[Federal Register Volume 81, Number 7 (Tuesday, January 12, 2016)]
[Rules and Regulations]
[Pages 1307-1318]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-00112]
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DEPARTMENT OF JUSTICE
Bureau of Alcohol, Tobacco, Firearms, and Explosives
27 CFR Part 478
[Docket No. ATF 40F; AG Order No. 3607-2016]
RIN 1140-AA41
Commerce in Firearms and Ammunition--Reporting Theft or Loss of
Firearms in Transit (2007R-9P)
AGENCY: Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF);
Department of Justice.
ACTION: Final rule.
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SUMMARY: The Department of Justice is amending the regulations of the
Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) concerning
the statutory reporting requirement for firearms that have been stolen
or lost. The final rule specifies that when a Federal firearms licensee
(FFL) discovers a firearm it shipped was stolen or lost in transit, the
transferor/sender FFL must report the theft or loss to ATF and to the
appropriate local authorities within 48 hours of discovery. The rule
also reduces an FFL's reporting burden when a theft or loss involves a
firearm registered under the National Firearms Act (NFA) and ensures
consistent reporting to ATF's NFA Branch. In addition, the rule
specifies that transferor/sender FFLs must reflect the theft or loss of
a firearm as a disposition entry in their required records not later
than 7 days following discovery of the theft or loss; moreover, if an
FFL reported the theft or loss of a firearm and later discovers its
whereabouts, the FFL must advise ATF that the firearm has been located
and must re-enter the firearm into its required records as an
acquisition or disposition entry as appropriate.
DATES: This rule is effective February 11, 2016.
FOR FURTHER INFORMATION CONTACT: Denise Brown, Office of Regulatory
Affairs, Enforcement Programs and Services, Bureau of Alcohol, Tobacco,
Firearms, and Explosives, U.S. Department of Justice, 99 New York
[[Page 1308]]
Avenue NE., Washington, DC 20226; telephone: (202) 648-7070.
SUPPLEMENTARY INFORMATION:
I. Background
The Gun Control Act of 1968 (GCA), as amended by the Violent Crime
Control and Law Enforcement Act of 1994, requires each licensed
importer, licensed manufacturer, licensed dealer, or licensed collector
of firearms to report the theft or loss of a firearm from the
licensee's inventory or collection to the Bureau of Alcohol, Tobacco,
Firearms, and Explosives (ATF) and to the appropriate local authorities
within 48 hours after the theft or loss is discovered. See 18 U.S.C.
923(g)(6) (requiring licensees to report thefts or losses to the
Attorney General and to the appropriate local authorities); 28 CFR
0.130(a) (delegating the Attorney General's functions and powers to the
Director of ATF).
The regulation that implements section 923(g)(6) is 27 CFR 478.39a.
This regulation provides that each Federal firearms licensee (FFL) must
report the theft or loss of a firearm from the FFL's inventory
(including any firearm which has been transferred from the FFL's
inventory to a personal collection and held as a personal firearm for
at least 1 year), or from the collection of a licensed collector,
within 48 hours after the theft or loss is discovered. FFLs must report
such thefts or losses by telephoning 1-888-930-9275 (nationwide ATF
toll-free number) and by preparing a Federal Firearms Licensee Firearms
Inventory Theft/Loss Report, ATF Form 3310.11 (Form 3310.11), in
accordance with the instructions on the form. The FFL must also report
the theft or loss of a firearm to the appropriate local authorities.
When there has been a theft or loss of a firearm registered under
the National Firearms Act (NFA), 26 U.S.C. 5801 et seq., such as a
short-barreled rifle or short-barreled shotgun, silencer, machinegun,
or destructive device, see 26 U.S.C. 5841, 5845, 27 CFR 479.141 imposes
a separate and additional reporting requirement. Section 479.141 states
that whenever any registered NFA firearm is stolen or lost, the person
who has lost possession must, immediately upon discovery of such theft
or loss, make a report to the Director of ATF showing the following:
name and address of the person in whose name the firearm is registered;
kind of firearm; serial number; model; caliber; manufacturer of the
firearm; date and place of theft or loss; and complete statement of
facts and circumstances surrounding such theft or loss. Accordingly,
when an FFL loses possession of an NFA firearm, it has reporting
obligations under both 27 CFR 479.141 and 27 CFR 478.39a.
Currently, an FFL reporting the theft or loss of a registered NFA
firearm prepares and submits Form 3310.11 to ATF's National Tracing
Center (NTC), the receiving office designated on the form, to meet the
27 CFR 478.39a requirements. In addition, the FFL must submit a
separate notification to the Director of ATF to meet the requirements
of 27 CFR 479.141. Because no form is directly associated with the
separate notification to the Director, FFLs submit a letter to the NFA
Branch of ATF, as directed in the ``Important Notice'' section of Form
3310.11. As a backup to this requirement, when NTC receives a completed
Form 3310.11 involving the theft or loss of an NFA firearm, it
currently forwards a copy of the completed form to the NFA Branch, as
the completed form often contains more information than the letters
FFLs submit to the NFA Branch. Form 3310.11 does not, however, ask for
the name and address of the person in whose name the firearm is
registered, which is required to be reported under 27 CFR 479.141.
Therefore, the NFA Branch may not currently be receiving consistent and
complete information regarding the theft or loss of a registered
firearm.
The instructions on Form 3310.11 also provide that FFLs must
reflect the theft or loss of a firearm as a disposition entry in the
Record of Acquisition and Disposition (A&D Record) required by subpart
H of 27 CFR part 478 (formerly 178). The disposition entry should
indicate whether the incident is a theft or loss, the ATF-Issued
Incident Number, and the Incident Number provided by the local law
enforcement agency. The instructions further state that should any of
the firearms be located, they should be re-entered into the A&D Record
as an acquisition entry. In addition, the ``Important Notice'' section
on Form 3310.11 provides that an FFL who reports a firearm as missing
and later discover its whereabouts should advise ATF that the firearm
has been located.
The text of the statutory reporting requirement, 18 U.S.C.
923(g)(6)--which obligates licensees to report the theft or loss of a
firearm ``from the licensee's inventory''--does not clearly address the
reporting of a firearm that has been stolen or lost in transit. That
is, the statute does not expressly address whether such a firearm
should be considered part of the inventory of the transferring/shipping
FFL, a recipient FFL, or the common carrier transporting the firearm.
Similarly, current regulations do not address reporting requirements
arising from firearms stolen or lost in transit, including whether the
firearms are considered stolen or lost from the inventory of the
sending or receiving FFL. This gap in the regulations likely results in
no one reporting the theft or loss of a firearm stolen or lost in
transit--an anomalous result that the Department believes is contrary
to congressional intent in mandating the reporting of thefts and losses
generally. Clarifying this responsibility is thus important to the
effective administration of the GCA and NFA. Congress delegated the
authority to prescribe necessary rules and regulations to carry out the
provisions of the GCA and NFA to the Attorney General, who has
delegated to ATF the authority to investigate, administer, and enforce
those laws. See 18 U.S.C. 926(a); 26 U.S.C. 7801(a)(2)(A)(i), 7805(a);
28 CFR 0.130(a).
II. Initial Notice of Proposed Rulemaking
On August 28, 2000, in ATF Notice No. 902, ATF published in the
Federal Register a Notice of Proposed Rulemaking (NPRM) proposing
several amendments to the firearms regulations. 65 FR 52054 (Aug. 28,
2000). Among those amendments, ATF proposed specifying that, when a
firearm is stolen or lost in transit between licensees, for reporting
purposes, the firearm is considered stolen or lost from the
transferor's/sender's inventory. ATF noted that in Fiscal Year (FY)
1999, there were 1,271 crime gun traces in which an FFL claimed to have
never received the firearm shipped to it and no one reported the theft
or loss to ATF.\1\ As proposed in 2000, a firearm stolen or lost in
transit between licensees, for reporting purposes, would be considered
stolen or lost from the transferor's/sender's inventory. Further, as
proposed, the transferor/sender of the stolen or missing firearm would
have been required to report to ATF and to the appropriate local
authorities the theft or loss of the firearm within 48 hours after the
transferor/sender discovered the theft or loss. In addition, to enable
the transferor/sender of the stolen or lost firearm to obtain the
knowledge necessary to comply with the theft or loss reporting
requirements and fulfill the statutory responsibility of maintaining
accurate records, ATF proposed that the transferor/sender be
[[Page 1309]]
required to have or establish commercial business practices that
confirm whether the transferee/buyer of the firearm ultimately received
the firearm.
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\1\ A crime gun is any firearm that is illegally possessed, used
in a crime, or suspected by law enforcement officials of having been
used in a crime or act of terrorism.
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As a result of the comments received in response to various issues
addressed in the document, the Department decided to study the issues
further, and it subsequently withdrew these proposals. See 69 FR 37757
(June 28, 2004).
