[Federal Register Volume 63, Number 33 (Thursday, February 19, 1998)]
[Proposed Rules]
[Pages 8379-8386]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-4215]
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DEPARTMENT OF THE TREASURY
Bureau of Alcohol, Tobacco and Firearms
27 CFR Parts 178 and 179
[Notice No. 857]
RIN: 1512-AB67
Implementation of Public Law 103-159, Relating to the Permanent
Provisions of the Brady Handgun Violence Prevention Act (93F-057P)
AGENCY: Bureau of Alcohol, Tobacco and Firearms (ATF), Department of
the Treasury.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Bureau of Alcohol, Tobacco and Firearms (ATF) is proposing
to amend the regulations to implement the provisions of Public Law 103-
159, relating to the permanent provisions of the Brady Handgun Violence
Prevention Act. These proposed regulations implement the law by
requiring, with some exceptions, a licensed firearms importer,
manufacturer, or dealer to contact the
[[Page 8380]]
national instant criminal background check system (NICS) before
transferring any firearm to an unlicensed individual. NICS will advise
the licensee whether the system contains any information that the
prospective purchaser is prohibited by law from possessing or receiving
a firearm.
DATES: Written comments must be received on or before May 20, 1998.
ADDRESSES: Send written comments to: Chief, Regulations Division;
Bureau of Alcohol, Tobacco and Firearms; P.O. Box 50221; Washington, DC
20091-0221; ATTN: Notice No. 857.
FOR FURTHER INFORMATION CONTACT: James P. Ficaretta, Regulations
Division, Bureau of Alcohol, Tobacco and Firearms, 650 Massachusetts
Avenue, NW., Washington, DC 20226 (202-927-8230).
SUPPLEMENTARY INFORMATION:
Background
On November 30, 1993, Public Law 103-159 (107 Stat. 1536) was
enacted, amending the Gun Control Act of 1968 (GCA), as amended (18
U.S.C. Chapter 44). Title I of Pub. L. 103-159, the Brady Handgun
Violence Prevention Act (the ``Brady law''), imposed as an interim
measure a waiting period of 5 days before a licensed importer,
manufacturer, or dealer may sell, deliver, or transfer a handgun to an
unlicensed individual. The waiting period applies only in States
without an acceptable alternate system of conducting background checks
on handgun purchasers. The interim provisions of the Brady law, 18
U.S.C. 922(s), became effective on February 28, 1994, and cease to
apply on November 30, 1998.
Permanent Provisions of the Brady Law
The permanent provisions of the Brady law provide for the
establishment of a national instant criminal background check system
(``NICS'') that a firearms licensee must contact before transferring
any firearm to unlicensed individuals. The law requires that the
permanent system be established not later than November 30, 1998. While
the interim provisions apply only to handguns, the permanent provisions
of the Brady law will apply to all firearms. Furthermore, while there
is no five-day waiting period under the permanent provisions, the
system may take up to three business days to notify the licensee
whether receipt of a firearm by the prospective purchaser would be in
violation of law.
National Instant Criminal Background Check System
The Brady law requires that the Attorney General establish a
permanent national instant criminal background check system that any
licensee may contact, by telephone or by other electronic means in
addition to the telephone, for information on whether receipt of a
firearm by a prospective transferee would violate Federal or State law.
The law requires that the permanent system be established not later
than November 30, 1998.
Upon establishment of the system, the Attorney General is required
to notify each firearms licensee and the chief law enforcement officer
of each State of the existence and purpose of NICS and the means to be
used to contact NICS. Beginning on the date that is 30 days after the
Attorney General notifies firearms licensees that NICS is established,
the permanent provisions of Brady, 18 U.S.C. 922(t), become effective.
Statutory Requirements
Section 922(t) generally makes it unlawful for any licensed
firearms importer, manufacturer, or dealer to sell, deliver, or
transfer a firearm to an unlicensed individual (transferee), unless--
1. Before the completion of the transfer, the licensee contacts the
national instant background check system;
2. The system provides the licensee with a unique identification
number signifying that transfer of the firearm would not be in
violation of law OR 3 business days (meaning a day on which State
offices are open) have elapsed from the date the licensee contacted the
system and the system has not notified the licensee that receipt of the
firearm by the transferee would be in violation of law; and
3. The licensee verifies the identity of the transferee by
examining a valid identification document containing a photograph of
the transferee.
