[Federal Register Volume 60, Number 38 (Monday, February 27, 1995)]
[Rules and Regulations]
[Pages 10782-10788]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-4886]
[[Page 10781]]
_______________________________________________________________________
Part XIII
Department of the Treasury
_______________________________________________________________________
Bureau of Alcohol, Tobacco and Firearms
_______________________________________________________________________
27 CFR Part 178
Commerce in Firearms and Ammunition: Handgun Control (Implementation of
the Brady Handgun Violence Prevention Act); Federal Firearms License
Reform; Final Rule
Federal Register / Vol. 60, No. 38 / Monday, February 27, 1995 /
Rules and Regulations
[[Page 10782]]
DEPARTMENT OF THE TREASURY
Bureau of Alcohol, Tobacco and Firearms
27 CFR Part 178
[T.D. ATF-361; Ref: T.D. ATF-354 and Notice No. 789]
RIN: 1512-AB23
Implementation of Public Law 103-159, Including the Brady Handgun
Violence Prevention Act (93F-057P)
AGENCY: Bureau of Alcohol, Tobacco and Firearms (ATF), Treasury.
ACTION: Final rule; Treasury decision.
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SUMMARY: This final rule implements the provisions of Public Law 103-
159, including the Brady Handgun Violence Prevention Act. These
regulations implement the law by imposing a waiting period of 5 days
before a licensed firearms importer, licensed manufacturer, or licensed
dealer may transfer a handgun (other than the return of a handgun to
the person from whom it was received) to a nonlicensed individual.
Regulations are also prescribed with regard to reporting requirements
for multiple handgun sales, labeling of packages containing a firearm,
theft of firearms from firearms licensees, and increased license fees
for dealers in firearms.
Unless otherwise indicated, the temporary regulations published in
the Federal Register on February 14, 1994 (T.D. ATF-354), are made
permanent upon the effective date of this final rule.
EFFECTIVE DATE: March 29, 1995.
FOR FURTHER INFORMATION CONTACT: James P. Ficaretta, Regulations
Branch, Bureau of Alcohol, Tobacco and Firearms, 650 Massachusetts
Avenue, NW., Washington, DC 20226 (202-927-8230).
SUPPLEMENTARY INFORMATION:
Legislative Background
On November 30, 1993, Public Law 103-159 (107 Stat. 1536) was
enacted, amending the Gun Control Act of 1968 (GCA), as amended (18
U.S.C. Chapter 44). Title I of Pub. L. 103-159, the ``Brady Handgun
Violence Prevention Act'' (hereinafter, ``Brady'' or ``Brady law''),
provides for a national waiting period of 5 days before a licensed
importer, licensed manufacturer, or licensed dealer may transfer a
handgun to a nonlicensed individual (interim provision), and for the
establishment of a permanent national instant criminal background check
system to be queried by firearms licensees before transferring any
firearm to nonlicensed individuals. The law requires that the permanent
system be established not later than November 30, 1998. Violations of
either the interim or permanent provision are punishable by a fine and/
or imprisonment for not more than 1 year.
Titles II and III of Pub. L. 103-159 relate to reporting
requirements for multiple handgun sales, labeling of packages
containing a firearm, thefts of firearms from licensed firearms
dealers, and increased license fees for dealers in firearms.
On September 13, 1994, the Violent Crime Control and Law
Enforcement Act of 1994, Pub. L. 103-322 (108 Stat. 1796) was enacted.
Title XXXII of Pub. L. 103-322 amended the GCA by eliminating the
Federal 5-day waiting period requirement imposed by Brady with respect
to a licensee's return of a handgun to the person from whom it was
received.
Waiting Period (Interim Provision)
The Brady law provides that the waiting period provisions of the
law were effective on February 28, 1994, and cease to apply on November
30, 1998. Brady imposes a waiting period of 5 business days (defined in
the statute as days on which State offices are open) before a licensee
may sell, deliver, or transfer a handgun (other than the return of a
handgun to the person from whom it was received) to a nonlicensed
individual. As defined in the Brady law, the term ``handgun'' means--
(A) a firearm which has a short stock and is designed to be held
and fired by the use of a single hand; and
(B) any combination of parts from which a firearm described in
subparagraph (A) can be assembled.
Basically, the waiting period provision makes it unlawful for any
licensed firearms importer, manufacturer, or dealer to sell, deliver,
or transfer a handgun to a nonlicensed individual (transferee), unless
the licensee--
(1) obtains a statement of the transferee's intent to obtain a
handgun containing the transferee's name, address, and date of birth
appearing on a valid photo identification, a description of the
identification document, a statement that the transferee is not a
felon, under indictment, or otherwise prohibited from receiving or
possessing the handgun under Federal law, and the date the statement is
made;
(2) verifies the identity of the transferee by examining the
identification document presented;
(3) within 1 day after the transferee furnishes the statement,
contacts the chief law enforcement officer (CLEO) of the place of
residence of the transferee and advises such officer of the contents of
the statement;
(4) within 1 day after the transferee furnishes the statement,
transmits a copy of the statement to the CLEO of the place of residence
of the transferee; and
(5) waits 5 business days from the date the licensee furnished
notice of the contents of the statement to the CLEO before transferring
the handgun to the transferee (during which period the licensee has not
received information from the CLEO that receipt or possession of the
handgun by the transferee would be in violation of law); or receives
notice from the CLEO of the place of residence of the transferee that
the officer has no information that the transferee's receipt or
possession of the handgun would violate the law.
