[Federal Register Volume 61, Number 146 (Monday, July 29, 1996)]
[Rules and Regulations]
[Pages 39320-39322]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19189]
[[Page 39320]]
DEPARTMENT OF THE TREASURY
Bureau of Alcohol, Tobacco and Firearms
27 CFR Part 178
[T.D. ATF-383; Ref: T.D. ATF-363 and Notice No. 807]
RIN 1512-AB35
Implementation of Public Law 103-322, the Violent Crime Control
and Law Enforcement Act of 1994--Importation of Ammunition Feeding
Devices With a Capacity of More Than 10 Rounds (94F-022P)
AGENCY: Bureau of Alcohol, Tobacco and Firearms (ATF), Department of
the Treasury.
ACTION: Temporary rule (Treasury decision).
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SUMMARY: This temporary rule amends the regulations by providing that
ammunition feeding devices with a capacity of more than 10 rounds
manufactured on or before September 13, 1994, the date of enactment of
Public Law 103-322, are eligible for importation into the United States
for general commercial sale. The temporary rule also provides guidance
on acceptable evidence that magazines sought to be imported were
manufactured on or before September 13, 1994. The temporary rule will
remain in effect until superseded by final regulations.
In the Proposed Rules section of this Federal Register, ATF is also
issuing a notice of proposed rulemaking inviting comments on the
temporary rule for a 90-day period following the publication date of
this temporary rule.
EFFECTIVE DATES: The temporary regulations are effective on July 29,
1996.
ADDRESSES: Send written comments to: Chief, Regulations Branch; Bureau
of Alcohol, Tobacco and Firearms; Washington, DC 20091-0221.
FOR FURTHER INFORMATION CONTACT: James P. Ficaretta, Regulations
Branch, Bureau of Alcohol, Tobacco and Firearms, 650 Massachusetts
Avenue, NW., Washington, DC 20226 (202-927-8230).
SUPPLEMENTARY INFORMATION:
Background
On September 13, 1994, Public Law 103-322 (108 Stat. 1796) was
enacted, amending the Gun Control Act of 1968 (GCA), as amended (18
U.S.C. Chapter 44). The provisions of Pub. L. 103-322, the Violent
Crime Control and Law Enforcement Act of 1994 (hereafter, ``the Act''),
became effective upon the date of enactment.
On April 6, 1995, ATF published in the Federal Register a temporary
rule (T.D. ATF-363, 60 FR 17446) implementing the provisions of the
Act. These regulations implement the law by restricting the
manufacture, transfer, and possession of certain semiautomatic assault
weapons and large capacity ammunition feeding devices. Except as
otherwise provided, the temporary regulations became effective upon the
date of publication in the Federal Register.
On April 6, 1995, the Bureau also published a notice of proposed
rulemaking cross-referenced to the temporary regulations (Notice No.
807, 60 FR 17494). The comment period for Notice No. 807 closed on July
5, 1995.
Large Capacity Ammunition Feeding Devices
The Act amended the GCA to create a new class of regulated items
termed ``large capacity ammunition feeding device.'' The Act defines
the term ``large capacity ammunition feeding device'' to mean:
[A] magazine, belt, drum, feed strip, or similar device
manufactured after the date of enactment of the [Act] that has the
capacity of, or that can be readily restored or converted to accept
more than 10 rounds of ammunition.
18 U.S.C. 921(a)(31).
The Act placed two new controls on these devices. First, it amended
18 U.S.C. 922 to make it unlawful, with certain exceptions, to transfer
or possess a large capacity ammunition feeding device. 18 U.S.C.
922(w)(1). Second, the Act imposed a requirement on manufacturers and
importers of the devices that they be marked with a serial number that
clearly shows that the devices were manufactured after the date of
enactment, and such other information as the Secretary may require by
regulations. 18 U.S.C. 923(i).
There are two exceptions to the general prohibition on transfer and
possession. The first is a ``grandfather clause'' that excepts the
possession or transfer of large capacity ammunition feeding devices
lawfully possessed on or before the date of enactment. 18 U.S.C.
922(w)(2). The second provides for, inter alia, the manufacture for,
transfer to, or possession by governmental entities and law enforcement
officers employed by such entities. 18 U.S.C. 922(w)(3)(A). Finally,
the statute establishes rules for prosecuting a person charged with an
unlawful transfer or possession of a device. If a person so charged
asserts that one of the two exceptions applies, the statute places the
burden of proof on the Government and provides that the lack of a
serial number is a presumption that the device is excepted. 18 U.S.C.