Penalties for Noncompliance
Section 922(t) provides that a firearms licensee who transfers a
firearm and knowingly fails to comply with the requirements of the law,
in a case where compliance would have revealed that the transfer was
unlawful, may be subject to license suspension or revocation and fined
not more than $5,000.
Proposed Regulations
ATF is proposing regulations to implement the requirements placed
on firearms licensees by section 922(t). The Department of Justice will
be promulgating regulations establishing the methods of operation for
NICS, including policies and procedures for ensuring the privacy and
security of the system, and appeal procedures for individuals who are
determined by NICS to be ineligible to purchase a firearm. Accordingly,
these issues are not addressed in the ATF regulations.
Time of NICS Check
The Brady law generally provides that a licensed importer,
manufacturer or dealer may not transfer a firearm to an unlicensed
individual unless, before the completion of the transfer, the licensee
contacts NICS. It is clear that the law contemplates that the licensee
should contact NICS immediately prior to the transfer of a firearm. ATF
recognizes that there may be circumstances in which there is an
unavoidable delay between the NICS check and the transfer of the
firearm. For example, many States have waiting periods for the sale of
certain types of firearms. Nonetheless, ATF believes that the
regulations should impose a time frame beyond which a licensee can no
longer rely upon a ``stale'' NICS check in transferring a firearm.
In accordance with the above, ATF is proposing to amend
Sec. 178.124(c) to require licensees to contact NICS after the
transferee has executed the firearms transaction record, Form 4473. ATF
is also proposing to amend Sec. 178.102(c) to provide that a licensee
may not rely upon a NICS check that was conducted more than 30 calendar
days prior to the transfer of the firearm. This will ensure that
licensees are not relying upon ``stale'' NICS checks. Finally, the
proposed regulations clarify that a separate NICS check must be
conducted for each separate transaction. While an individual may
purchase several firearms in one transaction, a licensee must initiate
a separate NICS check for each separate transaction. Examples are
provided in section 178.102(c) of the proposed regulations.
Section 922(t)(2) provides that if NICS notifies the licensee that
the information available to the system does not indicate that the
prospective purchaser's receipt or possession of the firearm would
violate the law, the system will assign a unique identification number
to the transfer and provide the licensee with the number. The
Department of Justice has advised ATF that NICS will also provide
licensees with a unique identification number in the event that the
transfer is denied or delayed by NICS. Accordingly, the proposed
regulations require that licensees record any responses received from
the system,
[[Page 8381]]
in addition to the unique identification number (if any) provided by
the system, on the firearms transaction record (ATF Form 4473). The
proposed regulations also require that licensees maintain a copy of
each Form 4473 for which a NICS transaction number has been received,
regardless of whether the transfer of the firearm was completed. This
will enable ATF to determine compliance with the law by licensees and
purchasers.
Exceptions to NICS
The statute provides the following exceptions to the national
instant background check system:
1. The transferee presents to the licensee a permit which was
issued not more than 5 years earlier by the State in which the transfer
is to take place and which allows the transferee to possess or acquire
a firearm, and the law of the State provides that such a permit is to
be issued only after an authorized government official has verified
that available information does not indicate that possession of a
firearm by the transferee would be in violation of the law;
2. Purchases of firearms which are subject to the National Firearms
Act and which have been approved for transfer under 27 CFR Part 179
(Machine Guns, Destructive Devices, and Certain Other Firearms); or
3. Purchases of firearms for which the Secretary has certified that
compliance with NICS is impracticable because the ratio of the number
of law enforcement officers of the State in which the transfer is to
occur to the number of square miles of land area of the State does not
exceed 0.0025 (i.e., 25 officers per 10,000 square miles), the premises
of the licensee are remote in relation to the chief law enforcement
officer of the area, and there is an absence of telecommunications
facilities in the geographical area in which the business premises are
located.
Proposed regulations which implement these provisions of the law
are set forth in Secs. 178.102(d), 178.131, and 178.150.
It should be noted that State ``instant check'' and ``point of sale
check'' systems will not qualify as alternatives to the NICS check
required by the permanent provisions of the Brady law. Therefore, NICS
checks must be conducted on firearms purchasers in those States.
With respect to purchases of firearms which are subject to the
National Firearms Act, ATF is proposing to amend Sec. 179.86 to provide
that in addition to any other records checks that may be conducted to
determine whether the transfer, receipt, or possession of a firearm
would place the transferee in violation of law, the Director must
contact NICS.
