29180 (prohibiting ownership of
firearms that do not bear a serial number or other mark of
identification provided by the State); Conn. Gen. Stat. section 29-
36a(a) (prohibiting manufacture of firearms without permanently
affixing serial numbers issued by the State); DC Code section 7-
2504.08(a) (prohibiting licensees from selling firearms without
serial numbers); Haw. Rev. Stat. section 134-10.2 (prohibiting
unlicensed persons from producing 3D printed or parts kit firearms
without a serial number); Mass. Gen. Laws 269 section 11E
(prohibiting manufacture or delivery of unserialized firearms to
licensed dealer); N.J. Stat. Ann. section 2C:39-3(n) (prohibiting
possession of firearms manufactured or assembled without serial
number); N.Y. Penal Law sections 265.50, 265.55 (prohibiting
manufacture/possession of undetectable firearms); R.I. Gen. Laws
section 11-47-8(e) (prohibiting possession of ``a ghost gun or an
undetectable firearm or any firearm produced by a 3D printing
process''); Va. Code. Ann. section 18.2-308.5 (prohibiting
possession of undetectable firearms); Wash. Rev. Code section
9.41.190 (prohibiting the manufacture with intent to sell of
undetectable and untraceable firearms); see also Philadelphia
Becomes First City To Ban 3D-Printed Gun Manufacturing, Reason.com
(Nov. 22, 2013), https://reason.com/2013/11/22/philadelphia-becomes-first-city-to-ban-3/; County Council Unanimously Approves Ghost Gun
Bill, Mocoshow.com (April 6, 2021), https://mocoshow.com/blog/county-council-unanimously-approves-ghost-gun-bill/?fbclid=IwAR1KCyFal3AId31WKCTLanR-uEUj_-dW_T32lND5gfKmle_-nvIbZyT052.
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II. Proposed Rule
Due to judicial developments as well as continued technological
advancements in firearms manufacturing, maintaining the current
definitions negatively affects both public safety and the regulated
firearms industry. For these reasons, the Department proposes amending
ATF's regulations to clarify the definition of ``firearm'' and to
provide a more comprehensive definition of ``frame or receiver'' so
that those definitions more accurately reflect firearm configurations
not explicitly captured under the existing definitions in 27 CFR 478.11
and 479.11. Further, this NPRM proposes new terms and definitions to
take into account technological developments and modern terminology in
the firearms industry, as well as amendments to the marking and
recordkeeping requirements that would be necessary to implement these
definitions. However, nothing in this rule would restrict persons not
otherwise prohibited from possessing firearms from making their own
firearms at home without markings solely for personal use (not for sale
or distribution) in accordance with Federal, State, and local law.
Also, while licensed manufacturers who sell or distribute firearms to
law enforcement agencies would be subject to this rule, law enforcement
agencies (not engaged in the business of manufacturing firearms for
sale or distribution) would be excluded from this rule, including
associated amendments to the marking and recordkeeping requirements
necessary to implement its definitions.
[[Page 27726]]
A. Definition of ``Firearm''
Under the GCA and implementing regulations, the term ``firearm''
includes:
``(A) any weapon (including a starter gun) which will or is
designed to or may readily be converted to expel a projectile by the
action of an explosive.'' 18 U.S.C. 921(a)(3); 27 CFR 478.11 (emphasis
added). Although weapon parts kits in their unassembled, incomplete,
and/or unfinished state or configuration generally will not expel a
projectile by the action of an explosive at the time of sale or
distribution, weapon parts kits that are ``designed to'' \39\ or ``may
readily be converted'' \40\ to expel a projectile by the action of an
explosive are ``firearms'' under the GCA.\41\
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\39\ See H.R. Rep. 90-1577, at 4416 (June 21, 1968) (``This
provision makes it clear that so-called unserviceable firearms come
within the definition.''); S. Rep. No. 90-1097, at 2200 (April 29,
1968) (same). Numerous courts have held that weapons designed to
expel a projectile by the action of an explosive are ``firearms''
under 18 U.S.C. 921(a)(3)(A) even if they cannot expel a projectile
in their present form or configuration. See, e.g., United States v.
Hardin, 889 F.3d 945, 946 (8th Cir. 2017) (pistol with broken
trigger and numerous missing internal parts was a weapon designed to
expel a projectile by the action of an explosive); United States v.
Dotson, 712 F.3d 369 (7th Cir. 2013) (damaged pistol with corroded,
missing and broken components); United States v. Rivera, 415 F.3d
284, 285-87 (2nd Cir. 2005) (pistol with a broken firing pin and
flattened firing-pin channel); United States. v. Brown, 117 F.3d 353
(7th Cir. 1997) (no firing pin); United States v. Reed, 114 F.3d
1053 (10th Cir. 1997) (shotgun with broken breech bolt); United
States v. Hunter, 101 F.3d 82 (9th Cir. 1996) (pistol with broken
firing pin); United States v. Yannott, 42 F.3d 999, 1005 (6th Cir.
1994) (shotgun with broken firing pin); United States v. Ruiz, 986
F.2d 905, 910 (5th Cir. 1993) (revolver with hammer filed down);
United States. v. York, 830 F.2d 885, 891 (8th Cir. 1987) (revolver
with no firing pin and cylinder did not line up with barrel). But
see United States v. Wada, 323 F. Supp. 2d 1079 (D. Or. 2004)
(firearms redesigned as ornaments that ``would take a great deal of
time, expertise, equipment, and materials to attempt to reactivate''
were no longer designed to expel a projectile by the action of an
explosive and could not readily be converted to do so).
\40\ See, e.g., United States v. Wick, 697 F. App'x 507, 508
(9th Cir. 2017) (complete UZI parts kits ``could `readily be
converted to expel a projectile by the action of an explosive,'
meeting the statute's definition of firearm under section
921(a)(3)(A)'' because the ``kits contained all of the necessary
components to assemble a fully functioning firearm with relative
ease''); United States v. Stewart, 451 F.3d 1071, 1073 n.2 (9th Cir.
2006) (upholding district court's finding that .50 caliber rifle
kits with incomplete receivers were ``firearms'' under 921(a)(3)(A)
because they could easily be converted to expel a projectile);
United States v. Morales, 280 F. Supp. 2d 262, 272-73 (S.D.N.Y.
2003) (partially disassembled Tec-9 pistol that could be assembled
within short period of time could readily be converted to expel a
projectile).
\41\ The plain language of the definition of ``firearm'' in 18
U.S.C. 921(a)(3)(A) states that a weapon need not function so long
as it is designed to, or may readily be converted to, expel a
projectile. Even though they generally cannot function to expel a
projectile when sold, weapon parts kits are still ``weapons''--real
combat instruments, such as pistols, revolvers, rifles, or
shotguns--in an unassembled, unfinished, and/or incomplete state or
configuration. There is no minimum utility or lethality requirement
in the GCA or NFA for an item to be considered a ``weapon.'' Cf.
United States v. Thompson/Center Arms, 504 U.S. 505, 513, n.6 (1992)
(a rifle was ``made'' under the NFA when a pistol was packaged
together with a disassembled rifle parts kit); United States v.
Hunter, 843 F. Supp. 235, 256 (E.D. Mich. 1994) (``If Defendants
believe that machinegun conversion kits are not in and of themselves
`weapons' under Sec. 921(a)(3), they forget that that section
clearly envisions machineguns as weapons.''); United States v.
Drasen, 845 F.2d 731, 736-37 (7th Cir. 1988) (rejecting argument
that a collection of rifle parts cannot be a ``weapon'').
---------------------------------------------------------------------------
In recent years, individuals have been purchasing firearm parts
kits with incomplete frames or receivers, commonly called ``80%
receivers,'' \42\ either directly from manufacturers of the kits or
retailers, without background checks or recordkeeping. Some of these
parts kits contain most or all of the components (finished or
unfinished) necessary to complete a functional weapon within a short
period of time. Some of them include jigs, templates, instructions,
drill bits, and tools that allow the purchaser to complete the weapon
to a functional state with minimal effort, expertise, or equipment.
Weapon parts kits such as these are ``firearms'' under the GCA because
they are designed to or may readily be converted to expel a projectile
by the action of an explosive.\43\ Manufacturers of such parts kits
must be licensed, abide by the marking and recordkeeping requirements,
and pay Federal Firearms Excise Tax on their sales price.\44\ Any
Federal firearms licensee that sells such kits to unlicensed
individuals would need to complete ATF Forms 4473, conduct NICS
background checks, and abide by the recordkeeping requirements
applicable to fully completed and assembled firearms.\45\ Therefore, to
reflect existing case law, this proposed rule would add a sentence at
the end of the definition of ``firearm'' in 27 CFR 478.11 providing
that ``[t]he term shall include a weapon parts kit that is designed to
or may readily be assembled, completed, converted, or restored to expel
a projectile by the action of an explosive.''
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\42\ The term ``80% receiver'' is a term used by some industry
members, the public, and the media to describe a frame or receiver
that has not yet reached a stage in manufacture to be classified as
a ``frame or receiver'' under Federal law. However, that term is
neither found in Federal law nor accepted by ATF.
\43\ See footnotes 39 and 40, supra.
\44\ The Internal Revenue Code of 1954, 26 U.S.C. 4181, imposes
on the manufacturer, producer, or importer an excise tax of 10%
(pistols and revolver) or 11% (other firearms) on the sales price of
firearms manufactured, produced, or imported, including complete,
but unfinished, weapon parts kits. See Rev. Rul. 62-169 (IRS RRU),
1962-2 C.B. 245 (kits which contain all of the necessary component
parts for the assembly of shotguns are complete firearms in
knockdown condition even though, in assembling the shotguns the
purchaser must `final-shape,' sand, and finish the fore-arm and the
stock); cf. Rev. Rul. 61-189 (IRS RRU), 1961-2 C.B. 185 (kits
containing unassembled components and tools to complete artificial
flies for fisherman were sporting goods subject to excise tax); Hine
v. United States, 113 F. Supp. 340, 343 (Ct. Cl. 1953) (``True
enough, [these fishing rod kits] might be called `blanks' by those
engaged in the trade, but what could they be called or to what
practical use could they be put other than `fishing rods?' Plaintiff
says that it would be extremely difficult if not impossible to case
with a `blank' rod and this is true, but we can conceive of no other
practical use for them except as fishing rods. . . . Having reached
the stage of manufacture or development where they became
recognizable as one of the sporting goods described in Section
3406(a)(1) the rods upon being sold were subject to tax even though
there remained one or more finishing operations to be performed.'')
(citations omitted).
\45\ Additionally, persons who engage in the business of selling
or distributing such weapon parts kits cannot avoid licensing,
marking, recordkeeping, or excise taxation by selling or shipping
the parts in more than one box or shipment to the same person, or by
conspiring with another person to do so. See, e.g., United States v.
Evans, 928 F.2d 858 (9th Cir. 1991) (conspiracy to cause and aid and
abet the possession of unregistered machineguns where one defendant
sold parts kits containing all component parts of Sten machineguns
except receiver tubes, and the other sold customers blank receiver
tubes along with detailed instructions on how to complete them);
Internal Revenue Service Technical Advice Memorandum 8709002, 1986
WL 372494, at 4 (Nov. 13, 1986) (for purposes of imposing Firearms
Excise Tax it is irrelevant whether the components of a revolver in
an unassembled knockdown condition are sold separately to the same
purchaser in various related transactions, rather than sold as a
complete kit in a single transaction).
---------------------------------------------------------------------------
Nonetheless, this amendment is not intended to affect the
classification of a weapon, including a weapon parts kit, in which each
frame or receiver (as defined in this proposed rule) of such weapon is
properly destroyed in accordance with ATF standards. Because such
weapons have been completely destroyed or permanently redesigned not to
expel a projectile by the action of an explosive, and cannot readily be
converted to do so, ATF would not consider them as either ``designed
to'' or ``readily assembled, completed, converted, or restored to expel
a projectile by the action of an explosive.'' To make this clear, this
proposed rule would add another sentence to the end of the definition
of ``firearm'' in 27 CFR 478.11 to provide that ``[t]he term shall not
include a weapon, including a weapon parts kit, in which each part
defined as a frame or receiver of such weapon is destroyed.'' (see
Section II.B.5 of the preamble)
B. Definition of ``Frame or Receiver''
The proposed new regulatory definition of ``frame or receiver''
would be a multi-part definition added to 27
[[Page 27727]]
CFR 478.11 and 479.11 (referencing section 478.11). First, there would
be a general definition of ``frame or receiver'' with non-exclusive
examples that illustrate the definition. This would be followed by
supplements that further explain the meaning of the term ``frame or
receiver'' for certain firearm designs and configurations, as follows:
(a) Firearm muffler or silencer frame or receiver; (b) split or modular
frame or receiver, also followed by examples of the frames or receivers
for common firearm designs that are distinguishable because of
differences in firing cycle, method of operation, or physical design
characteristics; (c) partially complete, disassembled, or inoperable
frame or receiver; and (d) destroyed frame or receiver. Although the
new definition would more broadly define the term ``frame or receiver''
than the current definition, it is not intended to alter any prior
determinations by ATF of what it considers the frame or receiver of a
particular split/modular weapon. ATF would also continue to consider
the same factors when classifying firearms (see Section I.A of the
preamble).
1. General Definition of ``Frame or Receiver''
ATF proposes to replace the respective regulatory definitions of
``firearm frame or receiver'' and ``frame or receiver'' in 27 CFR
478.11 and 479.11 because they too narrowly limit the definition of
receiver with respect to most current firearms and have led to
erroneous district court decisions. Indeed, most firearms currently in
circulation in the United States do not have a specific part that
expressly falls within the current ``frame or receiver'' regulatory
definitions. Most concerning is that the interpretation of these
definitions by some courts, relying on the current regulations, would
make it easier to obtain the majority of existing firearms, including
some of the most advanced semiautomatic weapons, without complying with
the requirements of the GCA, and make it far more difficult to trace
those firearms after a crime. Should the current definition remain in
place and courts continue to interpret it such that no part or parts of
most firearms are defined as the frame or receiver, these unserialized
parts, easily purchased and assembled to create functioning firearms,
would be untraceable, thereby putting the public at risk. While a
``frame or receiver'' is clearly within the statutory definition of
what constitutes a ``firearm'' under the GCA, 18 U.S.C. 921(a)(3)(B),
clarifying that this term includes how most modern-day firearms operate
would help ensure that the regulatory definition of ``frame or
receiver'' will not be misinterpreted by the courts, the firearms
industry, or the public at large to mean that most firearms in
circulation have no part identifiable as a frame or receiver.
As a threshold matter, the new definition makes clear that a
``frame or receiver'' must be visible to the exterior when the complete
weapon is assembled so that licensees can quickly record the
identifying markings, and law enforcement officers who recover the
weapon can easily see the identifying markings for tracing purposes.
Nonetheless, as explained in Section II.B.3 of the preamble, an
internal frame or chassis at least partially exposed to the exterior to
allow identification may be determined by ATF to be the frame or
receiver of a split or modular frame or receiver.
Next, the new definition more broadly describes a ``frame or
receiver'' as one that provides housing or a structure designed to hold
or integrate any fire control component. Unlike the prior definitions
of ``frame or receiver'' that were rigidly tied to three specific fire
control components (i.e., those necessary for the firearm to initiate
or complete the firing sequence), the new regulatory definition is
intended to be general enough to encompass changes in technology and
parts terminology. With respect to the fire control components housed
by the frame or receiver, the definition would include, at a minimum,
any housing or holding structure for a hammer, bolt, bolt carrier,
breechblock, cylinder, trigger mechanism, firing pin, striker, or slide
rails. However, the definition is not limited to those particular fire
control components.\46\ There may be future changes in firearms
technology or terminology resulting in housings or holding structures
for new or different components that initiate, complete, or continue
the firing sequence of weapons that expel a projectile by the action of
an explosive. For further clarity, the definition would then give four
nonexclusive examples with illustrations of common single-framed
firearms: (1) Hinged or single frame revolver (structure to hold the
trigger, hammer, and cylinder); (2) bolt-action rifle (structure to
hold the bolt and firing pin, and attach the trigger mechanism); (3)
break action, lever action, or pump action rifle or shotgun (housing
for the bolt and firing pin, or a structure designed to integrate the
breechblock); and (4) semiautomatic firearm or machinegun with a single
receiver housing all fire control components (housing for the hammer,
bolt, trigger mechanism, and firing pin, e.g., AK-type firearms).
---------------------------------------------------------------------------
\46\ The prefatory paragraph to the definitional sections in the
GCA and NFA regulations explain that ``[t]he terms `includes' and
`including' do not exclude other things not enumerated which are in
the same general class or are otherwise within the scope thereof.''
27 CFR 478.11, 479.11.
---------------------------------------------------------------------------
Finally, the definition would make clear to persons who may acquire
or possess a part now defined as a ``frame or receiver'' that is
identified with a serial number that they must presume, absent an
official determination by ATF or other reliable evidence to the
contrary, that the part is a firearm ``frame or receiver'' without
further guidance.
2. Firearm Muffler or Silencer Frame or Receiver
Under the GCA, licensed manufacturers and importers must identify
the frame or receiver of each firearm, including a firearm muffler or
silencer, with a serial number in accordance with regulations. 18
U.S.C. 921(a)(3)(C), 923(i). The NFA requires firearm manufacturers,
importers, and makers to identify each firearm, including a firearm
muffler or silencer, with a serial number and such other identification
as may be prescribed by regulations. 26 U.S.C. 5842(a); id. at
5845(a)(7). Because under the NFA each individual part of a firearm
muffler or silencer is a ``firearm'' \47\ that must be registered in
the National Firearms Registration and Transfer Record (``NFRTR''), the
regulations currently assume that every part defined as a silencer must
be marked in order to be registered, and expressly require that they be
marked whenever sold, shipped, or otherwise disposed even though they
may be installed by a qualified licensee within a complete muffler or
silencer device.\48\
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\47\ A firearm ``muffler or silencer'' is defined to include
``any combination of parts'' designed and intended for the use in
assembling or fabricating a firearm silencer or muffler and ``any
part intended only for use in such assembly or fabrication.'' 18
U.S.C. 921(a)(24); 26 U.S.C. 5845(a)(7); 27 CFR 478.11; id. at
479.11. This rule defines the term ``complete muffler or silencer
device'' not to say that individual silencer parts are not
considered a firearm ``muffler or silencer'' subject to the
requirements of the NFA, but to advise industry members when those
individual silencer parts must be marked and registered in the NFRTR
when they are used in assembling or fabricating a muffler or
silencer device.
