[Federal Register Volume 89, Number 77 (Friday, April 19, 2024)]
[Rules and Regulations]
[Pages 28622-28633]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-08339]


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DEPARTMENT OF JUSTICE

Bureau of Alcohol, Tobacco, Firearms, and Explosives

27 CFR Part 478

[Docket No. ATF 2022R-09; AG Order No. 5921-2024]
RIN 1140-AA57


Bipartisan Safer Communities Act Conforming Regulations

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

ACTION: Direct final rule.

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SUMMARY: The Department of Justice (``Department'') is amending Bureau 
of Alcohol, Tobacco, Firearms, and Explosives (``ATF'') regulations to 
implement firearms-related definitions and requirements established by 
the Bipartisan Safer Communities Act (``BSCA'') and the NICS Denial 
Notification Act (``NDNA''). These statutes went into effect on June 
25, 2022, and October 1, 2022, respectively. It is necessary to make 
conforming changes to ensure that ATF's regulations are current and 
consistent with the applicable statutes. For this reason, this direct 
final rule incorporates many of the BSCA and NDNA provisions that are 
applicable to ATF.

DATES: This final rule is effective on July 18, 2024, unless ATF 
receives any significant adverse comment by May 20, 2024. If ATF 
receives a significant adverse comment within the stated time that 
warrants revising the rule (as described under the Public Participation 
heading in the SUPPLEMENTARY INFORMATION section of this regulation), 
the Department will publish notification in the Federal Register, 
withdrawing this direct final rule before its effective date.

ADDRESSES: You may submit comments, identified by docket number ATF 
2022R-09, by either of the following methods--
     Federal eRulemaking portal: www.regulations.gov. Follow 
the instructions for submitting comments.
     Mail: ATF Rulemaking Comments, Mail Stop 6N-518, Office of 
Regulatory Affairs, Enforcement Programs and Services; Bureau of 
Alcohol, Tobacco, Firearms, and Explosives; 99 New York Ave. NE, 
Washington, DC 20226; ATTN: ATF 2022R-09.
    Instructions: All submissions received must include the agency name 
and docket number (ATF 2022R-09) for this direct final rule. All 
properly completed comments received through either of the methods 
described above will be posted without change to the Federal 
eRulemaking portal, www.regulations.gov. This includes any personal 
identifying information (``PII'') submitted in the body of the comment 
or as part of a related attachment. Commenters who submit through the 
Federal eRulemaking portal and who do not want any of their PII posted 
on the internet should omit PII from the body of their comment or in 
any uploaded attachments. Commenters who submit through mail should 
likewise omit their PII from the body of the comment and provide any 
PII on the cover sheet only. For detailed instructions on submitting 
comments, the scope of comments for this rulemaking, and additional 
information on the rulemaking process,

[[Page 28623]]

see the ``Public Participation'' heading of the SUPPLEMENTARY 
INFORMATION section of this rule.

FOR FURTHER INFORMATION CONTACT: Helen Koppe, Office of Regulatory 
Affairs, Enforcement Programs and Services; Bureau of Alcohol, Tobacco, 
Firearms, and Explosives; U.S. Department of Justice; 99 New York Ave. 
NE, Washington, DC 20226; or by telephone at (202) 648-7070 (this is 
not a toll-free number).

SUPPLEMENTARY INFORMATION:

I. Background

    The Attorney General is responsible for enforcing the Gun Control 
Act of 1968 (``GCA''), as amended. This responsibility includes the 
authority to promulgate regulations necessary to enforce the provisions 
of the GCA. See 18 U.S.C. 926(a). Congress and the Attorney General 
have delegated the responsibility for administering and enforcing the 
GCA to the Director of ATF, subject to the direction of the Attorney 
General and the Deputy Attorney General. See 28 U.S.C. 599A(b)(1), 
(c)(1); 28 CFR 0.130(a)(1)-(2); Treas. Order No. 221(2)(a), (d), 37 FR 
11696-97 (June 10, 1972). Accordingly, the Department and ATF have 
promulgated regulations to implement the GCA. See 27 CFR part 478.
    The Bipartisan Safer Communities Act (``BSCA'') (Pub. L. 117-159) 
was signed into law and became effective on June 25, 2022. It made 
several changes to the mental health services system, school safety 
programs, and gun safety laws. Among other provisions, the BSCA 
requires enhanced background checks for firearm purchasers under 21 
years old, addresses Federal firearms license requirements, authorizes 
funding for State red flag laws and other crisis intervention programs, 
creates new Federal offenses for firearms trafficking and straw 
purchases, and partially closes the ``boyfriend loophole,'' which 
previously excluded domestic violence offenses involving dating 
relationships from firearms restrictions that apply to spouses 
convicted of similar offenses. This direct final rule serves only to 
incorporate many of these new statutory provisions into existing ATF 
firearms regulations.
    Federal law prohibits persons meeting certain criteria from 
receiving any firearm or ammunition that has been shipped or 
transported in interstate or foreign commerce, see 18 U.S.C. 922(g), 
(n), and makes it unlawful to sell or otherwise dispose of any firearm 
or ammunition to any person who is known or reasonably believed to meet 
certain criteria, see 18 U.S.C. 922(d).\1\ The Brady Handgun Violence 
Prevention Act of 1993 (``Brady Act'') (Pub. L. 103-159), as amended, 
established a background check system that federally licensed 
manufacturers, dealers, and importers of firearms--otherwise known as 
Federal firearms licensees (``FFLs''), see 18 U.S.C. 923--must, unless 
the transfer is excepted, contact for an immediate response on whether 
transfer of a firearm to, or receipt of a firearm by, a prospective 
transferee would violate 18 U.S.C. 922 or State, local, or Tribal law. 
Consistent with the Brady Act's requirements, the Federal Bureau of 
Investigation (``FBI'') operates the National Instant Criminal 
Background Check System (``NICS'') for FFLs to use to initiate a 
background check in connection with a proposed transfer of a firearm to 
a non-licensee.
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    \1\ Prior to passage of the BSCA, 18 U.S.C. 922(d) made it 
unlawful to sell or otherwise dispose of a firearm or ammunition to 
persons meeting the same criteria as provided in 18 U.S.C. 922(g) 
and (n). As discussed further in this preamble, the BSCA added new 
criteria to section 922(d) to match new prohibitions on straw 
purchases and firearms trafficking in 18 U.S.C. 932 and 933.
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    When an FFL contacts NICS to initiate a background check, NICS 
searches three nationally held electronic systems--the National Crime 
Information Center (``NCIC''),\2\ the Interstate Identification 
Index,\3\ and the NICS Index \4\--that may reveal the existence of a 
record demonstrating that the person is prohibited from receiving or 
possessing firearms. If the query of those three systems results in no 
matching records, NICS provides a ``Proceed'' response to the FFL. If a 
record demonstrates that the person is prohibited from receiving or 
possessing a firearm, NICS provides the FFL with a ``Denied'' response. 
For those transactions for which NICS cannot provide a definitive 
response of either ``Proceed'' or ``Denied'' and must conduct 
additional research to determine whether the prospective transferee is 
disqualified from receiving or possessing a firearm by Federal or State 
law, the transaction will be placed in a ``Delayed'' status. If NICS 
has not notified the FFL that the transferee is prohibited from 
receiving or possessing a firearm within three business days of when 
the FFL initiated the NICS check, the FFL is not federally prohibited 
from transferring the firearm beginning on the day after the third 
business day. See 18 U.S.C. 922(t)(1), 27 CFR 478.102, 28 CFR 25.6. 
However, the BSCA now provides that, in the case of a person under 21 
years old, if NICS notifies the FFL that cause exists to further 
investigate possible disqualifying juvenile records, an FFL may not 
transfer the firearm until 10 business days have elapsed \5\ since the 
FFL contacted NICS. See 18 U.S.C. 922(t)(1)(C).
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    \2\ The NCIC is a national criminal justice information system 
linking criminal (and authorized non-criminal) justice agencies 
located in the 50 states, the District of Columbia, U.S. territories 
and possessions, and select foreign countries to facilitate the 
cooperative sharing of criminal justice information. The NCIC 
provides a system to receive and maintain information contributed by 
participating agencies relating to criminal justice and national 
security.
    \3\ The Interstate Identification Index is part of the FBI's 
Next Generation Identification system and is used to search for 
available Federal, State, Tribal, and local criminal history records 
such as arrests, charges, and case dispositions.
    \4\ The NICS Index consists of entries from Federal, State, 
Tribal, and local agencies relating to persons who are prohibited 
from receiving or possessing firearms under Federal or State law.
    \5\ As discussed further below in this preamble, this delay is 
up through the tenth business day unless the FFL receives a 
``Proceed'' or ``Denied'' response during that time.
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    As described below, the BSCA also added new disqualifying factors 
to existing restrictions on the transfer of firearms and ammunition and 
set forth additional requirements for transfers of firearms to persons 
under the age of 21, including enhanced contacts to State and local 
entities. The BSCA provisions affecting NICS are discussed in this 
rulemaking only to the extent that they inform FFLs of the requirements 
they must follow during prospective firearms transfers. Such FFL 
transfer requirements are the subject of ATF regulations that are among 
those amended in this rule. See 27 CFR 478.102. As noted above, the 
Department regulates and manages NICS processes, such as notifications 
and responses, under the FBI's authority, not ATF's.
    The BSCA also necessitated conforming changes to the Firearms 
Transaction Record, ATF Form 4473 (``Form 4473''). FFLs are required to 
complete a Form 4473 as part of a firearms transaction involving a non-
licensee, and some of the information recorded on the form must be 
submitted to NICS for the background check. ATF received emergency 
approval, beginning December 9, 2022, from the Office of Management and 
Budget (``OMB'') to issue a revised Form 4473 (OMB No. 1140-0020) that 
incorporates conforming changes so that FFLs could begin complying with 
the information-collecting requirements set forth in the BSCA. In 
August 2023, OMB approved the new form for another three years.
    In addition, on March 15, 2022, the President signed into law the 
Consolidated Appropriations Act of