Permits
The Brady law provides that a licensee is not required to initiate
a NICS check where the purchaser presents a permit that allows the
purchaser to ``possess or acquire a firearm.'' The proposed regulations
clarify that this exception includes permits to carry concealed weapons
as well as permits specifically authorizing the purchase of a firearm.
For purposes of the permanent provisions of the Brady law, it is
irrelevant whether the permit covers the type of firearm that is being
purchased. For example, a licensee need not initiate a NICS check where
an individual who wishes to purchase a rifle presents a handgun permit,
as long as that permit meets all the requirements of the Brady law. The
critical issue is not the type of firearm for which the permit was
issued, but whether the State has conducted a background check on that
individual to ensure that the individual is not prohibited from
possessing a firearm. Of course, all such transactions must still
comply with State law.
NICS Checks in Conjunction With the Issuance of Permits
The law provides that the permit must have been issued not more
than 5 years earlier by the State in which the transfer is to take
place. Furthermore, the permit is a valid alternative under the Brady
law only if the law of the State provides that such a permit is to be
issued only after an authorized government official has verified that
the information available to such official does not indicate that
possession of a firearm by such other person would be in violation of
law.
In construing the language of the statute, it is ATF's position
that as of November 30, 1998, ``the information available to'' State
officials will include the NICS database. Accordingly, the proposed
regulations provide that permits issued on or after November 30, 1998,
will be valid alternatives under the permanent provisions of the Brady
law only if the State officials conduct a NICS check on all permit
applicants. It should be noted that the NICS database will provide a
more extensive background check of the purchaser than other record
systems containing only criminal records. NICS will include records
from the Defense Department concerning dishonorable discharges, records
from the State Department regarding individuals who have renounced
United States citizenship, and other information not available in
criminal records.
Permits Issued to Persons Prohibited Under Federal Law
The proposed regulations provide that a permit would be a valid
alternative only if the issuing State verifies that possession of a
firearm by the permittee would not be in violation of Federal, State,
or local law. There may be States that would issue a permit to
individuals (such as persons who have renounced United States
citizenship or persons convicted of a misdemeanor crime of domestic
violence) even though these individuals are subject to Federal firearms
disabilities. If a State does not disqualify all individuals prohibited
under Federal law, the permits issued by that State would not be
accepted as alternatives under the permanent provisions of the Brady
law. Prior to the effective date of the permanent provisions of the
Brady law, ATF will notify licensees in each State whether or not
permits issued by that State will suffice as alternatives under the
Brady law.
Pawn Transactions
The permanent provisions of the Brady law apply to any transfer of
a firearm by a licensed importer, manufacturer, or dealer to a
nonlicensee. This includes the redemption of a pawned firearm. It
should be noted that the Violent Crime Control and Law Enforcement Act
of 1994, Public Law 103-322, amended Sec. 922(s) of the GCA to exempt
transactions involving the return of a handgun to the person from whom
it was received. Thus, the redemption of a pawned handgun by the person
from whom it was received is not subject to the waiting period and
background check requirements imposed by the interim provisions of the
Brady law. However, no such exemption appears in Sec. 922(t). Thus, the
proposed regulations would apply the permanent provisions of the Brady
law to pawn transactions.
Firearms Transaction Record (Form 4473)
In general, the regulations provide that prior to the transfer of a
firearm to a prospective purchaser, the buyer must complete, sign, and
date a firearms transaction record, Form 4473. The form requests
certain information, including the transferee's name, sex, height,
weight, race, residence address, date of birth, and place of birth. ATF
is proposing to amend the regulations to solicit additional optional
information about the purchaser, such as the
[[Page 8382]]
transferee's social security number and alien registration number (if
applicable), to facilitate the transfer of a firearm.
ATF believes this additional information will help minimize the
misidentification of firearms purchasers as felons or other prohibited
persons whose receipt and possession would violate the law. For
example, by providing a social security number, the transferee might
avoid confusion with a prohibited buyer who has the same name and date
of birth as the transferee. This would clearly help expedite the
transfer. ATF would note that ATF Form 5300.35, Statement of Intent to
Obtain a Handgun (Brady form), currently requests the purchaser's
social security number and alien registration number as optional
information. Because the NICS check will be based upon information from
the Form 4473, the proposed regulations would not require firearms
purchasers to fill out a separate Brady form.