\48\ See 27 CFR 479.101(b); 478.92(a)(4)(iii); 479.102(f)(1).
---------------------------------------------------------------------------
However, this result has caused confusion and concern among many
silencer manufacturers because some silencer parts defined as
``silencers,'' such as baffles, are difficult to mark, and make little
sense to mark for tracing purposes when the outer tube or
[[Page 27728]]
housing of the complete device is marked and registered. Not only is it
difficult for manufacturers to apply identifying markings, there is
also the administrative difficulty in timely filing and processing
numerous ATF Forms 2, Notice of Firearms Manufactured or Imported upon
manufacture of each part, and ATF Forms 3, Application for Tax-Exempt
Transfer of Firearm and Registration to Special Occupational Taxpayer
upon sale or other disposition of each part to another qualified
licensee.
For these reasons, ATF is proposing a number of amendments to
clarify how and when firearm muffler or silencer parts must be marked
and registered in the NFRTR. Among other changes (see Section II.H.9 of
the preamble, below), this rule defines the term ``frame or receiver''
as it applies to a ``firearm muffler or silencer frame or receiver''
and adds the term ``complete muffler or silencer device'' (see Section
II.D of the preamble). Under the NPRM, the term ``frame or receiver''
means, ``in the case of a firearm muffler or firearm silencer, a part
of the firearm that, when the complete device is assembled, is visible
from the exterior and provides housing or a structure, such as an outer
tube or modular piece, designed to hold or integrate one or more
essential internal components of the device, including any of the
following: baffles, baffling material, or expansion chamber.'' These
new definitions would clarify for manufacturers and makers of complete
muffler or silencer devices that they need only mark each part (or
specific part(s) previously determined by the Director) of the device
defined as a ``frame or receiver'' under this rule. However, individual
muffler or silencer parts must be marked if they are disposed of
separately from a complete device unless transferred by qualified
manufacturers to other qualified licensees for the manufacture or
repair of complete devices (see Section II.H.9 of the preamble).\49\
---------------------------------------------------------------------------
\49\ This rule is consistent with ATF enforcement policy. See
footnote 72 infra.
---------------------------------------------------------------------------
ATF anticipates that, under this supplemental definition, the outer
tube of a complete muffler or silencer device would be considered the
frame or receiver with respect to most commercial silencer designs
currently on the market. This is because the outer tube would be the
only housing for essential internal components (e.g., baffles or
baffling material) of the complete device. Marking the outer tube, as
distinguished from a smaller non-housing component like an end cap that
can be damaged upon expulsion of projectiles, best preserves the
ability of law enforcement to trace the silencer device if used in
crime, and is consistent with recommendations ATF has received from the
firearms industry.\50\
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\50\ In 2016, ATF issued an Advance Notice of Proposed
Rulemaking in response to a petition for rulemaking from a firearms
industry trade association recommending that regulations be amended
to require that a silencer be marked on the outer tube (as opposed
to other locations), unless a variance is granted by the Director on
a case-by-case basis for good cause. See 81 FR 26764 (May 4, 2016).
---------------------------------------------------------------------------
Nonetheless, like the definition of ``frame or receiver'' for
projectile weapons, this sub-definition would be flexible enough to
encompass changes in technology and parts terminology. This is because
any housing or structure designed to hold or integrate an essential
internal component of the muffler or silencer device would meet the
definition. While the proposed definition gives examples of internal
components that manufacturers must consider as essential, e.g.,
baffles, baffling material, or expansion chamber, it is not limited to
those particular components.\51\
---------------------------------------------------------------------------
\51\ See footnote 46, supra.
---------------------------------------------------------------------------
3. Split or Modular Frame or Receiver
This second supplement explains that ATF may determine ``in the
case of a firearm with more than one part that provides housing or a
structure designed to hold or integrate one or more fire control or
essential components'' whether one or more specific part(s) of a weapon
is the frame or receiver, which may include an internal frame or
chassis at least partially exposed to the exterior to allow
identification. It then sets forth the factors ATF considers in making
this determination: ``(a) Which component the manufacturer intended to
be the frame or receiver; (b) which component the firearms industry
commonly considers to be the frame or receiver with respect to the same
or similar firearms; (c) how the component fits within the overall
design of the firearm when assembled; (d) the design and function of
the fire control components to be housed or integrated; (e) whether the
component may permanently, conspicuously, and legibly be identified
with a serial number and other markings in a manner not susceptible of
being readily obliterated, altered, or removed; (f) whether classifying
the particular component is consistent with the legislative intent of
the Act and this part; and (g) whether classifying the component as the
frame or receiver is consistent with the Director's prior
classifications.'' No single factor is controlling. It would further
make clear that ``[f]rames or receivers of different weapons that are
combined to create a similar weapon each retain their respective
classifications as frames or receivers provided they retain their
original design and configuration.''
This supplement to the general definition addresses one of the core
problems of the current definition of ``firearm frame or receiver;''
namely, that a majority of firearms now use a split or modular design
in which more than one part houses a different fire control component
and/or incorporates a striker instead of a hammer. It would make clear
that even though a firearm, including a silencer, may have more than
one part that falls within the definition of ``frame or receiver,'' ATF
may classify a specific part or parts to be the ``frame or receiver''
of a particular weapon. For this reason, manufacturers may wish to
submit samples to ATF for classification of one or more particular
components as the frame or receiver so that they need only mark a
specific part or parts of a weapon, rather than all qualifying parts
(see Section II.H.10 of the preamble) or obtain a marking variance (see
Section II.H.6 of the preamble). However, this supplemental definition
would also make clear that ATF would not classify an internal frame or
chassis as a ``frame or receiver'' unless it is at least partially
exposed to the exterior to allow identification so that licensees
accepting them into inventory can quickly record the identifying
markings, and law enforcement officers who recover the weapon can
easily see the identifying markings for tracing purposes.\52\
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\52\ Markings must also be clearly visible from the exterior
because they may be needed to prove that a criminal defendant had
knowledge that the serial number was obliterated or altered. See,
e.g., Lewis v. United States, No. 3:12-0522, 2012 WL 5198090, at *4
(M.D. Tenn. Oct. 19, 2012) (serial number obliterated on the
``visible exterior'' of a revolver); State v. Shirley, No. 107449,
2019 WL 2156402 (Ct. App. Ohio May 16, 2019) (same); cf. United
States v. Sands, 948 F.3d 709, 719 (6th Cir. 2020) (serial number is
not altered or obliterated so long as it is ``visible to the naked
eye''); United States v. St. Hilaire, 960 F.3d 61, 66 (2d Cir. 2020)
(``This `naked eye test' best comports with the ordinary meaning of
`altered'; it is readily applied in the field and in the courtroom;
it facilitates identification of a particular weapon; it makes more
efficient the larger project of removing stolen guns from
circulation; it operates against mutilation that impedes
identification as well as mutilation that frustrates it; and it
discourages the use of untraceable weapons without penalizing
accidental damage or half-hearted efforts.'').
---------------------------------------------------------------------------
One important goal of this rule is to ensure that it does not
affect existing ATF classifications of firearms that specify a single
component as the frame or receiver. Application of the rule, as
proposed, would not alter these prior
[[Page 27729]]
ATF classifications. To provide more clarity, this supplement to the
definition would include a nonexclusive list of common weapons with a
split/multi-piece frame or receiver configuration for which ATF has
previously determined a specific part to be the frame or receiver. If a
manufacturer produces or an importer imports a firearm falling within
one of these designs as they exist as of the date of publication of a
final rule, it can refer to this list to know which part is the frame
or receiver. The manufacturer or importer can then mark without needing
to ask ATF for a classification. The nonexclusive list identifies the
frame or receiver for the following firearms: (i) Colt 1911-type,
Beretta/Browning/FN Herstal/Heckler & Koch/Ruger/Sig Sauer/Smith &
Wesson/Taurus hammer fired semiautomatic pistols; (ii) Glock-type
striker fired semiautomatic pistols; (iii) Sig Sauer P320-type
semiautomatic pistols; (iv) certain locking block rail system
semiautomatic pistols; (v) AR-15-type and Beretta AR-70-type firearms;
(vi) Steyr AUG-type firearms; (vii) Thompson M1A1-type machineguns and
semiautomatic variants, and L1A1, FN FAL, FN FNC, MP 38, MP 40, and SIG
550 type firearms, and HK-type machineguns and semiautomatic variants;
(viii) Vickers/Maxim, Browning 1919, and M2-type machineguns, and box-
type machineguns and semiautomatic variants thereof; and (ix) Sten,
Sterling, and Kel-tec Sub-2000-type firearms. However, if there is a
present or future split or modular design for a firearm that is not
comparable to an existing classification, then the definition of
``frame or receiver'' would advise that more than one part is the frame
or receiver subject to marking and other requirements, unless a
specific classification or marking variance is obtained from ATF, as
described above.
4. Partially Complete, Disassembled, or Inoperable Frame or Receiver
This third supplement would define ``frame or receiver'' to include
``in the case of a frame or receiver that is partially complete,
disassembled, or inoperable, a frame or receiver that has reached a
stage in manufacture where it may readily be completed, assembled,
converted, or restored to a functional state.'' To determine this
status, ``the Director may consider any available instructions, guides,
templates, jigs, equipment, tools, or marketing materials.'' For
clarification, ``partially complete'' for purposes of this definition
``means a forging, casting, printing, extrusion, machined body, or
similar article that has reached a stage in manufacture where it is
clearly identifiable as an unfinished component part of a weapon.''
This supplement addresses another core challenge of the existing,
definition of firearm ``frame or receiver;'' namely, that it does not
address the question when an object becomes a frame or receiver. While
the GCA and implementing regulations define a ``firearm'' to include
the ``frame or receiver,'' neither delineates when a frame or receiver
is created. The crucial inquiry, then, is the point at which an
unregulated piece of metal, plastic, or other material becomes a
regulated item under Federal law. ATF has long held that a piece of
metal, plastic, or other material becomes a frame or receiver when it
has reached a critical stage of manufacture. This is the point at which
a substantial step has been taken, or a critical line crossed, so that
the item in question may be so classified under the law. This
``critical stage of manufacture'' is when the article becomes
sufficiently complete to function as a frame or receiver, or may
readily be completed, assembled, converted, or restored to accept the
parts it is intended to house or hold.\53\
---------------------------------------------------------------------------
\53\ ATF Letter to Private Counsel #907010 (Mar. 20, 2015).
---------------------------------------------------------------------------
Clarifying this issue is needed to deter the increased sale or
distribution of unlicensed and unregulated partially complete or
unassembled frames or receivers often sold within parts kits that can
readily be completed or assembled to a functional state.\54\ Many kits
that include unfinished frame or receivers have been sold by
nonlicensees who were not required to run a background check or
maintain transaction records. Accordingly, prohibited persons have
easily obtained them.\55\ Moreover, without any markings, they are
nearly impossible to trace. Although this addition is intended to
capture when an item becomes a frame or receiver that is regulated
irrespective of the type of technology used to complete the assembly,
frame or receiver molds that can accept metal or polymer, unformed
blocks of metal, and other articles only in a primordial state would
not--without more--be considered a ``partially complete'' frame or
receiver. However, when a frame or receiver is broken or has been
disassembled into pieces that can readily be made into a frame or
receiver, or is a partially complete frame or receiver forging,
casting, or additive printing \56\ that has reached a stage in
manufacture where it can readily be made into a functional frame or
receiver, that article would be a ``frame or receiver'' under the GCA.
---------------------------------------------------------------------------
\54\ The Polymer 80 assembly, for example, may be completed in
under thirty minutes. See, e.g., Silverback Reviews, Polymer 80
Lower Completion/Parts Kit Install, YouTube (Aug. 19, 2019), https://www.youtube.com/watch?v=ThzFOIYZgIg (21-minute video of completion
of a Polymer 80 lower parts kit with no slide). Indeed, the internet
is replete with people with no experience completing these firearms.
See HandleBandle, DIY: How to Build a Gun at Home (That Shoots) Part
1, YouTube (Oct. 7, 2018), https://www.youtube.com/watch?v=nO-8Pns9aq4; HandleBandle, Polymer 80 with No Experience Tips (Build
Part 2), YouTube (Oct. 7, 2018), https://www.youtube.com/watch?v=a0JM5v45vsg;HandleBandle, Legally Building a Gun in My
Living Room (5D Tactical Glock Kit), YouTube (Oct. 18, 2018),
https://www.youtube.com/watch?v=5SaNLrhnnuA.
\55\ See Bridgeport Felon Sentenced to More Than 5 Years in
Federal Prison for Possessing Firearms, Justice.gov (Jan. 7, 2021),
https://www.justice.gov/usao-ct/pr/bridgeport-felon-sentenced-more-5-years-federal-prison-possessing-firearms; Winthrop man had
homemade `ghost' guns and 3,000 rounds of ammunition, prosecutors
say, Boston.com (Aug. 5, 2020), https://www.boston.com/news/crime/2020/08/05/winthrop-man-had-homemade-ghost-guns-prosecutors-say;
`Ghost Gun' used in shooting that killed two outside Snyder County
restaurant, Penn Live (Jul. 14, 2020), https://www.pennlive.com/crime/2020/07/ghost-gun-used-in-shooting-that-killed-two-outside-snyder-county-restaurant.html; The gunman in the Saugus High School
shooting used a `ghost gun,' sheriff says, CNN (Nov. 21, 2019),
https://www.cnn.com/2019/11/21/us/saugus-shooting-ghost-gun/index.html; How the felon killed at Walmart got his handgun, DA
says, LehighValleyLive.com (March 28, 2018), https://www.lehighvalleylive.com/news/2018/05/how_the_felon_killed_at_walmar.html; `Ghost guns': Loophole allows
felons to legally buy gun parts online, KIRO7.com, https://www.kiro7.com/news/local/ghost-guns-federal-loophole-allows-felons-to-legally-buy-gun-parts-online-build-assault-weapons/703695149/.
\56\ ATF does not believe the production of 3D printed frames or
receivers is substantial at this time when compared with
commercially produced firearms. For the most part, individuals
currently make PMFs from parts kits produced commercially, not by
using 3D printers. However, the cost, capabilities, and availability
of 3D printers are quickly improving.
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5. Destroyed Frame or Receiver
This fourth supplement would exclude from the definition of ``frame
or receiver'' any frame or receiver that is destroyed. The supplement
describes what it means to be a ``destroyed'' frame or receiver: One
permanently altered not to provide housing or a structure that may hold
or integrate any fire control or essential internal component, and that
may not readily be assembled, completed, converted, or restored to a
functional state. This new definition then would set forth nonexclusive
acceptable methods of destruction, which have been provided by ATF in
past guidance.\57\
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\57\ See How to Properly Destroy Firearms, ATF.gov, https://www.atf.gov/firearms/how-properly-destroy-firearms; ATF Rul. 2003-1
(destruction of Browning M1919 type receivers); ATF Rul.2003-2 (FN
FAL type receivers); ATF Rul. 2003-3 (H&K G3 type receivers); ATF
Rul. 2003-4 (Sten type receivers).
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[[Page 27730]]
C. Definition of ``Readily''
To provide guidance on how the term ``readily'' is used to classify
firearms, including frame or receiver parts kits or weapon parts kits
sold with incomplete or unassembled frames or receivers, the NPRM adds
this term to 27 CFR 478.11 and 479.11 and defined as ``a process that
is fairly or reasonably efficient, quick, and easy, but not necessarily
the most efficient, speedy, or easy process.'' It would further list
factors relevant in making this determining to include: (a) Time, i.e.,
how long it takes to finish the process; (b) ease, i.e., how difficult
it is to do so; (c) expertise, i.e., what knowledge and skills are
required; (d) equipment, i.e., what tools are required; (e)
availability, i.e., whether additional parts are required, and how
easily they can be obtained; (f) expense, i.e., how much it costs; (g)
scope, i.e., the extent to which the subject of the process must be
changed to finish it; and (h) feasibility, i.e., whether the process
would damage or destroy the subject of the process, or cause it to
malfunction. This definition and factors considered in determining
whether a weapon, including a weapon parts kit, or unfinished or
damaged frame or receiver may readily be assembled, completed,
converted, or restored to function are based on case law interpreting
the terms ``may readily be converted to expel a projectile'' in 18
U.S.C. 921(a)(3)(A) and ``can be readily restored to shoot'' in 26
U.S.C. 5845(b).\58\ Thus, defining the term ``readily'' is necessary to
provide further clarity in determining when incomplete weapons or
configurations of parts become a ``firearm'' regulated under the GCA
and NFA.
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\58\ See United States v. Dodson, 519 F. App'x 344, 352-53 (6th
Cir. 2013) (gun that was restored with 90 minutes of work, using
widely available parts and equipment and common welding techniques,
fit comfortably within the readily restorable standard); United
States v. TRW Rifle 7.62x51mm Caliber, 447 F.3d 686, 692 (9th Cir.
2006) (a two-hour restoration process using ordinary tools,
including a stick weld, is within the ordinary meaning of ``readily
restored''); United States v. Mullins, 446 F.3d 750, 756 (8th Cir.
2006) (a starter gun that can be modified in less than one hour by a
person without any specialized knowledge to fire may be considered
``readily convertible'' under the GCA); United States v. One TRW,
Model M14, 7.62 Caliber Rifle, 441 F.3d 416, 422-24 (6th Cir. 2006)
(``[T]he Defendant weapon here had all of the necessary parts for
restoration and would take no more than six hours to restore.'');
United States v. Woods, 560 F.2d 660, 664 (5th Cir. 1977) (holding
that a weapon was a shotgun within the meaning of 26 U.S.C. 5845(d)
and stating ``[t]he fact that the weapon was in two pieces when
found is immaterial considering that only a minimum of effort was
required to make it operable.''); United States v. Smith, 477 F.2d
399, 400-01 (8th Cir. 1973) (machinegun that would take around an
eight-hour working day in a properly equipped machine shop was
readily restored to shoot); United States v. 16,179 Molso Italian
.22 Caliber Winler Derringer Convertible Starter Guns, 443 F.2d 463
(2d Cir. 1971) (starter guns converted in no more than 12 minutes to
fire live ammunition were readily convertible under the GCA); United
States v. Morales, 280 F. Supp. 2d 262, 272-73 (S.D.N.Y. 2003)
(partially disassembled Tec-9 pistol that could be assembled within
a short period of time could readily be converted to expel a
projectile); United States v. Catanzaro, 368 F. Supp. 450, 453 (D.
