[Federal Register Volume 70, Number 66 (Thursday, April 7, 2005)]
[Proposed Rules]
[Pages 17624-17626]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-6932]


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DEPARTMENT OF JUSTICE

Bureau of Alcohol, Tobacco, Firearms, and Explosives

27 CFR Part 479

[Docket No. ATF 7P; AG Order No. 2761--2005]
RIN 1140-AA23


Machine Guns, Destructive Devices, and Certain Other Firearms; 
Amended Definition of ``Pistol'' (2003R-33P)

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

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of Justice is proposing to amend the 
regulations relating to machine guns, destructive devices, and certain 
other firearms regulated under the National Firearms Act (NFA) for the 
Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) to clarify 
the definition of the term ``pistol'' and to define more clearly 
exceptions to the ``pistol'' definition. The added language is 
necessary to clarify that certain weapons, including any weapon 
disguised to look like an item other than a firearm or any gun that 
fires more than one shot without manual reloading by a single function 
of the trigger, are not pistols and are classified as ``any other 
weapon'' under the NFA.

DATES: Comments must be submitted on or before May 9, 2005.

ADDRESSES: Send written comments to: James P. Ficaretta, Program 
Manager; Room 5250; Bureau of Alcohol, Tobacco, Firearms, and 
Explosives; P.O. Box 50221; Washington, DC 20091-0221; ATTN: ATF 7P. 
Written comments must include your mailing address and be signed, and 
may be of any length.
    Comments may also be submitted electronically to ATF at 
[email protected] or to http://www.regulations.gov by using the electronic 
comment form provided on that site. You may also view an electronic 
version of this proposed rule at the http://www.regulations.gov site. 
Comments submitted electronically must contain your name, mailing 
address and, if submitted by e-mail, your e-mail address. They must 
also reference this document docket number, as noted above, and be 
legible when printed on 8\1/2\'' x 11'' paper. ATF will treat comments 
submitted electronically as originals and ATF will not acknowledge 
receipt of comments submitted electronically. See the Public 
Participation section at the end of the SUPPLEMENTARY INFORMATION 
section for requirements for submitting written comments by facsimile.

FOR FURTHER INFORMATION CONTACT: James P. Ficaretta; Enforcement 
Programs and Services; Bureau of Alcohol, Tobacco, Firearms, and 
Explosives; United States Department of Justice; 650 Massachusetts 
Avenue, NW., Washington, DC 20226; telephone (202) 927-8203 (this is 
not a toll-free number).

SUPPLEMENTARY INFORMATION:

Background

    The regulations in title 27, Code of Federal Regulations (CFR), 
part 479 implement the provisions of the National Firearms Act (NFA), 
26 U.S.C. 5801 et seq. Part 479 contains the procedural and substantive 
requirements relative to the importation, manufacture, making, 
exportation, transfer, taxing, identification and registration of, and 
the dealing in, machine guns, destructive devices, and certain other 
firearms. All NFA firearms that are not in possession or control of the 
United States government must be registered. Possession of an 
unregistered NFA firearm is a violation of Federal law and subjects the 
possessor to criminal prosecution and the seizure and forfeiture of the 
firearm.
    For purposes of the NFA, the term ``firearm'' includes ``any other 
weapon,'' which in turn is defined in the law (26 U.S.C. 5845(e)) and 
its implementing regulation at 27 CFR 479.11 as follows:

    Any weapon or device capable of being concealed on the person 
from which a shot can be discharged through the energy of an 
explosive, a pistol or revolver having a barrel with a smooth bore 
designed or redesigned to fire a fixed shotgun shell, weapons with 
combination shotgun and rifle barrels 12 inches or more, less than 
18 inches in length, from which only a single discharge can be made 
from either barrel without manual reloading, and shall include any 
such weapon which may be readily restored to fire. Such term shall 
not include a pistol or a revolver having a rifled bore, or rifled 
bores, or weapons designed, made, or intended to be fired from the 
shoulder and not capable of firing fixed ammunition.

As indicated, the definition of ``any other weapon'' specifically 
excludes pistols having rifled bores.
    The term ``pistol'' is defined in 27 CFR 479.11 to mean:

    A weapon originally designed, made, and intended to fire a 
projectile (bullet) from one or more barrels when held in one hand, 
and having (a) a chamber(s) as an integral part(s) of, or 
permanently aligned with, the bore(s); and (b) a short stock 
designed to be gripped by one hand and at an angle to and extending 
below the line of the bore(s).