Executive Order 12866
It has been determined that this proposed regulation is not a
significant regulatory action as defined by Executive Order 12866.
Therefore, a Regulatory Assessment is not required.
Regulatory Flexibility Act
It is hereby certified that these proposed regulations will not
have a significant economic impact on a substantial number of small
entities. The revenue effects of this rulemaking on small businesses
flow directly from the underlying statute. Likewise, any secondary or
incidental effects, and any reporting, recordkeeping, or other
compliance burdens flow directly from the statute. Accordingly, a
regulatory flexibility analysis is not required.
Paperwork Reduction Act
The collections of information contained in this notice of proposed
rulemaking have been submitted to the Office of Management and Budget
(OMB) for review in accordance with the Paperwork Reduction Act of 1995
(44 U.S.C. 3507(d)). Comments on the collections of information should
be sent to the Office of Management and Budget, Attention: Desk Officer
for the Department of the Treasury/Bureau of Alcohol, Tobacco and
Firearms (ATF), Office of Information and Regulatory Affairs,
Washington, D.C., 20503, with copies to the Chief, Document Services
Branch, Room 3450, Bureau of Alcohol, Tobacco and Firearms, 650
Massachusetts Avenue, NW., Washington, DC 20226. Comments are
specifically requested concerning:
Whether the proposed collections of information are necessary for
the proper performance of the functions of ATF, including whether the
information will have practical utility;
The accuracy of the estimated burden associated with the proposed
collections of information (see below);
How the quality, utility, and clarity of the information to be
collected may be enhanced; and
How the burden of complying with the proposed collections of
information may be minimized, including through the application of
automated collection techniques or other forms of information
technology.
The collections of information in this proposed regulation are in
Secs. 178.102, 178.124(c), 178.125(e), 178.129(b), 178.131, and
178.150. This information is required to implement the provisions of
Public Law 103-159, relating to the permanent provisions of the Brady
Handgun Violence Prevention Act. The collections of information are
required to ensure compliance with the law. The likely respondents and/
or recordkeepers are individuals and businesses.
Estimated number of respondents: 10,273,851.
Estimated total annual reporting and/or recordkeeping burden:
199,357 hours.
Estimated average annual burden per respondent and/or recordkeeper:
1.16 minutes.
Section 178.102 requires, with some exceptions, licensees to
contact NICS before transferring any firearm to an unlicensed
individual. The estimated total annual reporting and/or recordkeeping
burden associated with this requirement is 112,978 hours. Section
178.124(c) requires licensees to record on Form 4473 the date the
licensee contacts NICS and any identification number provided by NICS.
The licensee must also verify the identity of the person acquiring the
firearm by examining an identification document presented by the
transferee. Form 4473 will include certain optional information about
the purchaser, such as the person's social security number and alien
registration number. The estimated total annual reporting and/or
recordkeeping burden associated with this requirement is 53,549 hours.
Section 178.125(e) requires licensees to include in their records of
disposition the identification number provided by NICS. The estimated
total annual reporting and/or recordkeeping burden associated with this
requirement is 18,444 hours. Section 178.129(b) requires licensees to
retain a completed Form 4473 for a period of not less than 5 years
where the transfer of a firearm is not made. The estimated total annual
recordkeeping burden associated with this requirement is 553 hours.
Section 178.131 requires licensees to maintain certain records for
firearms transactions not subject to a NICS check. The estimated annual
recordkeeping burden associated with this requirement is 13,833 hours.
Section 178.150 provides for an alternative to NICS in certain
geographical locations. Licensees must submit a written application to
the Director containing certain information. The same requirement
currently applies to the waiting period provision of the Brady law for
transfers of handguns. Since this requirement was established in 1994,
no licensee has qualified for an exception from the provisions of Brady
based on geographical location. As such, ATF does not believe that
there is any reporting and/or recordkeeping burden associated with the
requirements of Sec. 178.150 with regard to NICS.
Certain collections of information contained in Sec. 178.129(b),
previously approved under control numbers 1512-0520, 1512-0006, and
1512-0524, are merely being redesignated as Sec. 178.129(c) in this
notice of proposed rulemaking. Similarly, the collections of
information in Sec. 178.129(c), (d), and (e), previously approved under
control numbers 1512-0129 and 1512-0526, are being redesignated as
Sec. 178.129(d), (e), and (f) in the proposed regulation.