Conn. 1973) (a sawed-off shotgun was ``readily restorable to fire''
where it could be reassembled in one hour and the necessary missing
parts could be obtained at a Smith & Wesson plant); compare with
United States v. Seven Miscellaneous Firearms, 503 F. Supp. 565,
574-75 (D.D.C. 1980) (weapons could not be ``readily restored to
fire'' when restoration required master gunsmith in a gun shop and
$65,000 worth of equipment and tools).
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D. Definitions of ``Complete Weapon'' and ``Complete Muffler or
Silencer Device''
This proposed rule would add definitions for ``complete weapon''
and ``complete muffler or silencer device'' to 27 CFR 478.11 and
479.11. A ``complete weapon'' would be defined as ``a firearm other
than a firearm muffler or firearm silencer that contains all component
parts necessary to function as designed whether or not assembled or
operable.'' Likewise, a ``complete muffler or silencer device'' would
be defined as ``a firearm muffler or firearm silencer that contains all
of the component parts necessary to function as designed whether or not
assembled or operable.'' These definitions are needed to explain when a
frame or receiver of a firearm, including a firearm muffler or
silencer, as the case may be, must be marked.
E. Definition of ``Privately Made Firearm''
The NPRM proposes adding a definition of ``privately made firearm''
to 27 CFR 478.11 to mean ``[a] firearm, including a frame or receiver,
assembled or otherwise produced by a person other than a licensed
manufacturer, and without a serial number or other identifying markings
placed by a licensed manufacturer at the time the firearm was
produced.'' The term would not include a firearm identified and
registered in the NFRTR pursuant to chapter 53, title 26, United States
Code, or any firearm made before October 22, 1968 (unless
remanufactured after that date). This proposed definition explains that
PMFs are those firearms that were made by nonlicensees without the
markings required by this part, and excludes those already marked and
registered in the NFRTR, and any firearm made before enactment of the
GCA which, unlike the repealed law it replaced, required all firearms
to be marked under federal law.\59\ The term ``made'' is incorporated
within the term ``privately made firearm'' rather than ``manufacture''
to distinguish between firearms manufactured (or ``made'') by private
individuals without a license and those manufactured by persons
licensed to engage in the business of manufacturing firearms.\60\
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\59\ The Federal Firearms Act of 1938 (repealed), the
predecessor to the GCA, made it unlawful for a person to receive a
firearm that had the manufacturer's serial number removed,
obliterated or altered. 15 U.S.C. 902(i). Regulations promulgated to
implement this law required each firearm manufactured after July 1,
1958, to be identified with the name of the manufacturer or
importer, a serial number, caliber, and model. However, there was an
exception from the serial number and model requirements for any
shotgun or .22 caliber rifle unless that firearm was also subject to
the NFA. 26 CFR 177.50 (rescinded).
\60\ Both the GCA and NFA define the term ``manufacturer'' as
any person ``engaged in the business of manufacturing firearms,''
and the GCA further defines the term ``licensed manufacturer'' as
``any such person licensed under the provisions of this chapter.''
18 U.S.C. 921(a)(10); 26 U.S.C. 5845(m). The NFA further defines the
term ``make,'' and the various derivatives of that word, to include
``manufacturing (other than by one qualified to engage in the
business under this chapter), putting together, altering, any
combination of these, or otherwise producing a firearm.'' 26 U.S.C.
5845(i).
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F. Definition of ``Importer's or Manufacturer's Serial Number''
The proposed rule would define the term ``importer's or
manufacturer's serial number'' in 27 CFR 478.11 as: ``[t]he
identification number, licensee name, licensee city or state, or
license number placed by a licensee on a firearm frame or receiver in
accordance with this part. The term shall include any such
identification on a privately made firearm, or an ATF issued serial
number.'' Because ``privately made firearms'' are manufactured by
someone other than a licensed manufacturer, the serial number that
incorporates the abbreviated Federal firearms license (``FFL'') number
placed by a licensee on a PMF under this rule is the ``importer's or
manufacturer's serial number.'' This definition would help ensure that
the serial numbers and other markings necessary to ensure tracing,
including those placed by a licensee on a ``privately made firearm'' or
marked with an ATF-issued serial number,\61\ to include imported
firearms, are considered the ``importer's or manufacturer's serial
number'' protected by 18 U.S.C. 922(k), which prohibits their removal,
obliteration, or alteration.\62\
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\61\ ATF occasionally issues serial numbers for placement on
firearms in which the serial numbers were not originally placed, see
26 U.S.C. 5842(b), or were accidentally removed, damaged, or worn
due to routine use or other innocent reason.
\62\ In addition to Federal law, 18 U.S.C. 922(k) and 26 U.S.C.
5861(g), (h), (i), almost every state prohibits the removal,
alteration, or obliteration of a firearm's serial number or
possession of a firearm with a serial number that has been removed,
altered, or obliterated. See Ala. Code section 13A-11-64; Alaska
Stat. section 11.61.200; Ariz. Rev. Stat. section 13-3102; Ark. Code
section 5-73-107; Cal. Penal Code section 23900; Colo. Rev. Stat.
section 18-12-103; Conn. Gen. Stat. section 29-36; Del. Code tit. 11
section 1459; Fla. Stat. Ann. section 790.27; Ga. Code. Ann. section
16-9-70; Haw. Rev. Stat. section 134-10; Idaho Code Ann. section 18-
2410; 720 Ill. Comp. Stat. section 5/24-5; Ind. Code section 35-47-
2-18; Kan. Stat. Ann. section 21-6306; Ky. Rev. Stat. section
527.050; La. Stat. Ann. section 40:1788; Me. Stat. tit. 17-A section
705(E); Md. Code Pub. Safety section 5-142; Mass. Gen. Laws 269
section 11C; Mich. Comp. Laws section 750.230; Minnesota Stat.
section 609.667; Mo. Rev. Stat. section 571.050; Mont. Code Ann.
section 45-6-326; Neb. Rev. Stat. sections 28-1207, 28-1208; Nev.
Rev. Stat. section 202.277; N.H. Rev. Stat. Ann. section 637:7-a;
N.J. Stat. Ann. section 2C:39-3(d); N.Y. Penal Law section
265.02(3); N.C. Gen. Stat. section 14-160.2; N.D. Cent. Code section
62.1-03-05; Ohio Rev. Code section 2923.201; Okla. Stat. tit. 21
section 1550(B); Or. Rev. Stat. section 166.450; 18 Pa. Cons. Stat.
sections 6110.2, 6117; R.I. Gen. Laws section 11-47-24; S.C. Code.
Ann. section 16-23-30(C) (handguns); S.D. Codified Laws 22-14-5;
Tenn. Code Ann. section 39-14-134; Tex. Penal Code section 31.11;
Utah Code section 76-10-521 (handguns); Va. Code Ann. section 18.2-
311.1; Wash. Rev. Code section 9.41.140; W. Va. Code section 18.2-
311.1; Wis. Stat. section 943.37(3).
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[[Page 27731]]
G. Definition of ``Gunsmith'' 63
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\63\ The term ``gunsmith'' is not used in the GCA; however, the
Firearm Owners' Protection Act, Public Law 99-308, amended the GCA
to define ``engaged in the business'' as applied to dealers to
clarify when gunsmiths must have a license. See 18 U.S.C.
921(a)(11)(B); id. at (a)(21)(D); 132 Cong. Rec. 9603-04 (May 6,
1986) (statement of Sen. McClure).
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To provide greater access to professional marking, this proposed
rule would clarify that the meaning of the term ``gunsmith'' includes
persons who engage in the business of identifying firearms for
nonlicensees so that gunsmiths may become licensed as dealer-gunsmiths
solely to provide professional PMF marking services. Specifically, this
proposed rule would amend the definition of ``engaged in the business''
as it applies to a ``gunsmith'' in 27 CFR 478.11 to clarify the meaning
of that term as someone ``who, as a service performed on existing
firearms not for sale or distribution by a licensee, devotes time,
attention, and labor to repairing or customizing firearms, making or
fitting special barrels, stocks, or trigger mechanisms to firearms, or
identifying firearms in accordance with this chapter, as a regular
course of trade or business with the principal objective of livelihood
or profit, but such term shall not include a person who occasionally
repairs or customizes firearms, or occasionally makes or fits special
barrels, stocks, or trigger mechanisms to firearms.''
This amendment would make clear that businesses that routinely
repair or customize existing firearms, make or fit special barrels,
stocks, or trigger mechanisms, or mark firearms as a service performed
on firearms not for sale or distribution by a licensee, may be licensed
as dealer-gunsmiths rather than as manufacturers.\64\ Under this rule,
PMFs would first need to be recorded by the dealer-gunsmith as an
acquisition in the licensee's A&D Records upon receipt from the private
owner (whether or not the licensee keeps the PMF overnight), and once
marked, the licensee would update the acquisition entry with the
identifying information, and then record its return as a disposition to
the private owner. This would ensure that the PMF, if ever found by
police at a crime scene, can be traced. However, no ATF Form 4473 or
NICS background check would be required upon return of the marked
firearm to the person from whom it was received, pursuant to 27 CFR
478.124(a).
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\64\ By clarifying the definition of gunsmith to mean a service
routinely performed on existing firearms that are not for sale or
distribution by a licensee, this rule would supersede ATF Ruling
2010-10, which allows gunsmiths under specified conditions to engage
in certain manufacturing activities for licensed manufacturers. This
would eliminate a significant source of confusion among regulated
industry members and the public as to who needs a license to
manufacture firearms. See Broughman v. Carver, 624 F.3d 670 (4th
Cir. 2010) (distinguishing dealer-gunsmiths from manufacturers).
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H. Marking Requirements for Firearms
1. Information Required To Be Marked on the Frame(s) or Receiver(s)
To properly implement the new definitions, this proposed rule would
amend 27 CFR 478.92(a) and 479.102 to explain how and when markings
must be applied on each part defined as a frame or receiver,
particularly since there could be more than one part of a complete
weapon, or complete muffler or silencer device, that is the frame or
receiver (i.e., when ATF has not identified specific part(s) as the
frame or receiver). After publication of a final rule, each frame or
receiver of a new firearm design or configuration manufactured or
imported after the date of publication of the final rule would need to
be marked with a serial number, and either: (a) The manufacturer's or
importer's name (or recognized abbreviation), and city and State (or
recognized abbreviation) where the manufacturer or importer maintains
their place of business, or in the case of a maker of an NFA firearm,
where the firearm was made; or (b) the manufacturer's or importer's
name (or recognized abbreviation), and the serial number beginning with
the licensee's abbreviated FFL number as a prefix, which is the first
three and last five digits followed by a hyphen, and then followed by a
number (which may incorporate letters and a hyphen) as a suffix, e.g.,
``12345678-[number].'' The serial number (with or without the FFL
prefix) identified on each part of a weapon defined as a frame or
receiver must be the same number, but must not duplicate any serial
number(s) placed by the licensee on any other firearm.
The additional information required to be marked on each frame or
receiver (i.e., name, city and state, or name and abbreviated serial
number) would only apply to new designs or configurations of firearms
manufactured or imported after publication of the rule. Licensed
manufacturers and importers may continue to identify the additional
information on firearms (other than PMFs) of the same design and
configuration as they existed before [effective date of the rule] under
the prior content rules, and any rules necessary to ensure such
identification will remain effective for that purpose. This provision
is intended to reduce production costs incurred by licensees.
Requiring Federal firearms licensees to mark in this manner on each
part defined as a frame or receiver would make it possible for ATF to
trace the firearm if the manufacturer's or importer's name, city, or
state is marked on the slide or barrel, and the original components are
later separated. At the same time, it would give an option for
manufacturers and importers to avoid marking their city and state as
currently required at Sec. Sec. 478.92(a)(1)(ii)(D), (E) and
479.102(a)(1)(iv) and (v), or obtain a marking variance from this
requirement, by allowing them to mark their abbreviated license number
as a prefix to the serial number as an alternative because this
information can be obtained by looking up the licensee's information.
Except for silencer parts transferred by manufacturers to other
qualified manufacturers and dealers for completion or repair of devices
(see Section II.H.9 of the preamble), there would be no change to the
existing requirement that each part defined as a machinegun or silencer
that is disposed of separately and not part of a complete weapon or
device be marked with all required information because individual
machinegun conversion and silencer parts are ``firearms'' under the NFA
that must be registered in the NFRTR. 26 U.S.C. 5841(a)(1); id. at
5845(a), (b). However, for frames or receivers, and individual
machinegun conversion or silencer parts defined as ``firearms'' that
are disposed of separately, the model designation and caliber or gauge
may be omitted if it is unknown at the time the part is identified.
[[Page 27732]]
2. Size and Depth of Markings
This proposed rule would not change the existing requirements for
size and depth of markings in 27 CFR 478.92(a)(1) and 479.102(a), but
for sake of clarity, consolidates them into a standalone paragraph
along with the existing method of measuring the size and depth of
markings set forth in 27 CFR 478.92(a)(5) and 479.102(b).
3. Period of Time To Identify Firearms
Neither the GCA nor the NFA explain at what point in the
manufacturing process the required markings must be placed. In this
regard, the proposed rule would make a distinction between the
manufacture or making of a complete weapon or complete muffler or
silencer device, and each part, including a replacement part, defined
as a frame or receiver, machinegun, or firearm muffler or firearm
silencer that is not a component part of a complete weapon or device at
the time it is sold, shipped, or otherwise disposed. Complete weapons
or complete muffler or silencer devices, as defined in this rule, would
be allowed to be marked up to seven days from completion of the active
manufacturing process for the weapon or device, or prior to
disposition, whichever is sooner. Except for silencer parts produced by
qualified manufacturers for transfer to other licensees to complete or
repair silencer devices (see Section II.H.9 of the preamble), parts
defined as a frame or receiver, machinegun, or firearm muffler or
firearm silencer that are not component parts of a complete weapon or
device when disposed of would be allowed to be marked up to seven days
following the date of completion of the active manufacturing process
for the part, or prior to disposition, whichever is sooner. Adding this
language would codify ATF Ruling 2012-1, and this ruling would become
obsolete upon publication of the rule. As explained in that ruling,
whether the end product is to become a complete weapon or device, or a
frame or receiver to be disposed of separately, firearms that are
actively awaiting materials, parts, or equipment repair to be completed
are still considered to be actively in the manufacturing process.
4. Marking of Privately Made Firearms
Because privately made firearms do not have the identifying
markings required of commercially manufactured firearms, this rule
proposes to amend 27 CFR 478.92 to require FFLs to mark, or supervise
the marking of, the same serial number on each frame or receiver (as
defined in this rule) of a weapon that begins with the FFL's
abbreviated license number (first three and last five digits) as a
prefix followed by a hyphen on any ``privately made firearm'' (as
defined) that the licensee acquired (e.g., ``12345678-[number]'').
Unless previously identified by another licensee, PMFs acquired by
licensees on or after the effective date of the rule would need to be
marked in this manner within seven days of receipt or other acquisition
(including from a personal collection), or before the date of
disposition (including to a personal collection), whichever is
sooner.\65\ For PMFs acquired by licensees before the effective date of
the rule, licensees would be required to mark or cause them to be
marked by another licensee either within 60 days from that date, or
before the date of final disposition (including to a personal
collection), whichever is sooner. With respect to polymer firearms,
including those that are produced using additive manufacturing (also
known as ``3D printing''), the method of marking would typically
require the licensee to embed (or use pre-existing) metal serial number
plates within the plastic to ensure they cannot be worn away during
normal use.\66\ Incorporation of this metal plate along with other
metal components would also help ensure that the polymer firearm does
not violate the Undetectable Firearms Act, 18 U.S.C. 922(p), which
prohibits the manufacture and possession of firearms that are not as
detectable as the ``Security Exemplar'' that contains 3.7 ounces of
material type 17-4 PH stainless steel.\67\
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\65\ Under this rule, licensed collectors would only need to
mark PMFs they receive or otherwise acquire that are defined as
``curios or relics.'' See 27 CFR 478.11 (definitions of ``firearm''
and ``curios or relics'').
\66\ When the size and depth of markings regulations were first
promulgated, ATF recognized that ``all markings can be removed by
someone who wishes to make a deliberate effort to remove the
markings. Realistically, we need to be concerned about markings that
could be worn away during normal use or markings that could survive
normal refinishing processes, e.g., blueing, plating, etc. . . . As
such, ATF has required manufacturers and importers who use polymer
plastic frames to mark serial numbers in a steel plate embedded
within the plastic.'' 66 FR 40599 (Aug. 3, 2001).
\67\ Handguns that are 3D printed are also subject to the
registration and taxation requirements of the NFA if they have a
smooth bore and are capable of being concealed on the person,
thereby falling within the definition of ``any other weapon.'' See
26 U.S.C. 5845(e).
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PMFs currently in inventory that a licensee chooses not to mark may
also be destroyed or voluntarily turned in to law enforcement within
the 60-day period. Also, this proposed rule would not require Federal
firearms licensees to accept any PMFs, or to mark them themselves.
Licensees would be able to refuse to accept PMFs, or arrange for
private individuals to have them marked by another licensee before
accepting them, provided they are properly marked in accordance with
this proposed rule. To provide greater access to professional marking,
as stated previously, this rule would clarify that the meaning of the
term ``gunsmith'' includes persons who engage in the business of
identifying firearms for nonlicensees so that gunsmiths may become
licensed as dealer-gunsmiths solely to provide professional PMF marking
services.
Consistent with the language and purpose of the GCA, this proposed
provision is necessary to allow ATF to trace all firearms acquired and
disposed of by licensees, prevent illicit firearms trafficking, and
provide guidance to FFLs and the public with respect to PMF
transactions with the licensed community. This provision is crucial in
light of advances in technology that allow unlicensed persons easily to
produce firearms at home from parts ordered online, or by using 3D
printers or personally owned or leased equipment. Such privately made
firearms have and will continue to make their way to the primary market
in firearms throughout the licensed community.\68\ At the same time,
consistent with the intent of the GCA,\69\ nothing in this rule would
restrict persons not otherwise prohibited from possessing firearms from
making their own firearms at home without markings solely for personal
use (not for sale or distribution) in accordance with Federal, State,
and local law.\70\ Persons should consult the laws and officials in
their own States and localities to determine the lawfulness of PMFs.