Subsequent to the sale or transfer of the handgun, the law requires
a licensee who receives a report from a CLEO containing information
that receipt or possession of the handgun by the transferee would
violate Federal, State, or local law to communicate within 1 day any
information the licensee has concerning the transfer to the CLEO of the
place of business of the licensee and to the CLEO of the place of
residence of the transferee.
As provided in Brady, the term ``chief law enforcement officer''
means ``the chief of police, the sheriff, or an equivalent officer or
the designee of any such individual.'' The law requires that the chief
law enforcement officer within 5 business days make a reasonable effort
to determine whether the transferee is prohibited by law from receiving
or possessing the handgun sought to be purchased. Except for records
relating to a proposed handgun sale that would violate the law, CLEOs
are required to destroy within 20 days the purchaser's statement, any
record containing information derived from the statement, and any
record created as a result of the notice referred to in (3) above.
Furthermore, these records may only be used to carry out the purposes
of the Brady law, and no information in the records may be conveyed to
any person for purposes other than complying with the Brady law.
Brady also provides that an individual who is determined to be
ineligible to purchase a handgun under the waiting period provision may
request that the CLEO who made the determination provide reasons for
that determination. The officer must provide such reasons to the
individual in writing within 20 business days after receipt of the
request. [[Page 10783]]
Alternatives to the Waiting Period
The statute provides the following alternatives to the waiting
period provision:
(1) The transferee provides a written statement issued within the
last 10 days by the CLEO of the transferee's place of residence that
the transferee requires a handgun because of a threat to the life of
the transferee or any member of the transferee's household;
(2) The transferee presents to the licensee a permit issued by the
State within the past 5 years to possess a handgun and the law of the
State requires verification that the transferee is not prohibited by
law from possessing the handgun;
(3) Purchases in States which require that, before any licensee
transfers a handgun to an individual, an authorized government official
has verified that possession of the handgun by the transferee would not
violate the law (e.g., a background check);
(4) Purchases of handguns which are subject to the National
Firearms Act and which have been approved for transfer under 27 CFR
Part 179 (Machine Guns, Destructive Devices, and Certain Other
Firearms);
(5) Purchases of handguns for which the Secretary has certified
that compliance with the 5-day waiting period procedure is
impracticable because the ratio of the number of law enforcement
officers of the State in which the transfer is to occur to the number
of square miles of land area of the State does not exceed 0.0025 (i.e.,
25 officers per 10,000 square miles), the premises of the licensee are
remote in relation to the CLEO of the area, and there is an absence of
telecommunications facilities in the geographical area in which the
business premises are located.
Additional Provisions of Pub. L. 103-159
Titles II and III of Pub. L. 103-159 provide additional amendments
to the GCA. These provisions, which became effective on November 30,
1993, are as follows:
(1) Multiple sales reports. In addition to furnishing reports of
multiple handgun sales to ATF, licensees are required to submit such
reports to the ``department of State police or State law enforcement
agency of the State or local law enforcement agency of the jurisdiction
in which the sale or other disposition took place.''
(2) Common carriers. Common or contract carriers are prohibited
from requiring or causing any label or other written notice to be
placed on the outside of any package, luggage, or other container
indicating that such package contains a firearm. In addition, common or
contract carriers who deliver firearms in interstate or foreign
commerce are required to obtain written acknowledgement of receipt from
the recipient of the package or other container in which there is a
firearm.
(3) Theft of firearms. It is unlawful for any person to steal from
the person or premises of a Federal firearms licensee any firearm in
the licensee's business inventory which has been shipped or transported
in interstate or foreign commerce.
(4) License fees. License fees for all dealers in firearms (other
than destructive devices), including pawnbrokers, have been increased
to $200 for 3 years, except that the fee for renewal of a license is
$90 for 3 years.
Temporary Rule and Notice of Proposed Rulemaking
On February 14, 1994, ATF published in the Federal Register a
temporary rule (T.D. ATF-354, 59 FR 7110) implementing the provisions
of Public L. 103-159, including the Brady Handgun Violence Prevention
Act. The temporary rule provided immediate guidance to Federal firearms
licensees concerning their obligations under the Brady law.
On February 14, 1994, the Bureau also published a notice of
proposed rulemaking cross-referenced to the temporary regulations
(Notice No. 789, 59 FR 7115). The comment period for Notice No. 789
closed on May 16, 1994.
Analysis of Comments
ATF received 105 comments in response to Notice No. 789. Comments
were submitted by Federal firearms licensees, nonlicensees, industry
trade groups and other organizations (e.g., Collateral Loan &
Secondhand Dealers Association of California, Handgun Control, Inc.,
and the National Rifle Association of America), members of Congress,
law enforcement officials, one Federal agency, and one State
Government.