[[Page 28624]]

2022 (Pub. L. 117-103), which included the NICS Denial Notification Act 
of 2022 (``NDNA''). The NDNA requires the Attorney General to report to 
applicable State, local, or Tribal law enforcement and, where 
practicable, the relevant State, local, or Tribal prosecutors, if a 
person has attempted to acquire a firearm and been denied pursuant to a 
NICS background check. NICS must provide such a report within 24 hours 
after NICS denies a firearm transfer and include the Federal, State, 
local or Tribal prohibition, the date and time of the notice, the 
location of the licensee where the attempted firearm transfer was 
sought, and the person's identity. This direct final rule incorporates 
relevant portions of the new statutory language into existing ATF 
regulations to account for the addition of State, local, and Tribal law 
enforcement reporting requirements in the NDNA.
    In summary, this direct final rule makes conforming updates to ATF 
regulations to incorporate many of the firearm-related statutory 
changes made by the BSCA and the NDNA to ensure that the regulations 
are consistent with the statutes and can be relied upon by the public. 
The Department has also published a separate proposed ATF rulemaking, 
``Definition of `Engaged in the Business' as a Dealer in Firearms,'' 
that proposed implementing the BSCA provisions related to what it means 
to be ``engaged in the business'' as a wholesale or retail firearms 
dealer (RIN 1140-AA58; 88 FR 61993 (Sept. 8, 2023)). The Department 
published the final rule, ``Definition of `Engaged in the Business' as 
a Dealer in Firearms,'' in the Federal Register of April 19, 2024 (FR 
Doc. 2024-07838). In addition, the Department anticipates issuing three 
rules that implement BSCA and NDNA provisions related to FBI's 
operations.\6\
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    \6\ See DOJ, Statement of Regulatory Priorities 8-10 (Fall 
2023), http://www.reginfo.gov/public/jsp/eAgenda/StaticContent/202310/Statement_1100_DOJ.pdf (outlining the Department's semiannual 
regulatory agenda).
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II. Direct Final Rule

    With the enactment of the BSCA on June 25, 2022, a number of 
amendments to the GCA went into effect. This rule updates ATF's 
corresponding regulatory provisions within title 27, Code of Federal 
Regulations, part 478, to conform with the new statutory amendments. It 
also makes minor revisions to incorporate the NDNA's State, local, and 
Tribal law enforcement authority notification requirements.

A. Changes To Disqualifying Criteria and Civil Penalty Provisions in 
Conformity With 18 U.S.C. 922(d) and (t)

    18 U.S.C. 922(d) provides that it is unlawful for any person to 
sell or otherwise dispose of a firearm or ammunition to another person 
if the transferor knows, or has reasonable cause to believe, that the 
prospective transferee is disqualified as specified in that subsection. 
As amended by the BSCA, 18 U.S.C. 922(d) now specifies that events 
occurring when the person was a juvenile are disqualifying, except that 
the prohibition against the sale or disposition of firearms and 
ammunition to persons who have been adjudicated as a ``mental 
defective,'' see GCA, Public Law 90-618, sec. 102, 82 Stat. 1213, 1220 
(1968), or committed to any mental institution applies only to persons 
who were adjudicated or committed at 16 years of age or older, 18 
U.S.C. 922(d)(4).
    To conform to the statutory changes in the BSCA, this rule adds the 
phrase ``including as a juvenile'' to the end of the introductory 
language in 27 CFR 478.32(d) and 478.99(c). This rule is also adding 
the phrase ``at 16 years of age or older'' to the end of paragraph 
(d)(4) of Sec.  478.32 and the end of paragraph (c)(4) of Sec.  478.99. 
Paragraph (d) of Sec.  478.32 mirrors 18 U.S.C. 922(d) and prohibits 
the sale and disposition of firearms and ammunition to persons meeting 
certain criteria. Paragraph (c) of Sec.  478.99 also mirrors 18 U.S.C. 
922(d) and sets forth prohibitions against sales or deliveries by FFLs 
to prohibited categories of persons. Because of the BSCA amendments to 
18 U.S.C. 922(d), the Department is amending both corresponding 
regulatory provisions. These revisions bring the existing language in 
the regulations into conformity with the revised statutory provisions 
they mirror.
    The BSCA added new offenses for ``straw purchasing of firearms'' 
and ``trafficking in firearms'' at 18 U.S.C. 932 and 933, respectively 
(discussed in detail under Section II.C of this preamble), which are 
accompanied by additions to the list of prohibitions under 18 U.S.C. 
922(d) as new paragraphs (10) and (11). These additional prohibitions 
make it unlawful to sell or otherwise dispose of firearms or ammunition 
to persons who intend to sell or otherwise dispose of the firearms or 
ammunition in furtherance of a ``felony,'' a ``Federal crime of 
terrorism,'' or a ``drug trafficking offense,'' as those terms are 
defined in 18 U.S.C. 932(a), or who intend to sell or otherwise dispose 
of the firearms or ammunition to a person disqualified by any of the 
criteria listed under 18 U.S.C. 922(d). As a result of these additions 
to 18 U.S.C. 922(d), the Department is adding the same prohibitions as 
new 27 CFR 478.32(d)(10) and (11) and 478.99(c)(10) and (11). As noted 
above, paragraph (d) of Sec.  478.32 mirrors 18 U.S.C. 922(d) and 
prohibits the sale and disposition of firearms and ammunition to 
persons meeting certain criteria. Paragraph (c) of Sec.  478.99 also 
mirrors 18 U.S.C. 922(d) and sets forth prohibitions against sales or 
deliveries by FFLs to prohibited categories of persons. Because of the 
BSCA amendments to 18 U.S.C. 922(d), the Department is also adding to 
27 CFR 478.11 new definitions of ``drug trafficking crime,'' \7\ 
``Federal crime of terrorism,'' \8\ and ``felony'' \9\ to mirror the 
definitions enacted by the BSCA in 18 U.S.C. 932(a). These revisions 
bring the existing language in the regulations into conformity with the 
revised statutory provisions they mirror.
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    \7\ ``Drug trafficking crime'' means ``(a) Any felony punishable 
under the Controlled Substances Act (21 U.S.C. 801 et seq.), the 
Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), 
or 46 U.S.C. chapter 705; and (b) Any felony punishable under the 
law of a State for which the conduct constituting the offense would 
constitute a felony punishable under the statutes cited in paragraph 
(a) of this definition.'' See 18 U.S.C. 932(a)(1) (citing 18 U.S.C. 
924(c)(2)).
    \8\ ``Federal crime of terrorism has the meaning given that term 
in 18 U.S.C. 2332b(g)(5).'' See 18 U.S.C. 932(a)(2).
    \9\ ``Felony'' means ``[a]ny offense under Federal or State law 
punishable by imprisonment for a term exceeding 1 year.'' See 18 
U.S.C. 932(a)(3).
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    The Department is also making minor revisions to the civil penalty 
provisions in 27 CFR 478.73(a) to reflect the statutory amendments to 
18 U.S.C. 922(d) discussed above, as well as changes the BSCA made to 
18 U.S.C. 922(t). Section 922(t) sets forth the requirement that FFLs 
initiate a background check with NICS before they transfer firearms 
(the process is discussed in more detail in Section II.D of this 
preamble). Although NICS is operated by the FBI, which has promulgated 
regulations on NICS use and request processes, ATF regulations (1) set 
forth the requirement that licensees must conduct background checks 
before transferring firearms, and (2) establish when they may 
subsequently transfer a firearm. These ATF regulations are affected by 
the BSCA changes regarding prohibited persons, background checks, and 
timing of transfers in under-21 transactions. This rule is updating the 
ATF regulations, and the FBI is updating its corresponding NICS 
regulations in separate rules.