III. 2014 Notice of Proposed Rulemaking
On August 12, 2014, ATF published in the Federal Register another
NPRM proposing to amend the regulations in subpart C of part 478,
section 478.39a (ATF Notice No. 40P) (``2014 NPRM'' or ``proposed
rule''). See 79 FR 47033. The proposed rule was intended to clarify
that, when an FFL discovers a firearm that it shipped was stolen or
lost in transit, that transferor/sender FFL would be the one
responsible for reporting the theft or loss to ATF and to the
appropriate local authorities.
The NPRM specified a time period within which to reflect the theft
or loss of a firearm as a disposition entry--i.e., not later than 7
days following the discovery of the theft or loss--and required, rather
than recommended, that the disposition entry in the FFL's A&D Record
include specified information. Under the regulations as proposed, if an
FFL reported a firearm stolen or lost and later discovered its
whereabouts, the FFL would be required to advise ATF that the firearm
has been located and re-enter the firearm into the required records as
an acquisition or disposition entry as appropriate. The proposed rule
was intended to reduce an FFL's reporting burden when a theft or loss
involves a firearm registered under the NFA by having the FFL submit
one Form 3310.11 to ATF to satisfy the requirements of both 27 CFR
478.39a and 27 CFR 479.141.
The proposed rule retained the same general approach for
transferor/sender FFLs to report thefts or losses in transit as the
2000 NPRM, although there are some important differences. Unlike the
2000 NPRM, the 2014 NPRM did not propose to require FFLs to establish
commercial business practices that would enable the FFL to verify that
the transferee/buyer of a shipped firearm actually received the
firearm. The 2014 NPRM merely solicited comments on whether a
transferor/sender FFL should be required to obtain and retain
confirmation of receipt. In addition, unlike the 2000 NPRM, the 2014
NPRM proposed to reduce the reporting burden with respect to NFA
firearms. The 2014 NPRM also clarified that firearms lost or stolen in
transit between FFLs and non-FFLs (not just between FFLs) would be
included in the transactions that must be reported by a transferor/
sender FFL. Finally, the proposed rule would require the A&D Records to
be updated within 7 days of discovery of the theft or loss.
As stated in the 2014 NPRM, theft or loss of firearms in transit
continues to be a problem. In its 2000 NPRM, ATF stated that in FY
1999, there were 1,271 crime gun traces in which an FFL claimed to have
never received the firearm shipped to it and no one reported the theft
or loss to ATF. More recent data from NTC shows that from FY 2010
through FY 2014, there was an average of 1,333 crime gun traces per
year where the firearm was traced back to an FFL that claimed it never
received the firearm allegedly shipped to it, but no theft or loss was
reported to ATF. ATF recognizes that this figure may include some
firearms lost or stolen at the licensed premises while not in transit
(i.e., prior to or after shipment). However, because there are numerous
firearms lost or stolen that have not been traced, the full count of
firearms lost or stolen in transit may be significantly higher. The
omission in the regulations regarding reporting the theft or loss of a
firearm in transit adversely affects ATF's and local law enforcement's
investigative and tracing capabilities. For those reasons, the
Department proposed amending the regulations to specify who is
responsible for reporting the theft or loss of a firearm in transit.
As previously noted, the statutory provision requiring licensees to
report lost or stolen firearms, 18 U.S.C. 923(g)(6), does not clearly
address situations in which a firearm is lost or stolen in transit. The
Department proposed to interpret section 923(g)(6)'s requirement that a
licensee ``report the theft or loss of a firearm from the licensee's
inventory'' to include a responsibility to report a theft or loss that
occurs once the licensee has placed a firearm in shipment. Accordingly,
the proposed rule specified that, when a firearm is stolen or lost in
transit on a common or contract carrier,\2\ for reporting purposes the
firearm is considered stolen or lost from the transferor's/sender's
inventory. The proposed rule would apply to transfers from a licensee
to a nonlicensee, including interstate shipments for firearms repair
and replacement, qualified interstate shipments to law enforcement
officers for official duty, and intrastate transactions under 18 U.S.C.
922(c), 27 CFR 478.96, and ATF Procedure 2013-2. In all such
transactions, the transferor/sender would be the only FFL involved in
the transaction, and it would be reasonable for that FFL to assume
responsibility to make a report to ATF if the shipment is lost or
stolen in transit before the transferee acquires possession. The
proposed rule would not require transferor/sender FFLs to establish
commercial business practices to affirmatively verify or retain
confirmation of receipt; instead, the rule would allow a transferor/
sender FFL to rely on notification by the transferee/buyer, the common
or contract carrier, or any other person that the shipment was not
received. Only upon receiving such notification would the FFL be
required to report the theft or loss and change its records
accordingly.
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\2\ For purposes of this rule, the Department considers the U.S.
Postal Service a ``common or contract carrier.''
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The 2014 proposed rule retained most of the current procedures for
licensees reporting the theft or loss of firearms subject to the GCA,
in accordance with the instructions on Form 3310.11. For example,
Instruction 7 on Form 3310.11 provides that FFLs must reflect the theft
or loss of a firearm as a disposition entry in the A&D Record that is
required by subpart H of part 478 (formerly 178). The form also
provides that the disposition entry should indicate whether the
incident is a theft or loss, include the ATF-Issued Incident Number,
and include the Incident Number provided by the local law enforcement
agency. The proposed rule set out these procedures in a new paragraph
(e) of 27 CFR 478.39a with two modifications: (1) The rule would
prescribe a time period to reflect the theft or loss of a firearm as a
disposition entry (i.e., not later than 7 days following discovery of
the theft or loss); and (2) it would require, rather than recommend,
that the disposition entry include specified information. The proposed
7-day time period for reporting would be consistent with the firearms
receipt and disposition reporting requirement for licensed dealers in
27 CFR 478.125(e), which requires the ``sale or other disposition of a
firearm'' to be recorded ``not later than 7 days following the date of
such transaction.'' The Department considers a theft or loss to be a
disposition that must be reported within this time period.
In addition, the ``Important Notice'' section of Form 3310.11
provides that licensees who report firearms as missing and later
discover their whereabouts should advise ATF that the firearms
[[Page 1310]]
have been located, and Instruction 8 provides that licensees should re-
enter these located firearms into the A&D Record as an acquisition
entry. The proposed rule combined and set out these procedures in a new
paragraph (f) of 27 CFR 478.39a with three modifications. The proposed
rule would: (1) Change the phrase ``should advise ATF'' to ``shall
advise the [ATF] Director''; (2) change the phrase ``should re-enter''
to ``shall re-enter''; and (3) specify that the re-entry is to be
recorded as an acquisition or disposition entry as appropriate. Making
mandatory both the advising of ATF and the re-entry of the located
firearm into the A&D Record would help to improve the accuracy of NTC
data, which would greatly assist law enforcement in solving violent
crimes and enhancing public safety.
The proposed rule would also reduce a licensee's reporting burden
to ATF for the theft or loss of a registered NFA firearm by allowing
submission of one Form 3310.11 to meet the requirements of 27 CFR
478.39a and 27 CFR 479.141. Currently, if a licensee's registered NFA
firearm is lost or stolen, the licensee prepares and submits Form
3310.11 to ATF's NTC to comply with the 27 CFR 478.39a requirements,
which specify that Form 3310.11 be used. The licensee also provides to
ATF's NFA Branch a separate notification--typically in the form of a
letter--to comply with 27 CFR 479.141. The proposed rule would revise
27 CFR 478.39a to stipulate that a licensee's submission of a completed
Form 3310.11 to ATF for the theft or loss of a registered NFA firearm
satisfies the notification requirements under both 27 CFR 478.39a and
27 CFR 479.141. This would reduce the FFLs' reporting burden and help
to ensure that information about lost or stolen registered NFA firearms
is consistently reported to ATF.
The comment period for Notice No. 40P closed on November 10, 2014.
IV. Analysis of Comments and Department Response
All public comments were considered in preparing this final rule.
In response to Notice 40P, ATF received 14 comments. Comments were
submitted by individuals, corporations and other legal entities, FFLs,
and trade associations.
Five commenters supported the proposed rule. Commenters who agreed
with the proposed rule did so primarily because they believed that the
implementation of the rule would help stop the unreported theft or loss
of firearms in transit. One commenter agreed with the proposed rule in
its entirety because it would allow police to quickly investigate and
possibly return missing firearms and simplify FFLs' reporting of stolen
or lost firearms registered under the NFA, thus making that process
more efficient for both FFLs and ATF.
Nine commenters disagreed with the proposed rule. Commenters who
opposed the proposed rule did so for a variety of reasons, with the
most common objection relating to ATF's lack of authority to request
theft or loss reports of firearms once the firearms have allegedly been
transferred from the transferor/sender FFL's inventory. One commenter
opposed the proposed rule on ``philosophical[]'' grounds, claiming that
there is over-regulation of commerce by the United States in general,
and concluding that ``any regulation of transactions involving small
arms are uniquely inappropriate a subject for regulation by the
national government because of the special provisions of the second
amendment to the Constitution.''