Forty-five commenters, representing 43 percent of the total
comments received, expressed opposition to the Brady law and urged its
repeal. To accomplish this, however, legislative action would be
necessary. Several other commenters requested changes that would also
require legislative action. These include reducing or eliminating the
license fees for gunsmiths, eliminating the provision of law with
respect to the theft of firearms from a licensee, exempting police
officers from the waiting period requirement when purchasing a handgun
for other than official use, eliminating the requirement that the
licensee forward to the CLEO a copy of the transferee's statement of
intent to obtain a handgun, and eliminating the 5-year limitation for
permits in States that have a permit-to-purchase system. Other issues
addressed in the comments will be discussed in the following
paragraphs.
Pawn Transactions--Public Law 103-322
Twenty-five commenters disagree with ATF's interpretation that the
Brady law applies to the redemption of a pawned handgun. They argue
that the law was not intended to apply to pawn transactions where a
handgun is redeemed by the owner.
Subsequent to publication of the temporary regulations, on
September 13, 1994, the Violent Crime Control and Law Enforcement Act
of 1994 was enacted as Pub. L. 103-322 (108 Stat. 1796). Title XXXII of
Pub. L. 103-322 amended the GCA by eliminating the Federal 5-day
waiting period requirement imposed by Brady with respect to a
licensee's return of a handgun to the person from whom it was received.
Consequently, effective September 13, 1994, the Federal waiting period
no longer applies to the redemption of a pawned handgun by the person
from whom it was received. Accordingly, Sec. 178.102(a) of the final
regulations has been amended to include this exception to the
requirements of the Brady law.
Background Check Fees
Several commenters, including licensees and nonlicensees, oppose
the imposition of fees by law enforcement officials for background
records checks. They argue that there is nothing in the Brady law or
temporary regulations which allow CLEOs to charge a fee for such
checks.
The Brady law is silent with respect to the imposition of fees for
State and local officials performing records checks. It neither
authorizes nor prohibits CLEOs from imposing such a fee. Consequently,
such fees may be imposed pursuant to State or local law. Therefore, the
final rule does not address such fees.
Form 5300.35
Some commenters suggested that Form 5300.35 and Form 4473 be
combined into one form. This suggestion was not adopted. While the
forms contain duplicative information, they serve distinct purposes and
are executed at different times. Form [[Page 10784]] 5300.35 is
executed at the time the prospective purchaser informs the licensee of
an intent to acquire a handgun. Form 4473 is executed when the handgun
is delivered. A considerable lapse of time may separate the two events.
Consequently, the purchaser's certification on Form 5300.35 that he or
she is not within a category of persons prohibited from receiving or
possessing firearms must be made again on Form 4473 when the firearm is
delivered to the purchaser. During the period between execution of the
two forms, the purchaser may have been indicted, convicted of a felony,
or otherwise fallen within one of the categories of persons who are
prohibited by law from receiving or possessing firearms. In addition,
it is impractical to use a combined form as the Form 4473 contains
information that may not be provided to the CLEO, including a
description of the handgun to be purchased. The Brady law expressly
limits the information that may be required on Form 5300.35. Finally, a
combination of the two forms would be overly complicated and confusing
to licensees and handgun purchasers.
Two commenters requested that the regulations be revised to include
as optional information on Form 5300.35 the transferee's race in order
to assist law enforcement officials in verifying the transferee's
eligibility to possess a handgun. ATF agrees with the commenters that
race would be helpful in identifying the transferee. However, ATF
believes that the other information on the form, including social
security number and date of birth, is adequate for law enforcement
officials to conduct a criminal records check. Accordingly, ATF is not
amending the regulations and the form to include the transferee's race.
Another modification to Form 5300.35 was requested by the
Immigration and Naturalization Service (INS) of the Department of
Justice. In order to provide assistance to CLEOs in identifying
ineligible applicants for handguns, the INS has suggested that a
transferee who is a lawful permanent resident alien of the United
States include his or her alien registration number (Alien
#A__________) on Form 5300.35 (Item 5g, ``Are you illegally in the
United States?''). The registration number will enable INS to conduct
computer checks. Without this information, it would be impossible for
INS to grant the assistance requested by CLEOs. In light of INS's
request, ATF is amending Sec. 178.130(a)(2) to include the alien
registration number on Form 5300.35 as optional information.
Some commenters suggested that the regulations prescribe a maximum
time period between the completion of Form 5300.35 and delivery of the
handgun. The Brady law is silent on this issue. It requires licensees
to execute Form 5300.35 after the most recent proposal of transfer by
the transferee and before transferring the handgun. The law would not
prohibit a licensee from transferring a handgun even though there is a
long lapse of time between execution of the form and delivery of the
firearm. However, ATF is encouraging licensees to have the form
executed as close in time to the delivery of the handgun as possible,
so that any records check performed will be recent.
Another commenter requested that Sec. 178.130(c), which requires
licensees to retain all executed original Forms 5300.35 even when a
transfer does not occur, be eliminated. One commenter also recommended
that the final regulations clarify how long licensees must retain these
forms.