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\68\ Under Federal law, for example, certain firearm
transactions must be conducted through Federal firearms licensees.
See 18 U.S.C. 922(a)(5) (prohibiting any person other than a
licensee, subject to certain limited exceptions, from selling or
delivering a firearm to an unlicensed out of state resident).
\69\ See Public Law 90-351, sec. 901(b), 82 Stat. 227.
\70\ This rule is also consistent with the Second Amendment. As
the Supreme Court stated in District of Columbia v. Heller, 554 U.S.
570, 626-27 & n.26 (2008), ``presumptively lawful regulatory
measures'' include those ``imposing conditions and qualifications on
the commercial sale of arms.'' See also United States v.
Marzzarella, 614 F.3d 85, 99 (3d Cir. 2010) (concluding that even if
strict scrutiny were to apply, 18 U.S.C. 922(k) (prohibiting
possession of firearms with obliterated serial numbers) would be
upheld under the Second Amendment because ``serial number tracing
serves a governmental interest in enabling law enforcement to gather
vital information from recovered firearms. Because it assists law
enforcement in this manner, we find its preservation is not only a
substantial but a compelling interest.'').
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[[Page 27733]]
5. Meaning of Marking Terms
An additional amendment to 27 CFR 478.92 and 478.102 would clarify
the meaning of the terms ``legible'' and ``legibly'' to ensure that
``the identification markings use exclusively Roman letters (e.g., A,
a, B, b, C, c) and Arabic numerals (e.g., 1, 2, 3), or solely Arabic
numerals, and may include a hyphen,'' and that the terms
``conspicuous'' and ``conspicuously'' are understood to mean that ``the
identification markings are capable of being easily seen with normal
handling of the firearm and unobstructed by other markings when the
complete weapon is assembled.'' This would codify the meaning of those
terms as explained in ATF Ruling 2002-6 (``legible''), and ATF's final
rule at 66 FR 40599 (Aug. 3, 2001) (referencing U.S. Customs Service
regulations on the definition of ``conspicuous'').
6. Alternate Means or Period of Identification
This proposed rule would not alter the Director's ability to
authorize other means of identification, or a ``marking variance,'' for
any part defined as a firearm (including a machinegun or silencer) upon
receipt of a letter application or an Application for Alternate Means
of Identification of Firearms (Marking Variance), ATF Form 3311.4,
showing that such other identification is reasonable and does not
hinder the effective administration of the regulations. The amendment
would also allow ATF to grant a variance from the period in which to
mark firearms.
7. Destructive Device Period of Identification
Similar to other firearms, because the proposed rule would now
specify the seven-day grace period in which to mark all completed
firearms, including destructive devices, this rule would also allow ATF
to grant a variance from this period. The marking requirements for
destructive devices are otherwise unchanged.
8. Adoption of Identifying Markings
This rule proposes to authorize licensed manufacturers and
importers to adopt an existing serial number, caliber/gauge, model, or
other markings already identified on a firearm provided they legibly
and conspicuously place, or cause to be placed, on each part (or
part(s) previously determined by the Director) defined as a frame or
receiver either: Their name (or recognized abbreviation), and city and
State (or recognized abbreviation) where they maintain their place of
business; or their name (or recognized abbreviation) and their
abbreviated FFL number, which is the first three and last five digits
followed by a hyphen, and then followed by the existing serial number
(including any other abbreviated FFL prefix) as a suffix, e.g.,
``12345678-[serial number],'' to ensure the traceability of the
firearm. This language would supersede ATF Ruling 2013-3 as it applies
to licensed manufacturers and importers, but the ruling would remain
effective for makers of NFA firearms. This change would help avoid
multiple markings on firearms that could be confusing to law
enforcement and alleviate concerns of some manufacturers and importers
regarding serial number duplication when firearms are remanufactured or
reimported.
9. Firearm Muffler or Silencer Parts Transferred Between Qualified
Licensees
Licensed and qualified firearm muffler or silencer manufacturers
routinely transfer small internal muffler or silencer components to
each other to produce complete devices, and between qualified licensees
when repairing existing devices. Because of the difficulties and
expense of marking and registering small individual components used to
commercially manufacture a complete muffler or silencer device with
little law enforcement benefit, this proposed rule would allow
qualified manufacturers to transfer parts defined as a firearm muffler
or silencer to other qualified manufacturers without immediately
identifying or registering them. Once the new device is complete with
the part, the manufacturer would be required to identify and register
the device in the manner and within the period specified in this rule
for a complete device. Likewise, the proposed rule would allow
qualified manufacturers to transfer muffler or silencer replacement
parts to qualified manufacturers and dealers to repair existing devices
already identified and registered in the NFRTR. Further, this rule
would amend the definition of ``transfer'' to clarify that the
temporary conveyance of a lawfully possessed NFA firearm, including a
silencer, to a qualified manufacturer or dealer for the sole purpose of
repair, identification, evaluation, research, testing, or calibration,
and return to the same lawful possessor is not a ``transfer'' requiring
additional identification or registration in the NFRTR. This change
would be consistent with the definition of ``transfer'' in 26 U.S.C.
5845(j) because a temporary conveyance for these purposes is not a sale
or other disposition.\71\ These proposed rules are intended to reduce
the practical and administrative problems of marking and registering
silencer parts by the regulated industry, and avoid a potential
resource burden on ATF to process numerous tax-exempt registration
applications with little public safety benefit.\72\
---------------------------------------------------------------------------
\71\ The definition of ``transfer'' in the NFA only includes
``selling, assigning, pledging, leasing, loaning, giving away, or
otherwise disposing of'' a firearm. See United States v. Smith, 642
F.2d 1179, 1182 (9th Cir. 1981) (``We cannot agree that Congress
intended to impose a transfer tax and require registration whenever
mere physical possession of a firearm is surrendered for a brief
period.'').
\72\ These changes are consistent with ATF enforcement policy.
See NFA Handbook, ATF E-Publication 5320.8 (April 2009), pp. 46, 60
sections 7.4.6; 9.5.1. With regard to silencer repairs, in order to
avoid any appearance that an unlawful ``transfer'' has taken place,
ATF recommends that an Application for Tax Exempt Transfer and
Registration of Firearm, ATF Form 5, be submitted for approval prior
to conveying the firearm for repair or identifying the firearm. The
conveyance may also be accomplished by submission of a letter from
the registrant to the qualified FFL advising the FFL that the
registrant is shipping or delivering the firearm for repair/
identification and describing the repair or identification. Return
of the registered silencer to the registrant may likewise be
accomplished by submission of an ATF Form 5 or by a letter from the
FFL to the registrant that accompanies the silencer.
---------------------------------------------------------------------------
10. Voluntary Classification of Firearms and Armor Piercing Ammunition
For many years, ATF has acted on voluntarily requests from persons,
particularly manufacturers who are developing new products, by issuing
determinations or ``classifications'' whether an item is a ``firearm''
or ``armor piercing ammunition'' as defined in the GCA or NFA. This
helps regulated industry members and the public determine what laws and
regulations may be applicable to the product, and any steps that they
may need to take to be compliant with those laws and regulations. To
clarify this process, this proposed rule would set forth the procedure
and conditions by which persons may voluntarily submit such requests to
ATF. Each request would be submitted in writing or on an ATF form
executed under the penalties of perjury with a complete and accurate
description of the item, the name and address of the manufacturer or
importer thereof, and a sample of such item for examination along with
any instructions, guides, templates, jigs, equipment, tools, or
marketing materials that are made available to the purchaser or
recipient of the item. Upon completion of the examination, ATF may
return the sample to the person who made the request unless a
determination is made that return of the
[[Page 27734]]
sample would be or place the person in violation of law.
ATF's decision whether to classify an item voluntarily submitted is
entirely discretionary. The proposed procedure would assist ATF more
efficiently to determine the design and intent of the manufacturer of
the item through its written statements, and by examining the objective
design features of an actual sample along with any instructions,
guides, templates, jigs, equipment, tools, or marketing materials that
are made available to the purchaser or recipient of the item (though
ATF is not limited to examining the items submitted to make its
determination). The proposed rule would further codify ATF's policy not
to evaluate a firearm accessory or attachment ``unless it is installed
on the firearm(s) in the configuration for which it is designed and
intended to be used,'' and would further explain that ``[a]
determination made by the Director under this paragraph shall not be
deemed by any person to be applicable to or authoritative with respect
to any other sample, design, model, or configuration.''
I. Recordkeeping
1. Acquisition and Disposition Records
This proposed rule would make minor amendments to 27 CFR 478.122,
478.123, 478.125, and 478.125a, pertaining to the acquisition and
disposition records maintained by importers, manufacturers, and
dealers. Due to the possibility that a firearm may have more than one
frame or receiver as defined in this rule, and the changes to marking
regulations, this rule would make technical amendments to these
recordkeeping regulations to make certain words plural, (e.g.,
manufacturer(s), importer(s), and serial number(s)) in the regulations
and for the formatting of their records as applicable. Although under
Sec. Sec. 478.11 and 479.11 singular terms in the regulations must
always be read to include the plural form, and vice versa, these
changes are necessary to ensure that Federal firearms licensees record
more than one manufacturer, importer, or serial number, if appropriate,
when acquiring or disposing of firearms with multiple components marked
as the frame or receiver, or that have been remanufactured or
reimported by another licensee. This is consistent with prior ATF
guidance to the firearms industry.\73\ However, to reduce costs
incurred by licensees, ATF anticipates that it would exercise its
discretion not to enforce these format changes to the A&D Record until
an existing paper record book is completed (i.e., ``closed out'') or
electronic record version updated in the normal course of business,
provided the information is accurately recorded as required in the
existing record.
---------------------------------------------------------------------------
\73\ See FFL Newsletter, May 2012, p.5 (``If a firearm is marked
with two manufacturer's names, or multiple manufacturer and importer
names, FFLs should record each manufacturers' and importers' name in
the A&D record.'').
---------------------------------------------------------------------------
Over the years, licensed importers and manufacturers have asked ATF
to allow them to consolidate their records of importation or
manufacture and acquisition and disposition of firearms, rather than
maintaining separate records as required by 27 CFR 478.122(d) and
478.123(d). Because separate records are also difficult for ATF to
inspect, this rule would amend Sec. Sec. 478.122 and 478.123 to
require licensed importers and manufacturers to consolidate their
records of importation, manufacture, or other acquisition, and their
sale or other disposition in a format containing the applicable columns
specified in a table included in Sec. 478.122(b). The columns may be
in a different order than the specified format provided they contain
all required information. These changes would supersede ATF Rulings
2011-1 and 2016-3, and those rulings would become obsolete upon
publication of a final rule.
This rule would also make minor clarifying edits to the format of
the Firearms Acquisition and Disposition Record in Sec. 478.125(e).
The column titled ``Name and address or name and license No.'' would be
retitled as ``Name and address of nonlicensee; or if licensee, name and
License No.'' In addition, the column titled ``Address or License No.
if licensee, or Form 4473 Serial No. if Forms 4473 filed numerically''
would be retitled ``Address of nonlicensee; License No. of licensee; or
Form 4473 Serial No. if such forms filed numerically.'' This change
would make clear that both the name and license number (not the
address) of a licensee from whom firearms are received and to whom they
are disposed are recorded in the A&D Record. However, to reduce costs
incurred by licensees, ATF anticipates that it would exercise its
discretion not to enforce these format changes to the A&D Record until
an existing paper record book is completed (i.e., ``closed out'') or
electronic record version updated in the normal course of business,
provided the information is accurately recorded as required in the
existing record.
The proposed changes to Sec. 478.125 would also include a minor
amendment to paragraph (f) to make it clear that in the event the
licensee records a duplicate entry with the same firearm and
acquisition information, whether to close out an old record book or for
any other reason, the licensee must record a reference to the date and
location of the subsequent entry (e.g., date of new entry, book name/
number, page number, and line number) as the disposition. This change
is needed to ensure that acquisition records are closed out when
firearms are no longer in inventory.\74\ This would resolve a
significant problem that ATF Industry Operations Investigators have
when trying to reconcile the inventory of a Federal firearms licensee,
and that Federal firearms licensees have when timely responding to
trace requests, particularly when old A&D Records are ``closed out''
and stored, which, under this proposed rule, could be in a separate
warehouse depending on their age (see Section II.J of the preamble).
---------------------------------------------------------------------------
\74\ This is consistent with prior ATF guidance to the firearms
industry. See FFL Newsletter, Sept. 2011, p.5.
---------------------------------------------------------------------------
2. Firearms Transaction Records
Some technical amendments would be needed at 27 CFR 478.124
pertaining to information recorded on the ATF Form 4473. Like changes
to the recordkeeping regulations, these amendments would make certain
words plural, (e.g., manufacturer(s), importer(s), and serial
number(s)) to ensure that the Federal firearms licensee is recording
more than one manufacturer, importer, and serial number, if
appropriate, on Forms 4473. In addition, the proposed changes to Sec.
478.124 would include a minor technical amendment to paragraph (f) by
removing a phrase that indicates that a Federal firearms licensee must
fill out the firearm description information only after filling out the
information about the transferee. Making this deletion would codify ATF
Procedure 2020-1, which sets forth an alternative method of complying
with Sec. 478.124(f) for non-over-the-counter firearm transactions.
ATF recently issued that procedure in light of changes to ATF Form 4473
(May 2020), which now requires completion of the form in an order
different from that provided in Sec. 478.124(f).
3. Recordkeeping for Privately Made Firearms
Minor changes to the above regulations regarding recordkeeping by
licensees would also be needed to account for any voluntary receipts or
other acquisitions (including from a personal collection) of privately
made firearms, and corresponding dispositions (including to a personal
collection). Since PMFs are not
[[Page 27735]]
commercially manufactured, if a PMF were received or otherwise acquired
by a licensee or disposed of, or imported, the abbreviation ``PMF''
would be recorded as the manufacturer in the appropriate column on a
licensee's acquisition and disposition record, ATF Form 4473, or import
application, as well as the PMF serial number beginning with the
abbreviated FFL number in the serial number column. For PMFs received
prior to the effective date of a final rule that are to be identified
by the licensee in accordance with Sec. 478.92, or by another licensee
at the licensee's request, the licensee would be required to first
record the firearm as an acquisition in the licensee's A&D Records upon
receipt from the private owner (whether or not the licensee keeps the
PMF overnight). Once marked, the licensee would update the acquisition
entry with the identifying information, and then record its return as a
disposition to the private owner. However, to reduce costs incurred by
licensees, ATF anticipates that it would exercise its discretion not to
enforce a title format change to the A&D Record to add ``and/or PMF''
in the manufacturer column until an existing paper record book is
completed (i.e., ``closed out'') or electronic record version updated
in the normal course of business, provided each PMF received is
accurately recorded as a ``PMF'' in the manufacturer column.
4. NFA Forms Update
Minor technical amendments would also be needed in 27 CFR 479.62,
479.84, 479.88, 479.90, and 479.141, pertaining to NFA Form 1
(Application to Make), NFA Form 4 (Application to Transfer), NFA Form 3
(Tax Exempt Transfers--SOTs), NFA Form 5 (Tax Exempt Transfers--
Governmental Entities), and the Stolen or Lost Firearms report,
respectively. Due to the new definitions and changes to marking
regulations, the technical amendments here would make certain words
plural (e.g., manufacturer(s), importer(s), serial number(s)) in the
regulations as applicable. Although under Sec. Sec. 478.11 and 479.11
singular terms in the regulations must always be read to include the
plural form, and vice versa, these changes are necessary to ensure that
more than one name, manufacturer, importer, or serial number, if
appropriate, is recorded when completing the NFA forms.
5. Importation Forms Update
Minor technical amendments would also be needed in 27 CFR 447.42,
447.45, 478.112, 478.113, 478.114, and 479.112, pertaining to the
importation of firearms. Again, due to the new definition and changes
to marking regulations, the technical amendments here would make
certain words plural (e.g., manufacturer(s), country or countries of
manufacture, and serial number(s)) in the regulations as applicable.
Although under Sec. Sec. 478.11 and 479.11 singular terms in the
regulations must always be read to include the plural form, and vice
versa, these changes are necessary to ensure that more than one name,
manufacturer, country, importer, or serial number, if appropriate, is
recorded when completing importation forms.
J. Record Retention
This rule also proposes to amend 27 CFR 478.129 to remove language
stating that FFL dealers and collectors need only keep A&D Records and
ATF Forms 4473 for up to 20 years following the date of sale or
disposition of the firearm. The proposed changes would require Federal
firearms licensees to retain all records until business or licensed
activity is discontinued, either on paper or in an electronic format
approved by the Director,\75\ at the business or collection premises
readily accessible for inspection. There would also be an amendment to
27 CFR 478.50(a) to allow all licensees, including manufacturers and
importers, to store paper records and forms with no open disposition
entries and with no dispositions recorded within 20 years at a separate
warehouse, which would be considered part of the business premises for
this purpose and subject to inspection.
---------------------------------------------------------------------------
\75\ ATF previously approved electronic storage of certain
records under the conditions set forth in ATF Rulings 2016-1
(Acquisition and Disposition Records) and 2016-2 (ATF Forms 4473).
---------------------------------------------------------------------------
In view of advancements in electronic scanning and storage
technology, and ATF's acceptance of electronic recordkeeping, these
amendments would reverse a 1985 rulemaking allowing non-manufacturer/
importer Federal firearms licensees to destroy their records after 20
years.\76\ The durability and longevity of firearms means that they are
often in circulation for more than 20 years, while the cost of storing
firearm transaction records has decreased dramatically through
electronic recordkeeping. The proposed amendments would enhance public
safety by ensuring that records of active licensees will be available
for tracing purposes. ATF has encountered some firearms retailers who
have destroyed large numbers of records more than 20 years old so that
they would no longer need to be stored physically. This resulted in
some traces of firearms involved in crimes to be returned incomplete
for lack of records. This provision is also essential if PMFs involved
in crime are marked and traced directly to licensed dealers who, unlike
licensed manufacturers and importers, are not presently required to
maintain permanent records.
---------------------------------------------------------------------------
\76\ See 50 FR 26702 (June 28, 1985).