Another commenter opposed the proposed rule because he believed
that the rule's imposition of the reporting obligation on the
transferring/sending FFL was at odds with ATF's alleged ``statement to
the press'' that the rule ``applies to'' carriers. He further stated
that ``[a]s written the regulation is ripe for abuse, should be
rewritten so that the ATF can understand its own intent.'' Another
commenter noted that ``[c]urrent ATF rules are clear regarding the
manufacturer's responsibility to report lost or stolen firearms that
are under their control. The proposed new rule imposes an unrealistic
burden on manufacturers to report same after the firearm has left its
premise and has exited its disposition log.'' One commenter stated that
the ``issue of firearms lost in transit does not need solving because
it is not a problem,'' and that ATF is ``trying to solve a problem that
does not exist.'' The following sections address the specific comments
on the proposed rule.
A. Legal Authority
Comments Received
Regarding the comment that the transaction of small arms is not an
appropriate subject for regulation by the national government because
of the Second Amendment, the Department does not believe anything in
this rule is inconsistent with that constitutional amendment. Congress
has long regulated the transportation and shipment of firearms,\3\ and
courts have not interpreted the Second Amendment as limiting the
authority of Congress to enact such laws.\4\
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\3\ Long before enactment of the Gun Control Act of 1968,
Congress imposed limitations on the shipment of firearms. See, e.g.,
Nonmailable Firearms Act of 1927, Public Law 69-583, 44 Stat. 1059
(codified at 18 U.S.C. 1715) (restricting mailing and delivery of
concealable firearms); Federal Firearms Act of 1938, Public Law 75-
785, 52 Stat. 1250 (codified at 15 U.S.C. 901 et seq.) (repealed
1968) (restricting interstate shipment of firearms).
\4\ See District of Columbia v. Heller, 554 U.S. 570, 626-27
(2008) (``[N]othing in [the Supreme Court's] opinion [interpreting
the Second Amendment] should be taken to cast doubt on . . . laws
imposing conditions and qualifications on the commercial sale of
arms.''); United States v. Decastro, 682 F.3d 160, 168-69 (2d Cir.
2012) (statute prohibiting transporting into one's state of
residence firearms acquired outside the state did not infringe the
right to keep and bear arms under the Second Amendment).
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Some commenters asserted that ATF lacks the legal authority to
impose the proposed rule because, in 18 U.S.C. 923(g)(6), Congress only
mandated reporting of lost or stolen firearms when those firearms are
currently in the ``inventory or collection'' of the FFL. These
commenters argued that ATF impermissibly exceeded its statutory bounds
in interpreting the requirement that licensees report ``the theft or
loss of a firearm from the licensee's inventory'' to require licensees
to report the theft or loss of firearms after the firearms are no
longer in the transferring FFL's possession or on their premises; such
an interpretation, the commenters argued, is at odds with the plain
meaning of the word ``inventory.'' Citing Black's Law Dictionary, two
Merriam-Webster dictionaries, and the Internal Revenue Code, the
commenters defined the term ``inventory'' to mean that the goods in
question must physically be held ``on hand'' or ``in stock.'' The
commenters thus argued, in essence, that the reporting requirement in
section 923(g)(6) only applies to firearms stolen or lost from the
licensee personally or from the licensee's business premises. Another
commenter stated that ATF lacks regulatory authority to impose best
business practices on FFLs to monitor shipments of firearms once the
firearms depart the FFLs' facilities.
Department Response
Congress delegated the authority to prescribe rules and regulations
to carry out the provisions of the GCA to the Attorney General, who has
delegated to ATF the authority to investigate, administer, and enforce
those laws. See 28 U.S.C. 599A; 18 U.S.C. 926(a); 28 CFR 0.130(a). The
Attorney General (and, derivatively, ATF) also has authority, pursuant
to 18 U.S.C. 923(g)(1)(A) and 923(g)(2), to promulgate regulations on
how
[[Page 1311]]
licensees must maintain records of shipment, receipt, sale, or other
disposition of firearms. It is unlawful under 18 U.S.C. 922(m) for
licensees to fail to make an appropriate entry in a required record.
Additionally, pursuant to 28 U.S.C. 599A, 18 U.S.C. 926(a), and 28 CFR
0.130(a), ATF has the authority and responsibility to interpret and
enforce the GCA provisions prohibiting the theft of firearms. See 18
U.S.C. 922(i) (transporting or shipping stolen firearms in interstate
or foreign commerce), 922(j) (receiving, possessing, concealing,
storing, bartering, selling, disposing, or pledging or accepting as
security for a loan any stolen firearm which has moved in, is moving
in, or will move in interstate or foreign commerce), 922(u) (stealing a
firearm that has been shipped or transported in interstate or foreign
commerce from the person or premises of an FFL), 924(l) (stealing a
firearm which is moving in or has moved in interstate commerce), 924(m)
(stealing a firearm from a licensee).
The present rulemaking reflects ATF's interpretation of the theft
or loss reporting requirement set forth in the GCA, 18 U.S.C.
923(g)(6). Congress did not define the term ``inventory'' or the phrase
``from the licensee's inventory'' in 18 U.S.C. 923(g)(6) or elsewhere
in the GCA. Nor did Congress expressly limit the licensee's reporting
obligation to firearms that are lost or stolen from the licensee's
premises: unlike 18 U.S.C. 922(u), for instance, which makes it
unlawful to steal ``from the person or the premises of a person who is
licensed . . . any firearm in the licensee's business inventory''
(emphasis added), section 923(g)(6)'s reporting requirement is not
limited to firearms taken ``from the person or premises'' of the
licensee.
Commenters argued that, in the absence of a statutory definition of
the word ``inventory,'' the Department must use the word's plain or
ordinary meaning, and they offered various definitions culled from a
few sources in an effort to elucidate what that meaning is. But rather
than revealing a clear commonality, the definitions in the commenters'
cited sources instead show that the word ``inventory'' can take on
slightly different meanings suited to the particular contexts in which
it used.\5\ In the context of Federal firearms regulation, a licensee's
``inventory'' can, and does, include firearms that are not either ``on
hand'' or owned by the licensee. For instance, FFLs may transport some
or all of their firearms away from a particular licensed premises--to a
warehouse where the firearms will be kept ``solely for storage,'' for
example. See 27 CFR 478.50(a). Or an FFL may have on hand firearms that
the FFL does not own, but which have been pawned, consigned, or stored
with the FFL by the firearms' owners. See 18 U.S.C. 921(a)(11)(C),
921(a)(12).\6\ Similarly, licensed dealers may have on hand firearms
that they are repairing or configuring for the firearms' owners. See 18
U.S.C. 921(a)(11)(B).
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\5\ See Black's Law Dictionary 901-02 (9th ed. 2009) (first
definition: ``[a] detailed list of assets; esp., an executor's or
administrator's detailed list of the probate-estate assets''; second
definition, as used in accounting: ``[t]he portion of a financial
statement reflecting the value of a business's raw materials, works-
in-progress, and finished products''; third definition: ``[r]aw
materials or goods in stock''; fourth definition, as used in
bankruptcy: ``[p]ersonal property leased or furnished, held for sale
or lease, or to be furnished under a contract for service; raw
materials, work in process, or materials used or consumed in a
business, including farm products such as crops or livestock'');
Merriam-Webster Online Dictionary (definition 1a: ``an itemized list
of current assets as (1): a catalog of the property of an individual
or estate [or] (2): a list of goods on hand''; definition 1b: ``a
survey of natural resources''; definition 3: ``the quantity of goods
or materials on hand''), http://www.merriam-webster.com/dictionary/inventory; 26 U.S.C. 865(i)(1), 1221(a)(1) (describing ``inventory
property'' as ``stock in trade of the taxpayer or other property of
a kind which would properly be included in the inventory of the
taxpayer if on hand at the close of the taxable year, or property
held by the taxpayer primarily for sale to customers in the ordinary
course of his trade or business'').
\6\ See also Firearms Transaction Record, ATF Rul. 76-15
(July1976) (recordkeeping requirements for pawned firearms);
Engaging in the Business of Dealing in Firearms (Auctioneers), ATF
Rul. 96-2 (Sept. 1996) (auctioneers must obtain a license as a
dealer to take possession of firearms consigned for auction); ATF,
Federal Firearms Licensee Quick Reference and Best Practices Guide,
ATF Pub. No. 5300.15, at 8 (rev. Aug. 2010) (all firearms
acquisitions must be documented in the A&D book, including pawned
and consignment firearms), https://www.atf.gov/file/58676/download;
Return of Firearms Received for Appraisal, FFL Newsletter (ATF,
Washington, DC), Apr. 2015, at 4 (licensees must record firearms
received for appraisal as a transaction on ATF Form 4473), https://www.atf.gov/file/11691/download; Shot Show Q & A, FFL Newsletter
(ATF, Washington, DC), Jan. 2007, at 7, Q9 (licensees must treat
firearms received for storage as acquisitions), https://www.atf.gov/file/56436/download.