ATF is not amending Sec. 178.130(c). The retention of executed
Forms 5300.35 is necessary to ensure compliance with the Brady law
which requires that the form be completed at the time the buyer
expresses an intent to acquire a handgun from a licensee.
With respect to retention of Form 5300.35, Sec. 178.129(b) provides
that licensees shall retain each Form 5300.35 for a period of not less
than 5 years after notice of the intent to obtain a handgun was
forwarded to the chief law enforcement officer.
Recordkeeping Requirements
One commenter requested an amendment of Sec. 178.131(a)(3),
concerning recordkeeping requirements for handgun transactions in
States that have a permit/license-to-purchase background check system.
This section provides that the licensee shall retain a copy of the
purchaser's permit or license and attach it to the firearms transaction
record, Form 4473, executed upon delivery of the handgun. The commenter
contends that this requirement places an unnecessary and expensive
burden on licensees, particularly for those licensees who cannot
afford, or do not have access to, a photocopier.
Rather than making a copy of the purchaser's permit or license, the
commenter suggests that the licensee make a record of the information
contained on the permit. ATF believes that recording this information
on Form 4473 sufficiently demonstrates that a handgun transfer has been
made under the State permit system. Accordingly, this final rule amends
Sec. 178.131(a)(3) to require licensees to either retain a copy of the
purchaser's permit or license and attach it to the Form 4473 or record
certain minimal information contained on such permit or license on the
Form 4473, including any identifying number, the date of issuance and
the expiration date (if provided).
The same commenter requested an amendment of Sec. 178.131(a)(4).
This section requires licensees in alternative States with ``instant
check'' systems to retain with the Form 4473 a statement showing the
date of verification, any identifying number, and the name, location,
and title of the authorized government official who did the background
check. According to the commenter, ``[i]n virtually all instances, the
person actually checking the status of the transferee will not be an
`authorized government official' personally known to the licensee who
will conduct the appropriate records check.''
Since the agency responsible for determining the status of the
purchaser will have verifiable information that the background check
was completed, the commenter has suggested that the regulations be
amended to require the name of the agency responsible for conducting
the records check rather than the name of the Government official who
made the check.
In response, ATF is revising Sec. 178.131(a)(4) to require
licensees in alternative States with ``instant check'' systems to
retain with the Form 4473 a statement indicating the date of
verification and any identifying number assigned to the transaction by
the agency responsible for conducting the verification of eligibility.
Common and Contract Carriers
Section 922(f)(2) of the GCA and its implementing regulation in
Sec. 178.31(d) impose a new requirement on common or contract carriers
to obtain a written receipt upon delivery of a package or other
container in which there is a firearm. Two commenters raised concerns
regarding the application of Sec. 178.31(d) which they believe need to
be addressed in the final regulations.
One commenter, a trade association of the moving industry, noted
that some customers who are relocating do not reveal to the mover that
a firearm is included in the household goods being shipped. The firearm
may, for example, be in a dresser or other piece of furniture. Since
the mover has no knowledge that there is a firearm included in the
shipment, the commenter contends that the carrier should not be held
accountable for [[Page 10785]] failing to obtain proof of delivery of
the firearm from the recipient.
Pursuant to section 924 of the GCA, whoever ``knowingly'' violates
the provisions of section 922(f) shall be subject to certain penalties,
including a fine, imprisonment, or both. If the carrier has no
knowledge that a firearm is being transported in the shipment, no
violation would occur. For clarification, ATF is amending
Sec. 178.31(d) in the final regulations to add the requisite knowledge
element.
The second commenter, a trade and service organization of the
larger U.S. airlines, also expressed some concerns regarding the
application of Sec. 178.31(d). First, the commenter asked whether the
regulation requires an airline to obtain a written receipt from a
passenger when baggage, containing a declared firearm that accompanies
the passenger, is delivered at the destination airport. ATF interprets
section 922(f) as not requiring carriers to obtain a written
acknowledgement of receipt upon return of a firearm to a passenger who
places a firearm in the carrier's custody for the duration of the trip.
ATF is amending Sec. 178.31(d) in the final regulations to clarify this
point.
The commenter also inquired as to whether an electronic signature
satisfies the receipt requirement of Sec. 178.31(d). According to the
commenter, small cargo package services utilize electronic notebooks
that enable a consignee to sign electronically, rather than in ink, for
a shipment. Hard copies of the delivery records, including the
signature of the recipients, can be printed out. The records are
retrievable from the database by the name of the consignee or
consignor.
ATF finds that an electronic signature is a ``written
acknowledgement of receipt'' which would satisfy the requirements of
Sec. 178.31(d), provided the signature is that of the individual who
received the package. However, ATF believes it is unnecessary to amend
the regulations to specifically address this particular type of
receipt.