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.
Public Participation
ATF requests comments on the proposed regulations from all
interested persons. Comments received on or before the closing date
will be carefully considered. Comments received after that date will be
given the same consideration if it is practical to do so, but assurance
of consideration cannot be given except as to comments received on or
before the closing date.
ATF will not recognize any material in comments as confidential.
Comments may be disclosed to the public. Any material which the
commenter considers to be confidential or inappropriate for disclosure
to the public should not be included in the comment. The name of the
person submitting a comment is not exempt from disclosure.
Any interested person who desires an opportunity to comment orally
at a public hearing should submit his or her request, in writing, to
the Director within the 90-day comment period. The Director, however,
reserves the right to
[[Page 8383]]
determine, in light of all circumstances, whether a public hearing is
necessary.
Disclosure
Copies of this notice and the written comments 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 Division, Bureau of Alcohol, Tobacco and
Firearms.
List of Subjects in 27 CFR Parts 178 and 179
Administrative practice and procedure, Arms and munitions,
Authority delegations, Customs duties and inspection, Exports, Imports,
Military personnel, Penalties, Reporting and recordkeeping
requirements, Research, Seizures and forfeitures, Transportation.
Authority and Issuance
Accordingly, 27 CFR Parts 178 and 179 are amended as follows:
PART 178--COMMERCE IN FIREARMS AND AMMUNITION
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).
2. Section 178.11 is amended by adding a definition for ``NICS'' to
read as follows:
Sec. 178.11 Meaning of terms.
* * * * *
NICS. The National Instant Criminal Background Check System
established by the Attorney General pursuant to 18 U.S.C. 922(t).
* * * * *
3. Section 178.96 is amended by revising the first sentence in
paragraph (b), and by revising paragraph (c) to read as follows:
Sec. 178.96 Out-of-State and mail order sales.
* * * * *
(b) A licensed importer, licensed manufacturer, or licensed dealer
may sell a firearm that is not subject to the provisions of
Sec. 178.102(a) to a nonlicensee who does not appear in person at the
licensee's business premises if the nonlicensee is a resident of the
same State in which the licensee's business premises are located, and
the nonlicensee furnishes to the licensee the firearms transaction
record, Form 4473, required by Sec. 178.124. * * *
(c)(1) A licensed importer, licensed manufacturer, or licensed
dealer may sell or deliver a rifle or shotgun, and a licensed collector
may sell or deliver a rifle or shotgun that is a curio or relic, to a
nonlicensed resident of a State other than the State in which the
licensee's place of business is located if--
(i) The purchaser meets with the licensee in person at the
licensee's premises to accomplish the transfer, sale, and delivery of
the rifle or shotgun;
(ii) The licensed importer, licensed manufacturer, or licensed
dealer complies with the provisions of Sec. 178.102;
(iii) The purchaser furnishes to the licensed importer, licensed
manufacturer, or licensed dealer the firearms transaction record, Form
4473, required by Sec. 178.124; and
(iv) The sale, delivery, and receipt of the rifle or shotgun fully
comply with the legal conditions of sale in both such States.
(2) For purposes of paragraph (c) of this section, any licensed
manufacturer, licensed importer, or licensed dealer is presumed, in the
absence of evidence to the contrary, to have had actual knowledge of
the State laws and published ordinances of both such States.
4. Section 178.97 is revised to read as follows:
Sec. 178.97 Loan or rental of firearms.
(a) A licensee may lend or rent a firearm to any person for
temporary use off the premises of the licensee for lawful sporting
purposes: Provided, That the delivery of the firearm to such person is
not prohibited by Sec. 178.99(b) or Sec. 178.99(c), the licensee
complies with the requirements of Sec. 178.102, and the licensee
records such loan or rental in the records required to be kept by him
under Subpart H of this part.
(b) A club, association, or similar organization temporarily
furnishing firearms (whether by loan, rental, or otherwise) to
participants in a skeet, trap, target, or similar shooting activity for
use at the time and place such activity is held does not, unattended by
other circumstances, cause such club, association, or similar
organization to be engaged in the business of a dealer in firearms or
as engaging in firearms transactions. Therefore, the licensing and
recordkeeping requirements contained in this part pertaining to
firearms transactions would not apply to this temporary furnishing of
firearms for use on premises on which such an activity is conducted.
