[Federal Register Volume 63, Number 50 (Monday, March 16, 1998)]
[Rules and Regulations]
[Pages 12643-12647]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-6591]
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DEPARTMENT OF THE TREASURY
Bureau of Alcohol, Tobacco and Firearms
27 CFR Parts 55, 72, 178 and 179
[T.D. ATF-396; Ref: T.D. ATF-363 and Notice No. 807; T.D. ATF-383 and
Notice No. 833]
RIN 1512-AB35
Implementation of Public Law 103-322, the Violent Crime Control
and Law Enforcement Act of 1994 (94F-022P)
AGENCY: Bureau of Alcohol, Tobacco and Firearms (ATF), Treasury.
ACTION: Final rule, Treasury decision.
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SUMMARY: These final regulations implement the provisions of Public Law
103-322, the Violent Crime Control and Law Enforcement Act of 1994.
This Treasury decision adopts the regulations substantially as proposed
in Notice No. 807, as amended by Notice No. 833.
The temporary regulations published in the Federal Register on
April 6, 1995
[[Page 12644]]
(T.D. ATF-363) and July 29, 1996 (T.D. ATF-383), are adopted as final
upon the effective date of this final rule.
EFFECTIVE DATE: This rule is effective on May 15, 1998.
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), and Title XI of the Organized Crime Control Act of
1970, as amended (18 U.S.C. Chapter 40). 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.
Temporary Rule (T.D. ATF-363) and Notice of Proposed Rulemaking
On April 6, 1995, ATF published in the Federal Register a temporary
rule implementing the provisions of the Act (T.D. ATF-363, 60 FR
17446). The temporary regulations implemented the law by restricting
the manufacture, transfer, and possession of certain semiautomatic
assault weapons and large capacity ammunition feeding devices, with
certain exceptions. Regulations were also prescribed with regard to
reports of theft or loss of firearms from a licensee's inventory or
collection, new requirements for Federal firearms licensing, responses
by firearms licensees to requests for gun trace information, and
possession of firearms by persons subject to restraining orders. 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.
Temporary Rule (T.D. ATF-383) and Notice of Proposed Rulemaking
ATF received 129 comments in response to Notice No. 807. Fifty-two
commenters, representing 40 percent of the total comments received,
objected to ATF's interpretation of the law as restricting the
importation of large capacity ammunition feeding devices after the date
of enactment regardless of the date of manufacture of such devices.
They also contended that the marking requirements prescribed in the
regulations pursuant to T.D. ATF-363 (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.
After analyzing the comments received and in light of the above-
mentioned litigation, ATF 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. Consequently, on July 29, 1996, ATF published in the Federal
Register another temporary rule reflecting this position (T.D. ATF-383,
61 FR 39320). The temporary rule also provided guidance to importers on
acceptable evidence that magazines sought to be imported were
manufactured on or before September 13, 1994.
On July 29, 1996, the Bureau also published a notice of proposed
rulemaking cross-referenced to the temporary regulations (Notice No.
833, 61 FR 39372). The comment period for Notice No. 833 closed on
October 28, 1996.
Analysis of Comments--Notice No. 807
ATF received 129 comments in response to Notice No. 807. Fifty-
seven comments, representing 44 percent of the comments received,
expressed general support for the temporary regulations. However, these
commenters requested that the final rule include a number of changes.
One commenter recommended that the term ``pistol grip'' be defined
so that it includes so-called thumbhole stocks. The term
``semiautomatic assault weapon'' is defined in the Act as including
semiautomatic rifles and semiautomatic shotguns which have 2 or more of
the features specified in the law. One of the features specified is a
``pistol grip that protrudes conspicuously beneath the action of the
weapon.'' The commenter stated that thumbhole stocks function in the
same manner as pistol grips and, therefore, should be included within
the definition of this term.