Finally, the commenter requested a clarification of Sec. 178.31
with respect to the handling of firearms shipped on commercial air
carriers on behalf of governmental entities, specifically, military
personnel. In the case of firearms shipped as cargo on behalf of
military personnel, Sec. 925(a)(1) of the GCA provides that the
provisions of the Act do not apply with respect to the transportation,
shipment, receipt, possession, or importation of any firearm or
ammunition imported for, sold or shipped to, or issued for the use of
governmental entities. Thus, the provisions of Sec. 178.31 are not
applicable to firearms being shipped or transported on behalf of
governmental entities, including the Armed Forces.
Since there are existing regulations which implement the provisions
of Sec. 925(a)(1), i.e., Sec. 178.141, ATF has determined that
amendment of Sec. 178.31 is unnecessary.
Chief Law Enforcement Officers
Two commenters suggested that the final regulations provide
guidance for law enforcement officers with respect to their
responsibilities and duties in implementing the provisions of Brady.
This includes a clarification of who is a CLEO and who may designate a
CLEO; a clarification that CLEOs have no authority to impose a
``temporary hold'' on the transfer of a handgun to a transferee who is
not prohibited by law from purchasing a handgun; guidance to CLEOs
regarding what constitutes ``reasonable effort'' when conducting
background checks on purchasers; and guidance regarding the destruction
of Brady related records by law enforcement officers.
ATF has not included the commenters' suggestions in the final rule,
since the regulations address the responsibilities of Federal firearms
licensees. ATF has given actual notice to CLEOs of their
responsibilities under the Brady law.
Finally, the temporary regulations, Sec. 178.102(a)(3), provide
that the notice licensees are required to give CLEOs shall be actual
notice and shall be given in a manner acceptable to the CLEO. For
clarification, ATF is amending Sec. 178.102(a)(3) to provide that
licensees in jurisdictions where CLEOs have specified hand-delivery as
the only means of delivering notice will satisfy their legal obligation
under the Brady law if they provide notice to the CLEO by certified
mail (return receipt requested) or by any other method of mailing which
will provide a written receipt. This section has been redesignated as
Sec. 178.102(b).
Identification of Transferee
The temporary regulations, Sec. 178.102(a)(1)(ii), require
licensees to verify the identity of the transferee by examining the
identification document presented. The term ``identification document''
is defined in Brady and the regulations as ``a document containing the
name, residence address, date of birth, and photograph of the holder
and which was made or issued by or under the authority of the United
States Government, a State, political subdivision of a State ...'' A
question was raised in the comments with respect to acceptable
identification documents in the case of military personnel.
In the case of military personnel, the purchaser's military
identification card and official orders showing that his permanent duty
station is within the State where the licensed premises is located will
suffice for purposes of the identification requirement of Brady.
ATF was also asked if a licensee could accept an identification
document from a transferee who has an incorrect address. A transferee
who presents a driver's license with an address that is not a current
residence would not present a proper ``identification document'' as
that term is defined in the law and the regulations. However, if the
individual presents a combination of documents, all issued by a
governmental entity, containing all the information required by Brady,
the combination of documents would satisfy the identification
requirements of the law.
ATF believes the preceding discussion sufficiently clarifies the
application of Sec. 178.102(a)(1)(ii), and an amendment of the
regulations is unnecessary. This section has been redesignated as
Sec. 178.102(a)(2) in the final regulations.
Miscellaneous
One commenter suggested that the final regulations specify that the
waiting period provisions of Brady do not apply to licensed collectors
of curios and relics. ATF is not adopting this suggestion, since Brady
applies to certain handgun transactions by licensed collectors. The law
and regulations make it clear that the waiting period provisions of
Brady apply to transfers of handguns by licensed IMPORTERS, licensed
MANUFACTURERS, and licensed DEALERS to individuals who are not licensed
under section 923. Thus, it is apparent that transfers of handguns BY
licensed collectors are not subject to the provisions of Brady. As for
transfers of handguns by licensed importers, licensed manufacturers,
and licensed dealers TO licensed collectors, such transfers are subject
to Brady unless the collector is purchasing a handgun designated as a
curio or relic. A collector's license authorizes the licensee to engage
only in transactions in firearms designated as curios or relics and
would not enable the licensed collector to avoid the requirements of
the GCA, including the Brady law, for firearms other than curios or
relics.
One commenter recommended that the final regulations include a
provision that requires licensees to obtain a transferee's fingerprints
to resolve [[Page 10786]] appeals involving positive identification.
ATF is not adopting this suggestion. The Brady law does not involve
licensees in the appeals process. If a CLEO determines that a
prospective buyer is ineligible to receive a firearm and the handgun
purchase is denied, Brady provides that the individual can request from
the CLEO the reason for such determination. Thus, the licensee is no
longer involved and the matter will be resolved by the prospective
buyer and the CLEO. In situations where the denial is based on
inconclusive identification of the transferee, it is incumbent upon the
prospective buyer to provide the CLEO with whatever additional
identifying information is needed, including fingerprints, to establish
positive identification.