5. Section 178.102 is revised to read as follows:
Sec. 178.102 Sales or deliveries of firearms on and after November 30,
1998.
(a) Background check. Except as provided in paragraph (d) of this
section, a licensed importer, licensed manufacturer, or licensed dealer
shall not sell, deliver, or transfer a firearm to any other person who
is not licensed under this part unless--
(1) Before the completion of the transfer, the licensee has
contacted NICS;
(2)(i) NICS informs the licensee that it has no information that
receipt of the firearm by the transferee would be in violation of
Federal or State law and provides the licensee with a unique
identification number; or
(ii) Three business days (meaning days on which State offices are
open) have elapsed from the date the licensee contacted NICS and NICS
has not notified the licensee that receipt of the firearm by the
transferee would be in violation of law; and
(3) The licensee verifies the identity of the transferee by
examining the identification document presented in accordance with the
provisions of Sec. 178.124(c).
(b) Unique identification number. In any transaction for which a
licensee receives a unique identification number from NICS, such number
shall be recorded on a firearms transaction record, Form 4473, which
shall be retained in the records of the licensee in accordance with the
provisions of Sec. 178.129. This applies regardless of whether the
transaction is approved or denied by NICS, and regardless of whether
the firearm is actually transferred.
(c) Time limitation on NICS checks. A NICS check conducted in
accordance with paragraph (a) of this section may be relied upon by the
licensee only for use in a single transaction, and for a period not to
exceed 30 calendar days. If the transaction is not completed within the
30-day period, the licensee shall initiate a new NICS check prior to
completion of the transfer.
Example 1. A purchaser completes the Form 4473 on December 15,
1998, and a NICS check is initiated by the licensee on that date.
The licensee is informed by NICS that the information available to
the system does not indicate that receipt of the firearm by the
transferee would be in violation of law, and a unique identification
number is provided. However, the State imposes a 7-day waiting
period on all firearms transactions, and the purchaser does not
return to pick up the firearm until January 22, 1999. The licensee
must conduct another NICS check before transferring the firearm to
the purchaser.
Example 2. A purchaser completes the Form 4473 on January 25,
1999, and arranges
[[Page 8384]]
for the purchase of a single firearm. A NICS check is initiated by
the licensee on that date. The licensee is informed by NICS that the
information available to the system does not indicate that receipt
of the firearm by the transferee would be in violation of law, and a
unique identification number is provided. The State imposes a 7-day
waiting period on all firearms transactions, and the purchaser
returns to pick up the firearm on February 15, 1999. Before the
licensee completes Section B of the Form 4473, the purchaser decides
to purchase an additional firearm. The transfer of these two
firearms is considered a single transaction; accordingly, the
licensee may add the second firearm to the Form 4473, and transfer
that firearm without conducting another NICS check.
Example 3. A purchaser completes a Form 4473 on February 15,
1999. The licensee receives a unique identification number from NICS
on that date, Section B of the Form 4473 is completed by the
licensee, and the firearm is transferred. On February 20, 1999, the
purchaser returns to the licensee's premises and wishes to purchase
a second firearm. The purchase of the second firearm is a separate
transaction; thus, a new NICS check must be initiated by the
licensee.
(d) Exceptions to NICS check. The provisions of paragraph (a) of
this section shall not apply if--
(1) The transferee has presented to the licensee a permit or
license that--
(i) Allows the transferee to possess, acquire, or carry a firearm;
(ii) Was issued not more than 5 years earlier by the State in which
the transfer is to take place; and
(iii) The law of the State provides that such a permit or license
is to be issued only after an authorized government official has
verified that the information available to such official does not
indicate that possession of a firearm by the transferee would be in
violation of Federal, State, or local law: Provided, That on and after
November 30, 1998, the information available to such official includes
the NICS;
(2) The firearm is subject to the provisions of the National
Firearms Act and has been approved for transfer under 27 CFR Part 179;
or
(3) On application of the licensee, in accordance with the
provisions of Sec. 178.150, the Director has certified that compliance
with paragraph (a)(1) of this section is impracticable.
(e) The document referred to in paragraph (d)(1) of this section
(or a copy thereof) shall be retained or the required information from
the document shall be recorded on the firearms transaction record in
accordance with the provisions of Sec. 178.131.