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Elsewhere in the law, physical possession is often neither
necessary nor sufficient for something to be counted as inventory. The
section of the Uniform Commercial Code (UCC) governing secured
transactions, for example, defines ``inventory'' to include not only
goods ``held by a person,'' but also goods ``furnished by a person,''
and ``leased by a person,'' irrespective of who has them. U.C.C. 9-
102(a)(48); see also Matter of Watertown Tractor & Equip. Co., 289
NW.2d 288, 293-94 (Wis. 1980) (holding that equipment constitutes a
lessor's ``inventory'' when in the possession of a lessee). The Supreme
Court has even held that a farmer's corn futures are considered the
farmer's ``inventory'' for tax purposes, even though they are
considered capital assets in the hands of a holding company. See
Arkansas Best Corp. v. Comm'r, 485 U.S. 212, 219-22 (1988).
Given its many meanings, the Department is of the view that the
word ``inventory'' is ambiguous, and that Congress did not specifically
intend--by use of the word--to deprive the Department of the authority
to require FFLs to report the loss or theft of firearms in transit.
That view is supported by multiple dictionaries that define inventory
broadly to encompass any goods and articles that might appropriately be
listed on an inventory. See, e.g., 5 The Oxford English Dictionary 453-
54 (1978) (defining inventory broadly as, inter alia, ``[t]he lot or
stock of goods, etc., which are or may be made the subject of an
inventory''); Funk & Wagnalls New Standard Dictionary of the English
Language 1289 (1946) (defining inventory broadly as, inter alia,
``[a]rticles which constitute or are to constitute the inventory''). In
light of the range of items that can appear on an inventory--for
example, ``the goods and chattels, rights and credits, and in some
cases, the land and tenements of a person or persons,'' 2 Bouvier's Law
Dictionary and Concise Encyclopedia 1681 (3d rev. 1914)--the word
``inventory'' can be open-ended.
In the context of section 923(g)(6) specifically, the Department
believes that the obligation to report lost or stolen ``firearm[s] from
the licensee's inventory'' is best understood to encompass firearms
that are not yet in the physical possession of a transferee that the
transferor is best positioned to monitor and control. The Department
believes that this interpretation of the word ``inventory'' is
consistent with the flexible, context-specific character of the term as
used elsewhere in the law.
Further, it is more logical--and more consistent with the GCA
scheme--to consider an in-transit firearm as part of the shipping FFL's
inventory and thereby place the reporting obligation on the transferor/
sender licensee rather than the firearm's intended recipient. The GCA
scheme relies on firearms dealers to control commerce in firearms. See
Huddleston v. United States, 415 U.S. 814, 824 (1974) (``The principal
agent of federal enforcement [of laws regulating interstate commerce in
firearms] is the dealer.''). The transferors/senders covered by this
rule will be licensees who are subject to the reporting requirement
under section 923(g)(6)--but not every intended
[[Page 1312]]
recipient in firearms transactions will necessarily be a licensee.
Thus, placing the reporting obligation on the transferor/sender
licensee ensures that, for every firearm transaction, there will be an
FFL responsible for reporting any discovered thefts or losses that
occur along the way. The Department believes that this will ensure more
consistent reporting of stolen or lost firearms, thereby fulfilling the
GCA's purpose of ``strengthen[ing] Federal regulation of interstate
firearms traffic,'' H.R. Rep. No. 90-1577, at 7 (1968), and furthering
the aim of the Violent Crime Control and Law Enforcement Act of 1994 to
``enhance public safety,'' H.R. Rep. No. 103-711, at 1 (1994) (Conf.
Rep.).
In reaching its interpretation of 923(g)(6)'s reporting mandate,
the Department considered whether the ``inventory'' determination
should be made in accordance with the variable approach of the UCC
regarding the transfer of title for risk of loss purposes. The
Department determined that neither the text nor the purpose of the GCA
counseled in favor of adopting the UCC approach to determining in whose
``inventory'' a firearm belongs. As explained in the proposed rule, the
UCC approach focuses on the ownership of the goods being shipped for
the purposes of allocating the risk of loss, but the primary focus of
the GCA and its implementing regulations is, instead, the tracking of
the acquisition and disposition of firearms. Accordingly--and as the
Department will explain in further detail below--the Department is of
the view that the statutory obligation on firearms licensees to report
a theft or loss should not turn on technicalities of commercial law
regarding whether the seller or buyer has title to, or bears the risk
of loss of, the shipped firearms.
Instead, under the final rule, the theft or loss reporting
requirement will always remain with the transferor/sender FFL, who will
know how and when firearms sent to the transferee were shipped. As the
Department reasoned in the 2014 NPRM, the transferee will have an
incentive to notify the transferor about any discrepancies in the
shipment because the transferee would not want to pay for an item the
transferee did not actually receive. Upon being contacted by the
transferee about a shipment discrepancy, the transferor FFL will be in
the best position to verify the theft or loss by reviewing its
transaction records and the shipping information from the carrier. The
transferor could also be in a position to discover that the discrepancy
was instead due to recordkeeping or other human error. Indeed,
regardless of whether the transferee or transferor arranges the
shipment, the transferor will know how and when the firearms were
shipped. Moreover, if a firearm is stolen or lost in transit, the
notation in the transferor's/sender's acquisition and disposition book
indicating the firearm was disposed of to a particular transferee/buyer
would be inaccurate.
The Department's interpretation that in-transit firearms remain in
the transferring/sending FFL's ``inventory'' for purposes of section
923(g)(6) is further supported by the fact that an FFL's delivery of
firearms to a common or contract carrier for transport does not result
in a ``disposition'' or ``transfer'' unless and until the firearms are
received by the transferee. The Department does not believe that the
GCA scheme, which sets forth procedures for conveying firearms by
carriers,\7\ supports the conclusion that delivering firearms to the
carrier for transport is a ``transfer'' or ``disposition'' to that
carrier. Under the GCA and current regulations, the carrier is not said
to maintain an ``inventory'' of firearms, and the disposition records
of the transferring FFL do not reflect the carrier as a person to whom
firearms are disposed. If an FFL's submission of firearms to a carrier
were a ``disposition'' or ``transfer,'' such an interpretation would
lead to results that Congress very likely did not intend. Specifically,
the transferring FFL would be required to treat carriers like any other
unlicensed person by: (1) Having an employee of the carrier complete
ATF Form 4473 prior to receiving any firearms for shipment; \8\ (2)
checking identification and conducting background checks on the
carrier's employees; \9\ (3) recording bound book entries as
dispositions to the carrier, rather than to the actual transferees or
purchasers of the firearms; \10\ and (4) possibly completing multiple
sales or other disposition reports when applicable.\11\ Moreover,
unless similar disposition requirements were also imposed on the
carriers' subsequent transfer of the firearms to their purchasers, the
firearms could potentially end up in the hands of criminals, and would
not be traceable if later used in crimes.
---------------------------------------------------------------------------
\7\ See 18 U.S.C. 922(e) (requiring notice to the common or
contract carrier of firearms being transported or shipped), 922(f)
(prohibiting common or contract carriers from violating the GCA, and
requiring them to obtain acknowledgment of receipt of packages
containing firearms); 27 CFR 478.31 (same); Open Letter to All
Common and Contract Carriers from John W. Magaw, Director, ATF (Jan.
1, 1994), http://www.nibin.gov/press/releases/historical/010194-openletter-contract-carriers.html.
\8\ See 18 U.S.C. 922(b)(5), 923(g)(1)(A); 27 CFR 478.124(c).
\9\ See 18 U.S.C. 922(t)(1); 27 CFR 478.102.
\10\ See 18 U.S.C. 923(g)(1)(A); 27 CFR 478.122(d), 478.123(d),
478.125(e).
\11\ See 18 U.S.C. 923(g)(3)(A); 27 CFR 478.126a.
---------------------------------------------------------------------------
Finally, the Department's interpreting the phrase ``firearm[s] from
the licensee's inventory'' to encompass firearms that a licensee has
placed in transit accords with the congressional intent behind the GCA
more generally. The GCA is a comprehensive statutory scheme designed to
closely track the acquisition and disposition of firearms to ensure
that firearms do not fall into the hands of criminals, and so that the
firearms can be traced if later found to have been used in crime.
Accordingly, section 923(g)(6) mandates that ``[e]ach licensee shall
report the theft or loss of a firearm from the licensee's inventory or
collection.'' To be sure, Congress did not specifically address whether
licensees must report the theft or loss of firearms in transit once the
licensee ships the firearm to another recipient. Nor did Congress
address how those firearms must be recorded in the transferor/sender
FFL's acquisition and disposition records. But the text of 923(g)(6)
does not foreclose the Department's interpretation of the term
``inventory.'' And the final rule reasonably answers the questions left
unaddressed by Congress by interpreting the reporting requirement to
include a firearm stolen or lost from the licensee's inventory while in
transit with a carrier, and by providing guidance on how FFLs must
update their records in such situations. Adopting a contrary
interpretation of the statutory language to the effect that thefts or
losses of firearms in transit need not be reported by any FFL, on the
theory that firearms in transit should not be deemed to be part of the
transferor/seller's inventory nor part of the intended recipient's
inventory, would operate to defeat the statutory goal of reporting
thefts and losses of firearms. Commenters who oppose the rule have
offered no persuasive reason why Congress would have intended in-
transit stolen or lost firearms to go unreported once a licensee
discovers the theft or loss, and the Department sees none.