[[Page 28625]]

    Prior to the enactment of the BSCA, a unique identification number 
would be provided if NICS determined that the receipt of a firearm 
would not violate subsections 922(g) or (n), which prohibit certain 
qualifying persons from shipping, transporting, or receiving firearms. 
Relevant to this rulemaking, the BSCA revised subsection 922(t)(2) to 
state that NICS will provide a unique identification number for a 
transfer if the system determines that ``transfer or'' receipt of a 
firearm would not violate 18 U.S.C. 922(d) in addition to 922(g) and 
(n). And, consistent with 922(t)(2) as amended, the BSCA also revised 
subsection 922(t)(5), which authorizes the Attorney General to impose 
civil penalties when an FFL knowingly fails to comply with the 
background check requirements in subsection 922(t)(1), to refer to the 
``transfer'' of a firearm and to 922(d). In addition, the NDNA added 
that, as a condition of NICS issuing a unique identification number, 
receipt of a firearm must not violate local or Tribal law. The 
Department is revising 27 CFR 478.73(a), which sets forth the basis for 
civil penalty actions against FFLs, to conform to these changes to the 
statute.
    The BSCA also includes criminal penalty provisions that amend 18 
U.S.C. 924(h) and (k). As revised by the BSCA:
     18 U.S.C. 924(h) makes it unlawful for a person to 
transfer or receive a firearm or ammunition--or attempt or conspire to 
do so--knowing or having reasonable cause to believe that it will be 
used to commit any felony, a Federal crime of terrorism, a drug 
trafficking crime (as such terms are defined in 18 U.S.C. 932(a)), or a 
crime under the Arms Export Control Act (22 U.S.C. 22751 et seq.), the 
Export Control Reform Act of 2018 (50 U.S.C. 4081 et seq.), the 
International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.), 
or the Foreign Narcotics Kingpin Designation Act (21 U.S.C. 1901 et 
seq.). Under this provision, persons who engage in such unlawful 
actions, as described, are subject to fines under title 18 of the 
United States Code, or imprisonment for not more than 15 years, or 
both.
     18 U.S.C. 924(k) makes it illegal for a person to smuggle 
or knowingly bring into the United States a firearm or ammunition with 
intent to engage in or promote conduct that is punishable under the 
Controlled Substances Import and Export Act (21 U.S.C. 951, et seq.) or 
under 46 U.S.C. chapter 705 (pertaining to Maritime Drug Law 
Enforcement); or that constitutes any felony, a Federal crime of 
terrorism, or a drug trafficking crime (as defined in 18 U.S.C. 
932(a)). This offense also includes smuggling or knowingly taking a 
firearm or ammunition out of the United States with intent to engage in 
or promote conduct punishable under the Controlled Substances Import 
and Export Act (21 U.S.C. 951, et seq.) or under 46 U.S.C. chapter 705 
(pertaining to Maritime Drug Law Enforcement), if the conduct had 
occurred within the United States; or that would constitute a felony or 
a Federal crime of terrorism (as such terms are defined in 18 U.S.C. 
932(a)) for which the person may be prosecuted in a court of the United 
States, if the conduct had occurred within the United States. Under 
this provision, persons who engage in such unlawful actions are subject 
to fines under title 18 of the United States Code, or imprisonment for 
not more than 15 years, or both.
    Existing ATF regulations do not include every criminal provision of 
the GCA, and as a result, the Department is not currently amending its 
regulations to reflect these particular criminal provisions in the BSCA 
and is including them in this discussion solely for the public's 
awareness.

B. Misdemeanor Crimes of Domestic Violence

    The BSCA revises pre-existing prohibitions against selling or 
disposing of a firearm or ammunition to a person who has been convicted 
of a misdemeanor crime of domestic violence, and against such a person 
receiving or possessing a firearm or ammunition. See 18 U.S.C. 
921(a)(33), 922(d)(9), and 922(g)(9). Previously, the domestic violence 
prohibitions applied only to persons convicted of crimes committed by a 
current or former spouse, parent, or guardian of the victim; by a 
person sharing a child in common with the victim; by a person who is 
cohabitating with or has cohabitated with the victim as a spouse, 
parent, or guardian; or by a person ``similarly situated'' to a spouse, 
parent, or guardian of the victim. 18 U.S.C. 921(a)(33) (2020). This 
left open the so-called ``boyfriend loophole,'' because convictions for 
misdemeanor crimes of domestic violence against a non-married dating 
partner who did not cohabitate or otherwise share a spouse-like 
relationship with the victim did not preclude the convicted person from 
receiving or possessing firearms or ammunition.
    The BSCA narrows this gap by including within these prohibitions 
persons who are, or were recently, in a dating relationship with the 
victim and who have been convicted of a misdemeanor crime of domestic 
violence after June 25, 2022. The statute defines ``dating 
relationship'' to mean a relationship between persons who have or have 
recently had a continuing serious relationship of a romantic or 
intimate nature. 18 U.S.C. 921(a)(37)(A). It also provides factors that 
must be considered when determining whether a relationship constitutes 
a dating relationship: the length of the relationship, the nature of 
the relationship, and the frequency and type of interaction between the 
persons involved in the relationship. Id. 921(a)(37)(B). A ``casual 
acquaintanceship or ordinary fraternization in a business or social 
context'' is not a dating relationship. Id. 921(a)(37)(C).
    A person will not be considered to have been convicted of a 
misdemeanor crime of domestic violence against a person in a dating 
relationship if the conviction has been expunged or set aside, or is an 
offense for which the person has been pardoned or has had firearm 
rights restored, unless the expungement, pardon, or restoration of 
rights expressly provides that the person may not ship, transport, 
possess, or receive firearms. In addition, the statutory prohibition 
does not apply to persons who have only one conviction of a misdemeanor 
crime of domestic violence against a person in a dating relationship if 
five years have elapsed from the later of their conviction or the 
completion of their custodial or supervisory sentence (if any), 
provided that the person has not subsequently been convicted of (a) 
another such offense, (b) a different offense that has as an element 
the use or attempted use of physical force or the threatened use of a 
deadly weapon, or (c) any other offense that would disqualify the 
person from purchasing or possessing firearms under 18 U.S.C. 922(g). 
More than one conviction for an offense of domestic violence against a 
person in a dating relationship committed since June 25, 2022, 
regardless of whether with the same or a different partner, 
disqualifies the person under Federal law from purchasing or possessing 
firearms and precludes the person from restoration pursuant to 18 
U.S.C. 921(a)(33)(C).
    To incorporate the BSCA amendments relating to these provisions, 
the Department is amending ATF regulations to add a definition of 
``dating relationship'' to 27 CFR 478.11. This definition mirrors the 
language that the BSCA added to 18 U.S.C. 921(a)(37). In addition, the 
Department is adding to the end of the definition of ``misdemeanor 
crime of domestic violence,'' paragraph (a)(3), the phrase ``or by a 
person who has a current or recent former dating relationship with the 
victim.'' This language is identical

[[Page 28626]]

to the language in 18 U.S.C. 921(a)(33)(A)(ii). In that same 
definition, the Department is making minor technical edits to paragraph 
(a)(3) to bring this part of the definition into direct alignment with 
the revised statutory language at 18 U.S.C. 921(a)(33)(C), which was 
added by the BSCA and specifically lists Federal, State, Tribal and 
local offenses. Further, the Department is revising paragraph (a)(1) of 
the regulatory definition to expressly align the regulation with the 
existing statutory language in 18 U.S.C. 921(a)(33)(A)(i), which also 
explicitly states that the definition of a ``misdemeanor crime of 
domestic violence'' involves a misdemeanor under Federal, State, 
Tribal, or local law. Notably, the NDNA specifically amended section 
921(a)(33)(A)(i) to include misdemeanors under local law. Currently, 
paragraph (a)(1) of the regulatory definition provides that the term 
includes an offense under Federal and State law and only includes a 
parenthetical that less directly incorporates Tribal convictions. These 
changes to the definition of ``misdemeanor crime of domestic violence'' 
bring the regulatory language into alignment with 18 U.S.C. 
921(a)(33)(A)(i) and (C), as amended by the BSCA and the NDNA.
    The Department is also adding a new paragraph (d) to the regulatory 
definition of ``misdemeanor crime of domestic violence'' to reflect the 
statutory changes discussed above as to when a person will, or will 
not, be considered convicted of a misdemeanor crime of domestic 
violence against a person in a dating relationship. See 18 U.S.C. 
921(a)(33)(C).