---------------------------------------------------------------------------
III. Statutory and Executive Order Review
A. Executive Orders 12866 and 13563
Executive Order 12866 (Regulatory Planning and Review) directs
agencies to assess the costs and benefits of available regulatory
alternatives and, if regulation is necessary, to select regulatory
approaches that maximize net benefits (including potential economic
benefits, environmental benefits, public health and safety effects,
distributive impacts, and equity). Executive Order 13563 (Improving
Regulation and Regulatory Review) emphasizes the importance of
quantifying both costs and benefits, of reducing costs, of harmonizing
rules, and of promoting flexibility.
The Office of Management and Budget (OMB) has determined that while
this proposed rule is not economically significant, it is a
``significant regulatory action'' under section 3(f)(4) of Executive
Order 12866 because this proposed rule raises novel legal or policy
issues arising out of legal mandates. Accordingly, the rule has been
reviewed by OMB.
This proposed rule would update the new definition of ``frame or
receiver,'' among other items. Table 1 provides a summary of the
provisions of this proposed rule, along with the estimated affected
population, costs, and benefits.
Table 1--Summary of Affected Population, Costs, and Benefits
------------------------------------------------------------------------
Category NPRM
------------------------------------------------------------------------
Applicability.......................... New Definition of
Receiver.
[[Page 27736]]
Update Marking
Requirements.
New Gunsmithing
Definition.
Update Record
Retention.
Other Technical
Amendments.
Affected Population.................... 113,204 FFLs (Record
Retention).
Unknown number of FFLs
manufacturers and importers
(Definition of Receiver).
35 Non-FFL
manufacturers (Definition of
Receiver).
6,044 FFL retailers
(PMFs).
36 Non-FFL retailers
(PMFs).
Unknown number of
Individual Owners.
Total Costs to Industry, Public, and $1.1 million; $149,995 7%
Government (7% Discount Rate). annualized.
Benefits (7% Discount Rate)............ N/A.
Benefits (Qualitative)................. Provides clarity to
courts on what constitutes a
firearm frame or receiver.
Applies to new
technology.
Makes consistent
marking requirements.
Eases certain marking
requirements.
Increases tracing of
crime scene firearms to
prosecute criminals.
------------------------------------------------------------------------
1. New Definition of Firearm Frame or Receiver
The proposed definition of this term would maintain current
classifications and current marking requirements of firearm frames or
receivers, except that the licensed manufacturer or importer must mark
on new designs or configurations either: Their name (or recognized
abbreviation), and city and State (or recognized abbreviation) where
they maintain their place of business; or their name (or recognized
abbreviation) and their abbreviated FFL number, on each part defined as
a frame or receiver, along with the serial number. To ensure
traceability if the parts are separated, there would no longer be an
option only to mark the FFL's name, city, and state on the slide or
barrel. More specifically--
The proposed definitions would take into account the fact
that modern firearms do not house all the components as defined in the
current definition. These definitions account for firearms such as
split frames or multi-piece firearms;
The proposed definition would recognize the current
classifications of a firearm ``frame or receiver.'' It is intended to
encompass the majority, if not all, of existing regulated firearms, and
no new marking requirements would be required for these existing
designs and configurations;
After this proposed rule is finalized, markings on new
designs or configurations of firearms manufactured or imported may be
accomplished by marking each frame or receiver with the licensee's
name, city, and state, and serial number, or with the licensee's name
and abbreviated license number prefix and number (serial number) in the
manner prescribed by existing marking requirements;
Markings would need to be accomplished within 7 days of
completion of the active manufacturing process for the complete weapon
(or frame or receiver of such weapon if not being sold as a complete
weapon); and
The proposed rule would require acquisition and
disposition record changes to accommodate recording multiple frames or
receivers that have different serial numbers if the original frames or
receivers (with the same serial number) become separated and are
reassembled with frames or receivers bearing different serial numbers.
ATF believes that the majority of the industry currently complies
with these requirements, so the cost would be minimal. While the new
definitions would mostly affect new designs or configurations of
firearms, manufacturers would still be able to receive a determination
or a variance on the design from ATF; therefore, they may not
experience an additional cost or burden. For more details, please refer
to Chapter 2 of the Regulatory Impact Analysis.\77\
---------------------------------------------------------------------------
\77\ The Regulatory Impact Analysis is available on
www.regulations.gov in the same docket as this rule.
---------------------------------------------------------------------------
2. Partially Complete, Disassembled, or Inoperable Firearm Kits
This section addresses non-FFL manufacturers who manufacture
partially complete, disassembled, or inoperable frame or receiver kits,
to include both firearm parts kits that allow a person to make only a
frame or receiver, and those kits that allow a person to make a
complete weapon. When a partially complete frame or receiver parts kit
reaches a stage in manufacture where it may readily be completed,
assembled, converted, or restored to a functional state, it would be
considered a firearm ``frame or receiver'' that must be marked.
Further, under the proposed rule, weapon parts kits with partially
complete frames or receivers containing the necessary parts such that
they may readily be completed, assembled, converted, or restored to
expel a projectile by the action of an explosive would be ``firearms''
for which each frame or receiver of the weapon, as defined under this
rule, would need to be marked.
For non-FFL manufacturers of firearm parts kits containing a part
defined as a firearm frame or receiver, ATF anticipates there would be
a significant impact on these individual companies, but notes that the
overall industry impact would also be minimal. Based on current
marketing related to the unregulated sale of certain firearm parts
kits, ATF anticipates that these non-FFLs would either become FFLs to
sell regulated frames or receivers or complete weapons (either as kits
or fully assembled), or would take a loss in revenue to sell
unregulated items or parts kits that do not contain a frame or receiver
(i.e., unregulated raw materials or molds, fire control components,
barrels, accessories, tools, jigs, or instructions), but not both. For
more details, please refer to Chapter 3 of the Regulatory Impact
Analysis.
3. Gunsmithing
The proposed rule would result in a one-time cost for contract
gunsmithing, estimated to be $180,849. For more details, please refer
to Chapter 4 of the Regulatory Impact Analysis.
[[Page 27737]]
4. Silencers
The proposed rule would require silencers to be marked on any
housing or structure, such as an outer tube or modular piece, designed
to hold or integrate one or more essential internal components of the
device. Currently, the regulations assume that each part defined as a
muffler or silencer must be marked and registered.\78\ While this
proposed change would increase the number of certain parts--firearm
muffler or silencer frames or receivers--that need to be marked for
modular silencers, this proposed change is not intended to require
marking of all silencer parts so long as they are incorporated into a
complete device by the original manufacturer or maker that is marked
and registered. More specifically, none of the internal nonstructural
parts of a complete muffler or silencer device would need to be marked
so long as each frame or receiver as defined in this rule is marked.
However, as with current regulations, silencer parts sold, shipped, or
otherwise disposed of separately would still be considered
``silencers'' that require all markings prior to disposition except
when transferred between qualified manufacturers for the production of
new devices, and to qualified manufacturers and dealers for the repair
of existing devices (see Section II.H.9 of the preamble).
---------------------------------------------------------------------------
\78\ See footnote 47, supra.
---------------------------------------------------------------------------
However, the proposed rule would now require some manufacturers of
silencers to mark the outer tube rather than the endcap. ATF
anticipates only minimal costs associated with moving the serial number
and other identifying information from the end cap or adding the same
information to the outer tube on certain silencers. Furthermore, there
may be a savings for individual owners of silencers. This proposed rule
would expressly allow for repairs on silencer devices without having to
undergo the additional NFA transfer and registration process, so long
as the device is returned to the sender. For more details, please refer
to Chapter 5 of the Regulatory Impact Analysis.
5. Privately Made Firearms
A firearm, including a frame or receiver, assembled or otherwise
produced by a non-licensee without any markings by a licensee at the
time of production or importation is defined as a ``privately made
firearm (PMF)'' in the proposed rule. This does not include a firearm
identified and registered in the NFRTR pursuant to chapter 53, title
26, United States Code, or any firearm made before October 22, 1968
(unless remanufactured after that date). Under the proposed rule, FFLs
would be required to mark PMFs within 7 days of the firearm being
received by a licensee, or before disposition, whichever first occurs.
Licensees would have 60 days to mark PMFs already in inventory after a
final rule becomes effective. FFLs would have the option to mark their
existing PMFs themselves. Both FFLs and non-FFLs would have the option
to contract with an FFL, such as a gunsmith, for this purpose, dispose
of them, or send them to ATF or another law enforcement agency for
disposal. The industry cost for this section is $563,340. For more
details, please refer to Chapter 6 of the Regulatory Impact Analysis.
6. Record Retention
Currently, licensees other than manufacturers and importers do not
have to store their ATF Forms 4473 or A&D records beyond 20 years. This
proposed rule would require licensed dealers and collectors to store
their Forms 4473 or A&D records indefinitely. The industry cost for
this section would be minimal because FFLs could drop off their
overflow records to ATF or have ATF ship them directly. The government
cost for this provision is $68,939 annually. For more details, please
refer to Chapter 7 of the Regulatory Impact Analysis.
7. ATF Form Updates
This proposed rule would modify existing forms and records, such as
ATF Forms 4473, NFA forms, importation forms, the Stolen or Lost
Firearms Reports, and A&D Records, to help ensure that if more than one
manufacturer or serial number is identified on any firearm, those names
or serial numbers are recorded. As paper forms run out, FFLs would be
able to order forms as part of their normal operations. In other words,
FFLs using paper forms requested from ATF are not anticipated to incur
any additional cost. For FFLs maintaining transaction records
electronically, these FFLs would also only be required to update their
software during their next regularly scheduled update. Because software
updates occur regularly, and costs are already incorporated for those,
ATF does not anticipate any additional costs would be incurred for
these changes. There is no cost associated with this section. For more
details, please refer to Chapter 8 of the Regulatory Impact Analysis.
8. Total Cost of the Proposed Rule
The total 10-year undiscounted cost of this proposed rule is
estimated to be $1.3 million. The total 10-year discounted cost of the
rule is $1.0 million and $1.2 million at 7 percent and 3 percent
respectively. The annualized cost of this proposed rule would be
$147,048 and $135,750, also at 7 percent and 3 percent, respectively.
9. Alternatives
ATF considered various alternatives when preparing this proposed
rule. For a more detailed analysis, please refer to Chapters 1 and 10
of the Regulatory Impact Analysis.
a. This Proposed Rule
ATF chose to propose promulgating new definitions of ``frame or
receiver,'' ``privately made firearm,'' ``gunsmithing,'' and an update
to records retention and new requirements for marking silencers,
because they would maximize benefits.
b. Other Considered Alternatives
Alternative 1--No change. While this alternative minimizes cost, it
does not meet any of the objectives outlined in this proposed rule.
Alternative 2--Everytown for Gun Safety petition. ATF received a
petition for rulemaking from Everytown for Gun Safety, a non-profit
organization, proposing to define ``firearm frame or receiver'' in 27
CFR 478.11. That proposed definition focused on housing the ``trigger
group''; however, it did not define ``trigger group'' and even if it
did, it would not address firearms that do not house trigger components
within a single housing, or which have a remote trigger outside the
weapon. In other words, this alternative would fall short of addressing
all technologies or designs of firearms that are currently available,
or may become available in the future. It also does not address
potential changes in firearms terminology. Thus, while the alternative
requested by that petition would reduce the cost by reducing the number
of entities affected, it does not fully address the objectives of this
proposed rule.
Alternative 3--Grandfather all existing firearms and receivers.
This alternative would grandfather in all existing firearms that would
not meet the serialization standard for partially complete and split
frames or receivers. This was considered and incorporated into the
proposed alternative, where feasible. However, in order to enforce the
regulation, a complete grandfathering of existing firearms and
silencers is problematic in that manufacturers could continue to
[[Page 27738]]
produce non-compliant firearm frames or receivers and falsely market
them as grandfathered firearms. This could potentially pose an
enforcement issue that may not be resolved for years if not decades.
Alternative 4--Require serialization of all partially complete
firearms or split receivers. This would require all firearms purchased
by individuals to be retroactively serialized. However, the cost would
increase considerably and the GCA only regulates the manufacture of
firearms by Federal firearm licensees, not the making of firearms for
personal use by private unlicensed individuals.
B. Executive Order 13132
This proposed rule will not have substantial direct effects on the
States, the relationship between the Federal Government and the States,
or the distribution of power and responsibilities among the various
levels of government. This rule is not intended to supersede State
requirements unless there is a direct and positive conflict between
them such that they cannot be reconciled or consistently stand
together.\79\ States can require markings on firearms for individuals.
This rule does not require individuals to mark their personal firearms.
Therefore, in accordance with section 6 of Executive Order 13132
(Federalism), the Attorney General has determined that this proposed
rule does not have sufficient federalism implications to warrant the
preparation of a federalism summary impact statement.
---------------------------------------------------------------------------
\79\ See 18 U.S.C. 927.
---------------------------------------------------------------------------
C. Executive Order 12988
This regulation 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
In accordance with the Regulatory Flexibility Act (``RFA''), ATF
prepared an Initial Regulatory Flexibility Analysis (``IRFA'') that
examines the impacts of the proposed rule on small entities (5 U.S.C.
601 et seq.). The IRFA is included here and as part of the RFA. The
term ``small entities'' comprises small businesses, not-for-profit
organizations that are independently owned and operated and are not
dominant in their fields, and governmental jurisdictions with
populations of fewer than 50,000 people. 5 U.S.C. 601(6).
Because this proposed rule affects different populations in
different ways, the analysis for the IRFA has been broken up by
provision. Certain provisions may have a significant impact on certain
small entities, such as non-FFL manufactures of firearm parts kits with
incomplete firearm frames or receivers. Based on the information from
this analysis:
ATF estimates that this proposed rule could potentially
affect 132,023 entities, including all FFLs and non-FFL manufacturers
and retailers of firearm parts kits with incomplete firearm frames or
receivers, but anticipates that the majority of entities affected by
this rule would experience minimal or no additional costs.
Non-FFL manufacturers are anticipated to be small and
would potentially have a significant impact on their individual
revenue.
The second largest impact would be $12,828 if a
manufacturer had to retool their existing production equipment, but ATF
anticipates this is unlikely because this proposed rule encompasses the
majority of existing technology. This would not affect future
production because this work would be part of their normal operations
in creating new firearms.
ATF estimates the majority of affected entities are small
entities that would experience a range of costs; therefore, this rule
may have a significant impact on small entities.
Under the RFA, we are required to consider what, if any, impact
this rule would have on small entities. Agencies must perform a review
to determine whether a rule will have such an impact. Because the
agency has determined that it will, the agency has prepared an initial
regulatory flexibility analysis as described in the RFA. Under Section
603(b) of the RFA, the regulatory flexibility analysis must provide or
address:
A description of the reasons why action by the agency is
being considered;
A succinct statement of the objectives of, and legal basis
for, the proposed rule;
A description of, and where feasible, an estimate of the
number of small entities to which the proposed rule will apply;
A description of the projected reporting, recordkeeping
and other compliance requirements of the proposed rule, including an
estimate of the classes of small entities which will be subject to the
requirement and the type of professional skills necessary for
preparation of the report or record;
An identification, to the extent practicable, of all
relevant Federal rules which may duplicate, overlap or conflict with
the proposed rule; and
Descriptions of any significant alternatives to the
proposed rule which accomplish the stated objectives of applicable
statutes and which minimize any significant economic impact of the
proposed rule on small entities.
1. A Description of the Reasons Why Action by the Agency Is Being
Considered
One of the reasons ATF is considering this proposed regulation is
the failure of the market to compensate for negative externalities
caused by commercial activity. A negative externality can be the by-
product of a transaction between two parties that is not accounted for
in the transaction.
This proposed rule would update the existing definition of frame or
receiver to account for the majority of technological advances in the
industry and ensure that these firearms continue to remain under the
regulatory regime as intended by the enactment of the GCA, including
accounting for manufacturing of firearms using multiple manufacturers.
In light of recent court cases, the majority of regulated firearms may
not meet the existing definition of firearm frame or receiver. This may
result in no part of a firearm being regulated as a ``frame or
receiver'' contrary to the requirements in the GCA that ensure tracing
to solve crime and help prevent prohibited persons from coming into
possession of weapons. Furthermore, finding information in support of
criminal cases may be hindered because records are destroyed after 20
years despite the fact that firearms may last longer than 20 years and
be used in criminal activities.
This proposed rule would also account for advances in technology in
performing transactions such as electronic storage. For more specific
details regarding the need for regulation, please refer to the specific
chapters pertaining to each provision of this proposed rule.
2. A Succinct Statement of the Objectives of, and Legal Basis for, the
Proposed Rule
The Attorney General is responsible for enforcing the GCA, as
amended, and the NFA, as amended. This responsibility includes the
authority to promulgate regulations necessary to enforce the provisions
of the GCA and NFA. See 18 U.S.C. 926(a); 26 U.S.C. 7801(a)(2)(A); id.
at 7805(a). Congress and the Attorney General have delegated the
responsibility for administering and enforcing the GCA and NFA to the
Director of ATF, subject to the direction of the Attorney General and
the Deputy Attorney General. See
[[Page 27739]]
28 U.S.C. 599A(b)(1); 28 CFR 0.130(a)(1)-(2). Accordingly, the
Department and ATF have promulgated regulations implementing both the
GCA and the NFA. See 27 CFR parts 478, 479.
The proposed rule provides new regulatory definitions of ``firearm
frame or receiver'' and ``frame or receiver'' because they are
outdated. The proposed rule would also amend ATF's definitions of
``firearm'' and ``gunsmith'' to clarify the meaning of those terms, and
to add new regulatory terms such as ``complete weapon,'' ``complete
muffler or silencer device,'' ``privately made firearm,'' and
``readily'' for purposes of clarity given advancements in firearms
technology. Further, the proposed rule would amend ATF's regulations on
marking and recordkeeping that are necessary to implement these new or
amended definitions.
3. A Description of, and Where Feasible, an Estimate of the Number of
Small Entities to Which the Proposed Rule Will Apply
ATF estimates that this rule could potentially affect
132,023 entities, including all FFLs and non-FFL manufactures and
retailers of firearm kits, but anticipates that the majority of
entities affected by this rule would experience minimal or no
additional costs.
ATF anticipates the majority of affected entities are
small entities and would experience any range of costs; therefore this
rule would have a significant impact on a substantial number of small
entities.
4. An Identification, to the Extent Practicable, of All Relevant
Federal Rules Which May Duplicate, Overlap or Conflict With the
Proposed Rule
This proposed rule does not duplicate or conflict with other
Federal rules.