6. Section 178.124 is amended by revising paragraph (c), by
removing ``paragraph (c)(1)(ii)'' in paragraphs (d) and (e) and adding
in its place ``paragraph (c)(3)(iii)'', and by revising the first
sentence in paragraph (f) to read as follows:
Sec. 178.124 Firearms transaction record.
* * * * *
(c)(1) Prior to making an over-the-counter transfer of a firearm to
a nonlicensee 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), date and place of birth; height, weight and race of the
transferee; whether the transferee is a citizen of the United States;
the transferee's State of residence; and 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.
(2) In order to facilitate the transfer of a firearm and enable
NICS to verify the identity of the person acquiring the firearm, ATF
Form 4473 also requests certain optional information. This information
includes the transferee's social security number and alien registration
number (if applicable). Such information may help avoid the possibility
of the transferee being misidentified as a felon or other prohibited
person.
(3) The licensee shall identify the firearm to be transferred by
listing on the Form 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. After the transferee has executed the Form 4473,
but before transferring the firearm described on the Form 4473, the
licensee:
(i) Shall comply with the requirements of Sec. 178.102 and record
on the form the date on which the licensee contacted the NICS, as well
as any response provided by the system, including any identification
number provided by the system;
(ii) Shall verify the identity of the transferee by examining the
identification document (as defined in Sec. 178.11) presented, and
shall note on the Form 4473 the type of identification used;
(iii) Shall, in the case of a transferee who is an alien legally in
the United States, cause the transferee to present documentation
establishing that the transferee is a resident of the State (as defined
in Sec. 178.11) in which the licensee's business premises is located,
and shall note on the form the documentation used. Examples of
acceptable documentation include utility bills or a lease agreement
which show that the transferee has resided in the State continuously
for at least 90 days prior to the transfer of the firearm; and
(iv) Shall sign and date the form if the licensee does not know or
have reasonable cause to believe that the transferee is disqualified by
law from receiving the firearm.
* * * * *
(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. 178.102(a), and who is a resident of the State in which the
licensee's business premises are located. * * *
* * * * *
7. Section 178.124a is amended by removing the period at the end of
the introductory text of paragraph (e) and adding in its place a colon.
8. Section 178.125(e) is amended by revising the text following the
eighth sentence to read as follows:
Sec. 178.125 Record of receipt and disposition.
* * * * *
(e) Firearms receipt and disposition by dealers. * * * The record
shall show the date of the sale or other disposition of each firearm,
the name and address of the person to whom the firearm is transferred,
or the name and license number of the person to whom transferred if
such person is a licensee, or the firearms transaction record, Form
4473, serial number if the licensed dealer transferring the firearm
serially numbers the Forms 4473 and files them numerically, and the
identification number (if any) provided by the NICS. The format
required for the record of receipt and disposition of firearms is as
follows:
[[Page 8385]]
Firearms Acquisition and Disposition Record
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Description of firearm Receipt Disposition
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Address or license
No. if licensee,
Name and address or Form 4473 Identification No.
Manufacturer and/or Importer Model Serial No. Type Caliber or gauge Date or name and Date Name Serial No. if provided by NICS
license No. forms 4473 filed (if any)
numerically
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * *
9. Section 178.129 is amended by revising paragraph (b), by
redesignating paragraphs (c), (d), and (e) as paragraphs (d), (e), and
(f), by adding new paragraph (c), and by revising the parenthetical
text at the end of the section to read as follows:
Sec. 178.129 Record retention.
* * * * *
(b) Firearms transaction record. Licensees shall retain each Form
4473 and Form 4473(LV) for a period of not less than 20 years after the
date of sale or disposition. Where a licensee has received a
transaction number from NICS for a proposed firearms transaction, but
the sale, delivery, or transfer of the firearm is not made, the
licensee shall record the transaction number on the Form 4473, and
retain the Form 4473 for a period of not less than 5 years after the
date of the NICS inquiry. Forms 4473 shall be retained in the
licensee's records as provided in Sec. 178.124(b): Provided, That Forms
4473 with respect to which a sale, delivery or transfer did not take
place shall be separately retained in alphabetical (by name of
transferee) or chronological (by date of transferee's certification)
order.