ATF agrees with the commenter that replacing a separate pistol grip
with a thumbhole stock does not remove the pistol grip as a feature. A
semiautomatic rifle or semiautomatic shotgun with a thumbhole stock and
one or more of the other features specified in the law would be a
``semiautomatic assault weapon'' as defined. However, ATF does not
believe it is necessary to provide a separate definition of ``pistol
grip'' or any of the other features listed in the statute.
Several commenters recommended that Federal firearms licensees be
required to swear under penalties of perjury that semiautomatic assault
weapons and large capacity ammunition feeding devices will be
transferred only to lawful recipients. The regulations in 27 CFR 178.40
and 178.40a provide that manufacturers and dealers may manufacture and
deal in semiautomatic assault weapons and large capacity ammunition
feeding devices manufactured after September 13, 1994, upon obtaining
evidence that the weapons and devices will only be disposed of to law
enforcement agencies and law enforcement officers.
ATF does not believe that imposing such a requirement on licensees
is necessary. Pursuant to 18 U.S.C. Sec. 922(m), it is unlawful for any
licensee to make a false entry in any required record. A violation of
this section can result in revocation of the license or in criminal
prosecution. ATF believes these sanctions are adequate to deter most
licensees from falsifying documents. Accordingly, ATF is not adopting
the changes recommended by the commenters.
ATF also received comments concerning the wording of the export
marking requirement for semiautomatic assault weapons and large
capacity ammunition feeding devices. The commenters recommended that
the wording of the present regulatory requirement, ``FOR EXPORT ONLY,''
be changed to read ``DOMESTIC SALE UNLAWFUL, FOR EXPORT ONLY.'' The
commenters stated their belief that this language more adequately
conveys the fact that such weapons and devices are highly restricted
and are illegal for domestic sale.
ATF believes that the wording of the current export marking
requirement provides sufficient notice that these weapons and devices
are not intended for domestic sale. Furthermore, to ATF's knowledge,
the current marking requirement has not resulted in any confusion among
the general public. Accordingly, the Bureau has determined that the
proposed amendment is unwarranted and would impose an unnecessary
burden on the industry.
Several commenters stated that variances from the marking
requirements imposed on semiautomatic assault weapons and large
capacity ammunition feeding devices should not be allowed. Current
regulations provide that the Director may authorize other means of
[[Page 12645]]
identifying assault weapons and feeding devices when such other
identification is reasonable and will not hinder the effective
administration of the regulations. The commenters contend that marking
variances could be used by manufacturers to create confusion as to the
legal status of post-ban weapons and feeding devices.
ATF is not adopting the commenters' suggestion. The decision to
allow marking variances for semiautomatic assault weapons and large
capacity ammunition feeding devices is consistent with that for other
firearms. In the case of such weapons and devices, ATF has authorized
variances from the marking requirements only for law enforcement and
military purposes where there is a demonstrated need for such a
variance.
One commenter states that the current regulations requiring that
assault weapons be marked ``RESTRICTED LAW ENFORCEMENT/GOVERNMENT USE
ONLY'' raises concerns in the case of weapons that are reconfigured so
that they no longer meet the definition of ``semiautomatic assault
weapon.'' The commenter raised the case of an assault weapon
transferred to a law enforcement officer upon retirement, which is
permissible under the law. If the retiree subsequently decides to
remove features from the weapon so that it is no longer subject to the
restrictions of the law, he may have difficulty selling it, due to the
restrictive marking. To address this potential problem, the commenter
recommends that ATF amend the regulations to require only that the date
of manufacture be marked on the weapon.
ATF maintains that the restrictive language required in the current
regulations clearly provides notice to law enforcement officers and the
general public that semiautomatic assault weapons may be lawfully
possessed only by Government agencies and law enforcement personnel.
ATF does not believe that placing the date of manufacture on the
weapons provides this information. Accordingly, ATF is not adopting
this comment.