Finally, this Treasury decision makes some technical amendments to
the temporary regulations. Specifically, the temporary regulations
redesignated Sec. 178.150 as Sec. 178.151. Section 178.150 should have
been redesignated as Sec. 178.152. In addition, Sec. 178.126a has been
amended to clarify that licensees retain a copy of Form 3310.4,
consistent with the instructions on the form. Section 178.129 provides
that licensees shall retain such copies of Form 3310.4 for a period of
not less than 5 years. Lastly, the definition of the term ``chief law
enforcement officer'' has been moved from Sec. 178.11 to
Sec. 178.102(c).
Executive Order 12866
It has been determined that this final rule is not a significant
regulatory action because the economic effects flow directly from the
underlying statute and not from this final rule. Accordingly, this
final rule is not subject to the analysis required by this Executive
order.
Regulatory Flexibility Act
The provisions of the Regulatory Flexibility Act relating to an
initial and final regulatory flexibility analysis (5 U.S.C. 604) are
not applicable to this final rule because the agency was not required
to publish a notice of proposed rulemaking under 5 U.S.C. 553 or any
other law.
Paperwork Reduction Act
The collection of information contained in this final regulation
has been reviewed and approved by the Office of Management and Budget
in accordance with the requirements of the Paperwork Reduction Act (44
U.S.C. 3504(h)) under control number 1512-0520. The estimated average
annual burden associated with the collection of information in this
regulation is 2.52 hours per respondent or recordkeeper.
Comments concerning the accuracy of this burden estimate and
suggestions for reducing this burden should be directed to the Chief,
Information Programs Branch, Room 3450, Bureau of Alcohol, Tobacco and
Firearms, 650 Massachusetts Avenue, NW., Washington, DC 20226 and to
the Office of Management and Budget, Attention: Desk Officer for the
Bureau of Alcohol, Tobacco and Firearms, Office of Information and
Regulatory Affairs, Washington, DC 20503.
Disclosure
Copies of the temporary rule, the notice of proposed rulemaking,
all written comments, and this final rule will be available for public
inspection during normal business hours at: ATF Public Reading Room,
Room 6480, 650 Massachusetts Avenue, NW., Washington, DC.
Drafting Information
The author of this document is James P. Ficaretta, Regulations
Branch, Bureau of Alcohol, Tobacco and Firearms.
List of Subjects in 27 CFR Part 178
Administrative practice and procedure, Arms and ammunition,
Authority delegations, Customs duties and inspection, Exports, Imports,
Military personnel, Penalties, Reporting requirements, Research,
Seizures and forfeitures, and Transportation.
Authority and Issuance
PART 178--COMMERCE IN FIREARMS AND AMMUNITION
27 CFR Part 178 is amended as follows:
Paragraph 1. The authority citation for 27 CFR Part 178 continues
to read as follows:
Authority: 5 U.S.C. 552(a); 18 U.S.C. 847, 921-930; 44 U.S.C.
3504(h).
Sec. 178.11 [Amended]
Par. 2. Section 178.11 is amended by removing the definition for
``chief law enforcement officer.''
Par. 3. Section 178.31 is amended by revising paragraph (d) to read
as follows:
Sec. 178.31 Delivery by common or contract carrier.
* * * * *
(d) No common or contract carrier shall knowingly deliver in
interstate or foreign commerce any firearm without obtaining written
acknowledgement of receipt from the recipient of the package or other
container in which there is a firearm: Provided, That this paragraph
shall not apply with respect to the return of a firearm to a passenger
who places firearms in the carrier's custody for the duration of the
trip.
Par. 4. Section 178.102 is revised to read as follows:
Sec. 178.102 Sales or deliveries of handguns after February 27, 1994,
and before November 30, 1998.
(a) Waiting period. Except as provided in paragraph (d), a licensed
importer, licensed manufacturer, or licensed dealer shall not sell,
deliver, or transfer a handgun (other than the return of a handgun to
the person from whom it was received) to any individual who is not
licensed under this part unless the licensee:
(1) Receives from the transferee a statement of intent to obtain a
handgun on Form 5300.35 in accordance with Sec. 178.130;
(2) Verifies the identity of the transferee by examining the
identification document presented, and noting on Form 5300.35 the type
of identification used;
(3) Within 1 day after the transferee furnishes the statement,
provides notice of the contents of the statement on Form 5300.35, in
the manner prescribed by paragraph (b) of this section, to the chief
law enforcement officer of the place of residence of the transferee;
(4) Within 1 day after the transferee furnishes the statement to
the licensee, transmits a copy of Form 5300.35 to the chief law
enforcement officer of the place of residence of the transferee; and
(5)(i) Five business days (meaning days on which State offices are
open) have elapsed from the date the licensee furnished actual notice
of the contents of the statement to the chief law enforcement officer,
during which period the licensee has not received information from such
officer that receipt or possession of the handgun by the transferee
would be in violation of Federal, State, or local law; or
(ii) The licensee has received notice from the chief law
enforcement officer within the 5 business days that the officer has no
information indicating that receipt or possession of the handgun by the
transferee would violate Federal, State, or local law.
Example 1. A licensee furnishes actual notice of the contents of
the statement to the chief law enforcement officer on Tuesday. If
State offices are not open on Saturday and Sunday, 5 business days
would have elapsed on the following Tuesday. The licensee may
deliver the handgun on the next day, Wednesday.