C. Straw Purchasing and Firearms Trafficking

    The BSCA creates two new criminal offenses, for ``straw purchasing 
of firearms'' and for ``trafficking in firearms,'' as mentioned in 
Section II.B of this preamble. See 18 U.S.C. 932 and 933. The ``straw 
purchasing'' offense makes it illegal for any person to knowingly 
purchase, or conspire to purchase, a firearm on behalf of another 
person knowing or having reasonable cause to believe the person for 
whom they are making the purchase:
     is prohibited under 18 U.S.C. 922(d);
     intends to use, carry, possess, sell, or dispose of the 
firearm in furtherance of any felony, a Federal crime of terrorism, or 
a drug trafficking crime (as those terms are defined in 18 U.S.C. 
932(a)); or
     intends to sell or dispose of the firearm to a section 
922(d)-prohibited person or a person intending to use, carry, possess, 
sell, or dispose of the firearm in furtherance of any felony, a Federal 
crime of terrorism, or a drug trafficking crime (as those terms are 
defined in 18 U.S.C. 932(a)).
    The ``firearms trafficking'' offense makes it illegal for any 
person to (1) ship, transport, cause to be transported, transfer, or 
otherwise dispose of a firearm knowing or having reasonable cause to 
believe that the use, carrying, or possession of a firearm by the 
recipient would constitute a felony (as defined in 18 U.S.C. 932(a)); 
or (2) receive a firearm from another person knowing or having 
reasonable cause to believe the receipt would constitute such a felony. 
The ``firearms trafficking'' offense also makes it illegal for a person 
to attempt or conspire to transfer or receive a firearm in the manners 
just described. Accordingly, this regulation further amends 27 CFR 
478.32 to add new paragraphs (g) and (h) and further amends 27 CFR 
478.99 to add new paragraphs (f) and (g) that mirror 18 U.S.C. 932 and 
933. In addition, the Department is adding the word ``purchases'' into 
the headings of both provisions because the prohibition on straw 
purchasing in 18 U.S.C. 932 prohibits certain firearms purchases.
    As mentioned above, the BSCA establishes criminal penalties for the 
new ``straw purchases'' and ``firearms trafficking'' offenses. Both the 
``straw purchases'' and ``firearms trafficking'' offenses are subject 
to broad criminal forfeiture provisions that provide that any person 
convicted of either offense shall forfeit any proceeds or property 
obtained, directly or indirectly, as the result of such offenses, as 
well as any property used or intended to be used, in any manner, to 
facilitate the violation. 18 U.S.C. 934. Such property may include 
firearms and ammunition, in which case section 924(d) applies.\10\ Id. 
The BSCA also provides that a defendant who derives profits or other 
proceeds from a straw purchase or firearms trafficking offense under 18 
U.S.C. 932 or 933 may be fined not more than the greater of the fine 
otherwise authorized under part I of title 18 of the United States Code 
or the amount equal to twice the gross profits or other proceeds of the 
offense. 18 U.S.C. 934(b).
---------------------------------------------------------------------------

    \10\ 18 U.S.C. 924(d) authorizes seizure and forfeiture of any 
firearm or ammunition involved or used in any knowing violation of 
subsection (a)(4), (a)(6), (f), (g), (h), (i), (j), or (k) of 18 
U.S.C. 922, or knowing importation or bringing into the United 
States or any possession thereof any firearm or ammunition in 
violation of section 18 U.S.C. 922(l), or knowing violation of 18 
U.S.C. 924, 932, or 933, or willful violation of any other provision 
of chapter 44 of title 18 of the U.S. Code, or any rule or 
regulation promulgated thereunder, or any violation of any other 
criminal law of the United States. It also authorizes seizure and 
forfeiture of any firearm or ammunition intended to be used in any 
offense listed in section 924(d)(3) (which includes sections 932 
(straw purchasing of firearms) and 933 (trafficking in firearms)). 
Section 924(d) also provides that all provisions of the Internal 
Revenue Code of 1986 relating to seizure, forfeiture, and 
disposition of firearms, as defined in section 5845(a) of that Code, 
shall apply.
---------------------------------------------------------------------------

    To incorporate these BSCA seizure and forfeiture provisions into 
ATF regulations, the Department is amending ATF regulations at 27 CFR 
478.152, which governs seizure and forfeiture, to add paragraphs (d) 
and (e). This rule is adding paragraphs (d) and (e) to incorporate and 
mirror the statutory provisions on fines and the forfeiture of 
firearms, ammunition, and other property or proceeds used in, derived 
from, constituting, or intended to be used to commit or facilitate 
commission of ``straw purchases'' or ``firearms trafficking'' and the 
seizure of profits provisions of the new ``straw purchases'' and 
``firearms trafficking'' offenses in 18 U.S.C. 934.
    In addition, the BSCA establishes the maximum term of imprisonment 
for a ``straw purchase'' offense at 25 years, 18 U.S.C. 932(c), and for 
``trafficking in firearms'' at 15 years, 18 U.S.C. 933(b), and all 
other unlawful transfer and possession of firearms offenses under 18 
U.S.C. 922(d) and 922(g) now carry a maximum term of not more than 15 
years' imprisonment, 18 U.S.C. 924(a)(8). As previously mentioned, 
existing ATF regulations do not include every criminal provision of the 
GCA and, as a result, the Department is not currently amending its 
regulations to reflect these particular criminal provisions in the 
BSCA. The Department provides a discussion above on these amendments to 
the statutory penalty provisions solely to inform the public that they 
apply in this context.

D. Under-21 Transactions

    The BSCA made changes to 18 U.S.C. 922(t) and 34 U.S.C. 40901(l) to 
expand the records searched for background checks involving persons 
under the age of 21 that could preclude approval of a firearm or 
ammunition transfer to such persons. Related to this amendment, 
possibly disqualifying juvenile records are subject to further 
investigation, and the BSCA provides an additional investigatory 
period, if needed, for NICS to conduct the enhanced records checks for 
criminal, mental health, or other relevant juvenile records. As 
discussed in Section II.B of this preamble, the FBI operates NICS and 
FBI regulations govern NICS use and request processes, while ATF 
regulations (1) set out the requirement that licensees must conduct

[[Page 28627]]

background checks before transferring firearms and (2) establish when 
they may subsequently transfer a firearm. These regulatory provisions 
are outdated in light of the BSCA changes to the GCA regarding 
background checks and timing of transfers in under-21 transactions. The 
Department is updating ATF's regulations on FFL responsibilities with 
regard to NICS through this rule, and is also updating the related FBI 
NICS regulations in separate rules. For purposes of understanding the 
regulatory revisions the Department is making in this rule, the 
Department is providing a synopsis of the BSCA changes affecting NICS.
    When a NICS transaction is initiated, regardless of the age of the 
prospective transferee, NICS searches three FBI systems, as noted 
above, to determine if the person is disqualified from possessing or 
receiving firearms under 18 U.S.C. 922(d), (g), or (n), or under State, 
local, or Tribal law. If a possibly disqualifying record results from 
the search, NICS provides a ``Delayed'' status and advises the FFL that 
the transfer should not proceed pending receipt of a follow-up 
``Proceed'' response from NICS or the expiration of three business 
days, whichever occurs first. See 28 CFR 25.6. State, local, or Tribal 
laws may impose a separate waiting period--or require a ``Proceed'' 
response--before an FFL can lawfully transfer a firearm.
    The BSCA now requires enhanced NICS background checks on 
transactions for which the prospective firearm transferee is under 21 
years of age.\11\ With respect to these enhanced background checks of 
under-21 transactions, Congress imposed two overarching requirements 
upon NICS via the BSCA. First, in addition to the traditional NICS 
check of relevant FBI systems, NICS is required to conduct additional 
outreach to three specified types of State and local entities to 
determine whether the prospective transferee has a ``possibly 
disqualifying juvenile record'' under 18 U.S.C. 922(d). See 34 U.S.C. 
40901(l).
---------------------------------------------------------------------------

    \11\ Under Federal law, persons who are at least 18 years of age 
are of lawful age to purchase shotguns and rifles; however, some 
States set a higher minimum age under State law. See 18 U.S.C. 
922(b).
---------------------------------------------------------------------------

    Second, beyond the possibility of a three-business-day 
investigatory period already allowed for a NICS transaction as noted 
above, the BSCA provides for an additional investigatory period, if 
needed, as part of an under-21 transaction, up to a total of ten 
business days (the traditional three business days described above plus 
up to an additional seven business days for further investigation), 
before an FFL may transfer a firearm to a person under 21. See 18 
U.S.C. 922(t)(1)(C), 34 U.S.C. 40901(l)(3). The additional 
investigatory period applies if NICS determines that there is cause to 
further investigate whether the prospective transferee has a possibly 
disqualifying juvenile record under 18 U.S.C. 922(d). See 18 U.S.C. 
922(t)(1)(C); 34 U.S.C. 40901(l)(3). NICS is required to notify the FFL 
no later than the end of the third business day if the additional 
investigatory period is needed. See 34 U.S.C. 40901(l)(2).
    The BSCA amended 18 U.S.C. 922(t) to provide that, for under-21 
transactions, where cause exists (in the first three business days) to 
investigate further whether the prospective transferee has a possibly 
disqualifying juvenile record under 18 U.S.C. 922(d), and the FFL is 
notified that such cause exists, the FFL may not transfer a firearm to 
the prospective transferee during the investigatory period without 
receiving a follow-up ``Proceed'' response from the system, or allowing 
the elapse of up to ten business days from the date the background 
check was initiated, whichever occurs first. The permissible transfer 
date for an under-21 transaction on which the FFL has been notified 
that there is cause for further investigation, therefore, is now the 
day after the tenth business day, in the absence of a follow-up 
``Proceed'' response.
    Accordingly, the Department is making amendments to conform ATF's 
regulations that instruct FFLs on the requirement to conduct NICS 
checks and when they may subsequently transfer a firearm with the 
above-described provisions of the BSCA for under-21 transactions. The 
Department is amending 27 CFR 478.102(a)(2) and (3) by adding 
information on a possible further investigatory response from NICS for 
transferees under 21 years old, how that affects the timing of the 
possible transaction, and revising the examples to distinguish between 
the standard background check investigatory period and a potential 
additional investigatory period for a transferee who is under 21 years 
old.