To address the commenter's concern about reconfiguration of an
assault weapon, if the weapon has been modified so it no longer meets
the definition of ``semiautomatic assault weapon,'' it is not subject
to the restrictions of the law. However, ATF would caution that a
dealer obtaining assault weapons by falsely representing that the
weapons are for resale to law enforcement, but who actually intends to
reconfigure the weapons so they no longer meet the definition of
assault weapon, would possess the weapons in violation of 18 U.S.C.
Sec. 922(v). The Federal firearms licenses of such dealers would also
be subject to revocation.
The same commenter concerned about reconfiguration also had
recommendations concerning the documentation required for law
enforcement officers to acquire assault weapons for official use. The
regulations at 27 CFR 178.132 require licensees to obtain written
statements, under penalty of perjury, from the purchasing officer and a
supervisory officer, stating that the weapon is for use in performing
official duties and is not being acquired for personal use or for
purposes of transfer or resale. The commenter requests that ATF amend
the regulations to permit officers to obtain semiautomatic assault
weapons for purposes of familiarization, marksmanship, and training.
The commenter also contends that the regulation appears to prevent the
officer from reselling the weapon, even if reconfigured so that it no
longer meets the definition of ``semiautomatic assault weapon.''
It is unnecessary to amend section 178.132 to include
familiarization, marksmanship, and training as valid purposes for law
enforcement officers obtaining semiautomatic assault weapons. If these
activities are part of a law enforcement officer's official duties and
a supervisor is willing to submit a statement certifying to such
duties, the weapon may be lawfully acquired for such purposes. ATF does
not believe it is necessary to spell out every possible official use in
the regulation.
As for the comment concerning resale, neither the law nor the
regulation prevents future resale of the weapon by the purchasing
officer. The regulation merely requires the officer to state, under
penalty of perjury, that the weapon is not being acquired for purposes
of transfer or resale. The regulation merely requires that the officer
acquire the weapon for official use and not for purposes of transfer or
resale. The issue concerning reconfiguration is discussed above.
Several clarifying amendments have been made to Sec. 178.132. The
regulation is being amended to provide that the written statement
prepared by the purchaser's supervisor must be on agency letterhead.
The regulation is also being revised to provide that this section
applies to the transfer of assault weapons and large capacity
ammunition feeding devices to employees or contractors of nuclear
facilities.
Analysis of Comments--Notice No. 833
ATF received one comment in response to Notice No. 833. This
commenter objected to ATF requiring an import permit for ammunition
feeding devices manufactured on or before September 13, 1994, as
specified in Sec. 178.119.
In order to ensure compliance with the provisions of the law and to
enforce the marking requirements of the statute, ATF has determined
that it is necessary to require importers to obtain import permits for
feeding devices manufactured on or before September 13, 1994. ATF
maintains that this requirement is necessary in order to determine
whether the devices are subject to the restrictions of the law. Since
import permits for such devices are already required pursuant to the
Arms Export Control Act, 22 U.S.C. Sec. 2778, and implementing
regulations in 27 CFR Part 47, the burden imposed by this requirement
is minimal. Accordingly, the Bureau is adopting the regulation as
proposed in Notice No. 833.
Miscellaneous Amendments to Regulations
Section 923(g)(7) of the GCA and its implementing regulation in 27
CFR 178.25a require Federal firearms licensees to respond to requests
for firearms trace information within 24 hours after receipt of the
request. Personnel at the National Tracing Center have had problems
with licensees providing the requested trace information on crime guns
within the required 24-hour period. A question has arisen whether the
licensee must provide the requested trace information within the 24-
hour period or whether licensees would comply with the requirement by
simply acknowledging the request and providing the requested
information at a later time. The statute and regulation require
licensees to provide the requested trace information within the 24-hour
period. To ``respond'' to a trace request within the meaning of the
statute and regulation means to provide the information. Interpreting
the statute otherwise gives the statute no meaning and defeats its
purpose, to enable ATF to obtain trace information quickly by
telephone. Accordingly, Sec. 178.25a is being amended to clarify that
licensees must provide the requested trace information within the 24-
hour period. A technical amendment is also being made at the end of
this section to include the control number assigned by the Office of
Management and Budget (OMB).