For all those reasons, the Department's determination that the
statutory obligation to report ``the theft or loss of a firearm from
the licensee's inventory'' in section 923(g)(6) encompasses an
obligation to report the theft or loss of a firearm that the licensee
has shipped amounts to a reasonable construction of the GCA.\12\
---------------------------------------------------------------------------
\12\ The Department acknowledges its previous statements that
section 923(g)(6) does not address the reporting of thefts or losses
of firearms in interstate shipments. See ATF, Safety and Security
Information for Federal Firearms Licensees, ATF Pub. No. 3317.2, at
1 (rev. Feb. 2010), https://www.atf.gov/file/58656/download; FFL or
Interstate Theft Procedures and Information, FFL Newsletter (ATF,
Washington, DC), Aug. 1998, at 5, https://www.atf.gov/file/56391/download. To the extent that the Department's prior statements, or
ones like it, can be understood as the Department taking a position
inconsistent with the interpretation of 923(g)(6) set forth in this
final rule, the Department is ``at liberty to depart from its
longstanding interpretation of a statute'' so long as it ``provides
a reasoned explanation for its decision.'' TRT Telecomms. Corp. v.
FCC, 857 F.2d 1535, 1550 (D.C. Cir. 1988); see also FCC v. Fox
Television Stations, Inc., 556 U.S. 502, 514-15 (2009). The
Department has explained above why it now interprets the term
``inventory'' in 923(g)(6) to encompass firearms that an FFL has
shipped.
---------------------------------------------------------------------------
[[Page 1313]]
With regard to the comment concerning ATF's authority to require
``best practices'' to monitor shipments of firearms once the shipments
depart the FFL's facility, the final rule does not require FFLs to
monitor their shipments. Again, FFLs will only be required to report
thefts and losses once they discover a theft or loss.
B. Commercial Business Practices
Comments Received
One commenter argued that the proposed rule is inconsistent with
established commercial business practices. Citing U.C.C. 2-319, the
commenter asserted that ``firearms are almost universally shipped
`F.O.B. Factory,' '' indicating that once physical custody has passed
at the place of shipment, so has legal title to the firearms and risk
of loss.
Department Response
The Department disputes the commenter's factual assertion that
firearms ``are almost universally shipped `F.O.B. Factory.' '' The
Department believes that transferor/sender FFLs generally select the
means by which the firearms in their inventory are shipped and secure
insurance from the carriers for the value of the firearms. While these
costs may be passed along to buyers in the purchase contracts, the
Department believes that in many, if not most, cases, the transferor/
sender FFL is legally responsible for any losses incurred in transit.
This is because many, if not most, firearm purchase contracts require
delivery at a specified destination.\13\ For this reason, if a firearm
is lost or stolen in transit, the shipping FFL usually sends a
replacement firearm.
---------------------------------------------------------------------------
\13\ See U.C.C. 2-401(2) (``Unless otherwise explicitly agreed
title passes to the buyer at the time and place at which the seller
completes his performance with reference to the physical delivery of
the goods . . . [and] if the contract requires delivery at
destination, title passes on tender there.'')
---------------------------------------------------------------------------
Even if the commenter's factual assertion were proven correct,
however, the Department would nonetheless adhere to the position it
expressed in the proposed rule that the UCC should not be used to
determine the responsibility for reporting thefts and losses of
firearms in transit. Adopting the variable UCC approach for reporting
firearms stolen or lost in transit would be problematic for FFLs to
apply and for ATF to enforce. Instead of being able to follow a single,
consistent rule holding the transferor FFL responsible for reporting
stolen or lost firearms in every transaction (should a theft or loss be
discovered), FFLs in a transaction would need to examine each
individual contract to determine who has the reporting responsibility.
For that same reason, it would be impracticable for ATF to ensure
regulatory reporting compliance under the variable UCC approach.
The UCC does not address whether a merchant must report thefts or
losses of goods in transit; rather, the UCC approach focuses on the
ownership of the goods being shipped and allocating the risk of loss
for purposes of commercial law. By contrast, the primary focus of the
GCA and its implementing regulations is on the acquisition,
disposition, and misuse of firearms in service of public safety
objectives. See United States v. One Assortment of 89 Firearms, 465
U.S. 354, 364 (1984) (``In enacting the 1968 gun control legislation,
Congress was concerned with the widespread traffic in firearms and with
their general availability to those whose possession thereof was
contrary to the public interest.'' (internal quotation marks omitted));
Barrett v. United States, 423 U.S. 212, 220 (1976) (``The history of
the 1968 Act reflects a . . . concern with keeping firearms out of the
hands of categories of potentially irresponsible persons . . . . Its
broadly stated principal purpose was `to make it possible to keep
firearms out of the hands of those not legally entitled to possess them
. . . .' '' (quoting S. Rep. No. 1501, at 22 (1968))); H.R. Rep. No.
103-711, at 1 (the 1994 amendments were intended to ``enhance public
safety''). The Department thus interprets the GCA to impose reporting
and recordkeeping requirements on licensees in certain circumstances
regardless of whether the licensee has title to, or bears the risk of
loss of, the firearm in question.
Other Federal agency regulations support the conclusion that
transferors should be required to report the theft or loss of regulated
goods in transit. For example, since 1974, the Drug Enforcement
Administration (DEA) has required by rule that suppliers--i.e.,
transferors--are responsible for reporting in-transit losses of
controlled substances by common or contract carriers upon discovery of
the theft or loss. See 21 CFR 1301.74(c). The DEA also imposes a duty
on suppliers to select common or contract carriers that provide
adequate security to guard against in-transit losses, see 21 CFR
1301.74(e), and to report theft and loss information to the DEA on a
standard form, see 21 CFR 1301.74(c), to help the DEA to determine the
patterns and methods of diversion of controlled substances. See 38 FR
31840 (Nov. 19, 1973) (proposed rule); 39 FR 26022 (July 16, 1974)
(final rule); see generally Larry K. Houck, The Drug Enforcement
Administration's Final Rule on Theft and Significant Loss Reporting: We
Can See More Clearly Now, 61 Food & Drug L.J. 1 (2006). ATF believes
that many of the arguments informing DEA's decision to require
suppliers to notify DEA of in-transit thefts and losses are applicable
to this rulemaking.
C. Method of Reporting Theft or Loss of Firearms
Comments Received
Five commenters supported the requirement to report a theft or loss
of firearms in transit in part or in the requirement's entirety. One
commenter supported the use of Form 3310.11 to report the theft or loss
of firearms in transit to simultaneously meet the requirements of
Sec. Sec. 478.39a and 479.141. Another commenter supported the
requirement that FFLs notify local authorities as well as ATF, stating
that ``[t]his is a very serious issue and the more authorities that are
notified of the issue, the more likely it is to be resolved.'' The same
commenter also agreed that transferring/sending FFLs should have the
responsibility to report a theft or loss of a firearm in transit
because a transferring/sending FFL has access to the shipping history
and, therefore, should have better knowledge of the firearm's
whereabouts and would be able to ``effectively report'' the theft or
loss of the firearm.
Two commenters made statements to the effect that ``[t]he updated
regulations will help strengthen our nation['s] ability to track
firearms that are lost or stolen while in transit'' and that a single
method of reporting such thefts and losses to ATF and local authorities
should be adopted. Although those two commenters supported notification
of theft or loss by the transferring/sending
[[Page 1314]]
FFL, they suggested that the requirement to inform local law
enforcement of shipping losses or suspected thefts should be eliminated
because many local authorities often refuse to take the report. They
also suggested that the requirement to make a report to local
authorities should be clarified because, as one commenter put it,
currently the regulation is ``particularly vague about who exactly the
appropriate local authorities would be. If a firearm is being shipped
from Philadelphia to Orlando and it gets lost in Atlanta[,] who are the
proper local authorities to contact?'' Another commenter suggested that
reporting to local authorities could be simplified by updating Form
3310.11 to be applicable for both ATF and local authorities.
Several commenters who opposed the proposed rule did so based on
the claim that, once a firearm is logged out of the transferring/
sending FFL's A&D Record, it is no longer the responsibility of that
FFL. One commenter asserted that the shipping companies instead have
responsibility for the shipment and should therefore be required to
report any in-transit thefts or losses.
Three commenters had practical concerns about the transferor/sender
licensee bearing the responsibility to report the theft or loss of a
firearm in transit because, even though a transferor/sender might
receive confirmation that the firearms were delivered, such
confirmation might not reflect whether the full amount of firearms was
received; that discrepancy might only become apparent once the
recipient compares the shipping invoice to the specific firearms
ordered. Those commenters stated that the transferee in such a
situation would be in a better position to know and report whether a
firearm was received. The commenters explained that the transferee
would have more incentive to report a firearm shipment stolen or lost
because businesses are not in the habit of paying for products they do
not actually receive.