E. Updates to Recordkeeping Requirements

    The Department is also amending 27 CFR 478.124(c)(1) to reflect the 
BSCA and NDNA statutory amendments by adding additional information 
requirements for transaction records. Section 478.124 covers firearms 
transaction records that licensees are required to keep for 
transactions with nonlicensees. Paragraph (c)(1) of Sec.  478.124 
establishes that, for each transaction, the licensee must have a 
transferee fill out a Form 4473 with information relevant to conducting 
a background check as well as recording the transfer and certifying 
that the transferee is not a prohibited person. In accordance with the 
new ``straw purchase'' and ``firearms trafficking'' prohibitions and 
additional transfer prohibitions included in the BSCA, the Department 
is adding language to the transferee certification portion of the form, 
whereby the transferee will certify that they do not intend to purchase 
or acquire a firearm for sale or other disposition to a prohibited 
person or in furtherance of a felony, Federal crime of terrorism, or a 
drug trafficking offense. These provisions requiring that the Form 4473 
reflect this information implement new subsections (d)(10) and (d)(11) 
of 18 U.S.C. 922, which make it unlawful for a person to transfer a 
firearm to another if the transferor has reasonable cause to believe 
the transferee intends to sell or otherwise dispose of the firearm to a 
prohibited person or in furtherance of a felony, Federal crime of 
terrorism, or a drug trafficking offense. These BSCA provisions were 
already incorporated into the certification on ATF Form 4473, as 
described above.
    The NDNA requires the Attorney General to report when NICS issues a 
denial of a firearm transfer pursuant to 18 U.S.C. 922(t) to the local 
law enforcement authorities (as defined in 18 U.S.C. 921(a)(36)) of the 
State or Tribe where the person sought to acquire the firearm, or, if 
different, the local law enforcement authorities of the State or Tribe 
where the person resides. Moreover, as discussed in Section II.D of 
this preamble, the BSCA requires NICS to contact certain State and 
local authorities when a licensee contacts NICS regarding a proposed 
transfer of a firearm to a person under 21 years old. The Department is 
amending Sec.  478.124(c)(1) to require additional information on the 
transferee's residence address (to add whether they reside in city 
limits or not) as necessary to identify the record locations that must 
be searched pursuant to the BSCA and NDNA, and, as necessary, for NICS 
to notify the ``local law enforcement authority'' where the transferee 
resides when a transfer is denied, pursuant to the NDNA (18 U.S.C. 
925B). The revised Form 4473 already includes a question requesting 
this city limits information from potential transferees; this rule will 
require FFLs to collect that information from potential transferees on 
the Form 4473.
    The NDNA requirements for NICS background checks of, and reports 
to,

[[Page 28628]]

local and Tribal law enforcement also include a new definition of 
``local law enforcement authority'' added to 18 U.S.C. 921(a)(36), and 
the Department is adding this definition to 27 CFR 478.11 as well. The 
Department is also including a minor technical revision to 27 CFR 
478.124(c)(1) to update references to ``INS'' to references to ``DHS.'' 
Although the relevant statute refers to the INS, that agency no longer 
exists, and the Department is therefore taking this opportunity to 
update the regulation to refer to DHS, the successor agency for that 
function.
    Because of the BSCA and NDNA changes described above, the 
Department is also making technical revisions to paragraph (f) of Sec.  
478.124, which requires nonlicensees, among other provisions, to submit 
a Form 4473 to an FFL if they are acquiring firearms by other than an 
over-the-counter transaction as permitted by 18 U.S.C. 922(c). The 
regulations refer to the same Form 4473 whether the person is acquiring 
a firearm under Sec.  478.124(c) or (f); therefore, the technical 
revisions the Department is making to Sec.  478.124(f) that describe 
what the Form 4473 must show as submitted by the transferee are the 
same as those described for Sec.  478.124(c)(1). As described above, 
these technical changes to conform with the BSCA and NDNA include that 
the Form 4473 reflect the transferee's residence address (including 
county or similar political subdivision and whether they reside within 
the city limits) and certification that the transferee does not intend 
to purchase or acquire a firearm for sale or other disposition to a 
prohibited person or in furtherance of a felony, Federal crime of 
terrorism, or a drug trafficking offense. Other minor revisions to 
Sec.  478.124(f) include adding ``sex,'' ``transferee's country of 
citizenship,'' ``the transferee's DHS-issue alien number or admission 
number'' and ``the transferee's State of residence'' to the list of 
information that the Form 4473 must include when submitted by the 
transferee. These changes are to ensure parity between Sec.  
478.124(c)(1) and (f).

III. Statutory and Executive Order Review

A. Executive Orders 12866, 13563, and 14094

    Executive Order 12866 (``Regulatory Planning and Review'') directs 
agencies to assess the costs and benefits of available regulatory 
alternatives and, if regulation is necessary, to select regulatory 
approaches that maximize net benefits (including potential economic, 
environmental, public health and safety effects, distributive impacts, 
and equity). Executive Order 13563 (``Improving Regulation and 
Regulatory Review'') emphasizes the importance of quantifying both 
costs and benefits, of reducing costs, of harmonizing rules, and of 
promoting flexibility. Executive Order 14094 (``Modernizing Regulatory 
Review'') amends section 3(f) of Executive Order 12866.
    OMB has determined that this rule is not a ``significant regulatory 
action'' under Executive Order 12866, as amended by Executive Order 
14094, and it is not a significant action under section 3(f)(1) of 
Executive Order 12866.
    The BSCA requires enhanced background checks for firearm purchasers 
under 21 years old, clarifies Federal firearms license requirements, 
authorizes funding for State red flag laws and other crisis 
intervention programs, creates new Federal offenses for arms 
trafficking and straw purchases, and partially closes the ``boyfriend 
loophole,'' which previously excluded domestic violence offenses 
involving dating relationships from firearms restrictions equivalent 
with those involving a spouse. The NDNA requires the Attorney General 
to report to State, local, and Tribal law enforcement when NICS 
provides a notice pursuant to 18 U.S.C. 922(t) that the receipt of a 
firearm by a person seeking to receive a firearm in their jurisdiction 
(or living in their jurisdiction and seeking a firearm from elsewhere) 
would violate 18 U.S.C. 922(g) or (n). This direct final rule merely 
incorporates the new statutory provisions into existing ATF firearms 
regulations (the related revisions to the FBI NICS regulations will be 
implemented in separate rules). Upon review of these new provisions, 
ATF has determined that costs associated with this rule are largely 
costs associated with updating ATF Form 4473 to align the questions and 
information regarding background checks on that form with the new 
statutory requirements. ATF Form 4473 was updated through OMB to align 
with the new requirements in December 2022 and the form was approved 
for another three years in August 2023. This rule does not require 
further updates to the form.

B. Executive Order 13132

    This regulation will not have substantial direct effects on the 
States, the relationship between the Federal Government and the States, 
or the distribution of power and responsibilities among the various 
levels of government. Therefore, in accordance with section 6 of 
Executive Order 13132 (``Federalism''), the Attorney General has 
determined that this regulation does not have sufficient federalism 
implications to warrant the preparation of a federalism summary impact 
statement.

C. Executive Order 12988

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

D. Regulatory Flexibility Act

    In accordance with the Regulatory Flexibility Act, 5 U.S.C. 603, 
604, and 605(b), a Regulatory Flexibility Analysis is not required for 
this direct final rule because the Department was not required to 
publish a general notice of proposed rulemaking for this matter.

E. Unfunded Mandates Reform Act of 1995

    This direct 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 (as adjusted for 
inflation), 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, Pub. L. 104-4, 
109 Stat. 48.

F. Paperwork Reduction Act of 1995

    Under the Paperwork Reduction Act of 1995 (``PRA''), 44 U.S.C. 
3501-3521, agencies are required to submit to OMB, for review and 
approval, any reporting requirements inherent in a rule. This direct 
final rule does not impose any new reporting or recordkeeping 
requirements under the PRA. OMB has approved the existing Form 4473 
information collection under OMB Control Number 1140-0020.

G. Congressional Review Act

    Pursuant to the Congressional Review Act, 5 U.S.C. 801-808, OMB's 
Office of Information and Regulatory Affairs has determined that this 
direct final rule is not a ``major rule,'' as defined in 5 U.S.C. 
804(2).