5. Descriptions of any Significant Alternatives to the Proposed Rule
Which Accomplish the Stated Objectives of Applicable Statutes and Which
Minimize any Significant Economic Impact of the Proposed Rule on Small
Entities
The significant alternatives considered are set forth in Section
IV(A)(9) of this preamble. For more details, please refer to Chapters 1
and 10 of the Regulatory Impact Analysis.
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.
F. Unfunded Mandate Reform Act of 1995
This proposed rule will 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, Public Law 104-4, 109 Stat. 48.
G. Paperwork Reduction Act of 1995
This proposed rule would call for collections of information under
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-20). As defined in
5 CFR 1320.3(c), ``collection of information'' comprises reporting,
recordkeeping, monitoring, posting, labeling, and other similar
actions. The title and description of the information collection, a
description of those who must collect the information, and an estimate
of the total annual burden follow. The estimate covers the time for
reviewing instructions, searching existing sources of data, gathering
and maintaining the data needed, and completing and reviewing the
collection.
Under the provisions of this proposed rule, there would be a one-
time increase in paperwork burdens of identification markings placed on
firearms as well as additional transaction records. This requirement
would be added to an existing approved collection covered by OMB
control number 1140-0050 and 1140-0067.
Title: Identification Markings Placed on Firearms.
OMB Control Number: OMB 1140-0050.
Proposed Use of Information: The Bureau of Alcohol, Tobacco,
Firearms, and Explosives would use this information in fighting crime
by facilitating the tracing of firearms used in criminal activities.
The systematic tracking of firearms from the manufacturer or U.S.
importer to the retail purchaser also enables law enforcement agencies
to identify suspects involved in criminal violations, determine if a
firearm is stolen, and provide other information relevant to a criminal
investigation.
Description and Number of Respondents: Currently there are 12,252
licensed manufacturers of firearms and 1,343 licensed importers. Of the
potential number of licensed dealers and licensed pawnbrokers, ATF
estimates that those directly affected would be a one-time surge of
5,298 licensed dealers, 710 licensed pawnbrokers, and 36 non-licensed
dealers that would be affected. This proposed rule would affect a one-
time surge of 6,044 respondents.
Frequency of Response: There will be a recurring response for all
currently existing 13,595 licensed manufactures and licensed importers.
This proposed rule would affect a one-time number of responses of
12,088 responses (6,044 respondents * 2 responses).
Burden of Response: This includes recurring time burden of 1
minute. ATF anticipates a one-time hourly burden of 0.25 hours per
respondent.
Estimate of Total Annual Burden: The current burden listed in this
collection of information is 85,630 hours. The new burden, as a result
of this proposed rulemaking, is a one-time hourly burden of 3,022
(6,044 respondents * 2 responses * 0.25 hourly burden per respondent).
Title: Licensed Firearms Manufactures Records of Production,
Disposition, and Supporting Data.
OMB Control Number: OMB 1140-0067.
Proposed Use of Information: The Bureau of Alcohol, Tobacco,
Firearms, and Explosives would use this information for criminal
investigation or regulatory compliance with the Gun Control Act of
1968. The Attorney General may inspect or examine the inventory and
records of a licensed importer, licensed manufacturer, or licensed
dealer, without such reasonable cause or warrant, and during the course
of a criminal investigation of a person or persons other than the
licensee in order to ensure compliance with the recordkeeping
requirements of 18 U.S.C. 923(g)(1)(A) and (B). The Attorney General
may also inspect or examine any records relating to firearms involved
in a criminal investigation that is traced to the licensee, or firearms
that may have been disposed of during the course of a bona fide
criminal investigation.
Description and Number of Respondents: The current number of
respondents is 9,056 firearm manufacturers, but this proposed rule
would have a one-time surge for an unknown select few licensed
manufacturers.
Frequency of Response: There will be a recurring response for all
9,056 licensed manufacturers, but only a one-time surge of 6,790
responses ((2,649 licensed dealer submissions + 710 license pawnbroker
submissions + 36 non-licensed dealers) * 2 firearms or firearm kits) to
licensed manufactures.
Burden of Response: This includes recurring time burden of 1.05
minutes. The burden resulting from this proposed
[[Page 27740]]
rule is 0.25 hours per set of submittals by licensed dealers and
licensed pawnbrokers to licensed manufacturers.
Estimate of Total Annual Burden: The current burden listed in this
collection of information is 201,205 hours. The new burden, as a result
of this proposed rulemaking, is 1,698 hours (6,790 responses * 0.25
hours).
As required by the Paperwork Reduction Act of 1995 (44 U.S.C.
3507(d)), a copy of this proposed rule will be submitted to OMB for its
review of the collections of information.
We ask for public comment on the proposed collection of information
to help us determine how useful the information is; whether it can help
us perform our functions better; whether it is readily available
elsewhere; how accurate our estimate of the burden of collection is;
how valid our methods for determining burden are; how we can improve
the quality, usefulness, and clarity of the information; and how we can
minimize the burden of collection.
You need not respond to a collection of information unless it
displays a currently valid control number from OMB. Before the
requirements for this collection of information becomes effective, we
will publish a notice in the Federal Register and request additional
comments regarding the collection of information prior to OMB's
decision to approve, modify, or disapprove the proposed collection.
IV. Public Participation
A. Comments Sought
ATF requests comments on the proposed rule from all interested
persons. ATF specifically requests comments on the feasibility of
implementing the new definition of firearm ``frame or receiver'' in 27
CFR 478.11 and 27 CFR 479.11, and related definitions and amendments
that ensure the proper marking, recordkeeping, and traceability of all
firearms manufactured, imported, acquired and disposed by Federal
firearms licensees. ATF also requests comments on the costs or benefits
of the proposed rule and on the appropriate methodology and data for
calculating those costs and benefits.
All comments must reference this document's docket number ATF
2021R-05, be legible, and include the commenter's complete first and
last name and full mailing address. ATF may not consider, or respond
to, comments that do not meet these requirements or comments containing
profanity. ATF will retain all comments as part of this rulemakings
administrative record. ATF will treat all comments as originals and
will not acknowledge receipt of comments. In addition, if ATF cannot
read your comment due to technical difficulties and cannot contact you
for clarification, ATF may not be able to consider your comment.
ATF will carefully consider all comments, as appropriate, received
on or before the closing date, and will give comments after that date
the same consideration if practical to do so, but assurance of
consideration cannot be given except as to comments received on or
before the closing date.
B. Confidentiality
ATF will make all comments meeting the requirements of this
section, whether submitted electronically or on paper, available for
public viewing at ATF and on the internet through the Federal
eRulemaking Portal, and subject to the Freedom of Information Act (5
U.S.C. 552). Commenters who do not want their name or other personal
identifying information posted on the internet should submit comments
by mail or facsimile, along with a separate cover sheet containing
their personal identifying information. Both the cover sheet and
comment must reference this docket number (2021R-05). For comments
submitted by mail or facsimile, information contained on the cover
sheet will not appear when posted on the internet but any personal
identifying information that appears within a comment will not be
redacted by ATF and it will appear on the internet.
A commenter may submit to ATF information identified as proprietary
or confidential business information. The commenter shall place any
portion of a comment that is proprietary or confidential business
information under law on pages separate from the balance of the comment
with each page prominently marked ``PROPRIETARY OR CONFIDENTIAL
BUSINESS INFORMATION'' at the top of the page.
ATF will not make proprietary or confidential business information
submitted in compliance with these instructions available when
disclosing the comments that it received, but will disclose that the
commenter provided proprietary or confidential business information
that ATF is holding in a separate file to which the public does not
have access. If ATF receives a request to examine or copy this
information, it will treat it as any other request under the Freedom of
Information Act (5 U.S.C. 552). In addition, ATF will disclose such
proprietary or confidential business information to the extent required
by other legal process.
C. Submitting Comments
Submit comments in any of three ways (but do not submit the same
comment multiple times or by more than one method). Hand-delivered
comments will not be accepted.
Federal eRulemaking Portal: ATF recommends that you submit
your comments to ATF via the Federal eRulemaking portal at
www.regulations.gov and follow the instructions. Comments will be
posted within a few days of being submitted. However, if large volumes
of comments are being processed simultaneously, your comment may not be
viewable for up to several weeks. Please keep the comment tracking
number that is provided after you have successfully uploaded your
comment.
Mail: Send written comments to the address listed in the
ADDRESSES section of this document. Written comments must appear in
minimum 12-point font size (.17 inches), include the commenter's first
and last name and full mailing address, be signed, and may be of any
length.
Facsimile: Submit comments by facsimile transmission to
(202) 648-9741. Faxed comments must:
1. Be legible and appear in minimum 12 point font size (.17
inches);
2. Be 8\1/2\'' x 11'' paper;
3. Be signed and contain the commenter's complete first and last
name and full mailing address; and
4. Be no more than five pages long.
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 in response
to it will be available through the Federal eRulemaking portal, at
www.regulations.gov (search for ATF 2021R-05), and for public
inspection by appointment during normal business hours at: ATF Reading
Room, Room 1E-063, 99 New York Ave. NE, Washington, DC 20226;
telephone: (202) 648-8740.
List of Subjects
27 CFR Part 447
Administrative practice and procedure, Arms control, Arms and
[[Page 27741]]
munitions, Authority delegation, Chemicals, Customs duties and
inspection, Imports, Penalties, Reporting and recordkeeping
requirements, Scientific equipment, Seizures and forfeitures.
27 CFR Part 478
Administrative practice and procedure, Arms and munitions, Exports,
Freight, Imports, Intergovernmental relations, Law enforcement
officers, Military personnel, Penalties, Reporting and recordkeeping
requirements, Research, Seizures and forfeitures, Transportation.
27 CFR Part 479
Administrative practice and procedure, Arms and munitions, Excise
taxes, Exports, Imports, Military personnel, Penalties, Reporting and
recordkeeping requirements, Seizures and forfeitures, Transportation.
Authority and Issuance
For the reasons discussed in the preamble, 27 CFR parts 447, 478,
and 479 are proposed to be amended as follows:
PART 447--IMPORTATION OF ARMS, AMMUNITION AND IMPLEMENTS OF WAR
0
1. The authority citation for 27 CFR part 447 continues to read as
follows:
Authority: 22 U.S.C. 2778; Exec. Order 13637, 78 FR 16129 (Mar.
8, 2013).
Sec. 447.42 [Amended]
0
2. Amend Sec. 447.42 as follows:
0
a. In paragraph (a)(1)(ii), remove the word ``country'' and add in its
place the term ``country or countries'';
0
b. In paragraph (a)(1)(iv)(A), remove ``manufacturer'' and add in its
place ``manufacturer(s) of the firearm or privately made firearm (if
privately made in the United States)''; and
0
c. In paragraph (a)(1)(iv)(G), remove ``serial number'' and add in its
place ``serial number(s)''.
Sec. 447.45 [Amended]
0
3. Amend Sec. 447.45 as follows:
0
a. In paragraph (a)(2)(ii), remove ``manufacturer of the defense
article'' and add in its place ``manufacturer(s) of the defense article
or privately made firearm (if privately made in the United States)'';
0
b. In paragraph (a)(2)(iii), remove the word ``country'' and add in its
place the term ``country or countries''; and
0
c. In paragraph (a)(2)(vii), remove ``serial number'' and add in its
place ``serial number(s)''.
PART 478--COMMERCE IN FIREARMS AND AMMUNITION
0
4. The authority citation for 27 CFR part 478 continues to read as
follows:
Authority: 5 U.S.C. 552(a); 18 U.S.C. 921-931; 44 U.S.C.
3504(h).
0
5. In Sec. 478.11:
0
a. Add, in alphabetical order, definitions for ``Complete muffler or
silencer device'' and ``Complete weapon'';
0
b. Revise the definition of ``Engaged in the business'' paragraph (d)
``Gunsmith'' and the definition of ``Firearm'';
0
c. Remove the definition of ``Firearm frame or receiver''; and
0
d. Add, in alphabetical order, definitions for ``Frame or receiver'',
``Importer or manufacturer's serial number'', ``Privately made firearm
(PMF)'', and ``Readily''.
The additions and revisions read as follows:
Sec. 478.11 Meaning of terms.
* * * * *
Complete muffler or silencer device. A firearm muffler or firearm
silencer that contains all component parts necessary to function as
designed whether or not assembled or operable.
Complete weapon. A firearm other than a firearm muffler or firearm
silencer that contains all component parts necessary to function as
designed whether or not assembled or operable.
* * * * *
Engaged in the business-- * * *
(d) Gunsmith. A person who, as a service performed on existing
firearms not for sale or distribution by a licensee, devotes time,
attention, and labor to repairing or customizing firearms, making or
fitting special barrels, stocks, or trigger mechanisms to firearms, or
identifying firearms in accordance with this chapter, as a regular
course of trade or business with the principal objective of livelihood
or profit, but such term shall not include a person who occasionally
repairs or customizes firearms, or occasionally makes or fits special
barrels, stocks, or trigger mechanisms to firearms;
* * * * *
Firearm. Any weapon, including a starter gun, which will or is
designed to or may readily be converted to expel a projectile by the
action of an explosive; the frame or receiver of any such weapon; any
firearm muffler or firearm silencer; or any destructive device; but the
term shall not include an antique firearm. In the case of a licensed
collector, the term shall mean only curios and relics. The term shall
include a weapon parts kit that is designed to or may readily be
assembled, completed, converted, or restored to expel a projectile by
the action of an explosive. The term shall not include a weapon,
including a weapon parts kit, in which each part defined as a frame or
receiver of such weapon is destroyed.
* * * * *
Frame or receiver. A part of a firearm that, when the complete
weapon is assembled, is visible from the exterior and provides housing
or a structure designed to hold or integrate one or more fire control
components, even if pins or other attachments are required to connect
those components to the housing or structure. Any such part identified
with a serial number shall be presumed, absent an official
determination by the Director or other reliable evidence to the
contrary, to be a frame or receiver. For purposes of this definition,
the term ``fire control component'' means a component necessary for the
firearm to initiate, complete, or continue the firing sequence,
including any of the following: Hammer, bolt, bolt carrier,
breechblock, cylinder, trigger mechanism, firing pin, striker, or slide
rails. The following are nonexclusive examples that illustrate this
definition:
BILLING CODE 4410-FY-P
[[Page 27742]]
[GRAPHIC] [TIFF OMITTED] TP21MY21.000
BILLING CODE 4410-FY-C
[[Page 27743]]
(a) Firearm muffler or silencer frame or receiver. The term ``frame
or receiver'' shall mean, in the case of a firearm muffler or firearm
silencer, a part of the firearm that, when the complete device is
assembled, is visible from the exterior and provides housing or a
structure, such as an outer tube or modular piece, designed to hold or
integrate one or more essential internal components of the device,
including any of the following: Baffles, baffling material, or
expansion chamber.
(b) Split or modular frame or receiver. (1) In the case of a
firearm with more than one part that provides housing or a structure
designed to hold or integrate one or more fire control or essential
internal components (e.g., a split frame with upper assembly and lower
assembly as in many semiautomatic rifles, upper slide assembly and
lower grip module as in many semiautomatic handguns, or multiple
silencer modular pieces), the Director may determine whether a specific
part or parts of a weapon is the frame or receiver, which may include
an internal frame or chassis at least partially exposed to the exterior
to allow identification. In making this determination, the Director
will consider the following factors, with no single factor being
controlling:
(i) Which component the manufacturer intended to be the frame or
receiver;
(ii) Which component the firearms industry commonly considers to be
the frame or receiver with respect to the same or similar firearms;
(iii) How the component fits within the overall design of the
firearm when assembled;
(iv) The design and function of the fire control components to be
housed or integrated;
(v) Whether the component may permanently, conspicuously, and
legibly be identified with a serial number and other markings in a
manner not susceptible of being readily obliterated, altered, or
removed;
(vi) Whether classifying the particular component is consistent
with the legislative intent of the Act and this part; and
(vii) Whether classifying the component as the frame or receiver is
consistent with ATF's prior classifications.
(2) Frames or receivers of different weapons that are combined to
create a similar weapon each retain their respective classifications as
frames or receivers provided they retain their original design and
configuration.
(3) The Director has previously determined that a specific part is
the frame or receiver with respect to certain weapons with split or
modular frames or receivers. The following is a nonexclusive list of
such weapons and the specific part identified as the frame or receiver
as they existed on [date of publication of the final rule]:
(i) Colt 1911-type, Beretta/Browning/FN Herstal/Heckler & Koch/
Ruger/Sig Sauer/Smith & Wesson/Taurus hammer fired semiautomatic
pistols: The lower portion of the pistol, or grip, that provides
housing for the trigger mechanism and hammer, and a structure designed
to integrate the slide rails.
BILLING CODE 4410-FY-P
[[Page 27744]]
[GRAPHIC] [TIFF OMITTED] TP21MY21.001
[[Page 27745]]
[GRAPHIC] [TIFF OMITTED] TP21MY21.002
[[Page 27746]]
[GRAPHIC] [TIFF OMITTED] TP21MY21.003
BILLING CODE 4410-FY-C
(c) Partially complete, disassembled, or inoperable frame or
receiver. The term ``frame or receiver'' shall include, in the case of
a frame or receiver that is partially complete, disassembled, or
inoperable, a frame or receiver that has reached a stage in manufacture
where it may readily be completed, assembled, converted, or restored to
a functional state. In determining whether a partially complete,
disassembled, or inoperable frame or receiver may readily be assembled,
completed, converted, or restored to a functional state, the Director
may consider any available instructions, guides, templates, jigs,
equipment, tools, or marketing materials. For purposes of this
definition, the term ``partially complete,'' as it modifies ``frame or
receiver,'' means a forging, casting, printing, extrusion, machined
body or similar article that has reached a stage in manufacture where
it is clearly identifiable as an unfinished component part of a weapon.
(d) Destroyed frame or receiver. The term ``frame or receiver''
shall not include a frame or receiver that is destroyed. For purposes
of this definition, the term ``destroyed'' means that the frame or
receiver has been permanently altered not to provide housing or a
structure that may hold or integrate any fire control or essential
internal component, and may not readily be assembled, completed,
converted, or restored to a functional state. Acceptable methods of
destruction include completely melting, crushing, or shredding the
frame or receiver, or by completely severing at least three critical
areas of the frame or receiver using a cutting torch having a tip of
sufficient size to displace at least \1/4\ inch of material at each
location.