Department Response
The reporting statute, 18 U.S.C. 923(g)(6), requires FFLs to report
the theft or loss of firearms from their inventories or collections not
only to the Attorney General (delegated to ATF) but also to ``the
appropriate local authorities.'' Thus, as a statutory requirement, the
report must be submitted to such local authorities even if it is
refused. The Department believes that if the report is made to the
local authorities with proper jurisdiction over the incident (i.e., the
``appropriate'' authorities), the chance that the report would be
refused is greatly reduced. More specifically, if the location of the
loss or theft is known, the local law enforcement agency at that
location would be the ``appropriate local authorit[y].'' Otherwise, the
transferor/sender should report the theft or loss to the local law
enforcement agency at the shipper's location--the same agency the FFL
would contact in the event of any other missing or stolen property. Not
only does the theft or loss report provide local law enforcement
officers with the information necessary to commence an investigation to
pursue the offenders and locate the property, such reporting may also
assist the FFL in filing an insurance claim to recover the value of the
firearms. Because the Department agrees with the commenters that
clarification concerning local authority reporting would provide
helpful guidance to licensees, the rule has been modified accordingly.
The Department does not agree with one commenter's suggestion that
common or contract carriers should be held legally responsible under
this rule for reporting the theft or loss of firearms while in transit.
The commenter who proposed that the reporting obligation lie with the
carriers did not cite any statutory authority under which such a
requirement could be imposed. Congress did not ignore the role of
common or contract carriers in firearms transactions in the GCA. For
example, it is unlawful for a common or contract carrier to transport
or deliver any firearm shipment in violation of the GCA, or to deliver
a firearm without obtaining written acknowledgment of receipt. See 18
U.S.C. 922(f)(1)-(2). Yet Congress did not impose any express
requirement on carriers to report the theft or loss of firearms they
transport. If Congress had intended that the theft or loss of firearms
in transit be reported by carriers, it likely would have drafted the
law to state that requirement and specify the carriers' responsibility
to file reports.
Instead, the GCA's scheme relies on firearms dealers to control
commerce in firearms and places the burden of reporting stolen and lost
firearms on licensees. As we have explained, it is reasonable to
interpret the phrase ``from the licensee's inventory'' to require
transferor/sender licensees to report the thefts or losses of firearms
they have placed in transit. In addition, the transferor/sender FFL is
in the best position to verify the theft or loss by reviewing its
records and the shipping information from the carrier that was
utilized. The transferor/sender FFL may also discover that the
discrepancy is due to a recordkeeping or other human error, or a theft
or loss at the licensed premises, rather than a theft or loss in
transit. To be sure, ATF has long encouraged carriers to file theft and
loss reports and issued ATF Form 3310.6, Interstate Firearms Shipment
Theft/Loss Report, to assist carriers in reporting. However, ATF
considers such reporting merely voluntary, not clearly required by
statute.
Regarding the comment alleging that ATF made a conflicting
statement to the press to the effect that this rulemaking would apply
to ``the carriers'' rather than FFLs, ATF has not been able to locate
any such statement. Both the 2000 and 2014 proposed rules consistently
identified the transferor/sender licensee as the person who would be
responsible for reporting thefts and losses of firearms in transit.
D. Burden on FFLs To Report and Update Records
Comments Received
One commenter agreed with the basic process outlined in the
proposed rule, but stated that the rule should clarify the type of
shipping documents the transferring FFL must retain and for how long.
Additionally, the commenter suggested that the proposed time frame for
licensees to update their A&D Records to reflect a theft or loss--``7
days following discovery of the theft or loss''--be extended to a
longer term. The same commenter also recommended that disposition
entries for shipped items not be entered into the A&D Record until the
shipment has been received (by the transferee) or declared lost (by the
carrier). The commenter asked for clarification on when the
``discovery'' of the theft or loss occurs if the transferor/sender is
waiting for proof of delivery to make a ``final disposition entry.''
The commenter further suggested that maintaining the complete
electronic tracking record would be a good idea, but that the licensee
should be able to dispose of the records a week after the carrier's
tracking system (or the recipient's acknowledgment) indicates that the
shipment has been received, because otherwise the paperwork could
become burdensome.
Another commenter argued that no signature should be required for a
shipment and that the rule should not require proof of delivery to be
retained. The commenter explained that ``[t]his burden should not fall
on the shipping [FFL],'' because ``someone acting nefariously on the
receiving end could refute any signature or proof of delivery very
easily.''
[[Page 1315]]
Another commenter opposed the rule on the basis that the
transferor/sender cannot know that the firearm has been stolen or lost
in transit until the intended recipient or the carrier notifies the
transferor/sender, and the commenter did not know what would constitute
notification. The same commenter further asserted that if FFLs are to
timely report theft or loss of firearms in transit they must rely upon
shipping companies to ``provide accurate information.''
Two other commenters believed that imposing the burden on
manufacturers--particularly those that ship thousands of firearms--to
report the theft or loss of firearms no longer under the manufacturers'
control would be unrealistic. As one commenter complained, ``The
resulting logistical burden would be enormous, and require an estimated
2-3 full time personnel to manually track, log and store documentation
related to the hundreds or thousands of open orders on any given day.''
Another commenter projected that ATF's estimated time of 24 minutes to
complete Form 3310.11 was too low.
Department Response
In light of comments received, the Department has chosen not to
implement a recordkeeping requirement related to shipment and delivery
paperwork at this time. While the 2000 proposed rule would have
required FFLs to establish commercial business practices to verify
delivery, this final rule does not require licensees to track shipments
or receive verification of receipt. There is only a reporting
requirement once the transferor/sender FFL discovers that one or more
firearms have been lost or stolen in transit. As stated previously, the
FFL's discovery may come from contact with the intended recipient, the
common or contract carrier, a witness, or some other person. In
accordance with section 923(g)(6), licensees are required to report the
theft or loss in transit to ATF and appropriate local authorities
within 48 hours after discovery.\14\ The Department believes that, in
many cases, transferor/sender FFLs are already reporting such thefts
and losses to law enforcement authorities and insurance companies to
recover the firearms and obtain compensation for their losses.
---------------------------------------------------------------------------
\14\ For further guidance concerning the discovery and reporting
of stolen and lost firearms, see ATF, Safety and Security
Information for Federal Firearms Licensees, ATF Pub. No. 3317.2
(rev. Feb. 2010), https://www.atf.gov/file/58656/download; Open
Letter to All Federal Firearms Licensees from Carson W. Carroll,
Assistant Director, Enforcement Programs & Services, ATF (Jan. 14,
2009), https://www.atf.gov/file/60871/download.
---------------------------------------------------------------------------
Licensees will have up to 7 days to reflect the theft or loss of
the firearm with a correct disposition entry in the A&D Record. This is
consistent with the longstanding firearms disposition reporting
requirement for licensed dealers under 27 CFR 478.125(e). ATF
understands that there will be instances in which licensees must make
corrections to the existing disposition information in their A&D
Records to reflect the theft or loss of firearms. In those instances,
the FFL should draw a single line through the disposition information.
If there is room in the disposition block, the FFL should record the
date of the theft or loss, the ATF-Issued Incident Number, and the
local authority Incident Number. The licensee should then initial and
date the changes. Alternatively, if there is no room in the disposition
block to legibly record the required information, the FFL should line-
out the disposition information and initial and date the change. The
FFL should then make a new entry in the next available line in the
current A&D Record. In that case, the FFL must enter a reference to the
new book, page, and line number in the disposition side of the updated
record, and use the new entry to record the date of the theft or loss,
the ATF-Issued Incident Number, and the local authority Incident
Number.
Though the number of responding FFLs will grow due to the expansion
of the reporting requirements, the estimate of 24 minutes' average
completion time for Form 3310.11 will not increase. Form 3310.11 has
been utilized since 1994 for the reporting of firearms thefts and
losses and this rulemaking makes no significant changes to Form 3310.11
that would lead to an increase in the time required to complete it.
E. Benefit to Law Enforcement
Comments Received
One commenter supported the proposed rule because the rule ``would
close a loophole in federal regulations that lets thousands of lost and
stolen guns go unreported.'' The commenter believed that if FFLs were
required to promptly report guns lost and stolen, illegal gun
trafficking would be curtailed and guns would be kept out of the hands
of dangerous criminals.
Several commenters asserted that requiring the reporting of
firearms stolen or lost in transit would not lead to any appreciable
benefits. They questioned whether such reporting would make ATF or
local police more successful in an investigation or in tracing
firearms. They suggested that the costs of imposing the reporting
requirement on licensees exceed any benefits to law enforcement.
Department Response
The moment the theft of a firearm occurs, the firearm has been
diverted to an illegal channel and is a threat to public safety. The
knowledge that a particular firearm has been diverted is important to
law enforcement at the local and Federal levels. A law enforcement
agency cannot charge a suspect in possession of a firearm with a theft
if there is no information that the firearm was stolen. An agency may
not retain a firearm from a suspect if there is no information that the
property was stolen. And an agency that has retained such a firearm
cannot return the firearm to its rightful owner if there is no
information about who the rightful owner might be. Without proper
reporting of thefts, law enforcement may not be able link the person(s)
who stole the firearm with the suspect who ultimately is found in
possession of the firearm.