A technical amendment is also being made to the marking
requirements in 27 CFR 178.92. Language has been added to
Sec. 178.92(c)(1)(iii), relating to markings for large capacity
ammunition
[[Page 12646]]
feeding devices, to make it clear that importers who import such
devices for purposes of export shall mark them ``FOR EXPORT ONLY.''
Finally, ATF is making a technical amendment to the definition of
``firearm'' in 27 CFR 179.11 with respect to the sentence describing
barrel length measurement. The amendment makes it clear that
measurements do not apply to revolvers. It also clarifies that the
method specified does not apply to revolving cylinder shotguns.
Executive Order 12866
It has been determined that this final 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
final rule. Accordingly, this final rule is not subject to the analysis
required by this Executive order.
Regulatory Flexibility Act
The provisions of the Regulatory Flexibility Act relating to an
initial and final regulatory flexibility analysis (5 U.S.C. 604) are
not applicable to this final rule because the agency was not required
to publish a notice of proposed rulemaking under 5 U.S.C. 553 or any
other law.
Paperwork Reduction Act
The collections of information contained in this final regulation
have been reviewed and approved by the Office of Management and Budget
in accordance with the requirements of the Paperwork Reduction Act (44
U.S.C. 3507(d)) under control numbers 1512-0017, 1512-0018, 1512-0019,
1512-0526, and 1512-0387. Other collections of information contained in
this final rule have been approved under control numbers: 1512-0522 and
1512-0523 (Sec. 178.47); 1512-0524 (Sec. 178.39a); and 1512-0525
(Sec. 178.52). An agency may not conduct or sponsor, and a person is
not required to respond to, a collection of information unless it
displays a valid control number assigned by the Office of Management
and Budget.
The collections of information in this final regulation are in 27
CFR 178.25a, 178.40(c), 178.40a(c), 178.119, 178.129(e), 178.132, and
178.133. This information is required by ATF to ensure compliance with
the provisions of Pub. L. 103-322 (108 Stat. 1796). The likely
respondents and recordkeepers are individuals and businesses. The
estimated average annual burden associated with the collections of
information in this regulation is 6 minutes per respondent for control
numbers 1512-0017, 1512-0018, and 1512-0019, and 2.52 hours per
respondent or recordkeeper for control number 1512-0526.
Comments concerning the accuracy of this burden estimate and
suggestions for reducing this burden should be directed to the Chief,
Document Services Branch, Room 3450, Bureau of Alcohol, Tobacco and
Firearms, 650 Massachusetts Avenue, NW, Washington, DC 20226, and to
the Office of Management and Budget, Attention: Desk Officer for the
Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms,
Office of Information and Regulatory Affairs, Washington, DC 20503.
Disclosure
Copies of the temporary rules, the notices of proposed rulemaking,
all written comments, and this final rule will be available for public
inspection during normal business hours at: ATF Public Reading Room,
Room 6480, 650 Massachusetts Avenue, NW., Washington, DC.
Drafting Information
The author of this document is James P. Ficaretta, Regulations
Branch, Bureau of Alcohol, Tobacco and Firearms.
List of Subjects
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.
27 CFR Part 179
Administrative practice and procedure, Arms and munitions,
Authority delegations, Customs duties and inspection, Exports, Imports,
Military personnel, Penalties, Reporting requirements, Research,
Seizures and forfeitures, and Transportation.
Authority and Issuance
Accordingly, 27 CFR Parts 55, 72, 178 and 179 are amended as
follows:
Paragraph 1. The temporary rule published April 6, 1995 (60 FR
17446), amended July 29, 1996 (61 FR 39320) and further amended
February 25, 1997 (62 FR 8374) is adopted as final.