922(w)(4).
There are no exceptions to the marking requirements of section
923(i). The purpose of these temporary rules is to further implement
the marking requirements of section 923(i). These temporary regulations
are designed to ensure that only those imported devices manufactured
after the date of enactment are subject to the marking requirements.
Importation of Devices Under Current Regulations
The current temporary regulations generally prohibit the
importation of feeding devices with a capacity of more than 10 rounds
after the date of enactment. ATF has to date interpreted the
``grandfather clause'' as applying only to such devices lawfully
possessed in the United States on or before enactment. Thus, the only
devices allowed to be imported were under the governmental use
exception of section 922(w)(3). The current regulations require all
devices imported after the date of enactment to be marked ``RESTRICTED
LAW ENFORCEMENT/GOVERNMENT USE ONLY''. 27 CFR 178.92.
This interpretation failed to account for the date in the statutory
definition of ``large capacity ammunition feeding device.'' The
definition by its terms covers only devices manufactured after the date
of enactment. Consequently, a device manufactured on or before the date
of enactment is not a ``large capacity ammunition feeding device''
within the meaning of the statute, regardless of its size or capacity.
Therefore, these pre-enactment items are simply not subject to the
marking requirements or prohibition on transfer and possession.
Notice No. 807--Analysis of Comments--Large Capacity Ammunition Feeding
Device Issue
ATF received 129 comments in response to Notice No. 807. Comments
were submitted by Federal firearms licensees, nonlicensees, the medical
profession, religious groups and other organizations (e.g.,
Presbyterian Church (USA), Violence Policy Center, Coalition to Stop
Gun Violence, Handgun Control, Inc., and the National Rifle Association
of America), and members of Congress.
Fifty-two commenters, representing 40 percent of the total comments
received, objected to ATF's interpretation of the law as restricting
[[Page 39321]]
the importation of large capacity ammunition feeding devices after
September 13, 1994, regardless of the date of manufacture of such
devices. They also contended that the marking requirements prescribed
in Sec. 178.92(c) only apply to large capacity ammunition feeding
devices manufactured after the effective date of the statute. Similar
objections and arguments were raised in litigation challenging ATF's
interpretation of the law.
Amendment of Regulations Concerning Imported Magazines
The difficulty ATF faces in enforcing the marking requirements of
the statute is to identify those magazines manufactured after September
13, 1994, that are subject to the requirements. Although it is possible
in some cases to determine the date of manufacture based on physical
characteristics of particular magazines, in many cases pre-enactment
magazines are physically identical to post-enactment magazines. It is
impractical for the Government to conduct investigations abroad to
determine the date of manufacture of these foreign magazines.
After analyzing the comments received and in light of the above-
mentioned litigation, ATF has re-examined the Act and determined that
feeding devices with a capacity of more than 10 rounds manufactured on
or before September 13, 1994, are not subject to the restrictions of
the law. However, in order to facilitate the importation of such
devices, the regulations will require importers to provide certain
evidence with their import applications. The applications must state
that the devices are being imported for sale to government agencies or
qualified law enforcement officers or present reasonable evidence that
the devices were manufactured on or before September 13, 1994. Examples
of acceptable evidence are listed in the regulations and include (1)
permanent markings on the magazines or physical characteristics
indicating the date of manufacture; and (2) certifications from the
importer concerning the date of manufacture of the magazines, supported
by reasonable documentary evidence, such as commercial records. Any one
of these examples, which are not meant to be exhaustive, may be
sufficient to establish the time of manufacture. Recognizing the
legitimate business needs of the firearms industry in prompt action by
ATF on import applications, the regulations will require the Director
to act expeditiously on applications to import ammunition feeding
devices.
ATF's authority to require importers to obtain import permits for
ammunition feeding devices that were manufactured on or before
September 13, 1994, and to require importers to submit evidence of the
date of manufacture with the application for the import permit is based
on 18 U.S.C. 926(a). This section provides that the Secretary may issue
regulations necessary to carry out the provisions of the GCA.
The marking requirements of Sec. 178.92(c) are also being revised
to impose the marking requirements on persons who manufacture or import
any large capacity ammunition feeding device manufactured after
September 13, 1994. As indicated, the regulation currently imposes the
marking requirements on all devices imported after September 13, 1994,
regardless of the date of manufacture.
