[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.

-----------------------------------------------------------------------

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