A weapon that meets the definition of ``pistol'' with a rifled bore 
falls outside the definition of ``any other weapon'' and is therefore 
not classified as an NFA weapon.
    This notice seeks to amend the regulation that defines ``pistol'' 
to restore language that was inadvertently removed in 1988 and insert 
language that more clearly defines exceptions to the ``pistol'' 
definition. The language added to the regulation is necessary to 
clarify that certain weapons, including weapons disguised to look like 
items

[[Page 17625]]

other than firearms, are not pistols and are classified as ``any other 
weapon'' under the NFA and subject to that Act's requirements.
    The current definition of ``pistol'' in section 479.11 dates back 
to amendments made in 1988, 53 FR 10480 (Mar. 31, 1988). Prior to 
amendment, the term was defined to read as follows:

    A weapon originally designed, made, and intended to fire a small 
projectile (bullet) from one or more barrels when held in one hand, 
and having (a) a chamber(s) as an integral part(s) of, or 
permanently aligned with, the bore(s); and (b) a short stock 
designed to be gripped by one hand and at an angle to and extending 
below the line of the bore(s). The term shall not include any gadget 
device, any gun altered or converted to resemble a pistol, any gun 
that fires more than one shot, without manual reloading, by a single 
function of the trigger, or any small portable gun such as: Nazi 
belt buckle pistol, glove pistol, or a one-hand stock gun designed 
to fire fixed shotgun ammunition.

27 CFR 179.11 (1986). As explained in the preamble to the 1988 
amendments, 53 FR 10482, the definition was changed pursuant to 
comments received during the rulemaking process by deleting the word 
``small'' before the word ``projectile.'' In addition, due to an 
administrative oversight, the last part of the definition was deleted. 
The language inadvertently deleted stated ATF's long-standing position 
that certain weapons are not pistols, including any gun disguised to 
look like an item other than a firearm, any gun altered or converted to 
resemble a pistol, any gun that fires more than one shot, without 
manual reloading, by a single function of the trigger, or any small 
portable gun. Such weapons were classified as ``any other weapon'' 
under the NFA and subject to regulation under the NFA.

Proposed Regulation

    The Department believes that the NFA definition of the term 
``pistol'' should be revised to more accurately reflect the 
Department's position concerning the weapons subject to regulation 
under the ``any other weapon'' category of the NFA. The term ``fixed'' 
has been added to paragraph (a)(2) of the regulatory definition to 
clarify that weapons with a short stock permanently affixed at an angle 
to the bore can be classified as ``pistols.''
    In addition, the regulation will now include language which makes 
it clear that certain weapons that are particularly concealable and 
difficult to readily identify as firearms are regulated under the NFA. 
This will allow the Department to regulate certain weapons that pose 
significant public safety and security risks in this post 9/11 era. The 
types of weapons covered by this language include, but are not limited 
to, belt buckle guns, penguns, wallet guns, gadget devices, and devices 
commonly known as pager guns. These weapons are particularly hazardous, 
as they may easily pass through airport or other security posts or 
metal detectors without being recognized as firearms. Furthermore, such 
highly concealable weapons can be particularly appealing to prohibited 
persons, terrorists, or others who may misuse firearms because such 
weapons can be carried and even used without detection. By regulating 
these specific types of weapons pursuant to the NFA, the Department can 
more directly address these heightened security concerns and protect 
the public from the dangers posed by hidden weaponry.
    Accordingly, the proposed definition of ``pistol'' in section 
479.11 would read as follows:

    (a) A weapon originally designed, made, and intended to fire a 
projectile (bullet) from one or more barrels when held in one hand, 
and having--
    (1) A chamber(s) as an integral part(s) of, or permanently 
aligned with, the bore(s); and
    (2) A short fixed stock designed to be gripped by one hand and 
at an angle to and extending below the line of the bore(s).
    (b) The term shall not include any weapon disguised to look like 
an item other than a firearm, such as a pengun, wallet gun, belt 
buckle gun, pager gun or gadget device, or any gun that fires more 
than one shot, without manual reloading, by a single function of the 
trigger.

    Omitted from the proposed regulation is the language: ``any gun 
altered or converted to resemble a pistol.'' This language mirrors the 
statutory provisions in 26 U.S.C. 5845(a)(2) and (4) that refer to 
weapons made from a shotgun or rifle. The NFA adequately reflects the 
Department's consistent position that a rifle or shotgun, altered to 
function as a smaller, pistol-like weapon, maintains its classification 
as a rifle or shotgun and will not be classified as a pistol. 
Therefore, the addition of this language into the proposed regulation 
is unnecessary.
    Proposed omissions should not be read as an intention to regulate a 
narrower category of ``any other weapons'' than those previously 
classified by ATF under the NFA and implementing regulations.
    If adopted as a final rule, the proposed amendment to the 
definition of ``pistol'' will be applied to previous and future 
classifications of firearms disguised to look like an item other than a 
firearm. If a firearm previously classified as a pistol is found to be 
an ``any other weapon'' pursuant to the proposed definition, 
manufacturers, current owners, and those persons who wish to purchase 
such a weapon would be subject to the restrictions and regulations 
imposed by the NFA, including background checks, registration and 
making/transfer tax.