Paragraph 1a. The temporary rule published July 29, 1996 (61 FR
39320) is adopted as final.
PART 178--COMMERCE IN FIREARMS AND AMMUNITION
Paragraph 1b. 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).
Par. 2. Section 178.25a is amended by revising the second sentence
and by adding a parenthetical text at the end of the section to read as
follows:
Sec. 178.25a Responses to requests for information.
* * * The requested information shall be provided orally to the ATF
officer within the 24-hour period. * * *
(Approved by the Office of Management and Budget under control
number 1512-0387)
Sec. 178.92 [Amended]
Par. 3. Section 178.92(c)(1)(iii) is amended by adding the words
``or imported'' after the words ``in the case of devices
manufactured''.
Par. 4. Section 178.132 is revised to read as follows:
Sec. 178.132 Dispositions of semiautomatic assault weapons and large
capacity ammunition feeding devices to law enforcement officers for
official use and to employees or contractors of nuclear facilities.
Licensed manufacturers, licensed importers, and licensed dealers in
semiautomatic assault weapons, as well as persons who manufacture,
import, or deal in large capacity ammunition feeding devices, may
transfer such weapons and devices manufactured after September 13,
1994, to law enforcement officers and to employees or contractors of
nuclear facilities with the following documentation:
(a) Law enforcement officers. (1) A written statement from the
purchasing officer, under penalty of perjury, stating that the weapon
or device is being purchased for use in performing official duties and
that the weapon or device is not being acquired for personal use or for
purposes of transfer or resale; and
(2) A written statement from a supervisor of the purchasing
officer, on agency letterhead, under penalty of perjury, stating that
the purchasing officer is acquiring the weapon or device for use in
official duties, that the firearm is suitable for use in performing
official duties, and that the weapon or device is not being acquired
for personal use or for purposes of transfer or resale.
(b) Employees or contractors of nuclear facilities. (1) Evidence
that the employee is employed by a nuclear facility licensed pursuant
to 42 U.S.C. 2133 or evidence that the contractor has a valid contract
with such a facility.
(2) A written statement from the purchasing employee or contractor
under penalty of perjury, stating that the weapon or device is being
purchased for one of the purposes authorized in
[[Page 12647]]
Sec. Sec. 178.40(b)(7) and 178.40a(b)(3), i.e., on-site physical
protection, on-site or off-site training, or off-site transportation of
nuclear materials.
(3) A written statement from a supervisor of the purchasing
employee or contractor, on agency or company letterhead, under penalty
of perjury, stating that the purchasing employee or contractor is
acquiring the weapon or device for use in official duties, and that the
weapon or device is not being acquired for personal use or for purposes
of transfer or resale.
(Approved by the Office of Management and Budget under control
number 1512-0526)
PART 179--MACHINE GUNS, DESTRUCTIVE DEVICES, AND CERTAIN OTHER
FIREARMS
Par. 5. authority citation for 27 CFR Part 179 continues to read
as follows:
Authority: 26 U.S.C. 7805.
Par. 6. Section 179.11 is amended by revising the third sentence in
the definition of ``Firearm'' to read as follows:
Sec. 179.11 Meaning of terms.
* * * * *
Firearm. * * * For purposes of this definition, the length of the
barrel having an integral chamber(s) on a shotgun or rifle shall be
determined by measuring the distance between the muzzle and the face of
the bolt, breech, or breech block when closed and when the shotgun or
rifle is cocked. * * *
* * * * *
Signed: July 25, 1997.
John W. Magaw,
Director.
Approved: August 11, 1997.
John P. Simpson,
Deputy Assistant Secretary (Regulatory, Tariff and Trade Enforcement)
Editorial note: This document was received at the Office of the
Federal Register on March 10, 1998.
[FR Doc. 98-6591 Filed 3-13-98; 8:45 am]
BILLING CODE 4810-31-P