* * * * *
Importer's or manufacturer's serial number. The identification
number, licensee name, licensee city or state, or license number placed
by a licensee on a firearm frame or receiver in accordance with this
part. The term shall include any such identification on a privately
made firearm, or an ATF issued serial number. When used in this part,
the term ``serial number'' shall mean the ``importer's or
manufacturer's serial number.''
* * * * *
Privately made firearm (PMF). A firearm, including a frame or
receiver, assembled or otherwise produced by a person other than a
licensed manufacturer, and without a serial number or other identifying
markings
[[Page 27747]]
placed by a licensed manufacturer at the time the firearm was produced.
The term shall not include a firearm identified and registered in the
National Firearms Registration and Transfer Record pursuant to chapter
53, title 26, United States Code, or any firearm made before October
22, 1968 (unless remanufactured after that date).
* * * * *
Readily. A process that is fairly or reasonably efficient, quick,
and easy, but not necessarily the most efficient, speedy, or easy
process. Factors relevant in making this determination, with no single
one controlling, include the following:
(a) Time, i.e., how long it takes to finish the process;
(b) Ease, i.e., how difficult it is to do so;
(c) Expertise, i.e., what knowledge and skills are required;
(d) Equipment, i.e., what tools are required;
(e) Availability, i.e., whether additional parts are required, and
how easily they can be obtained;
(f) Expense, i.e., how much it costs;
(g) Scope, i.e., the extent to which the subject of the process
must be changed to finish it; and
(h) Feasibility, i.e., whether the process would damage or destroy
the subject of the process, or cause it to malfunction.
* * * * *
Sec. 478.50 [Amended]
0
6. In Sec. 478.50(a), add the phrase ``or as otherwise provided in
Sec. 478.129'' after ``at the licensed premises served by such
warehouse''.
0
7. Revise Sec. 478.92 to read as follows:
Sec. 478.92 Identification of firearms and armor piercing ammunition.
(a)(1) Firearms manufactured or imported by licensees. Licensed
manufacturers and licensed importers of firearms must legibly identify
each firearm they manufacture or import as follows:
(i) Serial number, name, place of business. By engraving, casting,
stamping (impressing), or otherwise conspicuously placing or causing to
be engraved, cast, stamped (impressed) or otherwise placed on each part
(or specific part(s) previously determined by the Director) defined as
a frame or receiver thereof, a serial number, in a manner not
susceptible of being readily obliterated, altered, or removed. The
serial number identified on each part of a weapon defined as a frame or
receiver must be the same number, but must not duplicate any serial
number(s) placed by the licensee on any other firearm. Except as
provided in paragraph (a)(4)(v) of this section, each frame or receiver
thereof must also be marked with either: Their name (or recognized
abbreviation), and city and State (or recognized abbreviation) where
they maintain their place of business; or their name (or recognized
abbreviation) and abbreviated Federal firearms license number as a
prefix, which is the first three and last five digits, followed by a
hyphen, and then followed by a number as a suffix, e.g., ``12345678-
[number]''; and
(ii) Model, caliber or gauge, foreign manufacturer, country of
manufacture. By engraving, casting, stamping (impressing), or otherwise
conspicuously placing or causing to be engraved, cast, stamped
(impressed) or placed on each part (or specific part(s) previously
determined by the Director) defined as a frame or receiver, or barrel
or pistol slide (if applicable) thereof certain additional information.
This information must be placed in a manner not susceptible of being
readily obliterated, altered, or removed. Except as provided in
paragraph (a)(4)(v) of this section, the additional information shall
include:
(A) The model, if such designation has been made;
(B) The caliber or gauge;
(C) When applicable, the name of the foreign manufacturer; and
(D) In the case of an imported firearm, the name of the country in
which it was manufactured. For additional requirements relating to
imported firearms, see Customs regulations at 19 CFR part 134.
(iii) Frame or receiver, machinegun conversion part, or muffler or
silencer part disposed of separately. Except as provided in paragraph
(a)(4)(iv) of this section, each part defined as a frame or receiver,
machinegun, or firearm muffler or firearm silencer that is not a
component part of a complete weapon or device at the time it is sold,
shipped, or otherwise disposed of by the licensee must be identified as
required by this section with a serial number not duplicated on any
other firearm and all additional identifying information, except that
the model designation and caliber or gauge may be omitted if that
information is unknown at the time the part is identified.
(iv) Size and depth of markings. The engraving, casting, or
stamping (impressing) of the serial number and additional information
must be to a minimum depth of .003 inch and in a print size no smaller
than \1/16\ inch. The size of serial numbers required by this section
is measured as the distance between the latitudinal ends of the
character impression bottoms (bases). The depth of all markings
required by this section is measured from the flat surface of the metal
and not the peaks or ridges.
(v) Period of time to identify firearms. Licensed manufacturers
must identify a complete weapon or complete muffler or silencer device
no later than seven days following the date of completion of the active
manufacturing process for the weapon or device, or prior to
disposition, whichever is sooner. Except as provided in paragraph
(a)(4)(iv) of this section, licensed manufacturers must identify each
part, including a replacement part, defined as a frame or receiver,
machinegun, or firearm muffler or firearm silencer that is not a
component part of a complete weapon or device at the time it is sold,
shipped, or otherwise disposed of no later than seven days following
the date of completion of the active manufacturing process for the
part, or prior to disposition, whichever is sooner. For purposes of
this paragraph, firearms actively awaiting materials, parts, or
equipment repair to be completed are actively in the manufacturing
process. Licensed importers must identify imported firearms within the
period prescribed in Sec. 478.112.
(2) Privately made firearms. Unless previously identified by
another licensee in accordance with this section, and except as
provided in paragraph (a)(4)(vi) of this section, licensees must
legibly and conspicuously identify each privately made firearm within
seven days following the date of receipt or other acquisition
(including from a personal collection), or before the date of
disposition (including to a personal collection), whichever is sooner.
PMFs must be identified by placing on each part (or specific part(s)
previously determined by the Director) of a weapon defined as a frame
or receiver, the same serial number, but must not duplicate any serial
number(s) placed by the licensee on any other firearm. The serial
number(s) must begin with the licensee's abbreviated Federal firearms
license number as a prefix, which is the first three and last five
digits, followed by a hyphen, and then followed by a number as a
suffix, e.g., ``12345678-[number]''. The serial number(s) must be
placed in a manner otherwise in accordance with this section, including
the requirements that the serial number(s) be at the minimum size and
depth, and not susceptible of being readily obliterated, altered, or
removed.
(3) Meaning of marking terms. For purposes of this section, the
terms ``legible'' and ``legibly'' mean that the identification markings
use exclusively
[[Page 27748]]
Roman letters (e.g., A, a, B, b, C, c) and Arabic numerals (e.g., 1, 2,
3), or solely Arabic numerals, and may include a hyphen, and the terms
``conspicuous'' and ``conspicuously'' mean that the identification
markings are capable of being easily seen with normal handling of the
firearm and unobstructed by other markings when the complete weapon is
assembled.
(4) Exceptions--(i) Alternate means or period of identification.
The Director may authorize other means of identification or period of
time to identify firearms upon receipt of a letter application or Form
3311.4 from the licensee showing that such other identification or
period is reasonable and will not hinder the effective administration
of this part.
(ii) Destructive devices. In the case of a destructive device, the
Director may authorize other means of identification or period of time
to identify that weapon upon receipt of a letter application or Form
3311.4 from the licensee. The application shall show that engraving,
casting, or stamping (impressing) such a weapon as required by this
section would be dangerous or impracticable, or that the requested
period is reasonable and will not hinder the effective administration
of this part.
(iii) Adoption of identifying markings. Licensed manufacturers and
licensed importers may adopt the serial number(s) or other identifying
markings previously placed on a firearm in accordance with this section
provided that, within the period and in the manner herein prescribed,
the licensee legibly and conspicuously places, or causes to be placed,
on each part (or specific part(s) previously determined by the
Director) defined as a frame or receiver either: Their name (or
recognized abbreviation), and city and State (or recognized
abbreviation) where they maintain their place of business; or their
name (or recognized abbreviation) and abbreviated Federal firearms
license number, which is the first three and last five digits, followed
by a hyphen, and then followed by the existing serial number (including
any other abbreviated FFL prefix) as a suffix, e.g., ``12345678-[serial
number]''.
(iv) Firearm muffler or silencer parts--(A) Firearm muffler or
silencer parts transferred between qualified manufacturers to complete
new devices. A licensed manufacturer qualified under part 479 may
transfer a part defined as a firearm muffler or firearm silencer to
another qualified manufacturer without immediately identifying or
registering such part provided that, upon receipt, it is actively used
to manufacture a complete muffler or silencer device. Once the new
device with such part is completed, the manufacturer of the device
shall identify and register it in the manner and within the period
specified in this part for a complete muffler or silencer device.
(B) Firearm muffler or silencer replacement parts transferred to
qualified manufacturers or dealers to repair existing devices. A
licensed manufacturer qualified under part 479 may transfer a
replacement part defined as a firearm muffler or firearm silencer other
than a frame or receiver to a qualified manufacturer or dealer without
identifying or registering such part provided that, upon receipt, it is
actively used to repair a complete muffler or silencer device that was
previously identified and registered in accordance with this part.
(v) Firearms designed and configured before [EFFECTIVE DATE OF THE
FINAL RULE]. Licensed manufacturers and licensed importers may continue
to identify firearms (other than PMFs) of the same design and
configuration as they existed before [EFFECTIVE DATE OF THE FINAL RULE]
with the information required to be marked by paragraphs (a)(1)(i) and
(ii) of this section that were in effect prior to that date, and any
rules necessary to ensure such identification shall remain effective
for that purpose.
(vi) Privately made firearms acquired before [EFFECTIVE DATE OF THE
FINAL RULE]. Licensees shall identify in the manner prescribed by this
section, or cause another licensee to so identify, each privately made
firearm received or otherwise acquired (including from a personal
collection) by the licensee before [EFFECTIVE DATE OF THE FINAL RULE]
within sixty (60) days from that date, or prior to the date of final
disposition (including to a personal collection), whichever is sooner.
(b) Armor piercing ammunition. (1) Marking of ammunition. Each
licensed manufacturer or licensed importer of armor piercing ammunition
shall identify such ammunition by means of painting, staining or dying
the exterior of the projectile with an opaque black coloring. This
coloring must completely cover the point of the projectile and at least
50 percent of that portion of the projectile which is visible when the
projectile is loaded into a cartridge case.
(2) Labeling of packages. Each licensed manufacturer or licensed
importer of armor piercing ammunition shall clearly and conspicuously
label each package in which armor piercing ammunition is contained,
e.g., each box, carton, case, or other container. The label shall
include the words ``ARMOR PIERCING'' in block letters at least \1/4\
inch in height. The lettering shall be located on the exterior surface
of the package which contains information concerning the caliber or
gauge of the ammunition. There shall also be placed on the same surface
of the package in block lettering at least \1/8\ inch in height the
words ``FOR GOVERNMENTAL ENTITIES OR EXPORTATION ONLY.'' The statements
required by this subparagraph shall be on a contrasting background.
(c) Voluntary classification of firearms and armor piercing
ammunition. The Director may issue a determination to a person whether
an item is a firearm or armor piercing ammunition as defined in this
part upon receipt of a written request or form prescribed by the
Director. Each such voluntary request or form submitted shall be
executed under the penalties of perjury with a complete and accurate
description of the item, the name and address of the manufacturer or
importer thereof, and a sample of such item for examination along with
any instructions, guides, templates, jigs, equipment, tools, or
marketing materials that are made available to the purchaser or
recipient of the item. The Director shall not issue a determination
regarding a firearm accessory or attachment unless it is installed on
the firearm(s) in the configuration for which it is designed and
intended to be used. Upon completion of the examination, the Director
may return the sample to the person who made the request unless a
determination is made that return of the sample would be or place the
person in violation of law. A determination made by the Director under
this paragraph shall not be deemed by any person to be applicable to or
authoritative with respect to any other sample, design, model, or
configuration.
Sec. 478.112 [Amended]
0
8. Amend Sec. 478.112 as follows:
0
a. In paragraph (b)(1)(iv)(A), remove ``manufacturer'' and add in its
place ``manufacturer(s) of the firearm or privately made firearm (if
privately made in the United States)''; and
0
b. In paragraph (b)(1)(iv)(G), remove ``serial number'' and add in its
place ``serial number(s)''.
Sec. 478.113 [Amended]
0
9. Amend Sec. 478.113 as follows:
0
a. In paragraph (b)(1)(iv)(A), remove the word ``manufacturer'' and add
in its place ``manufacturer(s) of the firearm or privately made firearm
(if privately made in the United States)'';
0
b. In paragraph (b)(1)(iv)(G), remove the words ``serial number'' and
add in
[[Page 27749]]
their place the words ``serial number(s)'';
0
c. In paragraph (c)(2)(ii), remove the word ``manufacturer'' and add in
its place the word ``manufacturer(s)'';
0
d. In paragraph (c)(2)(iii), remove ``country of manufacturer'' and add
in its place ``country or countries of manufacturer(s) of the firearm
or privately made firearm (if privately made in the United States)'';
and
0
e. In paragraph (c)(2)(vii), remove the words ``serial number'' and add
in their place ``serial number(s)''.
Sec. 478.114 [Amended]
0
10. Amend Sec. 478.114 as follows:
0
a. In paragraph (a)(1)(v)(A), remove the word ``manufacturer'' and add
in its place ``manufacturer(s) of the firearm or privately made firearm
(if privately made in the United States)'';
0
b. In paragraph (a)(1)(v)(G), remove the words ``serial number'' and
add in their place ``serial number(s)''; and
0
c. In paragraph (b)(2)(ii), add ``or privately made firearm (if
privately made in the United States)'' after ``ammunition''.
0
11. Revise Sec. 478.122 to read as follows:
Sec. 478.122 Records maintained by importers.
(a) Each licensed importer shall record the name of the
importer(s), manufacturer(s) and/or privately made firearm (if
privately made in the United States), type, model, caliber or gauge,
country or countries of manufacture (if imported), and serial number(s)
of each firearm imported or otherwise acquired (including a frame or
receiver to be disposed of separately), the date of such importation or
other acquisition, and if otherwise acquired, the name and address, or
the name and license number of the person from whom it was received.
The information required by this paragraph shall be recorded not later
than 15 days following the date of importation or other acquisition in
a format with the applicable columns set forth in paragraph (b) of this
section.
(b) A record of each firearm disposed of by an importer and a
separate record of armor piercing ammunition dispositions to
governmental entities, for exportation, or for testing or
experimentation authorized under the provision of Sec. 478.149, shall
be maintained by the licensed importer on the licensed premises. The
record shall show the date of such sale or other disposition, and the
name and license number of the licensee to whom the firearm was
transferred, or if disposed to a nonlicensee, the name and address of
the person, or the serial number of the firearms transaction record,
Form 4473, if the licensee transferring the firearm serially numbers
the Forms 4473 and files them numerically. The information required by
this paragraph shall be entered in the proper record book not later
than the seventh day following the date of the transaction. In the
event the licensee records a duplicate entry with the same firearm and
acquisition information, whether to close out an old record book or for
any other reason, the licensee shall record a reference to the date and
location of the subsequent entry (e.g., date of new entry, book name/
number, page number, and line number) as the disposition. Such
information shall be recorded in a format containing the applicable
columns below, except that for armor piercing ammunition, the
information and format shall also include the quantity of projectiles:
Importer's or Manufacturer's Firearms Acquisition and Disposition Record
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Description of firearm Import/manufacture/acquisition Disposition
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Address of
Name and address of nonlicensee;
Importer(s), manufacturer(s), and/ Caliber or Country or countries Serial Date of import, nonlicensee; or if Date of license No. of
or PMF (if privately made in the Type Model gauge of manufacture (if number(s) manufacture, or licensee, name and disposition Name licensee; or Form
U.S.) imported) acquisition license No. (if 4473 Serial No. if
acquired) filed numerically
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Importer's or Manufacturer's Armor Piercing Ammunition Disposition Record
----------------------------------------------------------------------------------------------------------------
Caliber or Quantity of Purchaser--name and
Date of disposition Manufacturer gauge projectiles address
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
(c) The Director may authorize alternate records to be maintained
by a licensed importer to record the acquisition and disposition of
firearms and armor piercing ammunition when it is shown by the licensed
importer that such alternate records will accurately and readily
disclose the information required by this section. A licensed importer
who proposes to use alternate records shall submit a letter application
to the Director and shall describe the proposed alternate records and
the need therefor. Such alternate records shall not be employed by the
licensed importer until approval in such regard is received from the
Director.
0
12. Revise Sec. 478.123 to read as follows:
Sec. 478.123 Records maintained by manufacturers.
(a) Each licensed manufacturer shall record the name of the
manufacturer(s), importer(s) (if any) and/or privately made firearm (if
privately made in the United States), type, model, caliber or gauge,
and serial number(s) of each firearm manufactured or otherwise acquired
(including a frame or receiver to be disposed of separately), the date
of such manufacture or other acquisition, and if otherwise acquired,
the name and address or the name and license number of the person from
whom it was received. The information required by this paragraph shall
be recorded not later than the close of the next business day following
the date of such manufacture or other acquisition, except that, when a
commercial record is held by the licensed manufacturer separately from
other commercial documents and readily available for inspection,
containing all acquisition information required for the record, the
period for making the required entry into the record may be delayed not
to exceed the seventh day following the date of receipt. The
information required by this paragraph shall be recorded in a format
containing the applicable columns prescribed by Sec. 478.122.
[[Page 27750]]
(b) A record of each firearm disposed of by a manufacturer and a
separate record of armor piercing ammunition dispositions to
governmental entities, for exportation, or for testing or
experimentation authorized under the provision of Sec. 478.149, shall
be maintained by the licensed manufacturer on the licensed premises.
The record shall show the date of such sale or other disposition, and
the name and license number of the licensee to whom the firearms were
transferred, or if disposed to a nonlicensee, the name and address of
the person, or the serial number of the firearms transaction record,
Form 4473, if the licensee transferring the firearm serially numbers
the Forms 4473 and files them numerically. The information required by
this paragraph shall be entered in the proper record book not later
than the seventh day following the date of the transaction. In the
event the licensee records a duplicate entry with the same firearm and
acquisition information, whether to close out an old record book or for
any other reason, the licensee shall record a reference to the date and
location of the subsequent entry (e.g., date of new entry, book name/
number, page number, and line number) as the disposition. Such
information shall be recorded in a format containing the applicable
columns prescribed by Sec. 478.122, except that for armor piercing
ammunition, the information and format shall also include the quantity
of projectiles.