Finally, ATF is amending Sec. 178.116 to provide for the
conditional importation of an ammunition feeding device with a capacity
of more than 10 rounds for the purpose of examining and testing such
device in connection with the Bureau's determination as to whether the
importation of such device will be authorized.
Executive Order 12866
It has been determined that this temporary rule is not a
significant regulatory action as defined in E.O. 12866, because the
economic effects flow directly from the underlying statute and not from
this temporary rule. Therefore, a regulatory assessment is not
required.
Administrative Procedure Act
Because this document merely implements the law and because
immediate guidance is necessary to implement the provisions of the law,
it is found to be impracticable to issue this Treasury decision with
notice and public procedure under 5 U.S.C. 553(b), or subject to the
effective date limitation in section 553(d).
Regulatory Flexibility Act
The provisions of the Regulatory Flexibility Act relating to an
initial and final regulatory flexibility analysis (5 U.S.C. 604) are
not applicable to this temporary rule because the agency was not
required to publish a notice of proposed rulemaking under 5 U.S.C. 553
or any other law. Accordingly, a regulatory flexibility analysis is not
required.
Paperwork Reduction Act
This regulation is being issued without prior notice and public
procedure pursuant to the Administrative Procedure Act (5 U.S.C. 553).
For this reason, the collections of information contained in this
regulation have been reviewed and, pending receipt and evaluation of
public comments, approved by the Office of Management and Budget (OMB)
under control numbers 1512-0017, 1512-0018, and 1512-0019. The
estimated average annual burden associated with the collections of
information in this regulation is 6 minutes per respondent. For further
information concerning the collections of information, and where to
submit comments on the collections of information and the accuracy of
the estimated burden, and suggestions for reducing this burden, refer
to the preamble to the cross-referenced notice of proposed rulemaking
published elsewhere in this issue of the Federal Register.
Drafting Information
The author of this document is James P. Ficaretta, Regulations
Branch, Bureau of Alcohol, Tobacco and Firearms.
List of Subjects in 27 CFR Part 178
Administrative practice and procedure, Arms and ammunition,
Authority delegations, Customs duties and inspection, Exports, Imports,
Military personnel, Penalties, Reporting requirements, Research,
Seizures and forfeitures, and Transportation.
Authority and Issuance
27 CFR Part 178--COMMERCE IN FIREARMS AND AMMUNITION is amended as
follows:
Paragraph 1. The authority citation for 27 CFR part 178 continues
to read as follows:
Authority: 5 U.S.C. 552(a); 18 U.S.C. 847, 921-930; 44 U.S.C.
3504(h).
Sec. 178.40a [Amended]
Par. 2. Section 178.40a(b)(1) is amended by removing the words ``in
the United States''.
Sec. 178.57 [Amended]
Par. 3. Section 178.57(c) is amended by removing the words ``or
imported''.
Sec. 178.92 [Amended]
Par. 4. Section 178.92 is amended by removing the words ``or
imported'' in paragraphs (c)(1) and (c)(1)(iii).
Par. 5. Section 178.116 is revised to read as follows:
Sec. 178.116 Conditional importation.
The Director shall permit the conditional importation or bringing
into the United States or any possession thereof of any firearm,
firearm barrel, ammunition, or ammunition feeding
[[Page 39322]]
device as defined in Sec. 178.119(b) for the purpose of examining and
testing the firearm, firearm barrel, ammunition, or ammunition feeding
device in connection with making a determination as to whether the
importation or bringing in of such firearm, firearm barrel, ammunition,
or ammunition feeding device will be authorized under this part. An
application on ATF Form 6 for such conditional importation shall be
filed, in duplicate, with the Director. The Director may impose
conditions upon any importation under this section including a
requirement that the firearm, firearm barrel, ammunition, or ammunition
feeding device be shipped directly from Customs custody to the Director
and that the person importing or bringing in the firearm, firearm
barrel, ammunition, or ammunition feeding device must agree to either
export the firearm, firearm barrel, ammunition, or ammunition feeding
device or destroy same if a determination is made that the firearm,
firearm barrel, ammunition, or ammunition feeding device may not be
imported or brought in under this part. A firearm, firearm barrel,
ammunition, or ammunition feeding device imported or brought into the
United States or any possession thereof under the provisions of this
section shall be released from Customs custody upon the payment of
customs duties, if applicable, and in the manner prescribed in the
conditional authorization issued by the Director.
Par. 6. Section 178.119 is revised to read as follows:
Sec. 178.119 Importation of ammunition feeding devices.