In addition, even where a report is made to local law enforcement,
in-transit shipments often result in interstate or cross-jurisdictional
activities. Such activities are the purview of Federal law enforcement,
which is designed to bridge jurisdictional gaps and provide assets not
available to local law enforcement. ATF has found patterns in thefts in
interstate shipments that can only be developed through the examination
of aggregate data. This data often includes seemingly separate and
unrelated individual incidents of theft over a period of time, which,
when analyzed in the aggregate, reveal commonalities that allow ATF to
dismantle larger criminal schemes. This process is highly dependent
upon the collection of accurate interstate shipment theft information.
In FY 2015, 313 firearms that interstate carriers had voluntarily
reported as lost or stolen were recovered and traced by law enforcement
agencies. In the past 5 years, 25 firearms that interstate carriers had
voluntarily reported as lost or stolen were recovered and traced and
the recovering agency reported that they were engaged in a homicide
investigation involving the recovered firearm. Carriers voluntarily
reported that information to ATF, and those numbers do not reflect the
additional amount of firearms lost or stolen in transit that will be
reported to ATF by FFLs pursuant to this rule. Such additional
reporting will allow law enforcement to open more criminal
[[Page 1316]]
investigations to locate criminals, deter thefts, and promote better
controls by carriers to prevent losses. This additional reporting
should also result in the return of more lost or stolen firearms to
their rightful owners.
In addition to ensuring that thefts and losses of firearms are
reported, the procedures outlined in this rule seek to eliminate
redundancy in reporting. By designating the transferor/sender FFL as
the required reporting party, confusion about who needs to report the
incident will be reduced.
V. Final Rule
This final rule adopts, with minor changes, the proposed amendment
to 27 CFR 478.39a requiring the transferor/sender FFL to notify ATF and
the appropriate local authorities when a firearm is stolen or lost in
transit. For purposes of this final rule, the Department considers the
U.S. Postal Service a ``common or contract carrier.'' Therefore, the
regulatory text of the proposed Sec. 478.39a(a)(2) is amended to read
as: ``common or contract carrier (which for purposes of this paragraph
includes the U.S. Postal Service).''
Upon the effective date of this final rule, transferor/sender
licensees will be required to use Form 3310.11 to notify ATF of
firearms stolen or lost in transit. For stolen or lost NFA firearms,
submitting Form 3310.11 will satisfy the requirements of 27 CFR 478.39
and 479.141. In addition, transferor/sender FFLs must reflect the theft
or loss of a firearm in transit as a disposition entry in their
required records not later than 7 days following discovery of the theft
or loss. The rule also specifies that FFLs that report theft or loss of
a firearm and later discover its whereabouts must advise ATF that the
firearm has been located, and must re-enter the firearm into their
required records as an acquisition or disposition entry as appropriate.
These recordkeeping requirements apply whether the firearm is stolen or
lost in transit between FFLs or between a licensee and a nonlicensee.
VI. Statutory and Executive Order Reviews
A. Executive Order 12866 and Executive Order 13563--Regulatory Review
This final rule has been drafted and reviewed in accordance with
Executive Order 12866, ``Regulatory Planning and Review,'' section
1(b), The Principles of Regulation, and in accordance with Executive
Order 13563, ``Improving Regulation and Regulatory Review,'' section
1(b).
The Department of Justice has determined that this final rule is a
``significant regulatory action'' under Executive Order 12866, section
(f), and accordingly this final rule has been reviewed by the Office of
Management and Budget. However, this final rule will not have an annual
effect on the economy of $100 million or more; nor will it adversely
affect in a material way the economy, a sector of the economy,
productivity, competition, jobs, the environment, public health or
safety, or State, local, or tribal governments or communities.
Accordingly, this final rule is not an ``economically significant''
rulemaking under Executive Order 12866.
Executive Orders 12866 and 13563 both direct agencies to assess
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. The Department has assessed the costs and benefits of this
final regulation and believes that the regulatory approach selected
maximizes net benefits.
Under 18 U.S.C. 923(g)(6) and its current implementing regulation,
27 CFR 478.39a, each FFL must report the theft or loss of a firearm
from the licensee's inventory or collection within 48 hours after the
theft or loss is discovered. The licensee must report the theft or loss
of a firearm to ATF and to the appropriate local authorities. Current
regulations do not specify reporting and recordkeeping requirements for
firearms lost or stolen while in transit. This final rule specifies
that when a firearm is stolen or lost in transit, for reporting
purposes it is considered stolen or lost from the transferor's/sender's
inventory.
The GCA and the current implementing regulations have long required
that a licensee must report the theft or loss of a firearm. This final
rule specifies that a transferor/sender licensee is required to submit
the required report if a firearm is lost or stolen in transit on a
common or contract carrier from that licensee to another person. This
final rule retains most of the existing requirements under 27 CFR part
478, subpart H, and the instructions for Form 3310.11 with respect to
how FFLs are to record the theft or loss of firearms from their
inventories in their A&D Records.
The final rule will reduce the current reporting burden on
licensees when the theft or loss involves a registered NFA firearm.
Currently, as discussed in section I, a licensee must submit Form
3310.11 to NTC to comply with 27 CFR 478.39a and, if the licensee is
the person who lost the firearm, provide additional notification to the
NFA Branch to comply with 27 CFR 479.141. Under this final rule, to
meet the 27 CFR 478.39a requirements, a licensee must complete and
submit Form 3310.11 to NTC. If the theft or loss involves a registered
NFA firearm, NTC will notify the NFA Branch. This will satisfy the 27
CFR 479.141 notification requirements; licensees will no longer have to
submit additional notification about NFA firearms to ATF.
Although there is no definite count of the total number of firearms
that were lost or stolen in transit, ATF can provide an estimate based
on tracing data. From FY 2010 through FY 2014, there was an average of
1,333 crime gun traces per year where the firearm was traced back to an
FFL that claimed it never received the firearm allegedly shipped to it,
but no theft or loss was reported to ATF.\15\ ATF recognizes that this
figure may include some firearms lost or stolen at licensed premises
while not in transit (i.e., prior to or after shipment). However,
because there are numerous firearms lost or stolen that have not been
traced, the full count of firearms lost or stolen in transit that would
be reported under this rule may be significantly higher. Although the
number of unreported thefts or losses of firearms may be substantially
greater than this estimate, any additional burden to report them should
be minimal. At this time, the 1,333 figure reflects the best data
available.
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\15\ In the 2014 NPRM, the Department relied on the crime gun
trace average for FY 2008 through FY 2012. In this final rule, the
Department has used the more recent average from FY 2010 through FY
2014 because it believes that the updated figure more accurately
reflects the actual benefits and costs of the final rule. The
updated figure does not meaningfully change the Department's
estimates of the rule's costs and benefits.
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Pursuant to the instructions on Form 3310.11, a separate form is
required for each theft or loss. ATF estimates that it takes an FFL 24
minutes to complete Form 3310.11; the postage cost to mail the form to
NTC is 49 cents. If FFLs complete a separate Form 3310.11 for each of
the average of 1,333 firearms that tracing data indicates are lost or
stolen each year but are not currently being reported, ATF estimates
the total burden hours to be 533 (1,333 x 24/60), and the current
estimated cost to be $18,350. (Cost of completing the form = 24 minutes
at $33.19 per hour x 1,333 = $17,697; Cost of mailing the form =
[[Page 1317]]
$.49 x 1,333 = $653.) ATF estimated the cost of the time to complete
these tasks using employee compensation data for June 2015 as
determined by the Bureau of Labor Statistics (BLS), U.S. Department of
Labor. See News Release, U.S. Dep't of Labor, Bureau of Labor
Statistics, Employer Costs for Employer Compensation (Sept. 9, 2015),
http://www.bls.gov/news.release/archives/ecec_09092015.pdf.\16\ The BLS
determined the hourly compensation (which includes wages, salaries, and
benefits) for civilian workers to be $33.19.
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\16\ In the 2014 NPRM, the Department relied on BLS employee
compensation data from December 2013. In this final rule, the
Department has used the more recent BLS data from June 2015 because
it believes that the more recent data more accurately reflects the
actual benefits and costs of the final rule. The more recent BLS
data does not meaningfully change the Department's estimates of the
rule's costs and benefits.
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The instructions on Form 3310.11 also provide that FFLs must report
firearms thefts or losses by telephone to ATF. ATF estimates that it
takes an FFL 24 minutes to call and provide the requisite information
to ATF. If an FFL called ATF for each of the average of 1,333 firearms
that tracing data indicates are lost or stolen each year but are not
currently being reported, ATF estimates the total burden hours to be
533 (1,333 x 24/60), and the current estimated cost is $17,697 (24
minutes at $33.19 per hour x 1,333).
Therefore, the combined total estimated burden hours for submitting
Form 3310.11 and calling ATF are 1,066 (533 + 533). The combined total
estimated cost of fulfilling those same two requirements is $36,047
($18,350 + $17,697).