H. Direct Final Rulemaking

    Under the Administrative Procedure Act (``APA''), 5 U.S.C. 
553(b)(B), an agency may, for good cause, find that the usual 
requirements of prior notice and comment are impracticable, 
unnecessary, or contrary to the public interest. The notice-and-comment 
requirements also do not apply to ``interpretive rules,'' meaning those 
that ``remind parties of existing statutory or regulatory duties, or 
`merely track[ ]'

[[Page 28629]]

preexisting requirements and explain something the statute or 
regulation already required.'' POET Biorefining, LLC v. EPA, 970 F.3d 
392, 407 (D.C. Cir. 2020) (quotation marks omitted); see also United 
States v. Kriesel, 508 F.3d 941, 945 (9th Cir. 2007) (a regulation that 
``mirror[s] the statute'' is a ``classic interpretive rule''). As 
described above, this direct final rule simply incorporates statutory 
changes into existing regulatory provisions that already mirrored 
preexisting statutory language. These conforming updates to ATF 
regulations in part 478 are to ensure that ATF regulations are 
consistent with the statutes and can be relied upon by the public. In 
the absence of this rule, however, the relevant statutes provide an 
adequate basis for enforcement action. Therefore, because this 
rulemaking is limited to directly incorporating statutory provisions, 
which can already be enforced absent this rule, notice and comment on 
this rule is unnecessary and not practical to implement the BSCA and 
NDNA. Were ATF to receive an adverse comment on the statutory 
requirements, the Department would not be able to alter those 
requirements in response to comments because it cannot change the 
statutory provisions enacted by Congress. For these reasons, the 
Department has determined that publishing a notice of proposed 
rulemaking and providing opportunity for comment is unnecessary under 
the good cause and interpretive rule exceptions to the APA's notice-
and-comment requirements. See 5 U.S.C. 553(b)(4).
    Nonetheless, the Department is providing the public a 90-day 
delayed effective date and an opportunity to comment in accordance with 
Recommendation 95-4, Procedures for Noncontroversial and Expedited 
Rulemaking, issued by the Administrative Conference of the United 
States (``ACUS''). ACUS has described direct final rulemaking as an 
appropriate procedure where the ``unnecessary'' prong of the good cause 
exemption is available, in order to expedite promulgation of rules that 
are non-controversial and that are not expected to generate significant 
adverse comment. See 60 FR 43108, 43108 (Aug. 18, 1995).
    Under direct final rulemaking, an agency may issue a rule that it 
believes to be non-controversial ``without having to go through the 
review process twice . . . while at the same time offering the public 
the opportunity to challenge the agency's view that the rule is 
noncontroversial.'' Id. at 43110. If the agency determines that it has 
received a significant adverse comment the direct final rule will be 
withdrawn before its effective date. Id. Recommendation 95-4 also 
provides that, in determining whether a significant adverse comment is 
sufficient to terminate a direct final rulemaking, agencies should 
consider whether the comment raises an issue serious enough to warrant 
a substantive response in a notice-and-comment process. Id.
    As this rulemaking is limited to directly incorporating statutory 
provisions (rather than effecting a substantive or discretionary change 
in existing law pursuant to the Department's congressional delegation 
of authority), direct final rulemaking is appropriate here because the 
Department does not expect ATF to receive any significant adverse 
comments.\12\ As discussed in more detail in Section IV of this 
preamble, ATF could receive adverse comments on the assessment that the 
rulemaking is non-controversial.
---------------------------------------------------------------------------

    \12\ To the extent that the APA and 18 U.S.C. 926(b)'s 
procedural requirements may apply to this rule, ATF is complying 
with those requirements by providing a 90-day delayed effective date 
and an opportunity for the public to submit comments in accordance 
with ACUS Recommendation 95-4.
---------------------------------------------------------------------------

    In sum, although the Department has determined that prior notice 
and comment and a delayed effective date are ``unnecessary'' in 
accordance with the APA's good cause and interpretive rule exceptions 
in 5 U.S.C. 553(b)(4), the Department is providing that the rule will 
take effect 90 days after publication and is allowing a 30-day period 
for submission of significant adverse comments for the reasons 
described above. Therefore, unless ATF receives a significant adverse 
comment by May 20, 2024, this rule will become effective on July 18, 
2024. If ATF receives any timely significant adverse comments, the 
Department will publish notification in the Federal Register, 
withdrawing this direct final rule before its effective date. See the 
section on ``Public Participation'' in this preamble for a description 
of a significant adverse comment.

IV. Public Participation

A. Comments Sought

    ATF accepts comments from all interested persons. Pertinent to this 
direct final rule, a significant adverse comment is a comment in which 
the commenter explains why the rule, rather than the statutory language 
that the Department is incorporating into ATF's regulations, is 
controversial or would be inappropriate, including challenges to the 
rule's underlying premise or approach, or would be ineffective or 
unacceptable without a change. A comment is significant and adverse if:
    (1) The comment opposes the Department's assessment regarding the 
non-controversial nature of the rule and provides a reason sufficient 
to require a substantive response in a notice-and-comment process. For 
example, a substantive response may be required when:
    (a) The comment causes the Department to reconsider its position or 
conduct additional analysis;
    (b) The comment raises an issue serious enough to warrant a 
substantive response to clarify or complete the record; or
    (c) The comment raises a relevant issue that was not previously 
addressed or considered by the Department;
    (2) The comment proposes a salient change or an addition to the 
rule, and it is apparent that the rule would be ineffective or 
unacceptable without incorporation of the change or addition; or
    (3) The comment causes the Department to make a change (other than 
editorial or administrative) to the rule.
    Comments that raise concerns regarding the underlying statutory 
provisions that this rule is incorporating into existing regulations 
will not be considered significant adverse comments. Those statutory 
provisions were enacted by Congress and cannot be altered by the 
Department. Accordingly, the Department is unable to provide a 
substantive response to such comments.
    All comments must reference this document's docket number ATF 
2022R-09 and be legible. Commenters are encouraged to include the 
commenter's complete first and last name and contact information. If 
submitting a comment through the Federal eRulemaking portal, as 
described below in Section IV.C of this preamble, commenters should 
carefully review and follow the instructions on that website on 
submitting comments. If submitting a comment by mail, commenters should 
review Section IV.B (``Confidentiality'') of this preamble regarding 
proper submission of PII. ATF may not consider, or respond to, comments 
that do not meet these requirements or comments containing profanity. 
ATF will retain comments containing profanity as part of this direct 
final rule's administrative record but will not publish such documents 
on www.regulations.gov. ATF will treat all comments as originals and 
will not acknowledge receipt of comments. In addition, if ATF cannot 
read your

[[Page 28630]]

comment due to technical difficulties and cannot contact you for 
clarification, ATF may not be able to consider your comment.

B. Confidentiality

    ATF will make all comments meeting the requirements of Section IV, 
whether submitted electronically or on paper, available for public 
viewing at ATF and on the internet through the Federal eRulemaking 
portal, and subject to the Freedom of Information Act (5 U.S.C. 552) 
(``FOIA''). Commenters who submit by mail and who do not want their 
name or other PII posted on the internet should submit their comments 
along with a separate cover sheet containing their PII. Both the cover 
sheet and comment must reference this docket number (ATF 2022R-09). For 
comments submitted by mail, information contained on the cover sheet 
will not appear when posted on the internet but any PII that appears 
within the body of a comment will not be redacted by ATF and it will 
appear on the internet. Commenters who submit through the Federal 
eRulemaking portal and who do not want any of their PII posted on the 
internet should omit such PII from the body of their comment or in any 
uploaded attachments.
    A commenter may submit to ATF information identified as proprietary 
or confidential business information. The commenter must place any 
portion of a comment that is proprietary or confidential business 
information under law on pages separate from the balance of the comment 
with each page prominently marked ``PROPRIETARY OR CONFIDENTIAL 
BUSINESS INFORMATION'' at the top of the page.
    ATF will not make proprietary or confidential business information 
submitted in compliance with these instructions available when 
disclosing the comments that it receives, but will disclose that the 
commenter provided proprietary or confidential business information 
that ATF is holding in a separate file to which the public does not 
have access. If ATF receives a request to examine or copy this 
information, it will treat it as any other request under FOIA. In 
addition, ATF will disclose such proprietary or confidential business 
information to the extent required by other legal processes.

C. Submitting Comments

    Submit comments using either of the two methods below (but do not 
submit the same comment multiple times or by more than one method). 
Hand-delivered comments will not be accepted.
     Federal eRulemaking portal: ATF recommends that you submit 
your comments to ATF via the Federal eRulemaking portal at 
www.regulations.gov and follow the instructions. Comments will be 
posted within a few days of being submitted. However, if large volumes 
of comments are being processed simultaneously, your comment may not be 
viewable for up to several weeks. Please keep the comment tracking 
number that is provided after you have successfully uploaded your 
comment.
     Mail: Send written comments to the address listed in the 
ADDRESSES section of this document. Written comments must appear in 
minimum 12-point font size (.17 inches), include the commenter's first 
and last name and full mailing address, be signed, and may be of any 
length. See also Section IV.B (``Confidentiality'') of this preamble.

Disclosure

    Copies of this direct final rule and the comments received in 
response to it will be available through the Federal eRulemaking 
portal, at www.regulations.gov (search for RIN 1140-AA57), and for 
public inspection by appointment during normal business hours at: ATF 
Reading Room, Room 1E-063, 99 New York Ave. NE, Washington, DC 20226; 
telephone: (202) 648-8740.

List of Subjects in 27 CFR Part 478

    Administrative practice and procedure, Arms and munitions, Exports, 
Freight, Imports, Intergovernmental relations, Law enforcement 
officers, Military personnel, Penalties, Reporting and recordkeeping 
requirements, Research, Seizures and forfeitures, Transportation.

Authority and Issuance

    For the reasons discussed in the preamble, the Department amends 27 
CFR part 478 as follows:

PART 478--COMMERCE IN FIREARMS AND AMMUNITION

0
1. The authority citation for 27 CFR part 478 continues to read as 
follows:

    Authority: 5 U.S.C. 552(a); 18 U.S.C. 847, 921-931; 44 U.S.C. 
3504(h).