(c) The Director may authorize alternate records to be maintained
by a licensed manufacturer to record the acquisition or disposition of
firearms and armor piercing ammunition when it is shown by the licensed
manufacturer that such alternate records will accurately and readily
disclose the information required by this section. A licensed
manufacturer who proposes to use alternate records shall submit a
letter application to the Director and shall describe the proposed
alternate record and the need therefor. Such alternate records shall
not be employed by the licensed manufacturer until approval in such
regard is received from the Director.
Sec. 478.124 [Amended]
0
13. Amend Sec. 478.124 as follows:
0
a. In paragraph (c)(4), remove ``manufacturer'' and add in its place
``manufacturer(s)'', remove the words ``importer (if any)'' and add in
their place ``importer(s) (if any) of the firearm or privately made
firearm (if privately made in the United States)'', and remove the
words ``serial number'' and add in their place ``serial number(s)'';
and
0
b. In the fourth sentence of paragraph (f), remove ``Upon receipt of
such Forms 4473, the'' and add in its place ``The'', remove
``manufacturer'' and add in its place ``manufacturer(s)'', remove the
words ``importer (if any)'' and add in their place ``importer(s) (if
any) of the firearm or privately made firearm (if privately made in the
United States)'', and remove the words ``serial number'' and add in
their place ``serial number(s)''.
0
14. Amend Sec. 478.125 as follows:
0
a. In paragraph (e):
0
i. Remove ``manufacturer'' and add in its place ``manufacturer(s)'',
remove the words ``importer (if any)'' and add in their place
``importer(s) (if any) of the firearm or privately made firearm (if
privately made in the United States)'', remove the words ``serial
number'', wherever they appear, and add in their place ``serial
number(s)'', and remove ``as provided in paragraph (g)'' and add in its
place ``as provided in paragraphs (g) and (i)'';
0
ii. Add a sentence after the sixth sentence; and
0
iii. In the table Firearms Acquisition and Disposition Record remove
``Name and address or name and license No.'' and add in its place
``Name and address of nonlicensee; or if licensee, name and License
No.'', and remove ``Address or License No. if licensee, or Form 4473
Serial No. if Forms 4473 filed numerically'' and add in its place
``Address of nonlicensee; License No. of licensee; or Form 4473 Serial
No. if such forms filed numerically'';
0
b. In paragraph (f)(1):
0
i. Remove ``manufacturer'' and add in its place ``manufacturer(s)'',
remove the words ``importer (if any)'' and add in their place
``importer(s) (if any) of the firearm or privately made firearm (if
privately made in the United States)'', remove the words ``serial
number'' and add in their place ``serial number(s)''; and
0
ii. Add a sentence after the fifth sentence;
0
c. In paragraph (f)(2) table Firearms Collectors Acquisition and
Disposition Record, remove ``Manufacturer'' and add in its place
``Manufacturer(s)'', remove the words ``importer (if any)'' and add in
their place ``importer(s) (if any) of the firearm or privately made
firearm (if privately made in the United States)'', and remove the
words ``Serial No.'' and add in their place ``Serial number(s)''; and
0
d. Add paragraph (j).
The additions read as follows:
Sec. 478.125 Record of receipt and disposition.
* * * * *
(e) * * * In the event the licensee records a duplicate entry with
the same firearm and acquisition information, whether to close out an
old record book or for any other reason, the licensee shall record a
reference to the date and location of the subsequent entry (e.g., date
of new entry, book name/number, page number, and line number) as the
disposition.* * *
* * * * *
(f) * * *
(1) * * * In the event the licensee records a duplicate entry with
the same firearm and acquisition information, whether to close out an
old record book or for any other reason, the licensee shall record a
reference to the date and location of the subsequent entry (e.g., date
of new entry, book name/number, page number, and line number) as the
disposition.* * *
* * * * *
(j) Privately made firearms. Licensees must record each receipt
(whether or not kept overnight) or other acquisition (including from a
personal collection) and disposition (including to a personal
collection) of a privately made firearm as required by this part,
except that such information need not be recorded if the firearm is
being identified under the direct supervision of another licensee with
their information. Once a privately made firearm is identified by the
licensee in accordance with section 478.92(a)(2), the licensee shall
update the record of acquisition entry with the identifying
information.
Sec. 478.125 [Amended]
0
15. Amend Sec. 478.125a as follows:
0
a. In the first sentence of paragraph (a)(4), remove ``manufacturer and
importer (if any)'' and add in its place ``manufacturer(s) and
importer(s) (if any) of the firearm or privately made firearm (if
privately made in the United States)'', remove the words ``serial
number'' and add in their place ``serial number(s)'', remove
``Manufacturer and importer (if any)'' and add in its place
``Manufacturer(s) and importer(s) (if any)'', and remove the words
``Serial No.'' and add in their place ``serial number(s)''.
0
16. In Sec. 478.129, revise paragraphs (b), (d), and (e) to read as
follows:
Sec. 478.129 Record retention.
* * * * *
(b) Firearms Transaction Record. Licensees shall retain each Form
4473 until business is discontinued, either on paper, or in an
electronic alternative method approved by the Director, at the
[[Page 27751]]
business premises readily accessible for inspection under this part.
Paper forms over 20 years of age may be stored at a separate warehouse,
which shall be considered part of the business premises for this
purpose and subject to inspection under this part. Forms 4473 shall be
retained in the licensee's records as provided in Sec. 478.124(b):
Provided, that Forms 4473 with respect to which a sale, delivery or
transfer did not take place shall be separately retained in
alphabetical (by name of transferee) or chronological (by date of
transferee's certification) order.
* * * * *
(d) Records of importation and manufacture. Licensees shall
maintain records of the importation, manufacture, or other acquisition
of firearms, including ATF Forms 6 and 6A as required by subpart G of
this part, until business is discontinued. Licensed importers' records
and licensed manufacturers' records of the sale or other disposition of
firearms after December 15, 1968, shall be retained until business is
discontinued, either on paper, or in an electronic alternative method
approved by the Director, at the business premises readily accessible
for inspection under this part. Paper records that do not contain any
open disposition entries and with no dispositions recorded within 20
years may be stored at a separate warehouse, which shall be considered
part of the business premises for this purpose and subject to
inspection under this part.
(e) Records of dealers and collectors. The records prepared by
licensed dealers and licensed collectors of the sale or other
disposition of firearms and the corresponding record of receipt of such
firearms shall be retained until business or licensed activity is
discontinued, either on paper, or in an electronic alternative method
approved by the Director, at the business or collection premises
readily accessible for inspection under this part. Paper records that
do not contain any open disposition entries and with no dispositions
recorded within 20 years may be stored at a separate warehouse, which
shall be considered part of the business premises for this purpose and
subject to inspection under this part.
* * * * *
PART 479--MACHINE GUNS, DESTRUCTIVE DEVICES, AND CERTAIN OTHER
FIREARMS
0
17. The authority citation for 27 CFR part 479 continues to read as
follows:
Authority: 26 U.S.C. 5812; 26 U.S.C. 5822; 26 U.S.C. 7801; 26
U.S.C. 7805.
0
18. In Sec. 479.11:
0
a. Add definitions for ``Complete muffler or silencer device'' and
``Complete weapon'';
0
b. Revise the definition of ``Frame or receiver'';
0
c. Add a definition for ``Readily''; and
0
d. Add a sentence at the end of the definition of ``Transfer''.
The additions and revision read as follows:
Sec. 479.11 Meaning of terms.
* * * * *
Complete muffler or silencer device. A muffler or silencer that
contains all component parts necessary to function as designed whether
or not assembled or operable.
Complete weapon. A firearm other than a muffler or silencer that
contains all component parts necessary to function as designed whether
or not assembled or operable.
* * * * *
Frame or receiver. The term ``frame or receiver'' shall have the
same meaning as in 27 CFR 478.11.
* * * * *
Readily. A process that is fairly or reasonably efficient, quick,
and easy, but not necessarily the most efficient, speedy, or easy
process. Factors relevant in making this determination, with no single
one controlling, include the following:
(a) Time, i.e., how long it takes to finish the process;
(b) Ease, i.e., how difficult it is to do so;
(c) Expertise, i.e., what knowledge and skills are required;
(d) Equipment, i.e., what tools are required;
(e) Availability, i.e., whether additional parts are required, and
how easily they can be obtained;
(f) Expense, i.e., how much it costs;
(g) Scope, i.e., the extent to which the subject of the process
must be changed to finish it; and
(h) Feasibility, i.e., whether the process would damage or destroy
the subject of the process, or cause it to malfunction.
* * * * *
Transfer. * * * For purposes of this part, the term shall not
include the temporary conveyance of a lawfully possessed firearm to a
manufacturer or dealer qualified under this part for the sole purpose
of repair, identification, evaluation, research, testing, or
calibration, and return to the same lawful possessor.
* * * * *
Sec. 479.62 [Amended]
0
19. In Sec. 479.62(b)(3), remove ``manufacturer'' and add in its place
``manufacturer(s)'' and remove the words ``serial number'' and add in
their place ``serial number(s)''.
Sec. 479.84 [Amended]
0
20. In Sec. 479.84(b)(8), remove ``manufacturer'' and add in its place
``manufacturer(s)'', remove the words ``importer (if known)'' and add
in their place ``importer(s) (if known)'', and remove the words
``serial number'', wherever they may be, and add in their place
``serial number(s)''.
Sec. 479.88 [Amended]
0
21. In Sec. 479.88(b), remove ``manufacturer'' and add in its place
``manufacturer(s)'', remove the word ``importer'' and add in its place
``importer(s)'', and remove the words ``serial number'' and add in
their place ``serial number(s)''.
Sec. 479.90 [Amended]
0
22. In Sec. 479.90(b), remove the words ``manufacturer'', wherever
they may be, and add in their place ``manufacturer(s)'', remove the
word ``importer'' and add in its place ``importer(s)'', and remove the
words ``serial number'' and add in their place ``serial number(s)''.
0
23. Revise Sec. 479.102 to read as follows:
Sec. 479.102 Identification of firearms.
(a) Identification required. You, as a manufacturer, importer, or
maker of a firearm, must legibly identify the firearm as follows:
(1) Serial number, name, place of business. By engraving, casting,
stamping (impressing), or otherwise conspicuously placing or causing to
be engraved, cast, stamped (impressed) or otherwise placed on each part
(or specific part(s) previously determined by the Director) defined as
a frame or receiver thereof, a serial number, in a manner not
susceptible of being readily obliterated, altered, or removed. The
serial number identified on each part of a weapon, including a weapon
parts kit, defined as a frame or receiver must be the same number, but
must not duplicate any serial number(s) placed by the licensee or maker
on any other firearm. Except as provided in paragraph (b)(5) of this
section, each frame or receiver thereof must also be marked with
either: Your name (or recognized abbreviation), and city and State (or
recognized abbreviation) where you as a manufacturer or importer
maintain your place of business, or in the case of a maker, where you
made the
[[Page 27752]]
firearm; or if a licensee, your name (or recognized abbreviation) and
abbreviated Federal firearms license number as a prefix, which is the
first three and last five digits, followed by a hyphen, and then
followed by a number as a suffix, e.g., ``12345678-[number]''; and
(2) Model, caliber or gauge, foreign manufacturer, country of
manufacture. By engraving, casting, stamping (impressing), or otherwise
conspicuously placing or causing to be engraved, cast, stamped
(impressed) or placed on each part (or specific part(s) previously
determined by the Director) defined as a frame or receiver, or barrel
or pistol slide (if applicable) thereof certain additional information.
This information must be placed in a manner not susceptible of being
readily obliterated, altered, or removed. Except as provided in
paragraph (b)(5) of this section, the additional information shall
include:
(i) The model, if such designation has been made;
(ii) The caliber or gauge;
(iii) When applicable, the name of the foreign manufacturer or
maker; and
(iv) In the case of an imported firearm, the name of the country in
which it was manufactured. For additional requirements relating to
imported firearms, see Customs regulations at 19 CFR part 134.
(3) Frame or receiver, machine gun conversion part, or silencer
part disposed of separately. Except as provided in paragraph (b)(4) of
this section, each part defined as a frame or receiver, machine gun, or
firearm muffler or firearm silencer, that is not a component part of a
complete weapon or device at the time it is sold, shipped, or otherwise
disposed of by you must be identified as required by this section with
a serial number not duplicated on any other firearm and all additional
identifying information, except that the model designation and caliber
or gauge may be omitted if that information is unknown at the time the
part is identified.
(4) Size and depth of markings. The engraving, casting, or stamping
(impressing) of the serial number and additional information must be to
a minimum depth of .003 inch and in a print size no smaller than \1/16\
inch. The size of serial numbers required by this section is measured
as the distance between the latitudinal ends of the character
impression bottoms (bases). The depth of all markings required by this
section is measured from the flat surface of the metal and not the
peaks or ridges.
(5) Period of time to identify firearms. You must identify a
complete weapon or complete muffler or silencer device no later than
seven days following the date of completion of the active manufacturing
process for the weapon or device, or prior to disposition, whichever is
sooner. Except as provided in paragraph (b)(4) of this section, you
must identify each part, including a replacement part, defined as a
frame or receiver, machine gun, or firearm muffler or firearm silencer,
that is not a component part of a complete weapon or device at the time
it is sold, shipped, or otherwise disposed of no later than seven days
following the date of completion of the active manufacturing process
for the part, or prior to disposition, whichever is sooner. For
purposes of this paragraph, firearms actively awaiting materials,
parts, or equipment repair to be completed are actively in the
manufacturing process. Licensed importers must identify imported
firearms within the period prescribed in Sec. 478.112.
(6) Meaning of marking terms. For purposes of this section, the
terms ``legible'' and ``legibly'' mean that the identification markings
use exclusively Roman letters (e.g., A, a, B, b, C, c) and Arabic
numerals (e.g., 1, 2, 3), or solely Arabic numerals, and may include a
hyphen, and the terms ``conspicuous'' and ``conspicuously'' mean that
the identification markings are capable of being easily seen with
normal handling of the firearm and unobstructed by other markings when
the complete weapon is assembled.
(b) Exceptions--(1) Alternate means or period of identification.
The Director may authorize other means of identification or period of
time to identify firearms upon receipt of a letter application or Form
3311.4 from you showing that such other identification or period is
reasonable and will not hinder the effective administration of this
part.
(2) Destructive devices. In the case of a destructive device, the
Director may authorize other means of identification or period of time
to identify that weapon upon receipt of a letter application or Form
3311.4 from you. The application shall show that engraving, casting, or
stamping (impressing) such a weapon as required by this section would
be dangerous or impracticable, or that the requested time period is
reasonable and will not hinder the effective administration.
(3) Adoption of identifying markings. Licensed manufacturers and
licensed importers may adopt the serial number(s) or other identifying
markings previously placed on a firearm in accordance with this section
provided that, within the period and in the manner herein prescribed,
the licensee legibly and conspicuously places, or causes to be placed,
on each part (or specific part(s) previously determined by the
Director) defined as a frame or receiver either: Their name (or
recognized abbreviation), and city and State (or recognized
abbreviation) where they maintain their place of business; or their
name (or recognized abbreviation) and their abbreviated Federal
firearms license number, which is the first three and last five digits,
followed by a hyphen, and then followed by the existing serial number
(including any other abbreviated FFL prefix) as a suffix, e.g.,
``12345678-[serial number]''.
(4) Firearm muffler or silencer parts--(i) Firearm muffler or
silencer parts transferred between qualified manufacturers to complete
new devices. A licensed manufacturer qualified under this part may
transfer a part defined as a muffler or silencer to another qualified
manufacturer without immediately identifying or registering such part
provided that, upon receipt, it is actively used to manufacture a new
complete muffler or silencer device. Once the new device with such part
is completed, the manufacturer of the device shall identify and
register it in the manner and within the period specified in this part
for a complete muffler or silencer device.
(ii) Firearm muffler or silencer replacement parts transferred to
qualified manufacturers or dealers to repair existing devices. A
licensed manufacturer qualified under this part may transfer a
replacement part defined as a muffler or silencer other than a frame or
receiver to a qualified manufacturer or dealer without identifying or
registering such part provided that, upon receipt, it is actively used
to repair a complete muffler or silencer device that was previously
identified and registered in accordance with this part.
(5) Firearms designed and configured before [EFFECTIVE DATE OF THE
FINAL RULE]. Licensed manufacturers and licensed importers may continue
to identify firearms of the same design and configuration as they
existed before [EFFECTIVE DATE OF THE FINAL RULE] with the information
required to be marked by paragraphs (a)(1) and (2) of this section that
were in effect prior to that date, and any rules necessary to ensure
such identification shall remain effective for that purpose.
(c) Voluntary classification of firearms. The Director may issue a
determination to a person whether an item is a firearm as defined in
this part
[[Page 27753]]
upon receipt of a written request or form prescribed by the Director.
Each such voluntary request or form submitted shall be executed under
the penalties of perjury with a complete and accurate description of
the item, the name and address of the manufacturer or importer thereof,
and a sample of such item for examination along with any instructions,
guides, templates, jigs, equipment, tools, or marketing materials that
are made available to the purchaser or recipient of the item. The
Director shall not issue a determination regarding a firearm accessory
or attachment unless it is installed on the firearm(s) in the
configuration for which it is designed and intended to be used. Upon
completion of the examination, the Director may return the sample to
the person who made the request unless a determination is made that
return of the sample would be or place the person in violation of law.
A determination made by the Director under this paragraph shall not be
deemed by any person to be applicable to or authoritative with respect
to any other sample, design, model, or configuration.
Sec. 479.103 [Amended]
0
24. In Sec. 479.103, at the end of the third sentence, add ``, except
as provided in Sec. 479.102(b)(4).''
Sec. 479.112 [Amended]
0
25. In Sec. 479.112(a), second sentence, remove the words ``serial
number'' and add in their place the words ``serial number(s)''.
Sec. 479.141 [Amended]
0
26. In Sec. 479.141, remove the word ``manufacturer'' and add in its
place ``manufacturer(s)'' and remove the words ``serial number'' and
add in their place ``serial number(s)''.
Dated: May 7, 2021.
Merrick B. Garland,
Attorney General.
[FR Doc. 2021-10058 Filed 5-20-21; 8:45 am]
BILLING CODE 4410-FY-P