Alternatives, such as the UCC variable approach discussed in
section III of the SUPPLEMENTARY INFORMATION in the 2014 NPRM, are more
burdensome for FFLs than the approach taken in this final rule. This is
because, under the UCC variable approach, FFLs would need to examine
the terms of the individual contracts to determine how the contract
allocates the risk of loss as between the two parties. In contrast, the
final rule provides a simple, consistent rule so that there is no basis
for uncertainty or need for additional review: the final rule assigns
the theft or loss reporting requirement to the transferor/sender FFL.
In addition, this final rule will alleviate reporting burdens on
licensees in that licensees will need only report the theft or loss of
a registered NFA firearm once to ATF instead of reporting the incident
separately to NTC and the NFA Branch. As the licensee is providing much
of the same information under both reporting requirements, ATF
estimates that it takes the same amount of time and cost for postage,
and ATF uses the same hourly compensation as listed above (i.e., 24
minutes for time, 49 cents for postage, and $33.19 for hourly
compensation). Currently, the NFA Branch receives notification of the
theft or loss of a registered NFA firearm from approximately 60
licensees annually. ATF estimates the total burden hours to be 24 (60 x
24/60) and the total cost to be $826. (Cost of submitting the
notification = 24 minutes at $33.19 per hour x 60 = $797; cost of
mailing the notification = $.49 x 60 = $29.) Therefore, ATF estimates
the savings to be these amounts.
B. Executive Order 13132
This final rule will not have substantial direct effects on the
States, on the relationship between the Federal 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, ``Federalism,'' the Attorney General has
determined that this final rule does not have sufficient federalism
implications to warrant the preparation of a federalism summary impact
statement.
C. Executive Order 12988
This final rule meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive Order 12988, ``Civil Justice
Reform.''
D. Regulatory Flexibility Act
The Regulatory Flexibility Act requires an agency to conduct a
regulatory flexibility analysis of any rule subject to notice and
comment rulemaking requirements unless the agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities. See 5 U.S.C. 605(b). Small entities include
small businesses, small not-for-profit enterprises, and small
governmental jurisdictions. The Attorney General has reviewed this
final rule and, by approving it, certifies that this final rule will
not have a significant economic impact on a substantial number of small
entities.
Under section 18 U.S.C. 923(g)(6) and its implementing regulation,
27 CFR 478.39a, each FFL must report the theft or loss of a firearm
from the licensee's inventory or collection within 48 hours after the
theft or loss is discovered. The licensee must report the theft or loss
of a firearm to ATF and to the appropriate local authorities. This
final rule clarifies that when a firearm is stolen or lost in transit,
for reporting purposes, it is considered stolen or lost from the
transferor/sender FFL's inventory.
As discussed in section I of this preamble, the current regulation
requires that an FFL report thefts or losses telephonically to ATF and
complete and submit to NTC a separate Form 3310.11 for each theft or
loss. ATF estimates the time to complete the form as 24 minutes, the
time for the telephone call as 24 minutes, and the postage cost as 49
cents. If an FFL called ATF to report the theft or loss and completed a
separate Form 3310.11 for each of the average of 1,333 firearms that
tracing data indicates are lost or stolen each year but are not
currently being reported, ATF estimates the total cost of completing
and mailing the form and calling ATF to be $36,047. See section VI.A.
for a full discussion of these costs. Therefore, this final rule will
not impose a significant impact on a substantial number of small
entities.
E. Small Business Regulatory Enforcement Fairness Act of 1996
This final rule is not a major rule as defined by section 251 of
the Small Business Regulatory Enforcement Fairness Act of 1996, 5
U.S.C. 804. This final 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
enterprises to compete with foreign based enterprises in domestic and
export markets.
F. Unfunded Mandates Reform Act of 1995
This final 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. See 2 U.S.C. 1532(a), 1533(a).
G. Paperwork Reduction Act
This final rule revises an existing reporting and recordkeeping
requirement under the Paperwork Reduction Act. It also eliminates an
existing reporting requirement. The current regulation at 27 CFR
478.39a provides that each FFL must report the theft or loss of a
firearm from the licensee's inventory or collection within 48 hours
after the theft or loss is discovered. Licensees must report such
[[Page 1318]]
thefts and losses to ATF both telephonically and by submitting Form
3310.11. Licensees must also report the theft or loss to the
appropriate local authorities.
Pursuant to 27 CFR 479.141 and according to the instructions on
Form 3310.11, licensees reporting the theft or loss of registered NFA
firearms must provide additional notification to ATF. As discussed in
section I, no form exists for this purpose, and the person reporting
typically submits a letter with the required information to the NFA
Branch. As part of this rulemaking, Form 3310.11, approved under OMB
control number 1140-0039, will capture the information required by 27
CFR 479.141. Therefore, under this final rule, a licensee will satisfy
its obligation to provide the required notification to the NFA Branch
by submitting Form 3310.11 to NTC, and NTC will notify the NFA Branch.
Submitting Form 3310.11 will satisfy the requirements of both 27 CFR
478.39a and 27 CFR 479.141 with one notification.
In addition, the instructions on Form 3310.11 state that a licensee
must reflect the theft or loss of a firearm as a disposition entry in
the A&D Record required by subpart H of part 478 (formerly 178). These
instructions further state that the disposition entry should indicate
whether the incident is a theft or loss and include the ATF-Issued
Incident Number and the Incident Number provided by the local law
enforcement agency. Finally, the instructions state that if the
firearms are located, they should be re-entered in the A&D Record as
acquisition entries. The final rule adds both sets of these
instructions to the regulatory text in 27 CFR 478.39a with
modifications. See section V for full discussion of these revisions.
The information collection required by 27 CFR 478.39a--i.e., the
submission of Form 3310.11--has been approved by the Office of
Management and Budget under control number 1140-0039. This final rule
specifies that when a firearm is stolen or lost in transit, for
reporting purposes, it is considered stolen or lost from the
transferor's/sender's inventory.
Drafting Information
The author of this document is Denise Brown, Office of Regulatory
Affairs, Enforcement Programs and Services, Bureau of Alcohol, Tobacco,
Firearms, and Explosives.
List of Subjects in 27 CFR Part 478
Administrative practice and procedure, Arms and munitions, Customs
duties and inspection, Exports, Imports, Intergovernmental relations,
Law enforcement officers, Military personnel, Penalties, Reporting and
recordkeeping requirements, Research, Seizures and forfeitures,
Transportation.
Authority and Issuance
Accordingly, for the reasons discussed in the preamble, 27 CFR part
478 is amended as follows:
PART 478--COMMERCE IN FIREARMS AND AMMUNITION
0
1. The authority citation for 27 CFR part 478 is revised to read as
follows:
Authority: 5 U.S.C. 552(a); 18 U.S.C. 921-931; 44 U.S.C.
3504(h).
0
2. Revise Sec. 478.39a to read as follows:
Sec. 478.39a Reporting theft or loss of firearms.
(a)(1) Each licensee shall report the theft or loss of a firearm
from the licensee's inventory (including any firearm which has been
transferred from the licensee's inventory to a personal collection and
held as a personal firearm for at least 1 year), or from the collection
of a licensed collector, within 48 hours after the theft or loss is
discovered.
(2) When a firearm is stolen or lost in transit on a common or
contract carrier (which for purposes of this paragraph includes the
U.S. Postal Service), it is considered stolen or lost from the
transferor/sender licensee's inventory for reporting purposes.
Therefore, the transferor/sender of the stolen or lost firearm shall
report the theft or loss of the firearm within 48 hours after the
transferor/sender discovers the theft or loss.
(b) Each licensee shall report the theft or loss by telephoning ATF
at 1-888-930-9275 (nationwide toll-free number), and by preparing and
submitting to ATF a Federal Firearms Licensee Theft/Loss Report, ATF
Form 3310.11, in accordance with the instructions on the form. The
original of the report shall be retained by the licensee as part of the
licensee's required records.
(c) When a licensee submits to ATF a Federal Firearms Licensee
Theft/Loss Report, ATF Form 3310.11, for the theft or loss of a firearm
registered under the National Firearms Act, this report also satisfies
the notification requirement under Sec. 479.141 of this chapter.
(d) Theft or loss of any firearm shall also be reported to the
appropriate local authorities. If the location of the theft or loss is
known, the local law enforcement agency at that location would be the
appropriate local authority. Otherwise, the report should be made to
the local law enforcement authorities at the licensee's location or
business premises.
(e) Licensees shall reflect the theft or loss of a firearm as a
disposition entry in the Record of Acquisition and Disposition required
by subpart H of this part not later than 7 days following discovery of
the theft or loss. The disposition entry shall record whether the
incident is a theft or loss, the ATF-Issued Incident Number, and the
Incident Number provided by the local law enforcement agency.
(f) Licensees who report the theft or loss of a firearm and later
discover its whereabouts shall advise ATF at 1-888-930-9275 (nationwide
toll-free number) that the firearm has been located, and shall re-enter
the firearm in the Record of Acquisition and Disposition as an
acquisition or disposition entry as appropriate.
Dated: January 4, 2016.
Loretta E. Lynch,
Attorney General.
[FR Doc. 2016-00112 Filed 1-11-16; 8:45 am]
BILLING CODE 4410-FY-P