0
2. Amend Sec.  478.11 as follows:
0
a. Add, in alphabetical order, definitions for ``Dating relationship,'' 
``Drug-trafficking crime,'' ``Federal crime of terrorism,'' ``Felony,'' 
and ``Local law enforcement authority''; and
0
b. In the definition of ``Misdemeanor crime of domestic violence'':
0
i. Redesignate paragraphs (a) introductory text and (a)(1) through (3) 
as paragraphs (1) introductory text and (1)(i) through (iii), 
respectively;
0
ii. Revise newly redesignated paragraphs (1)(i) and (iii);
0
iii. Redesignate paragraphs (b) introductory text, (b)(1) and (2), 
(b)(3) introductory text, and (b)(3)(i) and (ii) as paragraphs (2) 
introductory text, (2)(i) and (ii), (2)(iii) introductory text, and 
(2)(iii)(A) and (B), respectively;
0
iv. Redesignate paragraph (c) as paragraph (iii); and
0
v. Add paragraph (iv).
    The revisions and additions read as follows:


Sec.  478.11  Meaning of terms.

* * * * *
    Dating relationship. A relationship between individuals who have or 
have recently had a continuing serious relationship of a romantic or 
intimate nature. A casual acquaintanceship or ordinary fraternization 
in a business or social context does not constitute a dating 
relationship. Whether a relationship constitutes a dating relationship 
shall be determined based on consideration of--
    (1) The length of the relationship;
    (2) The nature of the relationship; and
    (3) The frequency and type of interaction between the individuals 
involved in the relationship.
* * * * *
    Drug trafficking crime. (1) Any felony punishable under the 
Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled 
Substances Import and Export Act (21 U.S.C. 951 et seq.), or 46 U.S.C. 
chapter 705; and
    (2) Any felony punishable under the law of a State for which the 
conduct constituting the offense would constitute a felony punishable 
under the statutes cited in paragraph (1) of this definition.
* * * * *
    Federal crime of terrorism. Any offense as defined under 18 U.S.C. 
2332b(g)(5).
* * * * *
    Felony. Any offense under Federal or State law punishable by 
imprisonment for a term exceeding one year.
* * * * *
    Local law enforcement authority. A bureau, office, department, or 
other authority of a State or local government or Tribe that has 
jurisdiction to investigate a violation or potential violation of, or 
enforce, a State, local, or Tribal law.
* * * * *
    Misdemeanor crime of domestic violence. (1) * * *
    (i) Is a misdemeanor under Federal, State, Tribal, or local law or, 
in States which do not classify offenses as misdemeanors, is an offense 
punishable

[[Page 28631]]

by imprisonment for a term of one year or less, and includes offenses 
that are punishable only by a fine. (This is true whether or not the 
State statute specifically defines the offense as a ``misdemeanor'' or 
as a ``misdemeanor crime of domestic violence.'' The term includes all 
such misdemeanor convictions in Indian Courts established pursuant to 
25 CFR part 11.);
* * * * *
    (iii) Was committed by a current or former spouse, parent, or 
guardian of the victim; by a person with whom the victim shares a child 
in common; by a person who is cohabiting with or has cohabited with the 
victim as a spouse, parent, or guardian, (e.g., the equivalent of a 
``common law'' marriage even if such relationship is not recognized 
under the law); by a person similarly situated to a spouse, parent, or 
guardian of the victim (e.g., two persons who are residing at the same 
location in an intimate relationship with the intent to make that place 
their home would be similarly situated to a spouse); or by a person who 
has a current or recent former dating relationship with the victim.
* * * * *
    (iv)(A) Subject to paragraphs (iv)(B) and (C) of this definition, a 
person shall not be considered to have been convicted of a misdemeanor 
crime of domestic violence against an individual in a dating 
relationship if the conviction has been expunged or set aside, or is an 
offense for which the person has been pardoned or has had firearm 
rights restored, unless the expungement, pardon, or restoration of 
rights expressly provides that the person may not ship, transport, 
possess, or receive firearms.
    (B) In the case of a person who has not more than one conviction of 
a misdemeanor crime of domestic violence against an individual in a 
dating relationship, and is not otherwise prohibited under 18 U.S.C. 
chapter 44, the person shall not be disqualified from shipping, 
transport, possession, receipt, or purchase of a firearm under 18 
U.S.C. chapter 44 if:
    (1) Five years have elapsed from the later of the judgment of 
conviction or the completion of the person's custodial or supervisory 
sentence, if any; and
    (2) The person has not subsequently been convicted of another such 
offense, or any misdemeanor under Federal, State, local, or Tribal law 
that has, as an element, the use or attempted use of physical force, or 
the threatened use of a deadly weapon, or any other offense that would 
disqualify the person under 18 U.S.C. 922(g).
    (C) Restoration under paragraph (iv)(B) of this definition only 
removes the disqualification from shipping, transport, possession, 
receipt, or purchase of a firearm under this part. Restoration under 
paragraph (iv)(B) is not available for a current or former spouse, 
parent, or guardian of the victim; a person with whom the victim shares 
a child in common; a person who is cohabiting with or has cohabited 
with the victim as a spouse, parent, or guardian; or a person similarly 
situated to a spouse, parent, or guardian of the victim.
* * * * *

0
3. Amend Sec.  478.32 as follows:
0
a. Revise the section heading and paragraph (d) introductory text;
0
b. Remove the comma at the end of paragraphs (d)(1) through (3) and add 
in its place a semicolon;
0
c. Revise paragraph (d)(4);
0
d. Remove the comma at the end of paragraphs (d)(5)(ii)(D) and (d)(6) 
and (7) and add in its place a semicolon;
0
e. Remove ``, or'' at the end of paragraph (d)(8)(ii)(B) and add in its 
place a semicolon;
0
f. Remove the period at the end of paragraph (d)(9) and add in its 
place a semicolon; and
0
g. Add paragraphs (d)(10) and (11), (g), and (h).
    The revisions and additions read as follows:


Sec.  478.32  Prohibited shipment, transportation, possession, 
purchase, or receipt of firearms and ammunition by certain persons.

* * * * *
    (d) No person may sell or otherwise dispose of any firearm or 
ammunition to any person knowing or having reasonable cause to believe 
that such person, including as a juvenile:
* * * * *
    (4) Has been adjudicated as a mental defective or has been 
committed to a mental institution at 16 years of age or older;
* * * * *
    (10) Intends to sell or otherwise dispose of the firearm or 
ammunition in furtherance of a felony, a Federal crime of terrorism, or 
a drug trafficking offense; or
    (11) Intends to sell or otherwise dispose of the firearm or 
ammunition to a person described in any of paragraphs (d)(1) through 
(10) of this section.
* * * * *
    (g) No person may knowingly purchase or conspire to purchase any 
firearm in or otherwise affecting interstate or foreign commerce for, 
or on behalf of, or at the request or demand of any other person, 
knowing or having reasonable cause to believe that such other person:
    (1) Meets the criteria of 1 or more subsections of 18 U.S.C. 
922(d);
    (2) Intends to use, carry, possess, or sell or otherwise dispose of 
the firearm in furtherance of a felony, a Federal crime of terrorism, 
or a drug trafficking crime; or
    (3) Intends to sell or otherwise dispose of the firearm to a person 
described in paragraph (g)(1) or (2) of this section.
    (h) No person may:
    (1) Ship, transport, transfer, cause to be transported, or 
otherwise dispose of, any firearm to another person in or otherwise 
affecting interstate or foreign commerce, knowing or having reasonable 
cause to believe that it would constitute a felony for the recipient to 
use, carry, or possess a firearm;
    (2) Receive from another person any firearm in or otherwise 
affecting interstate or foreign commerce if the recipient knows or has 
reasonable cause to believe that receiving the firearm would constitute 
a felony; or
    (3) Attempt or conspire to commit the conduct described in 
paragraph (h)(1) or (2) of this section.


Sec.  478.73  [Amended]

0
4. Amend Sec.  478.73 in paragraph (a) by removing ``demonstrating that 
the transferee's receipt of a firearm would violate 18 U.S.C. 922(g) or 
922(n) or State law'' and adding in its place ``demonstrating that 
transfer to the transferee or their receipt of a firearm would violate 
18 U.S.C. 922(d), 922(g), or 922(n) (as applicable), or State, local, 
or Tribal law''.

0
5. Amend Sec.  478.99 as follows:
0
a. Revise the section heading and paragraphs (c) introductory text and 
(c)(4);
0
b. Remove ``, or'' at the end of paragraph (c)(8)(ii)(B) and add in its 
place a semicolon;
0
c. Remove the period at the end of paragraph (c)(9) and add in its 
place a semicolon; and
0
d. Add paragraphs (c)(10) and (11), (f), and (g).
    The revisions and additions read as follows:


Sec.  478.99  Certain prohibited sales, purchases, or deliveries.