Example 2. A licensee furnishes actual notice of the contents of
the statement to the chief law enforcement officer on Saturday. If
State offices are not open on Saturday and Sunday, 5 business days
would have elapsed [[Page 10787]] on the following Friday. The
licensee may deliver the handgun on the next day, Saturday.
(b) Form of notice. The notice required by paragraph (a)(3) of this
section shall be actual notice and shall be given in a manner
acceptable to such officer. For example, if the chief law enforcement
officer will only accept notice in writing and not by telephone, notice
shall be given by the licensee to the chief law enforcement officer in
writing. In that case, the 5-day waiting period prescribed by paragraph
(a)(5)(i) of this section begins at the time such written notice is
received by the chief law enforcement officer. If the licensee sends
notice to such officer by mail, the licensee shall send the notice by
certified mail (return receipt requested) or by any other method of
mailing which will provide a written receipt: Provided, That where the
chief law enforcement officer will only accept notice by hand delivery,
notice may be sent in writing by the licensee to the chief law
enforcement officer by certified mail (return receipt requested) or by
any other method of mailing which will provide a written receipt.
(c) Chief law enforcement officer. The law requires that notice of
the contents of the transferee's statement of intent to obtain a
handgun and the statement be provided by the licensee to the chief law
enforcement officer of the place of residence of the transferee. For
purposes of this section, Sec. 178.130, and Sec. 178.131, the ``chief
law enforcement officer'' means the chief of police, the sheriff, or an
equivalent officer or the designee of any such individual. Where the
State or local law enforcement officials have notified the licensee
that a particular official has been designated to receive the notice
and statement specified in paragraphs (a) (3) and (4) of this section,
the licensee shall provide the information to that designated official.
(d) Alternatives to waiting period. The provisions of paragraph (a)
of this section shall not apply if--
(1) The transferee has presented to the licensee a written
statement, issued by the chief law enforcement officer of the
transferee's place of residence, stating that the transferee requires
access to a handgun because of a threat to the life of the transferee
or of any member of the household of the transferee. The written
statement must have been issued by the chief law enforcement officer
during the 10-day period ending on the date that the transferee has
informed the licensee of the transferee's intention to obtain a
handgun. The written statement shall be on a letter bearing the
letterhead of the chief law enforcement officer and shall be signed by
the officer and dated;
(2) The transferee has presented to the licensee a permit or
license that--
(i) Allows the transferee to possess or acquire a handgun;
(ii) Was issued not more than 5 years earlier by the State in which
the transfer is to take place; and
(iii) The law of the State provides that such a permit is to be
issued only after an authorized government official has verified that
the information available to such official does not indicate that
possession of a handgun by the transferee would be in violation of
Federal, State, or local law;
(3) The law of the State requires that, before any licensed
importer, licensed manufacturer, or licensed dealer completes the
transfer of a handgun to an individual who is not licensed under this
part, an authorized government official verify that the information
available to such official does not indicate that possession of a
handgun by the transferee would be in violation of law;
(4) The handgun is subject to the provisions of the National
Firearms Act and has been approved for transfer under 27 CFR Part 179;
or
(5) On application of the licensee, in accordance with the
provisions of Sec. 178.150, the Director has certified that compliance
with paragraph (a) of this section is impracticable.
(6) The documents referred to in paragraphs (d)(1) and (2) of this
section shall be retained in the records of the licensee in accordance
with the provisions of Sec. 178.131.
(e) Disclosure of information. (1) Any licensed importer, licensed
manufacturer, or licensed dealer who, after the transfer of a handgun
to a nonlicensee, receives a report from a chief law enforcement
officer containing information that receipt or possession of the
handgun by the transferee violates Federal, State, or local law shall,
within 1 business day (meaning a day on which State offices are open)
after receipt of the report, communicate any information the licensee
has concerning the transfer and the transferee, including a copy of
Form 4473 required by Sec. 178.124, to the chief law enforcement
officer of the place of business of the licensee and to the chief law
enforcement officer of the place of residence of the transferee. The
licensee may also provide this information to the local ATF office.
(2) Any licensed importer, licensed manufacturer, or licensed
dealer who receives information from a chief law enforcement officer
regarding the transfer of a handgun to a nonlicensee, not otherwise
available to the public, shall not disclose such information except to
the transferee, to law enforcement authorities, or pursuant to the
direction of a court of law.
(Approved by the Office of Management and Budget under control
number 1512-0520)
Par. 5. Section 178.126a is amended by adding a fifth sentence to
the text preceding Example 1 to read as follows:
Sec. 178.126a Reporting multiple sales or other disposition of pistols
and revolvers.
* * * The licensee shall retain one copy of Form 3310.4 and attach
it to the firearms transaction record, Form 4473, executed upon
delivery of the pistols or revolvers.
* * * * *
Par. 6. Section 178.129(b) and the parenthetical text at the end of
the section are revised to read as follows:
Sec. 178.129 Record retention.