(c) Statement of intent to obtain a handgun, reports of multiple
sales or other disposition of pistols and revolvers, and reports of
theft or loss of firearms. Licensees shall retain each Form 5300.35
(Statement of Intent to Obtain a Handgun(s)) for a period of not less
than 5 years after notice of the intent to obtain the handgun was
forwarded to the chief law enforcement officer, as defined in
Sec. 178.150(c). Licensees shall retain each copy of Form 3310.4
(Report of Multiple Sale or Other Disposition of Pistols and Revolvers)
for a period of not less than 5 years after the date of sale or other
disposition. Licensees shall retain each copy of Form 3310.11 (Federal
Firearms Licensee Theft/Loss Report) for a period of not less than 5
years after the date the theft or loss was reported to ATF.
* * * * *
(Paragraph (c) approved by the Office of Management and Budget under
control numbers 1512-0520, 1512-0006, and 1512-0524; Paragraph (f)
approved by the Office of Management and Budget under control number
1512-0526; all other recordkeeping approved by the Office of
Management and Budget under control number 1512-0129)
Sec. 178.130 [Removed]
10. Section 178.130 is removed.
11. Section 178.131 is revised to read as follows:
Sec. 178.131 Firearms transactions not subject to a NICS check.
(a)(1) A licensed importer, licensed manufacturer, or licensed
dealer whose sale, delivery, or transfer of a firearm is made pursuant
to the alternative provisions of Sec. 178.102(d) and is not subject to
the NICS check prescribed by Sec. 178.102(a) shall maintain the records
required by paragraph (a) of this section.
(2) If the transfer is pursuant to a permit or license in
accordance with Sec. 178.102(d)(1), the licensee shall either retain a
copy of the purchaser's permit or license and attach it to the firearms
transaction record, Form 4473, or record on the firearms transaction
record, Form 4473, any identifying number, the date of issuance, and
the expiration date (if provided) from the permit or license.
(3) If the transfer is pursuant to a certification by ATF in
accordance with Secs. 178.102(d)(3) and 178.150, the licensee shall
maintain the certification as part of the records required to be kept
under this subpart and for the period prescribed for the retention of
Form 5300.35 in Sec. 178.129(c).
(b) The requirements of this section shall be in addition to any
other recordkeeping requirements contained in this part.
12. Section 178.150 is revised to read as follows:
Sec. 178.150 Alternative to NICS in certain geographical locations.
(a) The provisions of Sec. 178.102(d)(3) shall be applicable when
the Director has certified that compliance with the provisions of
Sec. 178.102(a)(1) is impracticable because:
(1) The ratio of the number of law enforcement officers of the
State in which the transfer is to occur to the number of square miles
of land area of the State does not exceed 0.0025;
(2) The business premises of the licensee at which the transfer is
to occur are extremely remote in relation to the chief law enforcement
officer; and
(3) There is an absence of telecommunications facilities in the
geographical area in which the business premises are located.
(b) A licensee who desires to obtain a certification under this
section shall submit a written request to the Director. Each request
shall be executed under the penalties of perjury and contain
information sufficient for the Director to make such certification.
Such information shall include statistical data, official reports, or
other statements of government agencies pertaining to the ratio of law
enforcement officers to the number of square miles of land area of a
State and statements of government agencies and private utility
companies regarding the absence of telecommunications facilities in the
geographical area in which the licensee's business premises are
located.
(c) For purposes of this section and Sec. 178.129(c), the ``chief
law enforcement officer'' means the chief of police, the sheriff, or an
equivalent officer or the designee of any such individual.
PART 179--MACHINE GUNS, DESTRUCTIVE DEVICES, AND CERTAIN OTHER
FIREARMS
13. The authority citation for 27 CFR Part 179 continues to read as
follows:
Authority: 26 U.S.C. 7805.
14. Section 179.86 is amended by adding a sentence at the end of
the section to read as follows:
Sec. 179.86 Action on application.
* * * In addition to any other records checks that may be conducted
to determine whether the transfer, receipt, or possession of a firearm
would place the transferee in violation of law, the Director shall
contact the National
[[Page 8386]]
Instant Criminal Background Check System.
Signed: December 31, 1997.
John W. Magaw,
Director.
Approved: January 16, 1998.
John P. Simpson,
Deputy Assistant Secretary, (Regulatory, Tariff and Trade Enforcement).
[FR Doc. 98-4215 Filed 2-18-98; 8:45 am]
BILLING CODE 4810-31-P