Administrative Matters

Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires an 
agency to conduct a regulatory flexibility analysis of any rule subject 
to notice and comment rulemaking requirements unless the head of the 
agency certifies that the rule will not have a significant economic 
impact on a substantial number of small entities. Small entities 
include small businesses, small not-for-profit enterprises, and small 
governmental jurisdictions. The Attorney General has reviewed this 
proposed rule and, by approving it, certifies that this proposed rule 
will not have a significant economic impact on a substantial number of 
small entities. The proposed rule merely restores language in the 
definition of the term ``pistol'' that was inadvertently removed due to 
an administrative oversight.

Unfunded Mandates Reform Act of 1995

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

Small Business Regulatory Enforcement Fairness Act of 1996

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

Executive Order 12866

    This proposed rule has been drafted and reviewed in accordance with 
Executive Order 12866, section 1(b), Principles of Regulation. The 
Department has determined that this proposed rule is a ``significant 
regulatory action'' under section 3(f) of Executive Order 12866, 
Regulatory

[[Page 17626]]

Planning and Review. Accordingly, this proposed rule has been submitted 
to the Office of Management and Budget for review.

Executive Order 13132

    This proposed rule will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with section 6 
of Executive Order 13132, the Department of Justice has determined that 
this proposed rule does not have sufficient federalism implications to 
warrant a federalism summary impact statement.

Executive Order 12988

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

Paperwork Reduction Act of 1995

    This proposed rule does not impose any new reporting or 
recordkeeping requirements under the Paperwork Reduction Act.

Public Participation

    ATF is requesting comments on the proposed regulations from all 
interested persons. ATF is also specifically requesting comments on the 
clarity of this proposed rule and how it could be made easier to 
understand.
    Comments received on or before the closing date will be carefully 
considered. Comments received after that date will be given the same 
consideration if it is practical to do so, but assurance of 
consideration cannot be given except as to comments received on or 
before the closing date.
    ATF will not recognize any material in comments as confidential. 
Comments may be disclosed to the public. Any material that the 
commenter considers to be confidential or inappropriate for disclosure 
to the public should not be included in the comment. The name of the 
person submitting a comment is not exempt from disclosure.
A. Submitting Comments by Fax
    You may submit written comments by facsimile transmission to (202) 
927-0506. Facsimile comments must:
     Be legible;
     Include your mailing address;
     Reference this document number;
     Be 8\1/2\'' x 11'' in size;
     Contain a legible written signature; and
     Be not more than five pages long.
    ATF will not acknowledge receipt of facsimile transmissions. ATF 
will treat facsimile transmissions as originals.
B. Request for Hearing
    Any interested person who desires an opportunity to comment orally 
at a public hearing should submit his or her request, in writing, to 
the Director of ATF within the 30-day comment period. The Director, 
however, reserves the right to determine, in light of all 
circumstances, whether a public hearing is necessary.
C. Disclosure
    Copies of this proposed rule and the comments received will be 
available for public inspection by appointment during normal business 
hours at: ATF Reference Library, Room 6480, 650 Massachusetts Avenue, 
NW., Washington, DC 20226, telephone (202) 927-7890.

Regulation Identification Number

    A regulation identification number (RIN) is assigned to each 
regulatory action listed in the Unified Agenda of Federal Regulations. 
The Regulatory Information Service Center publishes the Unified Agenda 
in the Federal Register in April and October of each year. The RIN 
contained in the heading of this document can be used to cross-
reference this action with the Unified Agenda.

Drafting Information

    The author of this document is James P. Ficaretta; Enforcement 
Programs and Services; Bureau of Alcohol, Tobacco, Firearms, and 
Explosives.

List of Subjects in 27 CFR Part 479

    Administrative practice and procedure, Arms and munitions, 
Authority delegations, Customs duties and inspection, Exports, Imports, 
Military personnel, Penalties, Reporting and recordkeeping 
requirements, Research, Seizures and forfeitures, and Transportation.

Authority and Issuance

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

PART 479--MACHINE GUNS, DESTRUCTIVE DEVICES, AND CERTAIN OTHER 
FIREARMS

    1. The authority citation for 27 CFR part 479 continues to read as 
follows:

    Authority: 26 U.S.C. 7805.

    2. Section 479.11 is amended by revising the definition of the term 
``Pistol'' to read as follows:


Sec.  479.11  Meaning of terms.

* * * * *
    Pistol. (a) A weapon originally designed, made, and intended to 
fire a projectile (bullet) from one or more barrels when held in one 
hand, and having--
    (1) A chamber(s) as an integral part(s) of, or permanently aligned 
with, the bore(s); and
    (2) A short fixed stock designed to be gripped by one hand and at 
an angle to and extending below the line of the bore(s).
    (b) The term shall not include any weapon disguised to look like an 
item other than a firearm, such as a pengun, wallet gun, belt buckle 
gun, pager gun or gadget device, or any gun that fires more than one 
shot, without manual reloading, by a single function of the trigger.
* * * * *

    Dated: March 8, 2005.
Alberto R. Gonzales,
Attorney General.
[FR Doc. 05-6932 Filed 4-6-05; 8:45 am]
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