* * * * *
    (c) Sales or deliveries to prohibited categories of persons. No 
person may sell or otherwise dispose of any firearm or ammunition to 
any person knowing or having reasonable cause to believe

[[Page 28632]]

that such person, including as a juvenile:
* * * * *
    (4) Has been adjudicated as a mental defective or has been 
committed to a mental institution at 16 years of age or older;
* * * * *
    (10) Intends to sell or otherwise dispose of the firearm or 
ammunition in furtherance of a felony, a Federal crime of terrorism, or 
a drug trafficking offense; or
    (11) Intends to sell or otherwise dispose of the firearm or 
ammunition to a person described in any of paragraphs (c)(1) through 
(10) of this section.
* * * * *
    (f) Purchase for, or conspire to purchase for, or sell or otherwise 
dispose of firearms to certain prohibited persons. It is unlawful for 
any person to knowingly purchase, or conspire to purchase, any firearm 
in or otherwise affecting interstate or foreign commerce for, on behalf 
of, or at the request or demand of any other person, knowing or having 
reasonable cause to believe that such other person:
    (1) Meets the criteria of one or more subsections of 18 U.S.C. 
922(d);
    (2) Intends to use, carry, possess, or sell or otherwise dispose 
of, the firearm in furtherance of a felony, a Federal crime of 
terrorism, or a drug trafficking crime; or
    (3) Intends to sell or otherwise dispose of the firearm to a person 
described in paragraph (f)(1) or (2) of this section.
    (g) Transfer, otherwise dispose of, or attempt or conspire to 
dispose of, ship, transport, or cause to be transported, firearms when 
use, carrying, possession, or receipt constitutes a felony. It shall be 
unlawful for any person to:
    (1) Transfer, otherwise dispose of, ship, transport, or cause to be 
transported, any firearm to another person in or otherwise affecting 
interstate or foreign commerce, knowing or having reasonable cause to 
believe that it would constitute a felony for the recipient to use, 
carry, or possess a firearm;
    (2) Receive any firearm in or otherwise affecting interstate or 
foreign commerce if the recipient knows or has reasonable cause to 
believe that receiving the firearm would constitute a felony; or
    (3) Attempt or conspire to commit the conduct described in 
paragraph (g)(1) or (2) of this section.

0
6. Amend Sec.  478.102 as follows:
0
a. Revise paragraphs (a)(2) and (3);
0
b. Remove the example following paragraph (a)(3); and
0
c. Redesignate examples 1 through 3 to paragraph (c) as examples 3 
through 5.
    The revisions read as follows:


Sec.  478.102  Sales or deliveries of firearms on and after November 
30, 1998.

    (a) * * *
    (2) The licensee has verified the identity of the transferee by 
examining the identification document presented in accordance with the 
provisions of Sec.  478.124(c); and
    (3) NICS has responded to the licensee with one of the following 
results, or has not responded to the licensee and the required 
investigatory period has elapsed:
    (i) Notification. NICS provides the licensee with a ``Proceed'' 
notification and a unique identification number, at which time the 
transfer may proceed.
    (ii) Initial investigatory period. If NICS does not respond to the 
licensee as described in paragraph (a)(3)(i) of this section, the 
licensee must not proceed with the transfer for three business days 
(days on which State offices are open). If three business days have 
elapsed from the date the licensee contacted NICS, and NICS has not 
provided the licensee with a ``Denied'' notification, the licensee may 
proceed with the transfer unless the transferee is under 21 years old 
and paragraph (a)(3)(iii) of this section applies.
    Example 1 to paragraph (a)(3)(ii): A licensee contacts NICS on 
Thursday and gets a ``Delayed'' response. The licensee does not get a 
further response from NICS of any kind. If State offices are not open 
on Saturday and Sunday, three business days would have elapsed on the 
following Tuesday. The licensee may transfer the firearm on the next 
day, Wednesday.
    (iii) Additional investigatory period in the case of a transferee 
who is under 21 years old (applies through September 30, 2032). In the 
case of a transferee under 21 years of age, if NICS notifies the 
licensee within three business days from the date the licensee 
contacted NICS that cause exists for further investigation, the 
licensee may not proceed with the transfer until they receive a follow-
up ``Proceed'' response from NICS or until another seven business days 
have expired, exclusive of the day on which the query is made (up to 
ten business days in total), whichever occurs first. If ten business 
days have elapsed from the date the licensee contacted NICS, and NICS 
has not notified the licensee that transfer to, or receipt of the 
firearm by, the transferee is ``Denied,'' the transfer may proceed.
    Example 2 to paragraph (a)(3)(iii): A licensee contacts NICS on 
Thursday, the 10th and gets a ``Delayed'' response. If State offices 
are not open on Saturdays and Sundays, three business days would elapse 
on the following Tuesday, the 15th. If the transferee is a person 21 
years of age or older, the FFL may transfer the firearm at 12:01 on 
Wednesday, the 16th. However, if the transferee is a person less than 
21 years of age, and NICS notifies the licensee by Tuesday, the 15th, 
that cause exists for further investigation of a possibly disqualifying 
juvenile record, the licensee may not transfer the firearm the next 
day, the 16th. If the licensee does not get a further response from 
NICS by the end of the tenth business day denying the transfer, the 
licensee may transfer the firearm the next day. Ten business days would 
elapse on the Thursday of the following week, the 24th. The licensee 
may transfer the firearm on the next day, Friday, the 25th.
* * * * *

0
7. Amend Sec.  478.124 by revising paragraphs (c)(1) and (f) to read as 
follows:


Sec.  478.124  Firearms transaction record.

* * * * *
    (c)(1) Prior to making an over-the-counter transfer of a firearm to 
a non-licensee who is a resident of the State in which the licensee's 
business premises is located, the licensed importer, licensed 
manufacturer, or licensed dealer so transferring the firearm shall 
obtain a Form 4473 from the transferee showing the transferee's name, 
sex, residence address (including county or similar political 
subdivision and whether they reside within city limits), and date and 
place of birth; the height, weight, and race of the transferee; the 
transferee's country of citizenship; the transferee's DHS-issued alien 
number or admission number; the transferee's State of residence; 
certification by the transferee that the transferee is not prohibited 
by the Act from transporting or shipping a firearm in interstate or 
foreign commerce or receiving a firearm which has been shipped or 
transported in interstate or foreign commerce or possessing a firearm 
in or affecting commerce; and certification that the transferee does 
not intend to purchase or acquire any firearm for sale or other 
disposition to a person so prohibited or in furtherance of any felony 
or other offense punishable by imprisonment for a term of more than one 
year, a Federal crime of terrorism, or a drug trafficking offense.
* * * * *

[[Page 28633]]

    (f) Form 4473 shall be submitted, in duplicate, to a licensed 
importer, licensed manufacturer, or licensed dealer by a transferee who 
is purchasing or otherwise acquiring a firearm by other than an over-
the-counter transaction, who is not subject to the provisions of Sec.  
478.102(a), and who is a resident of the State in which the licensee's 
business premises are located. The Form 4473 shall show the 
transferee's name, sex, residence address (including county or similar 
political subdivision and whether they reside within city limits), and 
date and place of birth; the height, weight, and race of the 
transferee; the transferee's country of citizenship; the transferee's 
DHS-issued alien number or admission number; the transferee's State of 
residence; and the title, name, and address of the principal law 
enforcement officer of the locality to which the firearm will be 
delivered. The transferee shall also certify on the Form 4473 that the 
transferee does not intend to purchase or acquire any firearm for sale 
or other disposition to a person so prohibited or in furtherance of any 
felony or other offense punishable by imprisonment for a term of more 
than one year, a Federal crime of terrorism, or a drug trafficking 
offense. The licensee shall identify the firearm to be transferred by 
listing in the Forms 4473 the name of the manufacturer, the name of the 
importer (if any), the type, model, caliber or gauge, and the serial 
number of the firearm to be transferred. Where no manufacturer name has 
been identified on a privately made firearm, the words ``privately made 
firearm'' (or abbreviation ``PMF'') shall be recorded as the name of 
the manufacturer. The licensee shall prior to shipment or delivery of 
the firearm to such transferee, forward by registered or certified mail 
(return receipt requested) a copy of the Form 4473 to the principal law 
enforcement officer named in the Form 4473 by the transferee, and shall 
delay shipment or delivery of the firearm to the transferee for a 
period of at least 7 days following receipt by the licensee of the 
return receipt evidencing delivery of the copy of the Form 4473 to such 
principal law enforcement officer, or the return of the copy of the 
Form 4473 to the licensee due to the refusal of such principal law 
enforcement officer to accept same in accordance with U.S. Postal 
Service regulations. The original Form 4473, and evidence of receipt or 
rejection of delivery of the copy of the Form 4473 sent to the 
principal law enforcement officer, shall be retained by the licensee as 
a part of the records required to be kept under this subpart.
* * * * *

0
8. Amend Sec.  478.152 by adding paragraphs (d) and (e) to read as 
follows:


Sec.  478.152  Seizure and forfeiture.

* * * * *
    (d) Any person convicted of a violation of section 932 or 933 of 
the Act shall forfeit to the United States, irrespective of any 
provision of State law--
    (1) Any property constituting, or derived from, any proceeds the 
person obtained, directly or indirectly, as the result of such 
violation; and
    (2) Any of the person's property used, or intended to be used, in 
any manner or part, to commit, or to facilitate the commission of, such 
violation, except that for any forfeiture of any firearm or ammunition 
pursuant to this section, 18 U.S.C. 924(d) shall apply.
    (e) A defendant who derives profits or other proceeds from an 
offense under section 932 or 933 of the Act may be fined not more than 
the greater of--
    (1) The fine otherwise authorized by part I of title 18 of the U.S. 
Code; or
    (2) The amount equal to twice the gross profits or other proceeds 
of the offense under section 932 or 933.

    Dated: April 12, 2024.
Merrick B. Garland,
Attorney General.
[FR Doc. 2024-08339 Filed 4-18-24; 8:45 am]
BILLING CODE 4410-FY-P