(a) No ammunition feeding device shall be imported or brought into
the United States unless the Director has authorized the importation of
such device.
(b) For purposes of this section, an ``ammunition feeding device''
is a magazine, belt, drum, feed strip, or similar device for a firearm
that has a capacity of, or that can be readily restored or converted to
accept, more than 10 rounds of ammunition. The term does not include an
attached tubular device designed to accept, and capable of operating
only with, .22 caliber rimfire ammunition, or a fixed device for a
manually operated firearm, or a fixed device for a firearm listed in 18
U.S.C. 922, Appendix A.
(c) An application for a permit, ATF Form 6, to import or bring an
ammunition feeding device into the United States or a possession
thereof under this section shall be filed, in triplicate, with the
Director. The application shall contain:
(1) The name and address of the person importing the device,
(2) A description of the device to be imported, including type and
cartridge capacity, model and caliber of firearm for which the device
was made, country of manufacture, and name of the manufacturer if
known,
(3) The unit cost of the device to be imported,
(4) The country from which to be imported,
(5) The name and address of the foreign seller and the foreign
shipper,
(6) Verification that such device will be marked as required by
this part, and
(7) A statement by the importer that the device is being imported
for sale to purchasers specified in Sec. 178.40a(b) or physical or
reasonable documentary evidence establishing that the magazine was
manufactured on or before September 13, 1994. Any one of the following
examples, which are not meant to be exhaustive, may be sufficient to
establish the time of manufacture:
(i) Permanent markings or physical characteristics which establish
that the magazine was manufactured on or before September 13, 1994;
(ii) A certification from the importer, under penalty of perjury,
that the importer maintained continuous custody beginning on a date
prior to September 14, 1994, and continuing until the date of the
certification. Such certification shall also be supported by reasonable
documentary evidence, such as commercial records;
(iii) A certification from the importer, under penalty of perjury,
that the magazines sought to be imported were in the custody and
control of a foreign Government on or before September 13, 1994, along
with reasonable documentary evidence to support the certification; or
(iv) A certification from the importer, under penalty of perjury,
that the magazine was in the possession of a foreign arms supplier on
or before September 13, 1994, along with reasonable documentary
evidence to support the certification.
(d) The Director shall act upon applications to import ammunition
feeding devices as expeditiously as possible. If the Director approves
the application, such approved application shall serve as the permit to
import the device described therein, and importation of such devices
may continue to be made by the person importing such devices under the
approved application (permit) during the period specified thereon. The
Director shall furnish the approved application (permit) to the
applicant and retain two copies thereof for administrative use. If the
Director disapproves the application, the person importing such devices
shall be notified of the basis for the disapproval.
(e) An ammunition feeding device imported or brought into the
United States by a person importing such a device may be released from
Customs custody to the person importing such a device upon showing that
such person has obtained a permit from the Director for the importation
of the device to be released. In obtaining the release from Customs
custody of such a device authorized by this section to be imported
through use of a permit, the person importing such a device shall
prepare ATF Form 6A, in duplicate, and furnish the original ATF Form 6A
to the Customs officer releasing the device. The Customs officer shall,
after certification, forward the ATF Form 6A to the address specified
on the form. The ATF Form 6A shall show the name and address of the
person importing the device, the name of the manufacturer of the
device, the country of manufacture, the type, model, caliber, size, and
the number of devices released.
(f) Within 15 days of the date of release from Customs custody, the
person importing such a device shall:
(1) Forward to the address specified on the form a copy of ATF Form
6A on which shall be reported any error or discrepancy appearing on the
ATF Form 6A certified by Customs, and
(2) Pursuant to Sec. 178.92, place all required identification data
on each imported device manufactured after September 13, 1994, if same
did not bear such identification data at the time of its release from
Customs custody.
(g) The Director may authorize the conditional importation of an
ammunition feeding device as provided in Sec. 178.116.
(Paragraphs (a), (c), and (d) approved by the Office of Management
and Budget under control numbers 1512-0017 and 1512-0018; paragraphs
(e) and (f) approved by the Office of Management and Budget under
control number 1512-0019)
Signed: March 18, 1996.
Bradley A. Buckles,
Acting Director.
Approved: June 19, 1996.
John P. Simpson,
Deputy Assistant Secretary (Regulatory, Tariff and Trade Enforcement).
[FR Doc. 96-19189 Filed 7-26-96; 8:45 am]
BILLING CODE 4810-31-P