* * * * *
(b) Firearms transaction record, statement of intent to obtain a
handgun, and reports of multiple sales or other disposition of pistols
and revolvers. Licensees shall retain each Form 4473 and Form 4473(LV)
for a period of not less than 20 years after the date of sale or
disposition. Licensees shall retain each Form 5300.35 for a period of
not less than 5 years after notice of the intent to obtain the handgun
was forwarded to the chief law enforcement officer. Licensees shall
retain each copy of Form 3310.4 for a period of not less than 5 years
after the date of sale or other disposition.
* * * * *
(Paragraph (b) approved by the Office of Management and Budget
under control numbers 1512-0520 and 1512-0006; all other recordkeeping
approved by the Office of Management and Budget under control number
1512-0129.)
Par. 7. Section 178.130 is amended by revising paragraphs (a) and
(e) to read as follows:
Sec. 178.130 Statement of intent to obtain a handgun after February
27, 1994, and before November 30, 1998.
(a)(1) Except as provided in Secs. 178.102(d) and 178.131, a
licensed importer, licensed manufacturer, or licensed dealer shall not
sell, deliver, or transfer a handgun (other than the return of a
handgun to the person from whom it was received) unless the licensee
has received from the transferee a statement of intent to obtain a
handgun on Form 5300.35 in duplicate. The statement shall contain the
transferee's name, address, and date of birth. The transferee must date
and execute the sworn statement contained on the form showing that the
transferee [[Page 10788]] is not under indictment for a crime
punishable by imprisonment for a term exceeding 1 year; has not been
convicted in any court of such a crime; is not a fugitive from justice;
is not an unlawful user of or addicted to any controlled substance; has
not been adjudicated as a mental defective or been committed to a
mental institution; is not an alien who is illegally or unlawfully in
the United States; has not been discharged from the Armed Forces under
dishonorable conditions; and is not a person who, having been a citizen
of the United States, has renounced such citizenship.
(2) In order to facilitate the transfer of a handgun and enable the
chief law enforcement officer to verify the identity of the person
acquiring the handgun, Form 5300.35 requests certain additional
optional information. This information includes the social security
number, height, weight, sex, alien registration number, and place of
birth of the transferee. Such information may help avoid the
possibility of the transferee being misidentified as a felon or other
prohibited person.
* * * * *
(e) A licensee may obtain, upon request, an emergency supply of
Forms 5300.35 from any regional director (compliance) or local ATF
office (compliance).
* * * * *
Par. 8. Section 178.131 is revised to read as follows:
Sec. 178.131 Handgun transactions not subject to the waiting period.
(a)(1) A licensed importer, licensed manufacturer, or licensed
dealer whose sale, delivery, or transfer of a handgun is made pursuant
to the alternative provisions of Sec. 178.102(d) and is not subject to
the waiting period prescribed by Sec. 178.102(a) shall maintain the
records required by this paragraph.
(2) If the transfer is pursuant to a written statement of the chief
law enforcement officer in accordance with Sec. 178.102(d)(1), the
licensee shall retain such statement and attach it to the firearms
transaction record, Form 4473, executed upon delivery of the handgun.
(3) If the transfer is pursuant to a permit or license in
accordance with Sec. 178.102(d)(2), the licensee shall either retain a
copy of the purchaser's permit or license and attach it to the firearms
transaction record, Form 4473, or record on the firearms transaction
record, Form 4473, any identifying number, the date of issuance, and
the expiration date (if provided) from the permit or license.
(4) If the transfer is pursuant to a verification of eligibility to
possess a handgun (e.g., an instant record check) by a government
official in accordance with Sec. 178.102(d)(3), the licensee shall
attach to the firearms transaction record, Form 4473, executed upon
delivery of the handgun, a statement showing the date of verification
and any identifying number assigned to the transaction by the agency
responsible for conducting the verification of eligibility.
(5) If the transfer is pursuant to a certification by ATF in
accordance with Secs. 178.102(d)(5) and 178.150, the licensee shall
maintain the certification as part of the records required to be kept
under this subpart and for the period prescribed for the retention of
Form 5300.35 in Sec. 178.129(b).
(b) The requirements of this section shall be in addition to any
other recordkeeping requirements contained in this part. (Approved by
the Office of Management and Budget under control number 1512-0520)
Par. 9. Section 178.150 is amended by revising the introductory
text of paragraph (a) to read as follows:
Sec. 178.150 Alternative to handgun waiting period in certain
geographical locations.
(a) The provisions of Sec. 178.102(d)(5) shall be applicable when
the Director has certified that compliance with the waiting period
provisions of Sec. 178.102(a) is impracticable because:
* * * * *
Par. 10. In Subpart I, Sec. 178.151, Seizure and forfeiture, is
redesignated as Sec. 178.152.
Signed: December 6, 1994.
Daniel R. Black,
Acting Director.
Approved: December 27, 1994.
John P. Simpson,
Deputy Assistant Secretary, Regulatory, Tariff and Trade Enforcement.
[FR Doc. 95-4886 Filed 2-24-95; 8:45 am]
BILLING CODE 4810-31-U